Bian and Australian Capital Territory (Compensation)

Bian and Australian Capital Territory (Compensation) [2023] AATA 1278 (18 May 2023)
Division:GENERAL DIVISION
File Number(s): 2021/1949
Re:Shefang Bian
APPLICANT

AndAustralian Capital Territory
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:18 May 2023
Place:Canberra

The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 and makes a decision in substitution that the Respondent continues to be liable to pay compensation to the Applicant pursuant to sections 16 and 21 of the Safety, Rehabilitation and Compensation Act 1988.
Any written submissions regarding the issue of costs in this proceeding pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988 may be given to the Tribunal by the Applicant within seven days of the date of this decision and by the Respondent within 14 days of this decision.
.....................[SGD].......................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – whether applicant’s psychiatric condition is attributable to her employment as a teacher – whether injury resulted in post-traumatic stress disorder – whether psychiatric problem is a permanent mental impairment – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 s 43(1)(c)
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A(1)(a), 5B, 5B(3), 14(1), 16, 21, 67, 67(8)
Cases
Comcare v Mooi [1996] FCA 1587
Other materials
American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision, Washington DC, American Psychiatric Association, 2022
REASONS FOR DECISION
Member W Frost
18 May 2023
INTRODUCTION

The Applicant, Ms Shefang (or Sophie) Bian, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision made on behalf of the Respondent, the Australian Capital Territory (ACT), affirming a determination made in 2021 that it had no present liability to pay her compensation for medical treatment or incapacity under sections 16 and 21 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in relation to her accepted condition of ‘adjustment reaction with anxious mood (unspecified)’.[1]
[1] Exhibit 1, pages 2-5 and 395-399.
In 2007, Ms Bian made a workers’ compensation claim for an ‘Adjustment disorder with depressed mood’ following multiple events while employed as a Chinese language teacher at secondary schools administered by the ACT.[2] In 2009, by way of an agreement between Ms Bian and Comcare (who was then the responsible insurer under the SRC Act), a differently constituted Tribunal determined that her condition was significantly contributed to by her employment with the ACT and compensation was therefore payable under section 14 of the SRC Act.[3]
[2] Ibid., pages 16-31.
[3] Ibid., pages 178-180.
In 2016, Ms Bian was retired from employment due to invalidity and received compensation as a result of her condition being a permanent impairment under the SRC Act.[4] Ms Bian continued to receive compensation for her condition until this was ended by way of the aforementioned determination made in 2021, which was affirmed in February 2021, being the decision the subject of this Tribunal proceeding.[5]
[4] Exhibit 15, pages 111-112.
[5] Exhibit 1, pages 2-5 and 395-399.
The Tribunal has considered all of the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with the evidence and submissions provided on behalf of the parties. For the reasons that follow, the Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the AAT Act and makes a decision in substitution that the ACT continues to be liable to pay compensation to Ms Bian pursuant to the SRC Act.
ISSUES
The issues for the Tribunal to decide in this proceeding are:
(a)whether Ms Bian continues to suffer the ‘injury’ pursuant to the SRC Act, however expressed in diagnostic terms and however it may have changed over time, which was the subject of her workers’ compensation claim in 2007;
(b)if so, whether any condition suffered by Ms Bian continues to be significantly contributed to by her previous employment with the ACT;
(c)if so, whether Ms Bian needs medical treatment in relation to that condition; and
(d)whether that condition results in an incapacity for employment.
BACKGROUND
Ms Bian is 58 years old.[6] She was born in China and has three adult children.[7]
[6] Ibid., page 18.
[7] Ibid., page 86.
In 1995, Ms Bian commenced teaching in the ACT.[8]
[8] Ibid., page 32; Exhibit 2, page 1.
In 2007, Ms Bian accepted an offer to work at both Dickson College and Lake Ginninderra College pursuant to a ‘time-share’ arrangement.[9]
[9] Exhibit 1, page 32.
In or around May 2007, Ms Bian had an operation in relation to her breast cancer.[10] She reportedly returned to her teaching role within two weeks, but subsequently underwent radiotherapy from approximately August to October 2007.[11]
[10] Ibid.; Exhibit 3, pages 2-3 and 59.
[11] Ibid., pages 32 and 88; Exhibit 3, page 69.
On 10 September 2007, Ms Bian presented to her general practitioner, Dr Catherine Khong, who reported that Ms Bian complained that she ‘has been “breaking down” recently’, while working as college teacher, saying that the principal is not friendly to her’.[12] Ms Bian was given a sample of Avanza and referred to a psychologist.[13]
[12] Exhibit 3, page 58.
[13] Ibid., page 59.
On 13 September 2007, Ms Bian attended on Ms Thenia Papantoniou, Psychologist, and provided a history of ‘feeling unwell for four weeks’.[14] She reportedly talked about her ‘physical health issues’, ‘as well as a work-related issue believed to have caused a lot of her stress (rather than her illness)’.[15] It was also noted that Ms Bian ‘personally knew some students and/or their families as members of the Chinese community. This is perceived to have added to the situation’.[16]
[14] Ibid., pages 57-59.
[15] Ibid., page 57.
[16] Ibid., page 58.
On 14 September 2007, it was recorded that Ms Bian gave a history to Dr Khong that included a difficult relationship with the school principal, students questioning her marking of their work, the principal accusing Ms Bian of being late for work and students complaining that she was ‘belittling them’.[17] It was noted that Ms Bian had been placed on a ‘Pathways to Improvement’ program, had poor sleep over the last four weeks, had lost seven kilograms and ‘last week cried in front of class’.[18] Dr Khong completed a Mental Health Plan in relation to what was diagnosed as ‘depression’, but also referred to as an ‘Adjustment disorder with depressed mood’, reported to be reactive to ‘work stressors’.[19] Dr Khong also recorded that Ms Bian said that her ‘reputation is ruined’, her life ‘is meaningless’ and that she keeps thinking ‘of what has happened in class’.[20] Ms Bian stated that she ‘is not comfortable with speaking to other ppl about her problems – apologised multiple times for crying and saying she only came for sleeping tablets’.[21]
[17] Exhibit 1, page 7.
[18] Ibid. see also Exhibit 3, pages 58-59.
[19] Exhibit 1, pages 7-11 and Exhibit 3, pages 61-64.
[20] Exhibit 1, page 7.
[21] Ibid.
From September 2007 to March 2008, Ms Bian attended 11 psychological counselling sessions.[22] These addressed ‘a number of work related concerns, in addition to heath and general life issues’.[23]
[22] Ibid., page 165.
[23] Ibid.
On 28 September 2007, Dr Watson, General Practitioner, stated in a referral for Ms Bian that ‘some chinese parents have put this lady under alot of pressure regards trying to get her to falsify there children results’ [errors in original].[24]
[24] Ibid., page 65.
In October 2007, Ms Bian continued to report ‘distress’ regarding her ‘work related issues’, but this oscillated between what was said to be very low mood and an improved mental state.[25]
[25] Exhibit 3, pages 53-56.
On 16 October 2007, Ms Bian made a claim for workers’ compensation for ‘Adjustment disorder with depressed mood’ sustained on 6 September 2007, following several alleged workplace incidents, and for which she sought medical treatment on 10 September 2007.[26] In support of her claim, Ms Bian provided her own written statements dated 22 October 2007 and 15 February 2008 regarding a number of alleged adverse events during her employment, in August and September 2007, that caused her condition.[27] These allegations, contained in the October 2007 statement, included that:
(a)the Principal of Lake Ginninderra College spoke to Ms Bian within earshot of her class regarding the requirement to attend school at a particular time and stated that ‘if you can’t do it, I’ll get someone else to do this job’.[28] Ms Bian stated that she ‘could not cope with the conversation and was upset by the disrespectful way he spoke to me in front of the whole class’;[29]
(b)at Dickson College, a student’s mother ‘(who is well known in the Chinese community) waited for me twice at the car park’ of the school and ‘asked me to “take care” of her daughter and her nephew’ in terms of grading for the Chinese language subject taught by Ms Bian;[30]
(c)subsequently, the mother ‘was angry at me’, ‘rang me at work’, ‘threatened me’ and ‘badmouthed me with other students and the Chinese community’ because her daughter received a low final score for semester one compared to that received from another teacher the previous year;[31]
(d)students complained about their marks from Ms Bian;[32]
(e)on 16 August 2007, the aforementioned student’s father ‘stopped me at the front door of Dickson College’, ‘waved his arm in front of my face and threatened me in front of the students and staff’, leaving Ms Bian ‘shocked’ and ‘in tears’, however rather than being ‘comforted for what had just happened’, ‘I was blamed with a list of complaints’ by school staff;[33]
(f)the particular student ‘shouted at me in English in front of other students, “You are not qualified to assess me and you will never assess me again. Go and ask them (school management)”, leaving Ms Bian ‘shocked and shaking uncontrollably’;[34]
(g)at around this time, at a meeting including the school principal, Ms Bian was placed on a ‘Pathways to Improvement’ plan by the school, but she maintained that ‘it was all wrong’ due to ‘misunderstandings and the differences between the scores given by me and my predecessor’ and that she ‘had been threatened by students and a parent’ and ‘had been very depressed and had been taking sleeping tablets’;[35]
(h)following this meeting, and upon resuming teaching duties, Ms Bian ‘felt that I was not trusted, betrayed and humiliated’, she ‘had a breakdown and had to leave the school’ and subsequently sought medical assessment.[36]
[26] Exhibit 1, pages 16-31.
[27] Ibid., pages 32-37 and 100.
[28] Ibid., page 33.
[29] Ibid.
[30] Ibid., page 33.
[31] Ibid., page 34.
[32] Ibid.
[33] Ibid., page 35.
[34] Ibid.
[35] Ibid., pages 35-36.
[36] Ibid., page 37.
In November 2007, the Principal of Dickson College provided a report to Comcare regarding Ms Bian’s workers’ compensation claim, which report relevantly referred to ‘an exchange in Chinese’ between Ms Bian and the parents of a student in August 2007 as they ‘were leaving the building’, following which the Principal stated that she:[37]
escorted the parents out of the building and engaged in a conversation where I pointed out the inappropriateness of their behaviour. After a short time they apologised and recognised that their reaction had not helped the situation…
[37] Ibid., page 49.
In December 2007, the Principal of Lake Ginninderra College provided a report to Comcare stating that he did not support Ms Bian’s workers’ compensation claim as it related to her employment with his school.[38]
[38] Ibid., pages 83-84.
On 13 February 2008, Dr Watson recorded that Ms Bian was ‘still very fragile’.[39]
[39] Exhibit 3, page 47.
On 15 February 2008, Ms Papantoniou, Psychologist, recorded that Ms Bian was still ‘very traumatized and depressed by her experience’.[40]
[40] Ibid.
On 16 February 2008, Comcare made a determination rejecting Ms Bian’s claim for compensation for ‘adjustment reaction with anxious mood’ under section 14 of the SRC Act.[41] Comcare was satisfied that Ms Bian’s employment contributed to her condition in a significant degree and that there were ‘no other relevant contributing factors, such as those prescribed in subsection 5B(2) of the SRC Act, for example, medical predisposition, activities not related to employment’.[42] However, Comcare found that Ms Bian’s condition ‘resulted from your placement on a “Pathways to Improvement” program’, amounting to reasonable administrative action undertaken in a reasonable manner in connection with her employment.[43] Therefore, pursuant to section 5A of the SRC Act, Ms Bian was denied compensation.
[41] Exhibit 1, pages 101-106.
[42] Ibid.
[43] Ibid.
On 21 February 2008, Ms Bian attended on Ms Papantoniou, who recorded that Comcare had ‘rejected her claim’ and that Ms Bian was ‘crying loudly and uncontrollably for a long time’.[44]
[44] Exhibit 3, page 47.
On 28 February 2008, Ms Papantoniou reported that Ms Bian’s ‘mood was substantially stabilised since our last appt’, but she was ‘comfortable disputing’ the rejected compensation claim and maintained that ‘harassment’ caused her condition.[45]
[45] Ibid., pages 46-47.
From March to December 2008, it was reported that Ms Bian had a ‘fluctuating course’, with her moods ‘up and down’, ‘stress’ and ‘depression’ were noted, with no change to her presentation or medication regime.[46]
[46] Ibid., pages 42-45.
On 5 June 2008, following a request by Ms Bian for reconsideration,[47] Comcare affirmed its determination declining liability to pay her compensation under the SRC Act.[48] Ms Bian applied to the Tribunal for review of that decision.
[47] Exhibit 1, pages 114-153.
[48] Exhibit 15, pages 1-9.
On 21 August 2008, Ms Papantoniou opined that Ms Bian would ‘strongly benefit from a workshop focusing on Life Balance issues, as she struggled significantly to reach a reasonable equilibrium in this regard. She presented with a number of concerns, including, relationship issues, future career focus and establishing a helpful perspective on life’.[49]
[49] Exhibit 1, page 165.
In October 2008, an ‘Initial Needs Assessment’ was completed in relation to Ms Bian.[50] It recorded that Ms Bian had not been receiving psychological intervention due to her financial situation, she was ‘ok’ to commence a graduated return program and Dr Watson was also supportive of this step.[51] It was recommended, among other things, that suitable modified work duties for Ms Bian be identified in order for her to undertake a graduated return to work program on reduced hours.[52]
[50] Ibid., pages 167-173.
[51] Ibid., page 172.
[52] Ibid.
On 3 February 2009, Ms Bian commenced a graduated return to work program performing administrative duties at an educational centre in the ACT, which, by 4 March 2009, had increased to four hours on three days each week and, by September 2009, was four and a half hours on two days each week.[53] In September 2009, Ms Bian’s clinical notes recorded that work was ‘going well’ and that there were ‘no current issues or concerns’, although Ms Bian had related a number of other stressors impacting upon her at that time.[54] Ms Bian did not continue this return to work program beyond the end of 2009.
[53] Ibid., pages 175 and 191.
[54] Exhibit 3, page 34.
On 18 February 2009, Dr Watson, General Practitioner, reported that Ms Bian had slightly improved symptoms.[55] The same entry was recorded at a consultation on 3 March 2009, but on 30 March 2009, Dr Watson reported that Ms Bian ‘has ongoing mental ill health’ and ‘all symptoms of poor sleep and agitation are still evident’.[56]
[55] Ibid., page 42.
[56] Ibid., page 41.
In 2009, Ms Bian separated from her husband.[57]
[57] Exhibit 1, page 229.
On 7 May 2009, a differently constituted Tribunal made a decision pursuant to subsection 42C(1) of the AAT Act, following agreement between Ms Bian and Comcare as to the terms of a decision in that Tribunal proceeding.[58] The Tribunal set aside the reviewable decision dated 5 June 2008 and in substitution relevantly decided that, on 10 September 2007, Ms Bian sustained an ailment, being an ‘adjustment reaction with anxious mood’, that was significantly contributed to by her employment with the ACT and that compensation was payable under section 14 of the SRC Act.[59]
[58] Ibid., pages 178-180.
[59] Ibid.
On 8 May 2009, Dr Watson recorded that Ms Bian’s ‘situation remains unchanged’ and that her ‘symptoms are exhibiting same features’.[60]
[60] Exhibit 3, page 40.
On 20 May 2009, Dr Watson referred Ms Bian to Dr William Knox, Psychiatrist.[61]
[61] Ibid., page 183.
In or around June 2009, Ms Bian began treatment with Dr Knox.[62] He recommended Ms Bian have fortnightly ‘supportive psychotherapy’ for three months ‘to move ahead with her work, personal and family life’, noting in a letter to Comcare that her then ‘present entitlements’ expired on 8 July 2009.[63] Dr Knox did not continue to see Ms Bian from ‘mid-2009’.[64]
[62] Ibid., page 184.
[63] Ibid.
[64] Exhibit 11.
On 6 July 2009, Dr Watson informed Comcare that he had been reviewing Ms Bian ‘on a regular two monthly basis’ and that her ‘mental and physical health remains quite fragile’.[65] In response to a question from Comcare regarding requested psychological assistance, Dr Watson considered it would be ‘appropriate for her to see the psychologist 2 times per month and the psychiatrist once every 3 months’.[66]
[65] Ibid., page 185.
[66] Ibid., page 186.
In November 2009, Ms Emma Prime, Psychologist, reported that Ms Bian was ‘stuck on wondering what is wrong with her in relation to why she experienced those workplace problems’.[67]
[67] Exhibit 3, page 32.
In April 2011, a differently constituted Tribunal set aside a decision of Comcare and in substitution decided that Ms Bian had a reasonable excuse under the SRC Act for failing to comply with her rehabilitation program and that suspended compensation payments should recommence.[68]
[68] Exhibit 15, pages 54-84.
In September 2011, Dr Watson recorded that ‘spoken with Dr [L]eon Li Leu’, Occupational Physician, and that Ms Bian was ‘clearly unwell not able to return to work for aleast [sic] for 6-12 months’.[69]
[69] Exhibit 3, page 25.
In September 2013, Ms Bian made a compensation claim for permanent impairment and non-economic loss under the SRC Act in relation to her compensable condition.[70]
[70] Exhibit 15, pages 85-95.
On 1 November 2013, Ms Bian commenced seeing Dr Murali Reddy, Psychiatrist, who recorded the presenting complaint as ‘Depression – unresolved’ and made a diagnosis of Major Depressive Disorder ‘chronic, poor motivation – complicated by work cover issues’.[71] Dr Reddy’s ‘Recommendations/Plan’ was stated to be ‘organic work up’, ‘PRISTIQ trial’, ‘monthly review’ and ‘support total and permanent disability’.[72] Later that month, on 29 November 2013, Dr Reddy recorded in his clinical notes that Ms Bian reported ‘some improvement in mood’, but she ‘continues to be bothered by insomnia, fatigue, and negative pattern of thinking’, and that she has ‘death wishes’, but no active suicidal ideation.[73]
[71] Exhibit 1, page 270 and Exhibit 3, pages 92-93 and 141-142.
[72] Exhibit 3, page 93.
[73] Ibid., page 94.
In February 2014, Dr Reddy recorded that Ms Bian’s mood had ‘improved’ and she had ‘better social functioning’.[74] However, in March 2014, Dr Reddy recorded that Ms Bian had, among other things, ‘insomnia +’, ‘fluctuating mood’, she was ‘not interested in shopping nor socialising’ and ‘everyday becomes effort’, with her ‘joy & happiness’ ‘slowly waning’.[75]
[74] Ibid., page 95.
[75] Ibid.

On 20 May 2014, Comcare determined that Ms Bian suffered a 10% degree of permanent impairment.[76]
[76] Exhibit 15, pages 96-103.
On 23 May 2014, Dr Reddy recorded that Ms Bian was ‘not bitter about work injury or comcare [sic] issues’.[77] She was reportedly ‘socially active’ and was ‘less labile in mood’, with no ‘suicidal thinking’.[78]
[77] Exhibit 3, page 97.
[78] Ibid.
In July 2014, Dr Reddy recorded that Ms Bian’s medication compliance was erratic, her motivation and self-care were poor, she was ‘spending time in bed’ and relied on her mother for some activities of daily living.[79] He also noted that Ms Bian ‘did not enjoy USA trip’ and that she was ‘keen to apply for re-consideration’ of Comcare’s determination regarding her permanent impairment claim.[80]
[79] Ibid., page 98.
[80] Ibid.
On 14 October 2014, following Ms Bian’s request for reconsideration, Comcare varied its determination, resulting in an increase in her compensation for non-economic loss under the SRC Act.[81] Ms Bian applied to the Tribunal for review of this decision.
[81] Exhibit 15, pages 104-110.
On 28 October 2014, the ACT referred Ms Bian’s case to Comcare (as its then insurer under the SRC Act) for ‘assessment and support for commencement of the invalidity retirement process’, and also referred to its request for ‘urgent consideration and support for the invalidity retirement of Ms Shefang Bian’.[82] The correspondence noted that Ms Bian ‘has not worked since 18/12/2009 and continues to be certified unfit for work’.[83]
[82] Exhibit 1, pages 324-325.
[83] Ibid., page 324.
On 31 October 2014, Dr Reddy recorded that Ms Bian was not sleeping, had headaches, was not compliant with her medication regime and had lost weight.[84] He also recorded that Ms Bian has no ‘desire to get better’ and ‘no energy’.[85]
[84] Exhibit 3, page 100.
[85] Ibid.
In December 2014, Comcare informed the ACT that it supported ‘the application for invalidity retirement’ of Ms Bian.[86]
[86] Exhibit 1, pages 326-327.
In June 2015, Dr Reddy recorded that Ms Bian’s ‘depression’ was ‘unimproved’; she had ‘occasional’ happiness and ‘few’ ‘good times’, although Ms Bian was reported to have no issues with ‘Comcare’ and was ‘pleased with supports’.[87]
[87] Exhibit 3, page 106.
By 31 July 2015, Dr Reddy recorded that Ms Bian’s ‘depression’ was ‘worse’.[88]
[88] Ibid., page 107.
On 5 August 2015, Ms Bian was admitted to Calvary Hospital following ‘suicidal thoughts and depressive mood’.[89] She was discharged on 20 August 2015.[90]
[89] Exhibit 3, page 162.
[90] Ibid.
On 6 November 2015, Dr Reddy recorded that Ms Bian told him that people from the ‘Department of Education’ ‘are following me’.[91]
[91] Ibid., page 109.
On 19 February 2016, Dr Reddy recorded that Ms Bian was ‘traumatised by work place’.[92]
[92] Ibid., page 111.
On 10 March 2016, Ms Bian was medically retired from her employment with the ACT.[93] The accompanying notice provided to Ms Bian stated that the delegate was ‘satisfied on reasonable grounds that you are unable to perform duties appropriate to your classification because of physical or mental incapacity’.[94]
[93] Exhibit 1, page 349 and Exhibit 2, page 19.
[94] Exhibit 2, page 19.
In April 2016, Ms Bian was taken by police to the Mental Health Short Stay Unit at The Canberra Hospital having being ‘found with knife threatening harm to self and possibly partner’.[95]
[95] Exhibit 3, pages 167-170.
On 26 May 2016, following agreement between Ms Bian and Comcare, a differently constituted Tribunal decided, pursuant to subsection 42C(2) of the AAT Act, that Ms Bian was entitled to compensation under section 24 of the SRC Act for a permanent impairment rating of 25% whole person impairment and compensation for non-economic loss under section 27 of the SRC Act in relation to her ‘adjustment reaction with anxious mood’.[96]
[96] Exhibit 15, pages 111-112.
In November 2016, Dr Reddy recorded that Ms Bian was feeling ‘energetic and happy in all aspects of life’, although she was ‘unhappy with her ex-husband’, but had no ‘distress regarding work or Comcare’.[97]
[97] Exhibit 3, pages 114-115.
On 6 January 2017, Dr Reddy recorded that Ms Bian has been able to ‘come off PRISTIQ successfully’, she had no ‘acute medical concerns’, was ‘motivated to exercise’ and ‘socially engaged’ and planning to travel.[98] He also noted that Ms Bian had no ‘issues with family or Comcare’.[99]
[98] Ibid., page 117.
[99] Ibid.
On 6 October 2017, Dr Reddy recorded that Ms Bian’s sleep problems persist, is emotionally ‘sensitive’, ‘easily moved to tears’, has a ‘racing mind’, but was not ‘too stressed about Comcare or work place problems’.[100]
[100] Ibid., page 119.
In December 2017, Dr Reddy recorded that Ms Bian complained of ‘poor sleep’ and ‘low mood’, a financial settlement with her husband was ‘getting complicated’ and ‘messy’, a relationship with another man was ‘very messy’, and Ms Bian was described as ‘overwhelmed, tired, lethargic’ and feeling ‘anxious/agitated’.[101]
[101] Ibid., page 120.
In February 2018, Dr Reddy recorded that Ms Bian had ‘significant’ stress regarding her relationship.[102] He also recorded Ms Bian as experiencing ‘insomnia, ruminations, distress, mixed feelings’ and ‘uncertainties about future’ with ‘insomnia ++++ due to ruminations and stress’.[103] Dr Reddy reinstated Pristiq to Ms Bian’s medication regime.[104]
[102] Ibid., page 122.
[103] Ibid.
[104] Ibid.
In May 2018, Dr Reddy recorded that Ms Bian ‘feels safe, no guilt or paranoia’, had no issues regarding the financial settlement with her husband and psychologically reported to be ‘stable’.[105]
[105] Ibid., page 123.
In September 2018, Dr Reddy recorded that Ms Bian was ‘up & down’, she had insomnia and was ‘afraid to sleep’, the property settlement with her husband was ‘nasty & bitter’, and she was supporting her friend with his marital dispute.[106] Ms Bian’s medication was increased.[107]
[106] Ibid., page 124.
[107] Ibid., page 125.
In November 2018, Dr Reddy recorded that Ms Bian’s sleeping was ‘poor’, she had ‘stress’ regarding property issues with her former husband, ‘lots of legal expenses’ associated with these matters and that it ‘is such a mess’ and ‘worse than before’.[108] However, Ms Bian’s finances were recorded as being ‘okay’, with payments from Comcare referred to in the notes, but she is ‘paranoid and fearful’ in relation to her former husband.[109] Dr Reddy further recorded that ‘Sophie is dealing with situational crisis very similar that she had with work and Comcare’ and that she was ‘feeling overwhelmed’, ‘deceived & cheated’, ‘helpless and hopeless’, ‘paranoid’ and ‘feeling stuck’.[110] Ms Bian’s Pristiq medication was again increased.[111]
[108] Ibid., page 125.
[109] Ibid., page 126.
[110] Ibid.
[111] Ibid., page 127.
In January 2019, Dr Reddy recorded that Ms Bian had ‘stress dealing with ex-husband’, including due to delays in ‘property settlement’. He also recorded that during Ms Bian’s recent travel to China she had ‘good mental & physical health’ and did not take her medication, but in Australia Ms Bian ‘becomes lethargic’ and ‘depressed’ and that she was planning to relocate to China after the property settlement because it provided her with ‘good memories’ and ‘happiness’.[112] Dr Reddy further recorded that Ms Bian had ‘no sleep; no energy, low mood, stressed, recurrence of headache’ and ‘low appetite’ and she was ‘more depressed in response to dealing with situational factors’.[113]
[112] Ibid.
[113] Ibid., page 128.
In May 2019, Dr Reddy recorded that Ms Bian was ‘[s]truggling to get property settlement’, with her former husband ‘proving to be difficult’. She was reported to be ‘mentally exhausted’, not sleeping, having no appetite and poor ‘memory and concentration’, with ‘suicidal thoughts’ and having lost ‘trust with human beings’.[114] Dr Reddy also recorded that Ms Bian had ‘[n]o stress with Comcare/EML [Employers Mutual Limited (EML)]’.[115] He also encouraged Ms Bian to trial an increase of her Pristiq medication.[116]
[114] Ibid., page 130.
[115] Ibid., page 131.
[116] Ibid.
In September 2019, Dr Reddy recorded that Ms Bian was forgetting to ‘take meds’, she had no appetite’, the Court case regarding the property dispute with her former husband was continuing and Ms Bian’s ongoing stress concerned matters relating to her former husband.[117] Dr Reddy also recorded that Ms Bian was not complying with her medication regime.[118]
[117] Ibid.
[118] Ibid., page 132.
In November 2019, Dr Reddy recorded that Ms Bian was experiencing ‘stress dealing with ex-husband’, she felt overwhelmed and was ruminating about ‘dysfunctions dealing with husband’.[119] He noted that Ms Bian’s former husband was ‘aware of Sophie’s mental illness’, he was ‘accusing Sophie of deceptions to Comcare’, she had severe headaches, decreased appetite and sleep and that ‘everything is a mess’.[120] Dr Reddy further recorded that Ms Bian was:[121]
Not following treatment advice – cultural issues and strong views about treatments. Not keen on psychological therapy.
No other source of stress identified
Maladjustment – disturbance in emotion and conduct.
[119] Ibid.
[120] Ibid., page 133.
[121] Ibid.
In January 2020, Dr Reddy recorded that Ms Bian had not ‘taken any medication last 4 weeks’ and that she had stated that ‘I don’t care’.[122] Dr Reddy also recorded ongoing issues regarding Ms Bian’s former husband and the related Court proceeding.[123] She was noted to be feeling ‘helpless and hopeless’, not sleeping well, not ‘keen on taking medications’ and that ‘nothing will help’.[124] Dr Reddy further recorded that:[125]
Maladjusted to social situations, unable to address this with psychiatric reviews.
Needs psychological interventions.
[122] Ibid., page 134.
[123] Ibid.
[124] Ibid.
[125] Ibid., page 135.
In March 2020, Dr Reddy recorded that Ms Bian was not on medication, not sleeping well, had ‘stress’ and was ‘ruminating’.[126] The notes also disclose that the Court proceeding was ‘getting worse’, Ms Bian had visited China and ‘felt harassed by health authorities’, this was ‘stressful’, she was reported to be ‘depressed’ and that her ability to ‘deal with stress is low’.[127] Dr Reddy further recorded that Ms Bian was hearing voices, her ‘mind distorts reading and misinterprets material’, she was ‘misinterpreting’ her children, which was ‘causing problems’, and that ‘psychotic symptoms were prevalent at the onset of illness and during 2N admissions’.[128] Ms Bian was encouraged to commence further medication, comply with that regime and to ‘seek support’.[129]
[126] Ibid., page 135.
[127] Ibid.
[128] Ibid., page 136.
[129] Ibid.
In September 2020, the ACT (then self-insured for the purposes of the SRC Act) requested reports regarding Ms Bian from Dr Reddy, Dr Watson and also from Dr Prabal Kar, Psychiatrist.[130] The subsequent reports produced respectively by Dr Reddy, dated 20 September 2020, and by Dr Kar, dated 29 October 2020, are referred to in further detail below in these reasons.[131]
[130] Exhibit 1, pages 342-345 and 349-355.
[131] See also Exhibit 1, pages 346-348 and 356-389.
On 2 December 2020, EML, on behalf of the ACT, informed Ms Bian that it was proposing to make a decision, based on the opinion of Dr Kar, that ‘you no longer suffer the effects of your compensable condition and your current presentation is not significantly contributed to by your employment’.[132] Ms Bian was invited to provide information to support her ongoing requirement for medical treatment and incapacity payments.[133]
[132] Exhibit 1, pages 390-391.
[133] Ibid.
On 17 December 2020, Dr Reddy recorded that he and Ms Bian discussed Dr Kar’s report and ‘its implications’; she reported ‘stress of losing TPI entitlements’ and in relation to the ongoing Court proceeding against her former husband.[134] Dr Reddy further recorded that:[135]
Sophie claims her marital difficulties are as result of workplace related injuries – mental illness caused by work place [sic] incidents.
Discussed possible maladjustment to social circumstances and poor coping.
Also discussed, limitations of pharmacology and ongoing reviews.
Sophie was keen to continue ongoing psychiatric reviews with the author.
Encouraged to get a GP referral and will review Sophie in March 2021.
Meds as before
- Discussed stress management and need to seek supports to decrease stress
Also encouraged the seek psychological therapy and support.
[134] Exhibit 3, page 137.
[135] Ibid.
On 26 January 2021, Ms Bian wrote to EML regarding her concerns about Dr Kar’s assessment and report, but did not provide any supporting medical information.[136]
[136] Exhibit 1, pages 392-393.
On 28 January 2021, EML determined that the ACT had no present liability to pay compensation to Ms Bian for medical expenses or to make incapacity payments under, respectively, sections 16 and 21 of the SRC Act because it was satisfied that she no longer suffered from the effects of the compensable condition; her ‘current presentation and symptoms of the condition are no longer contributed to in a significant degree by your employment’; and she therefore did not ‘have a requirement for medical treatment or an incapacity for work as a result of your compensable condition’.[137] On the same date, Dr Reddy recorded that Ms Bian was ‘distressed’ about the cessation of her entitlements, she did ‘not have full comprehension of legal processes involved with workers’ compensation’ and was encouraged to seek legal advice.[138]
[137] Ibid., pages 395-399.
[138] Exhibit 3, page 138.
On 10 February 2021, Ms Bian requested a reconsideration of the determination.[139]
[139] Exhibit 1, page 400.
On 25 February 2021, the determination of no present liability under the SRC Act was affirmed on behalf of the ACT.[140] It was decided that the ‘present evidence’ indicated that Ms Bian’s condition of ‘adjustment reaction with anxious mood (unspecified)’ had resolved, but that ‘if you are suffering from a differing psychiatric condition, it is not significantly contributed to by your employment’.[141]
[140] Ibid., pages 2-5.
[141] Ibid., page 5.
On 23 March 2021, Dr Reddy recorded that Ms Bian had received her final workers’ compensation payment, she was ‘struggling to cope’, had engaged legal representation, she had ‘poor memory’, was ‘not taking medications’, she had ‘[g]iven up’, and ‘sees husband standing next to bed with knife’, who was ‘not assisting with financial settlement’.[142] He noted that Ms Bian was angry about Dr Kar’s report, believing their conversation to have been ‘misrepresented’ and she was planning to appeal the reviewable decision made on behalf of the ACT, but finances were the ‘biggest barrier’.[143]
[142] Exhibit 3, page 138.
[143] Ibid. page 139.
On 1 April 2021, Ms Bian applied to the Tribunal for review of the decision made on behalf of the ACT that it had no present liability to pay her compensation under the SRC Act.[144]
[144] Exhibit 1, page 1.
LEGISLATION
Subsection 14(1) of the SRC Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
‘Injury’ is relevantly defined in subsection 5A(1)(a) of the SRC Act to mean ‘a disease suffered by an employee’.
Section 5B of the SRC Act regarding the definition of ‘disease’ states that:
(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 a 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.
This subsection does not limit the matters that may be taken into account.
(3)   In this Act:
significant degree means a degree that is substantially more than material.
Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also defines ‘aggravation’ to include ‘acceleration or recurrence’.
EVIDENCE
Lay evidence
Ms Bian
The Tribunal has considered the two written statements made by Ms Bian during the course of this proceeding dated 11 August 2021 and 2 November 2022.[145]
[145] Exhibits 4 and 5.
Ms Bian also gave evidence at the Tribunal hearing. She confirmed adherence to her written statements, including those made well before the commencement of the proceeding, being those dated 22 October 2007, 15 February 2008 and 12 March 2008.[146] The Tribunal has also considered these statements in making its decision.
[146] Exhibit 1, pages 32-37; 100; and 115-122.
By way of cross-examination, Ms Bian told the Tribunal her ‘only concern’ in or around September 2007 was the ‘workplace harassment’ and not her cancer or financial matters.[147] She agreed that her then husband did not understand the gravity of the cancer.[148] However, Ms Bian told the Tribunal she was at that time ‘not too concerned about the cancer’ or her husband’s lack of understanding.[149] She described the events at her workplace as being ‘the huge event in my life’, she had ‘never been through things like that before’ and they were ‘really upsetting’.[150] In response to a question about whether the workplace issues were the ‘only things that were causing you trouble emotionally at that time’, Ms Bian told the Tribunal they were ‘my main concern at that time’.[151] She rejected the proposition that it was the only thing she told various psychiatrists that was causing her emotional disturbance, stating that she ‘never’ said it was the only thing.[152] Ms Bian told the Tribunal that she did not tell the psychiatrists that she was concerned about her cancer because she was not so concerned, including because of her faith.[153]
[147] Transcript of Proceedings, page 22.
[148] Ibid., pages 22-23.
[149] Ibid., pages 23 and 25.
[150] Ibid., page 24.
[151] Ibid.
[152] Ibid., page 25.
[153] Ibid.
Counsel for the ACT asked Ms Bian whether there reached a point where the workplace issues were not the ‘thing that was causing you emotional distress’.[154] Ms Bian told the Tribunal that ‘this is the major problem and it’s distressed me that much for quite a period of time’.[155] When pressed on whether nothing else has consistently caused her distress, Ms Bian acknowledged that, ‘[o]f course everyone has their ups and downs in their life’ and ‘sometimes’ there are ‘other issues’ requiring her to see a medical practitioner but ‘[a] lot of time it is for the incident at work’.[156]
[154] Ibid. page 26.
[155] Ibid.
[156] Ibid.
Ms Bian told the Tribunal that, before 2016, she saw her psychiatrist mostly in relation to her medication and that, after 2016, she and her husband divorced, with the associated legal proceeding ‘stressing me too’.[157] She acknowledged attending doctors over a number of years from 2016 regarding those proceedings.[158] Ms Bian also agreed that she saw her psychiatrist during this time in relation to emotional distress from interacting with her former husband.[159] She further agreed that her psychiatrist was continuing regular consultations and prescribing medication in response to her emotional state.[160] Ms Bian also agreed that, in 2018, the overwhelming amount of time in consultation was spent discussing issues with her former husband and that she was very distressed by his conduct towards her emotionally and financially.[161] Ms Bian conceded that these concerns, discussed with her psychiatrist, continued in 2019 and 2020.[162] However, she did not agree that during this period from 2018 to 2020 the reason she was seeing her psychiatrist was because of matters concerning the divorce, but noted that this ‘added to my original condition’ which contributed to her ability to deal with the ‘stress’ of the divorce.[163]
[157] Ibid., page 28.
[158] Ibid.
[159] Ibid.
[160] Ibid., page 29.
[161] Ibid.
[162] Ibid., page 30.
[163] Ibid., page 30 and 32.

Ms Bian was referred to an entry from her psychiatrist, Dr Reddy, from 17 May 2019, in which he recorded: ‘No stress w comcare/EML’.[164] She told the Tribunal that:[165]
I mean at that time Comcare and EML didn’t really give me any pressure or stress. Normally they will stop my medication, they wouldn’t approve my medication. At that time they didn’t, they were just (indistinct) with them.
[164] Exhibit 3, page 131.
[165] Transcript of Proceedings, page 34.
Counsel put to Ms Bian that the issues with her husband were affecting her sleep, appetite, relationships and medication compliance. She told the Tribunal that:[166]
I always have these problems. It’s not only suddenly, you know, having this problem. These problems from 2007. It’s just that time when I’m – you know, it was starting to file for divorce and things and it just probably added on.
[166] Transcript of Proceedings, page 40.
Counsel referred Ms Bian to 2007. She agreed that she had experienced problems at the school, but not emotional problems in relation to her cancer or husband.[167] Counsel asked Ms Bian whether up until the day of her evidence to the Tribunal the matter that causes her emotional distress is ‘isolated to the work-related incidents’ and she responded that ‘I actually said to you start from 2016 there is divorce and other things too’.[168]
[167] Ibid., page 43.
[168] Ibid., page 50.
Counsel for the ACT asked Ms Bian whether she had disclosed to the psychiatrists, Dr Knox and Dr Spear, the frequency of her attendance on Dr Reddy, the increased medication and the subject matter almost exclusively relating to her husband. Ms Bian told the Tribunal she ‘wasn’t asked for the full disclosure’, but had informed Dr Spear about the divorce and property settlement and that ‘it was very difficult’ and ‘very hard emotionally.[169] Ms Bian further stated that Dr Spear had ‘all my psychiatrist reports’ and she therefore did not need to tell him why she had been seeing a psychiatrist over so many years.[170] Relatedly, Ms Bian also told the Tribunal that she answered all of Dr Knox’s questions and that he also had ‘all the reports from Dr Reddy and previous psychiatrists’.[171] This was also the case with Dr Kar.[172]
[169] Ibid., pages 51-52.
[170] Ibid., page 55.
[171] Ibid., page 56.
[172] Ibid.
Ms Bian agreed that she has told doctors that she only washes weekly and said ‘I’m still doing that’, which has been happening ‘since 2007’, except on special occasions, such as a birthday or before socialising.[173] This is because she does not emotionally and physically have ‘the energy’.[174]
[173] Ibid., page 58.
[174] Ibid.
Ms Bian agreed that she has travelled overseas to China on a number of occasions since 2007, in addition to visiting the United States of America, Africa and Japan.[175] Ms Bian told the Tribunal she has been to China on three or four occasions since 2007, because ‘China is my home, my country’.[176] She agreed that she feels better when travelling.[177] When it was put to Ms Bian that she has motivation to travel but not bathe more than weekly, she said: ‘When I’m travelling, I think it takes away some of my stress and all these things. I don’t know. I can’t explain but, yes…’[178]
[175] Ibid.
[176] Ibid., page 59.
[177] Ibid.
[178] Ibid.
Ms Bian was referred to Dr Reddy’s notes of 4 November 2016, in which he recorded that she had ‘no distress regarding work or Comcare’.[179] Ms Bian told the Tribunal this was because Dr Reddy was aware of previous issues regarding her compensation claim. She also said that ‘was probably the best of my time for a long period of time because compared to what I’ve been through, that period of time was fine, yes’.[180] This continued into October 2017 when Dr Reddy again recorded that Ms Bian was ‘[n]ot too stressed about Comcare or work place problem’.[181] She agreed that ‘Comcare did give quite peaceful time during that period of time’ and this was assisted by a doctor she was then dating ‘monitoring me like emotionally and everything’.[182] This relationship ended in or around December 2017.[183] She denied this had ‘much impact’ on her emotional wellbeing.[184] To this end, in response to the proposition that Ms Bian took additional medication around this time because she was not well, she said:[185]
But, this is what you think. I wasn’t thinking that way. Yes, I did feel a bit upset for what happened but the purpose of why I take this random medication was I noticed I used them in the past and I thought there is only few left in the box and I don’t want to waste them so I thought I take this and I stop Quetiapine. Then Dr Reddy said, “You can’t do that. You have to let me know when you try to change your medication”. I thought, no, I used them before it was fine and there’s only two or three tablets left in the box and I don’t want to throw them to the bin so I take this medication and then I stop taking Quetiapine and that was a mistake but I didn’t really have thinking that complicated in my mind, it’s not (indistinct words). I wasn’t think that much to be honest.
[179] Exhibit 3, page 115.
[180] Transcript of Proceedings, page 60.
[181] Ibid., page 61.
[182] Ibid., pages 61-62.
[183] Ibid., page 63.
[184] Ibid.
[185] Ibid., page 65.
Ms Bian further told the Tribunal that she felt guilt, rather than stress, about this relationship.[186] She could not recall Dr Reddy increasing her medication in May 2018 and said that he was ‘up and down with medication’ because its effectiveness for her changed.[187] In relation to Ms Bian’s occasional self-administration of medication, Counsel for the ACT asked whether her evidence was that she only took the medication because she did not want to waste it ‘as opposed to you felt a need for it at that time?’ Ms Bian told the Tribunal that ‘I always need medication so far as my psychiatrist say and I know. But, it just like if I don’t take this I will take the others. I do need medication. If I don’t take this one I will take Quetiapine’.[188] She is currently taking Quetiapine, but is ‘not really taking that much’.[189] Ms Bian’s medication regime is sporadic and has been so since 2007, including because of the ‘very strong side effects’.[190] She told the Tribunal ‘[i]f I remember I’ll take them, if I don’t remember I don’t take them’ and that she had not taken any medication on the day of the hearing or the previous day.[191] To this end, Ms Bian gave evidence that, other than her memory, the limitation on taking her medication is that ‘I just don’t care’.[192] This includes medication for her ‘high blood pressure’ and ‘blood sugar’.[193] If someone reminds Ms Bian or gives her the medication she takes it, ‘otherwise I just don’t really care. I don’t take…I just don’t care’.[194] Ms Bian confirmed that she considered the ‘medication for my mental health’ caused her to have side-effects.[195]
[186] Ibid., page 66.
[187] Ibid., pages 66-68. See also Exhibit 3, page 122.
[188] Transcript of Proceedings, page 69.
[189] Ibid.
[190] Ibid., pages 69-70.
[191] Ibid., page 69.
[192] Ibid., page 70.
[193] Ibid.
[194] Ibid.
[195] Ibid., page 71.
Counsel for the ACT asked Ms Bian whether she agreed that from 2017 to 2021 the ‘biggest emotional problem’ she had was with respect to her marriage, property settlement and divorce. She told the Tribunal that it ‘influenced a bit but my problem was already there. It’s probably added up a bit from 2016 but previously I think we were fine’.[196]
[196] Ibid., page 80.
Ms Bian was referred to Dr Spear’s report in which he recorded her recounting ‘an incident when her exit from the school was blocked at the school gate by a group of angry, hostile and threatening parents’.[197] Ms Bian recalled telling Dr Spear about this incident and said ‘that was what happened that time’, but she had ‘always said one set of parents’, not ‘a group of parents’.[198] Ms Bian was further referred to Dr Spear recording that:[199]
She reported that one of these parents was a professional athlete who threatened to hit her and threatened her children if she did not change the marks on the papers.
[197] Ibid., page 80. See also Exhibit 6.
[198] Transcript of Proceedings, pages 80-81.
[199] Ibid., page 81. See also Exhibit 6.
In answer to a question of whether this incident was ‘in your memory’, Ms Bian replied ‘I think so, yes’ and then agreed that this memory was that on one occasion she was confronted by a professional athlete who threatened to hit her.[200] The person was a Chinese man in the company of his wife.[201] Ms Bian told the Tribunal that:[202]
I think first they threaten me and say, “How dare you do that? You are destroying my daughter’s future”. Because, the daughter only do three course when normally people do five courses so they selected the three best. But, the daughter only do three. So Chinese (indistinct words) is a major for her UAR. So if Chinese is down then she couldn’t get into good university and parents basically say, “You are destroying my daughter’s future. How dare you do that. We’ve already told you (indistinct words) and we know each other, why you do this?” And my previous teacher was their friends too and she actually give her quite good score so they quite really angry with me and they want me to change the score.
[200] Transcript of Proceedings, pages 81-82.
[201] Ibid.
[202] Ibid., page 82.
Ms Bian’s evidence was that she had in the first semester been stopped by the student’s mother in the school car park, but these exchanges had not been hostile; the ‘hostility was the second semester’ when, in August 2007, two parents ‘block me in the entrance’.[203] When asked about the exchange, Ms Bian stated that they:[204]
raised voice, they wave arm to me and the parents and students can all see. They didn’t dare to go close. So someone actually went inside to the principal and that was 10 minutes or 15 minutes later the principal come.
[203] Ibid., pages 82-83.
[204] Ibid.
There was no re-examination of Ms Bian following the end of cross-examination, however the Tribunal asked her to explain the incident with the parents at the school gates.[205] Ms Bian replied as follows:[206]
Yes, I think that morning I went to the school to the main entrance and these two parents actually were standing there, they were waiting for me, they were standing there and when I arrived they shouting to me, they were saying, you know, “How dare you destroy my daughter’s future”, you know, “I’ve already told you that her Chinese is not good”, I don’t understand why they say that, “Her Chinese is not good and I asked you to look after her and her first semester score is that bad”. And then, you know, then, “You need to change the mark”. So this what the school want me to do, to change the mark instead of go through the BSSS, go through the appeal for their mark – the school level to BSSS level, they want me simply just change their score. But, if I change their score some other students in the high school (indistinct words) because ACT has got this main (indistinct) which once you put in the spreadsheet it come out differently. Nobody can, you know. But, they want me to change her score to very high so she will have a high score ranking. They talking about ranking. Last year she was ranking second of four classes in the whole college which her Chinese wasn’t that good, it was quite considerable before she was going here. And they said, “You better change it” and, you know, they just wave their arms, you know, “We know your family. We know your children”, because our kids go to the same piano teacher together and, you know, they just like shouting to me and I was crying at that time, I was shaking. Then I think there is quite a lot of people around there, they saw they continually - the husband was really angry, he was, like, spitting out and the wife was saying same thing but not shouting to me but the husband just waved the arms. And I think someone went from other door inside to report to the principal after a while. Firstly, they were standing there looking and I was, like, shaking. And then she said (indistinct words), “We know your kids and we know everything and we know you. How dare you destroy my daughter’s future”. And then someone go inside and call the – I think it was the deputy principal came out and they just escort me inside and I was crying and shaking for a while and there’s no single comfort words from, like, it was like they continued talking about performance. I was, like, I’ve got all this – you know, I’m not bad performance. I was, like, doing my best and I offered their child (indistinct words) more time to their child to help her achieve the Chinese level. And there’s no single comfort and I told them they been threatening me and the school probably need to go through the normal appeal procedure for their marks and that was what happened that time.
[205] Ibid., page 84.
[206] Ibid., pages 84-85.
In response to the Tribunal’s further question about what Ms Bian meant by being threatened, she again said ‘I think the husband just wave arms and, like, shouting to me and also, like, tell me to change the child’s mark’ and Ms Bian then proceeded to tell the Tribunal about the marking and appeal processes and finally said, ‘I was worried for my kids’.[207] In response to the Tribunal’s question about Ms Bian’s concern for her children, she said the father ‘was saying he knows all my family. We all know each other. Canberra is a small community that we are Chinese…’[208] In answer to the Tribunal’s subsequent question about what Ms Bian considered the father meant by saying that he knew her family, she told the Tribunal that:[209]
I was worried that they might harm my kids or something and even I don’t know they were that crazy, but the father looks really mad. Because in Chinese, you know, they really (indistinct words) their children, they want their children to achieve their highest but their daughter, like, only choose three subjects as a major. She doesn’t have any backup.
[207] Ibid., page 85.
[208] Ibid.
[209] Ibid., page 86.
Finally, the Tribunal asked Ms Bian whether the parent made any specific threats to her.[210] She replied, as follows:[211]
He was, like, waving like that. He was talking, like, really – I’m not sure whether he was just too thrilled or he was just threatening. He was, like, waving in front of me and when he speaking spit out on my face (indistinct words) and I was shaking and they blocked the gate so I couldn’t get in and I couldn’t run because the wife was behind me. I was, like, jammed in between. And also they’ve already saying bad words in Chinese community and people come to me saying, “You’re so bad. You’re such a bad teacher. (Indistinct words)”, all this, all that. I’ve already heard from Chinese community before and that day there was (indistinct words) and it was, like, “We know your family, we know your kids”, I thought they definitely know because we went to the same piano teacher for years. It was like that. And at that time, yes, the school didn’t say, you know, “You’ll be fine. If they do this again to you, you call police”, or whatever. None of them. They said nothing. I was just sitting there crying, shaking, for quite a while and when I stopped they tell me that my performance is not good. I was, like, “It’s not true. I’ve got all these reports from the previous school. Every single school wants me to teach. It was excellent ranking”. Like, I am that person, I (indistinct words) do something. I will have to – probably a bit stubborn, I wouldn’t change. Like, my ex-husband was angry with me saying – not angry, just saying, “Why don’t you change the score? You know, you are so upset, you have so abused by the school. Just change the score. Do whatever they want you to do”. And I probably just too stubborn but that was what happened in the incident and I was constantly worried for my kids. I think for some period of time my kids didn’t go to piano teacher. Just like that, we tried to change the date, you know, our regular basis so they wouldn’t know when my kids go there. Probably they want just threaten me, they won’t do anything. But, at that time I was really scared and was, like…
[210] Ibid.
[211] Ibid., page 86.
Following the Tribunal’s questions, Counsel for the ACT asked Ms Bian whether her evidence was that she knew the parents were not going to follow through with their threats because she did not think ‘they were that crazy’.[212] Ms Bian told the Tribunal that they were ‘really mad it appeared to me’, she ‘did have genuine concern of that’ and at the time ‘I was very concerned of that’.[213] Ms Bian further said that she was worried until the father died some years later in or around 2018 or 2019.[214] Counsel asked Ms Bian why there was nothing in the clinical notes about her telling the doctors regarding any ‘persistent fear, concern or indeed what you’ve just said about someone dying’.[215] Ms Bian told the Tribunal that:[216]
I just don’t want to remember it. I just don’t want to repeat all those sad, you know, those upsetting moments. If I tell doctor, then my appointment will be like two hours (indistinct words) every time I see him. It is just not possible.
Medical evidence
[212] Ibid.
[213] Ibid., pages 86-87.
[214] Ibid., page 87.
[215] Ibid., page 87.
[216] Ibid.
Dr Catherine Khong – General Practitioner
On 14 September 2007, Dr Khong noted in a referral letter that Ms Bian presented to her ‘with a history of depression reactive to a perceived injustice at school directed toward her’.[217]
[217] Exhibit 1, page 12.
On 16 January 2008, as requested, Dr Khong provided Comcare with a report which relevantly stated that Ms Bian ‘is suffering from acute adjustment disorder with depressed mood (DSM-IV)’ and that the workplace events ‘play a major part in her illness’.[218] Dr Khong also stated that:[219]
The symptoms she describes, including her pervasive poor self esteem and self-wroth, sleep and appetite disturbance, weight loss, social withdrawal, anhedonia and pervasive low mood which have only occurred since the problems have arisen at school. She has felt unable to cope and return to school. These symptoms were not present during the diagnosis and subsequent treatment of her breast cancer. The details of the school situation are as follows:
At Dickson college, your client became extremely distressed as a result of the school principals’ assessment of her, which resulted in her being placed on an improvement pathway. She stated some students, bitter after having been graded lower than they had wished, had complained about their scores and against Ms Bian to the principal - subsequent to which, the principal had marks adjusted in their favour. Ms Bian states that she had brought on an independent assessor to check on her observations on the students, and asserts that this other teacher had agreed with her. She felt that the principal did not give her a chance to explain her actions, and believed fervently that the principal merely had done this "as a show of power". Despite this, Ms Bian sent a 13 page letter to the principal to state her point of view and to express the extremely distress she had experienced in that situation. Ms Bian also felt distraught by the manner in which parents of the embittered students had forcefully compelled her to change, and thus falsify their childrens marks. She felt that she had been unjustly treated, and often conveys fear of returning, believing that her dignity had been compromised and how "everybody will laugh at me when I go back". [errors in original]
[218] Ibid., pages 95-99.
[219] Ibid., page 97.
Dr Khong did not give evidence at the Tribunal hearing.
Dr Watson – General Practitioner
On 28 September 2007, Ms Bian’s then treating general practitioner, Dr Watson, recorded in a referral letter that ‘some Chinese parents have put this lady under alot [sic] of pressure regards trying to get her to falsify there [sic] children results’.[220]
[220] Ibid., page 13.

In July 2009, following Comcare’s request, Dr Watson provided a response to questions regarding Ms Bian’s medical treatment and referred to her suffering an ‘adjustment disorder with anxious mood whilst undertaking her teaching duties with ACT Department of Education’.[221]
[221] Ibid., pages 185-186.
In 2011, Dr Watson twice reported to Comcare that Ms Bian’s diagnoses were ‘Adjustment disorder with mixed anxiety and depressed mood’ and ‘Major Depression’.[222] Relevantly, Dr Watson recorded that Ms Bian’s marking of students’ work ‘resulted in animated protests by students and by some parents’ and a ‘father of one of these students confronted Ms Bian and threatened her’.[223]
[222] Ibid., pages 220 and 239.
[223] Ibid., page 237.
In 2018, Dr Watson wrote that Ms Bian ‘presented to me with a history of suffering from entrenched depression as a consequence of work-related injury and apparent financial and emotional abuse from her ex-husband. This lady has blunted affect, psychomotor agitation, fatigue, insomnia, interpersonal withdrawal, fleeting suicidal thoughts and anhedonia’.[224]
[224] Exhibit 3, page 176.
Dr Watson did not give evidence at the Tribunal hearing.
Dr Graham George – Psychiatrist
Following a request from Comcare on 12 November 2007, Dr George assessed Ms Bian and relevantly reported on 24 December 2007 that she ‘does meet the requirements for a diagnosis of major depression with anxious mood’, there was no pre-existing or underlying condition’ and that:[225]
The causation factors appear to relate to a lack of perceived support from her Principal, Deputy Principal and executive officer, lack of trust in relation to her teaching ability, intimidation by the Principal whereby she indicated that she had to sign an improvement to performance pathway program’ in earshot of her students and what appears to be harassment from parents and students in relation to the marking system which she had to apply to her students.
…
At this stage her employment appears to have had a significant and lasting effect on her condition.
…
There do not appear to be contributing factors.
[225] Exhibit 1, pages 85-94.
Dr George did not give evidence at the Tribunal hearing.
Dr Virginia Pascall – Occupational Physician
In a report to the ACT dated 10 December 2009, Dr Pascall referred to Dr George’s diagnosis of Ms Bian’s condition as being major depression with anxious mood and stated that it was ‘consistent with her presentation to me’, noting that it was ‘initially triggered off as an adjustment disorder with anxiety and depression, but she certainly did move on to suffering a Major Depression’.[226] Relevantly, Dr Pascall recorded that Ms Bian ‘said that the parents threatened her, accusing her of destroying their daughter’s future and that they would make trouble for her’.[227]
[226] Ibid., pages 197-209.
[227] Ibid., page 198.
Dr Pascall did not give evidence at the Tribunal hearing.
Dr Leon Le Leu – Occupational Physician
Following referral from the ACT for assessment of Ms Bian, Dr Le Leu opined in a report dated 27 September 2011 that Ms Bian had ‘a range of symptoms consistent with depression and her presentation’ and that, based on her history and without ‘clinical signs’, she has an ‘adjustment disorder with depressed mood’.[228] Relevantly, Dr Le Leu recorded a history taken from Ms Bian that included the parents of one child making ‘complaints and allegedly threatened’ her.[229]
[228] Ibid., pages 223-231.
[229] Ibid., page 225.
Dr Le Leu did not give evidence at the Tribunal hearing.
Dr James Hundertmark – Psychiatrist
On 27 May 2013, Dr Hundertmark reported to Comcare and diagnosed Ms Bian with ‘a Major Depressive Disorder’, which is ‘an ongoing depressive concern’.[230] He recorded Ms Bian’s originating complaints to have stemmed from ‘poor treatment in the workplace whilst teaching at the Dickson and Lake Ginninderra Colleges’ and that ‘her method of teaching was viewed negatively and there after complaints were made about her teaching by parents’.[231] Dr Hundertmark further stated that Ms Bian as follows:[232]
[230] Ibid., pages 262-269.
[231] Ibid., page 262.
[232] Ibid., pages 265-268.
is vulnerable to fluctuations in her depressive state over a period of time. The possible aetiological factors include an episode of possible postnatal depression, workplace issues in 2007, her breast cancer diagnosis and related treatment in 2007 and her marital breakdown in 2009. It is possible that there are unknown genetic factors involved.
…
Overall the postnatal issues did not appear to be particularly significant. Secondly, Ms Bian suffered breast cancer and associated treatment around the time of the reported workplace breakdown. The workplace issues may have been associated with the precipitation of a significant depressive episode. The marital breakdown may also have been linked to the illness.
…
Based on all the evidence available and interviewing Ms Bian workplace issues do appear to be a substantial cause of the depressive episode. It is my opinion that the other factors which include postnatal concerns, the diagnosis of breast cancer and subsequent treatment and the presence of ongoing relationship issues are seen to be equal and substantial causes.
…
It is my view that Ms Bian will need ongoing treatment for the rest of her life.
…
It is my opinion that she should be considered for total and permanent invalidity.
Dr Hundertmark did not give evidence at the Tribunal hearing.
Dr Murali Reddy – Psychiatrist
On 11 November 2013, Dr Reddy relevantly reported to Dr Watson, following his first consultation with Ms Bian, that she:[233]
presents with history of depressive illness for more than 6 years old. She presents with typical melancholic depression occurring in the context of workplace stress and bullying. Her claims for work cover injury apparently are accepted for this illness. Over last six years Sophie claims to have to have trialled several antidepressants with limited benefits at the cost of suffering significant side effects. She also has not found psychological interventions to be useful. Language seems to have been significant barrier for effective psychotherapy. She is reluctant to trial antidepressant medications or psychotherapy anymore. She is keen to trial traditional Chinese medicine to manage her psychological predicament, but finds cost to be prohibitive and Comcare currently does not cover these treatments.
Sophie is significantly disabled with her symptoms. She apparently has no motivation to live or carry on with her life with chronic disabilities. She reports to have no more energy to deal with Comcare any more. She provided me with copy of Psychiatrist Dr James Hundertmark’s report providing opinion that Sophie is totally and permanently impaired to return back to her duties and that she is not capable of undertaking rehabilitation program.
…
On mental state examination, Sophie presented with depressive facies, there was some neglect of self-care. She spoke in monotonous voice, and was tearful for most part of the interview with very minimal reactivity. She reported feeling hopeless and helpless. She stated to have no desire to live life with depression.
[233] Ibid., pages 270-271.
In April 2020, Dr Reddy provided a requested report to Comcare and stated that, in 2013, Ms Bian presented to him ‘with a history of depressive illness for more than 6 years duration’.[234] He noted that Ms Bian ‘presented with prominent melancholic symptoms depression occurring in the context of workplace stress and bullying’.[235] Dr Reddy further stated that:[236]
Over several years, Ms Bian has been significantly disabled with her symptoms. She was not motivated to live or carry on with her life due to chronic psychological disabilities. She had significant stress and lack of motivation then dealing with her worker’s [sic] compensation claims.
[234] Ibid., page 338-341.
[235] Ibid., page 338.
[236] Ibid.
Dr Reddy diagnosed Ms Bian with ‘Chronic Depressive illness (Major Depressive Disorder)’, which was based on his clinical interview and mental state examination over six and a half years.[237] He noted that Ms Bian’s ‘symptoms tend to fluctuate based on her social circumstances and medication compliance’.[238] Following Dr Reddy’s psychiatric review of Ms Bian on 20 March 2020, he noted that she reported ‘feeling depressed and stressed’ and ‘reported several situational stressors’, including ‘frustrations relating [to] family court matters’.[239] Furthermore, Dr Reddy noted that, based on his clinical involvement with Ms Bian over six and a half years, her ‘symptoms have been chronic’, with their severity and her ‘psycho-social functioning’ described as ‘variable’.[240]
[237] Ibid., page 339.
[238] Ibid.
[239] Ibid.
[240] Ibid., page 340.
In September 2020, Dr Reddy provided a further report to Comcare, which relevantly stated that:[241]
[241] Ibid., pages 346-348.
Shefang may suffered Adjustment Disorder with Depressed mood initially with work related stress. Subsequently, she had further stress related to her challenges managing worker’s compensation claim. Unfortunately, even though the work-place and workers compensation stress was resolved beyond six month duration she continue to experience symptoms. The symptoms were persistent and severe meeting the criteria for Major Depressive Disorder. This is a common trajectory for some patients to transition from Adjustment Disorder to Major Depressive Disorder.
…
For the duration of my involvement with Shefang, she has been experiencing symptoms relating to Major Depressive Disorder. Her symptoms have been severe and impeding her functioning several aspects of life. Her symptoms are chronic, with intermittent exacerbations resulting from treatment non-adherence or in the context of social stressors. She also does not like the idea of taking psycho-tropic medications due to personal beliefs in allopathic medicine.
…
Shefang’s current presentation is contributed by multitude of factors, they include:
1.     History of past psychiatric illness is vulnerability factor
2.     Stress of workplace triggered new episode
3.     Stress of rejection of initial workplace injury claim aggravated and maintained Adjustment Disorder
4.     Perceived stress dealing with Comcare for payments and re-imbursements
5.     Perceived stress dealing with ACT-Department of Education for payments and entitlements leading up to retirement.
6.     Reluctance to seek appropriate treatment and support to personal beliefs and cultural factors
7.     Erratic treatment adherence
8.     Abnormal illness behavior-reinforced by the fear of losing entitlements and worker’s compensation benefits
9.     Marital difficulties, divorce, and now legal complications to reach financial settlements
Yes, I specifically consider the work incidents of September 2007 to have been the cause and contributors for Adjustment Disorder, which is now developed into chronic, treatment non-responsive Major Depressive Disorder. [errors in original]
Dr Reddy did not give evidence at the Tribunal hearing.
Dr Robert Athey – Psychiatrist
On 24 March 2014, Dr Athey provided a report to Comcare following its request for an examination in relation to Ms Bian’s permanent impairment claim.[242] Dr Athey relevantly noted that the marks Ms Bian assigned to students ‘ended up with several arguments from parents’ and stated that:[243]
[242] Ibid., pages 289-311.
[243] Ibid., pages 290 and 297-302.
She attempted a return to work in 2009 in office work but was not able to sustain that, and appears to have deteriorated since 2007 significantly. Over that period of time she and her husband have separated, and she has now developed significant symptoms of a major depressive disorder with delusions of both nihilistic and mildly paranoid nature.
In my opinion, her original diagnosis of adjustment disorder with mixed depressed mood has now evolved into a diagnosis of a chronic major depressive disorder in keeping with the diagnosis in DSM-IV.
…
The specific condition from which she suffers, in my opinion, is that of a major depressive disorder with some psychotic features, including delusions of nihilism. A major depressive disorder has no known aetiology in general, although it can arise at times of significant loss or significant stress.
…
On my examination of Ms Bian:
a) There was no suggestion she was voluntarily exaggerating her symptoms; rather, if anything, there was a suggestion she was denying the intensity of her symptoms.
b) Her mental status findings were very consistent with a diagnosis of major depressive disorder. She showed features such as depressed affect, tearfulness, impaired concentration, decision-making, fears that she may affect other people, and a condition known as psychomotor retardation, ie, slowed thinking and actions.
…
In my opinion, she probably had some degree of vulnerability in view of her background of postnatal depression, and with her recent history of removal of malignant breast tumour. However, the situation at her school, in my opinion, was a substantial contributing factor to the onset of the illness.
…
In my opinion, she has an ongoing major depressive disorder which came about in 2007 through a series of events that occurred at her school.
…
In my opinion, Ms Bian’s employment continues to contribute to the condition in that it initiated a severe depressive reaction which has failed to respond to treatment and has progressed.
…
On the history and findings of my examination, concurrent with the suggestions of Dr Reddy and Dr Knox, she appears to have progressed from an adjustment disorder, ie, a reactive condition which usually manifests itself with symptoms of anxiety and depression, into that of a major depressive disorder. This should be seen as a continuation of the one disease, evolving as it goes along.
In February, March, April and May 2015, Dr Athey provided a further four reports regarding Ms Bian’s permanent impairment claim, following Comcare’s request for additional information and opinion.[244] In his report dated 28 April 2015, Dr Athey stated that:[245]
In my original report I gave the criteria for a major depressive episode, a fundamental part of a major depressive disorder, from the Diagnostic and Statistical Manual of the American Psychiatric Association, 4^th Edition, Text Revised Version (DSM-IV-TR).
Ms Bian fulfilled most of these criteria, including an ongoing depressed mood and markedly diminished interest or pleasure in all or almost all activities most of the day nearly every day. She had significant psychomotor retardation of slowed thinking, insomnia, significant levels of fatigue, feelings of worthlessness and inappropriate guilt, and impaired concentration.
From my experience, people with this level of a major depressive disorder do require reminding to eat, wash themselves, and other activities of daily living. In very severe cases, such people will take no personal care, and occasionally deaths can occur through dehydration or even malnutrition, although Ms Bian was not in my opinion at that level of severity.
She did require constant reminders to eat, drink, wash herself and dress appropriately.
[244] Exhibit 14.
[245] Ibid.
Dr Athey did not give evidence at the Tribunal hearing.
Dr Zoltan Zsadanyi – Psychiatrist
On 30 September 2014, Dr Zsadanyi relevantly reported to Comcare that:[246]
In my opinion, Ms Bian appears to have developed symptoms consistent with an adjustment disorder in relation to workplace factors occurring in 2007. Progressively her symptoms have worsened to the point where she would satisfy the criteria for a major depressive disorder, chronic.
Her illness progression of her depression has been such that her symptoms are entrenched and chronic and even with further, assertive, evidence-based psychiatric and psychological treatment, there is little likelihood that there would be significant improvement to any of her symptoms. In my opinion, this means that Ms Bian would not ever return to work in any capacity.
[246] Exhibit 1, pages 314-323.
Dr Zsadanyi did not give evidence at the Tribunal hearing.
Dr John Saboisky – Psychiatrist
In December 2015, Dr Saboisky provided a report to Comcare’s then solicitors in relation to Ms Bian’s permanent impairment claim.[247] Dr Saboisky relevantly stated that:[248]
Her matter is very complex and in overview in 2007 she developed symptoms of Depression and Anxiety and has been on treatment ever since. Unfortunately, she remains disabled despite long-term therapy and a recent hospitalisation.
…
Mrs Bian suffers from Severe Major Depression with some psychotic features. She is inappropriately guilty, believes she would be better off dead and she feels a burden on those close to her. The original diagnosis was Adjustment Disorder but the phenomenology of her symptoms is such that she cannot be considered to have that diagnosis because of the exclusionary criteria (c) of Adjustment Disorder (DSM V).
Immediately prior to the development of Depression, events occurred during the course of her employment which Comcare has accepted, were a material contribution to the development of her Depression. I think the fact that she had breast cancer and was being treated would have been an important etiological factor as well.
…
She has been chronically depressed more or less for eight years and in that sense I think her condition is permanent.
[247] Exhibit 13.
[248] Ibid.
Dr Saboisky did not give evidence at the Tribunal hearing.
Dr William Knox – Psychiatrist
On 7 August 2008, Dr Knox diagnosed Ms Bian with ‘chronic Major Depressive Disorder’, and ‘chronic Generalised Anxiety Disorder at this time’.[249] Dr Knox opined that Ms Bian’s ‘current mental health problems’ were ‘due to the difficult interaction with certain individuals in her school environment’.[250] In this regard, Dr Knox reported the issues surrounding the grades Ms Bian assigned for students in her Chinese language classes and that she ‘suffered intimidation on occasion from the mother and father of the particular student in question’.[251] Most relevantly, Dr Knox further recorded the history provided to him by Ms Bian as including that:[252]
Ms Bian was angrily contacted by telephone by the mother of the student in question on account of the girl’s poor first semester Chinese marks. The mother blamed Ms Bian. Some time later the father of this student confronted Ms Bian at the school, and “threatened” her, until other school staff spoke to him and asked him to desist.
[249] Exhibit 1, page 163.
[250] Ibid.
[251] Ibid., page 156.
[252] Ibid., pages 159-160.
In 2009, following referral from Dr Watson, Ms Bian began treatment with Dr Knox.[253] He diagnosed her with ‘Adjustment Disorder with Anxiety and Depressed Mood’ and recommended ‘supportive psychotherapy to move ahead with her work, personal and family life’.[254]
[253] Ibid., pages 183-184.
[254] Ibid., page 184.
In 2015, Dr Knox provided a report to Ms Bian’s then solicitors, which relevantly opined that her current diagnosis was ‘chronic Major Depressive Disorder and chronic Generalised Anxiety Disorder’, which ‘have arisen in the circumstances of her teaching duties’.[255] Dr Knox did not identify ‘causation from other than her workplace injury’ and stated that Ms Bian is ‘completely unfit for any employment’, her ‘life in general is severely impaired’ and there will be ‘little chance of resolution of this woman’s seriously impaired life’.[256] Dr Knox also relevantly noted that Ms Bian:[257]
is clearly both severely Anxious and Depressed, and has a dissociated, detached quality about her such as one might expect in a severe Posttraumatic Stress Disorder (PTSD). While certainly Ms Bian has been psychologically traumatised by the very difficult circumstances in her teaching environment as noted in my 2008 report, an then has had difficulty in her dealings with previous employer the ACT Department of Education, not to mention Comcare, I do not formally diagnose PTSD. She is very demoralised and feels hopeless about any meaningful life...as with virtually all areas of her life she has little motivation or purpose to care for herself, manage her hygiene and self-care, eat, undertake outings, or engage in any recreational interests.
[255] Exhibit 11.
[256] Ibid.
[257] Ibid.

Having regard to this criteria and the evidence in the proceeding, on balance, the Tribunal accepts Dr Spear’s opinion that Ms Bian suffers from PTSD. The account given to Dr Spear by Ms Bian, as recorded in his report from May 2022, was of her being ‘threatened by a school parent’ at the school gates in 2007.[442] This was consistent with Ms Bian’s recollection to various medical practitioners since 2007 and from her initial workers’ compensation claim made in 2007. For the avoidance of doubt, the Tribunal does not accept the proposition that Ms Bian’s account was that she was threatened by a ‘mob’ of people. While Dr Spear recorded that Ms Bian’s exit from the school was ‘blocked at the school gate by a group of angry, hostile, and threatening parents’, on three occasions in his subsequent discussion Dr Spear refers to only one parent threatening Ms Bian at that time.[443] Moreover, Dr Spear told the Tribunal he was uncertain whether Ms Bian had told him ‘it was a group or not’ and that ‘maybe it was perhaps just the two parents’.[444] In May 2022, Ms Bian told Dr Spear she was concerned about being ‘assaulted’ at the school and feared for her safety and that of her children.[445] In this regard, Ms Bian disclosed the threat made in relation to her children in advance of her evidence at the hearing in November 2022. That is, the scope of the threat was not enlarged at the hearing to include her children. Dr Spear considered Ms Bian’s account ‘was plausible’ and that she ‘presented consistent with DSM-5 criteria’ for PTSD, with ‘characteristic symptoms and characteristic clinical signs consistent with that diagnosis’.[446]
[442] Exhibit 6, page 12.
[443] Ibid., pages 6, 7 and 12.
[444] Transcript of Proceedings, page 181.
[445] Exhibit 6, page 6.
[446] Ibid. page 12.
Dr Spear, as with Ms Bian, also rightly recognised the impact of other factors on her psychological state. He opined that the ‘most likely significant causes’ included ‘alleged work-related stressors with alleged exposure to a traumatic incident at the school gates in 2007’, public criticism of her marking, a perceived lack of support or concern for her safety, together with personal stressors, medical issues, vulnerability to a mental health disorder, her sedentary lifestyle and limited mental health treatment.[447] Having regard to the DSM-V in relation to PTSD, Dr Spear noted that Ms Bian’s symptoms included her alleged exposure to a traumatic incident, repetitive intrusive thoughts of this and other incidents, avoidance of reminders, low mood and negative thoughts, altered reactivity, limited distress tolerance, somatic symptoms, psychotic symptoms and subjective forgetfulness.[448] Additionally, Dr Spear reported that Ms Bian ‘appeared to downplay her symptoms consistent with exposure to trauma’, together with other clinical signs of anxiety, intrusive thoughts and exposure to trauma, and she had ‘difficulty discussing the alleged school-related incidents and a sense of foreshortened future consistent with a diagnosis of posttraumatic stress disorder’.[449] Furthermore, Dr Spear considered there was no evidence of any conduct by Ms Bian as a conscious or subconscious attempt to mislead’ and ‘no indication of exaggeration or malingering’.[450] This assessment accords with the Tribunal’s view of Ms Bian’s evidence at the hearing.
[447] Ibid.
[448] Ibid., pages 12-13.
[449] Ibid., page 13.
[450] Ibid., page 14.
As referred to by Dr Spear in his evidence to the Tribunal, in 2015 Dr Knox reported that Ms Bian was ‘clearly both severely Anxious and Depressed, and has a dissociated, detached quality about her such as one might expect in a severe Posttraumatic Stress Disorder’.[451] Dr Spear said that Dr Knox ‘probably didn’t make the diagnosis because he wasn’t clear that it was a criterion A diagnosis’, without which a diagnosis of adjustment disorder is usually made, which it was initially in relation to Ms Bian and her presentation, ‘because there’s no other place to put that at the moment where the patient is unable to recall the initial trauma’.[452] Dr Spear also told the Tribunal that the incident at the school ‘would be a credible threat’ to meet Criterion A under the DSM-V and he considered it ‘was a traumatic event’.[453] To this end, Dr Spear noted that other practitioners had described it as ‘intimidating and threatening’.[454] The Tribunal does not accept Dr Kar’s suggestion that the event would not have been serious. Dr Spear told the Tribunal that Ms Bian’s varying levels of functioning throughout the course of her condition was ‘exactly what I would expect’ from PTSD, ‘because the condition fluctuates according to further stressors’.[455] The Tribunal finds that this aligns with the evidence of the long history of Ms Bian’s mental health since the events at the school in 2007. Additionally, under cross-examination, Dr Spear noted that Ms Bian described the index event ‘with a tremendous amount of reluctance’ and following her acute distress partially resolving, which was accompanied by ‘very characteristic eye movement’ in people suffering PTSD.[456] The Tribunal considers that Dr Spear’s evidence presented an honest account of the thorough process he undertook to reach the diagnosis of PTSD for Ms Bian and that he made appropriate concessions where some of the evidence did not completely meet all of the criteria for PTSD. However, Dr Spear maintained his opinion of Ms Bian’s present condition based on the relevant criteria, his examination and an assessment of all the documentary evidence. He relevantly told the Tribunal that Ms Bian met Criterion A for PTSD, through exposure to threatened serious injury, she reported symptoms in Criterion B, being intrusion symptoms, she ‘avoided the cues’ of the trauma, being Criterion C, which Dr Spear considered was ‘probably the most important element of the diagnoses’ and Ms Bian also had symptoms from Criterions D and E.[457] To this end, Dr Spear concluded that a diagnosis of PTSD ‘would explain the symptoms, it would explain her reaction to it and surprisingly the impact of the alleged event in her workplace back in 2007’.[458]
[451] Exhibit 11.
[452] Transcript of Proceedings, page 156.
[453] Ibid., page 158.
[454] Ibid.
[455] Ibid., page 170.
[456] Ibid., pages 172-173.
[457] Ibid., pages 179-180.
[458] Ibid., page 180.
The Tribunal accepts that Ms Bian provided Dr Spear with the most fulsome account of the circumstances that led to the onset of her condition which she could provide, and has provided, since their occurrence, especially the confrontation with a parent at the school gate and his alleged threats.[459] This accords with the accepted evidence of Dr Spear regarding the nature of PTSD and how it can manifest in an individual. For example, Ms Bian’s reluctance to disclose the particular incident, or to downplay it, and quickly move on to another matter once it has been raised. These features were exhibited by Ms Bian in her evidence to the Tribunal. In contrast, while Dr Kar reported that Ms Bian told him that ‘some parents were aggressive towards her’, it appears that his assessment or examination did not pursue this matter in any great detail and its relationship to Ms Bian’s condition, but rather he sought to dismantle her account and also the basis for the diagnoses made by numerous practitioners over the long course of her condition.[460] For example, as set out above, Dr Kar surmised that the alleged incident involving the ‘conflict with the student’s parents was not serious as it was not a police matter’.[461] As previously stated, Dr Kar’s evidence did not appear to have deeply engaged with this history in order to understand its impact and psychological effect on Ms Bian, but rather proceeded to discount it as a potential causative factor on the basis that it was not escalated to the police. Together with other incidents during her employment, a thorough assessment of the impact of this particular incident, documented by Ms Bian contemporaneously to its occurrence, was plainly a relevant factor to the important task of undertaking an examination of her psychological state. Dr Kar’s evidence was that Ms Bian had neither the required significant impairment nor significant distress to be found to have a psychiatric condition. Based on all of the available evidence, and for the reasons set out in this decision, the Tribunal does not accept that contention. The Tribunal is satisfied that, as a result of her continuing psychological injury, Ms Bian does have both a significant impairment and significant distress, indicating that she does have a psychiatric condition. For all of these reasons, the Tribunal accepts the evidence of Dr Spear in this proceeding. By way of completeness, the Tribunal does not accept that the incident amounted to what could be described neutrally as a ‘discourse’ with parents that improbably gave rise to a long-lasting mental health condition. In this regard, the principal of the school identified at the time the ‘inappropriateness’ of the parents’ behaviour, for which ‘they apologised and recognised that their reaction had not helped the situation’.[462]
[459] See Exhibit 6, page 12.
[460] Exhibit 1, pages 359 and 362.
[461] Exhibit 3, page 251.
[462] Exhibit 1, page 49.
As a result, on all of the available evidence, the Tribunal finds that Ms Bian continues to suffer from an injury under the SRC Act, being a ‘disease suffered by an employee’, because the development of this condition occurred gradually over time. To this end, the Federal Court of Australia in Comcare v Mooi [1996] FCA 1587 at [16] held that a disease is ‘a disturbance of the normal functions of body or mind’. The Tribunal is satisfied that Ms Bian continues to suffer from a ‘disease’ that has remained active at the requisite level as contemplated by the SRC Act to establish the ACT’s ongoing liability from 28 January 2021.
Is the condition significantly contributed to by her employment?
As set out above in these reasons, section 5B of the SRC Act provides that a disease relevantly means an ailment suffered by an employee that was ‘contributed to, to a significant degree’ by the employee’s employment. Subsection 5B(3) of the SRC Act states that ‘significant degree’ means a degree that is substantially more than material’.
As a result of the Tribunal’s acceptance of Dr Spear’s evidence, the Tribunal is satisfied, that Ms Bian’s psychological condition continues to be significantly contributed to by her employment with the ACT. Accordingly, the Tribunal finds that the ACT continues to be liable to pay compensation to Ms Bian under the SRC Act. The Tribunal has also considered the matters set out at subsection 5B(2) of the SRC Act and finds, based on all the evidence, that they do not displace the above finding that Ms Bian’s employment contributed to a significant degree to her ailment.
In this regard, while other factors during the long history of Ms Bian’s mental health condition undoubtedly contributed to her psychological state, the Tribunal is satisfied, on the balance of probabilities, that her employment significantly contributed to that condition and continues to do so from 28 January 2021 and presently. Ms Bian herself acknowledged that other factors throughout her life have played a role in her psychological condition and she has sought medical assistance in relation to them. This is only natural over such a long period of time, especially where the person continues to suffer from an underlying psychological condition. However, in the Tribunal’s assessment, none of these other events, either individually or collectively, diminish the significant contribution made by her employment in 2007 to that presently ongoing condition. This was evident from Ms Bian’s evidence and that of Dr Spear.
Particular emphasis was placed on the clinical notes of Ms Bian’s treating psychiatrist, Dr Reddy, from November 2013 to 2021.[463] Having reviewed those clinical notes, on balance, the Tribunal is satisfied that, while they do not continuously refer to Ms Bian’s workplace issues, or the specific impact of them on Ms Bian’s mental state at any particular presentation, they demonstrate Ms Bian’s emotional state at various points in time from November 2013 to March 2021 and do not state or record that her presenting mental state at a certain time was not contributed to, at any level including a significant level, by her former employment. It is evident upon considering those notes that Ms Bian, unsurprisingly given her diagnosis, had a range of matters that affected her mental state over many years. They also disclose that her mental state was very poor on many occasions over the course of Dr Reddy’s involvement in her care and often seemingly unrelated to a specific stressor. This again strengthens the finding of PTSD, as described by Dr Spear. Understandably, Dr Reddy does not in those notes provide an opinion of the contribution of Ms Bian’s employment to her mental state. That was not his task in those consultations. As Ms Bian herself told the Tribunal, Dr Reddy was already aware of the previous issues regarding her compensation claim, her accepted psychological injury and its continued impact upon her. Accordingly, that is why a consideration of those clinical notes, in the Tribunal’s view, cannot be done in isolation and without regard to the other available evidence. To this end, in Dr Reddy’s requested written report to the ACT in April 2020, he diagnosed Ms Bian with ‘Chronic Depressive illness (Major Depressive Disorder)’, based on his clinical interview and mental state examination over six and a half years, and relevantly, and quite correctly in the Tribunal’s view, stated that her ‘symptoms have been chronic’, with their severity and her ‘psycho-social functioning’ being ‘variable’, and mostly dependent upon ‘social stressors and medication compliance’.[464] Furthermore, Ms Bian was described as being ‘significantly disabled with her symptoms’ and ‘was not motivated to live or carry on with her life due [to] chronic psychological disabilities’.[465] In addition, Dr Reddy’s final report, dated 20 September 2020, described Ms Bian’s symptoms as ‘severe and persistent’ and, while he set out a ‘multitude of factors’ that contributed to her current presentation, in response to a request to ‘consider whether the work incidents of September 2007 are still a cause or contribution’ of her current presentation, Dr Reddy confirmed that:[466]
Yes, I specifically consider the work incidents of September 2007 to have been the cause and contributors for Adjustment Disorder, which is now developed into chronic, treatment non-responsive Major Depressive Disorder.
[463] Exhibit 3, pages 92-139.
[464] Exhibit 1, pages 338-341.
[465] Ibid., page 338.
[466] Ibid., pages 346-348.
Dr Reddy was not called to give evidence in this proceeding and therefore was not able to be examined about the accuracy or fulsomeness of what he recorded in his clinical notes and his assessment of the contribution of Ms Bian’s employment to her condition at any particular point in time during his consultations with her from 2013 to 2021. While the Tribunal did not have the benefit of Dr Reddy’s oral evidence at the hearing, much was made of his clinical notes and their demonstration that other events had, at least by the time of the determination in January 2021, overtaken those events that occurred during Ms Bian’s employment in 2007, such that the ACT was no longer liable to pay her compensation under the SRC Act. However, having carefully considered those notes, and in light of the associated evidence from this period of time, especially the substantive reports produced by Dr Reddy, the Tribunal is satisfied that those notes and the opinions expressed by Dr Reddy accord with a continual progression of Ms Bian’s psychological injury since 2007 and do not indicate that her previous employment had ceased to be the significant contributor to her condition. Indeed, the Tribunal is satisfied that Dr Reddy’s account aligns with the overwhelming evidence and that of Dr Spear and his description of the course that PTSD can take over a period of time. As previously stated, the Tribunal is concerned with the question of whether, from the time of the determination on 28 January 2021, Ms Bian’s condition was contributed to, to a significant degree, by her employment.
Having weighed all the evidence in this proceeding, on balance, the Tribunal is satisfied that Ms Bian’s psychological condition, or ailment, continues to be contributed to, to a significant degree, by her employment with the ACT. As set out above, the Tribunal prefers the evidence of Dr Spear regarding the continuing impact of Ms Bian’s employment on her psychological state. That evidence accords with the opinion of Ms Bian’s treating psychiatrist, Dr Reddy. It also aligns with the documentary evidence before the Tribunal from all of the other psychiatrists who have examined Ms Bian since 2007, other than Dr Kar, that she was suffering from a psychological condition at the time of their respective examinations between 2007 and 2020. Importantly, it also accords with the Tribunal’s assessment of Ms Bian’s own presentation and evidence in this proceeding, as referred to above in these reasons, which made appropriate concessions and acknowledged the role of other events in her life on her mental state. However, she maintained that the events at her workplace in 2007 were the significant contributor to her condition. The Tribunal accepts that evidence. Ms Bian is plainly deeply affected by the events at the school from 2007 and, while others may have had a different progression in their mental state after these or similar events, the Tribunal must evaluate Ms Bian’s case and the contribution of her employment to her current presentation. The Tribunal finds that the evidence weighs in favour of a decision that Ms Bian’s psychological condition, being one that is ‘outside the boundaries of normal mental functioning and behaviour’, was contributed to, to a significant degree, by her employment with the ACT.
Does Ms Bian need medical treatment?
As a result of the Tribunal’s above findings, it follows that the Tribunal is satisfied that Ms Bian continues to have a need for medical treatment. Therefore, the ACT continues to be liable to pay compensation to Ms Bian for the cost of medical treatment obtained in relation to her condition pursuant to section 16 of the SRC Act.
Does Ms Bian’s condition result in incapacity for employment?
Given the Tribunal’s above findings, it also follows that the Tribunal is satisfied that Ms Bian’s condition continues to result in her incapacity for employment. Therefore, compensation continues to be payable by the ACT to Ms Bian as a result of her incapacity for work as a result of her condition pursuant to section 21 of the SRC Act.
Costs
Under subsection 67(8) of the SRC Act, where the Tribunal makes a decision setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision, the Tribunal may, subject to that section, order that the costs of the proceeding incurred by the claimant, or a part of those costs, shall be paid by the responsible authority, here being the ACT.
In Ms Bian’s Amended Statement of Facts, Issues and Contentions dated 7 July 2022, she sought a decision from the Tribunal which included payment by the ACT of her ‘reasonable legal costs’ pursuant to section 67 of the SRC Act. However, in her written closing submissions dated 4 January 2023, which included a brief discussion of costs, Ms Bian contended that she was entitled to costs on an ‘indemnity basis’ in the proceeding. The ACT did not address this submission in its closing submissions.
Subject to the parties’ submissions, the usual course in circumstances where the Tribunal has set aside the decision under review and made a decision that is more favourable to Ms Bian under the SRC Act would be for the Tribunal to order that her reasonable costs in this proceeding be paid by the ACT, as agreed or taxed. However, given Ms Bian’s written closing submissions requesting costs be awarded to her on an indemnity basis, and unless the Tribunal is informed that the parties reach an agreement as to costs following the publication of this decision, the Tribunal will receive any further submissions from Ms Bian regarding this issue within seven days of the date of this decision and from the ACT within 14 days. The Tribunal will then proceed to make an order in relation to costs pursuant to section 67 of the SRC Act.
DECISION

The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the AAT Act and makes a decision in substitution that the ACT is liable to pay compensation to Ms Bian pursuant to sections 16 and 21 of the SRC Act.
Any written submissions regarding the issue of costs in this proceeding pursuant to section 67 of the SRC Act may be given to the Tribunal by Ms Bian within seven days of the date of this decision and by the ACT within 14 days of this decision.

I certify that the preceding 223 (two-hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

.........................[SGD]...............................................
Associate
Dated: 18 May 2023

Date(s) of hearing:

9 and 11 November and 21 December 2022

Date final submissions received:

15 March 2023

Counsel for Applicant:
Mr Alan Anforth

Solicitors for Applicant:

Mr David Lander, Lander & Co Lawyers

Counsel for Respondent:

Mr Matthew Gollan

Solicitors for Respondent:

Mr Adrian Hearne, HWL Ebsworth Lawyers

[2023] AATA 1278

18 May 2023

Key Legal Topics

Areas of Law

Negligence & Tort

Administrative Law

Legal Concepts

Causation

Judicial Review

Procedural Fairness

Remedies

Statutory Construction

Costs

Date(s) of hearing:	9 and 11 November and 21 December 2022
Date final submissions received:	15 March 2023
Counsel for Applicant:	Mr Alan Anforth
Solicitors for Applicant:	Mr David Lander, Lander & Co Lawyers
Counsel for Respondent:	Mr Matthew Gollan
Solicitors for Respondent:	Mr Adrian Hearne, HWL Ebsworth Lawyers