Briouzguine and Comcare (Compensation)

Briouzguine and Comcare (Compensation) [2019] AATA 4197 (27 September 2019)
Division:GENERAL DIVISION
File Numbers:2017/6572; 2018/4658
Re:Oleg Briouzguine
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:27 September 2019
Place:Sydney

Application 2017/6572
The Tribunal decides that:
1)the decision under review, being the decision made by Comcare on 11 September 2017, is set aside;
2)in substitution, it is decided that Comcare is liable to pay compensation to Mr Briouzguine in accordance with these reasons in respect of injuries, being:
a)myocardial infarction which occurred on 3 October 2014;
b)aggravation of chronic post-traumatic stress disorder with associated major depressive disorder which occurred on 16 October 2014;

3)within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, Comcare shall pay the costs incurred by Mr Briouzguine in these proceedings.

Application 2018/4658
The Tribunal decides that:
1)the decision under review, being the decision made by Comcare on 15 August 2018, is affirmed.

...........................[sgd].............................................
Deputy President J W Constance
CATCHWORDS
WORKERS' COMPENSATION - application for review of decision affirming determination that Respondent not liable to compensate Applicant in respect of claimed injury - whether Applicant suffered “an injury (other than a disease)” - myocardial infarction - whether Applicant suffered "ailment" or "aggravation of such an ailment" - aggravation of chronic post-traumatic stress disorder with associated major depressive disorder - whether injury arose “out of, or in the course of,” the Applicant’s employment - whether ailment "contributed to, to a significant degree" by Applicant's employment - decision under review set aside and substituted
WORKERS' COMPENSATION - application for review of decision affirming determination that Respondent not liable to compensate Applicant for permanent impairment and non-economic loss - whether impairment “permanent” - whether Applicant has undertaken all reasonable rehabilitative treatment - decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535
Comcare v Filla [2002] FCAFC 286; (2002) 115 FCR 163
Comcare v Martin [2016] HCA 43; (2016) 258 CLR 467
Filla v Comcare Australia [2001] FCA 964; (2001) 115 FCR 144
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
REASONS FOR DECISION
Deputy President J W Constance
27 September 2019
A: INTRODUCTION

Mr Briouzguine commenced employment with the Australian Protective Service in 2002. When this Service became part of the Australian Federal Police he was transferred to the latter organisation. He remained an employee of the Australian Federal Police until he was retired on medical grounds in 2017.
On 3 October 2014, Mr Briouzguine suffered an acute myocardial infarction. He was hospitalised until 7 October 2014. Apart from two days on restricted duties, he did not return to work after this event.
Mr Briouzguine made two claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) related to the infarction – one for compensation for the infarction and consequent aggravation of mental conditions, and one for compensation for permanent impairment arising from the injury or injuries he had suffered. Comcare affirmed earlier determinations denying liability to pay compensation in respect of both claims. Mr Briouzguine applied to the Tribunal to review these decisions.
For the reasons which follow, it will be decided that Mr Briouzguine is entitled to compensation for the injuries he suffered, namely a myocardial infarction and an aggravation of his chronic post-traumatic stress disorder with associated major depressive disorder. The decision denying liability to compensate Mr Briouzguine for permanent impairment will be affirmed as I have decided that it has not been established that any of the impairments he has suffered are permanent.
Unless stated otherwise, findings of fact in these reasons are made on the basis of the evidence of Mr Briouzguine. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection.
B: APPLICATIONS FOR DETERMINATION IN THESE PROCEEDINGS
Application 2017/6572 (claim in respect of the myocardial infarction suffered on 3 October 2014)
On 12 May 2017, Mr Briouzguine made a claim for compensation under the Act.[1] He described the conditions/injuries the subject of his claim as:
PTSD, Comorbit [sic] Anxiety, Depression, IHD (Ischaemic Heart Disease) Heart (Heart Attack-stent and IHD).[2]
He stated that he first noticed symptoms of the claimed conditions on 3 October 2014.
[1] Exhibit R1 at 111.
[2] Exhibit R1 at 112.
By determination made 21 July 2017, a Comcare delegate rejected Mr Briouzguine's claim.[3] On 11 September 2017, that determination was affirmed.[4]
[3] Exhibit R1 at 162.
[4] Exhibit R1 at 168.
Application 2018/4658 (permanent impairment claim)
On 15 June 2016, Mr Briouzguine made a claim for permanent impairment and non-economic loss for “PTSD, Depression, Anxiety, IHD” arising from the injury suffered on 3 October 2014.[5]
[5] Exhibit R2 at 17.
On 20 July 2018, a Comcare delegate denied this claim.[6] That determination was affirmed on 15 August 2018.[7]
[6] Exhibit R2 at 32.
[7] Exhibit R2 at 37.
C: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) provides:
(1) 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.
Subsection 5A(1) provides:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Disease is defined in section 5B:
(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.
Sections 24 and 27 provide for compensation to be payable in respect of an injury to an employee which results in permanent impairment.
Mr Briouzguine’s first application for review seeks compensation in accordance with section 14 of the Act; the second application is a claim for permanent impairment and non-economic loss made in accordance with sections 24 and 27.
D: ISSUES
The judgement of the High Court of Australia in Canute v Comcare[8]
[8] [2006] HCA 47; (2006) 226 CLR 535.
In considering the concept of “an injury” within the meaning of the Act, the High Court said:
At this juncture, three things may be observed about the concept of “an injury”. First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of “the injury”. Secondly, the term “injury” is not used in the Act in the sense of “workplace accident”. The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to “disease” or “physical or mental” injuries and, at least to that extent, it assumes that an employee may sustain more than one “injury”. The use in s 24(1) of the indefinite article in the expression “an injury” reinforces that conclusion.[9]
[9] [2006] HCA 47; (2006) 226 CLR 535 at 540 [10].
It is clear from Mr Briouzguine’s claim form (see paragraph 6 above) that he is claiming for two separate injuries, namely:
(i)“Heart Attack” (myocardial infarction) involving the insertion of a stent; and
(ii)aggravation of post-traumatic stress disorder, co-morbid anxiety, depression and ischaemic heart disease.
Although Mr Briouzguine did not specify the conditions being claimed as aggravations, in response to a later question in the claim he answered:
Severe stress related issues at work leading to the heart Attack, which elevated and signified [sic] my mental health, restricting my ability to work.[10]
(Emphasis added.)
Application 2017/6572
[10] Exhibit R1 at 112.
Claim for heart attack
The following issues arise:
(a)Has Mr Briouzguine suffered “an injury” being “a disease” or “an injury (other than a disease)” as defined in section 5A of the Act?
(b)If Mr Briouzguine suffered an injury (other than a disease), was it an injury “arising out of, or in the course of” his employment by the Australian Federal Police?
Claim for mental conditions suffered after the heart attack
The following issues arise:
(a)Has Mr Briouzguine suffered “an ailment” or “an aggravation of such an ailment” within the meaning of section 5B of the Act?
(b)If so, was the ailment or the aggravation of the ailment “contributed to, to a significant degree” by his employment by the Australian Federal Police and therefore “a disease” as defined in section 5B of the Act?
(c)If so, was the disease “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [Mr Briouzguine’s] employment”?
Application 2018/4658
Claim for permanent impairment
The following issues arise:
(a)Has Mr Briouzguine suffered an injury or injuries which have resulted in a “permanent impairment” within the meaning of section 24 of the Act?
(b)If so, what is “the degree of permanent impairment” of Mr Briouzguine?
(c)What, if any, compensation is payable to Mr Briouzguine in accordance with sections 24 and 27 of the Act?
D: BACKGROUND
Mr Briouzguine was born in Ukraine. He is 55 years old.
In 1993, Mr Briouzguine and his family migrated to Australia. Prior to coming to Australia he served in the Soviet Air Force and the Ministry of Internal Affairs as a helicopter pilot. In 1998, Mr Briouzguine was severely injured when his helicopter was shot down during service in Afghanistan. He suffered psychological and physical injuries.
During his employment by the Australian Protective Service and the Australian Federal Police, Mr Briouzguine was involved in a number of incidents referred to in the following four paragraphs.
In 2002, Mr Briouzguine was involved in an incident with another police officer in a hotel. He was stood down from duty for several weeks for allegedly not disclosing the incident to his employer; it was later determined that he had reported the incident as required. Without further explanation he was then told to return to work.
In 2004, Mr Briouzguine was charged with using offensive language and causing malicious damage arising from an incident when he was in the company of a friend. He was stood down from his employment for approximately nine months. The malicious damage charge was later dismissed in Court. He was reprimanded and returned to work on probation. This incident caused Mr Briouzguine considerable distress as he believed that his honesty and integrity had been questioned by his employer for a second time.
In November 2006, Mr Briouzguine was told by his employer that he did not have the necessary security clearance despite having worked for his employer for more than four years. He was stood down and issued with a notice terminating his employment. He suffered a panic attack and sought medical assistance at his local hospital. His blood pressure was recorded as 210/110. He contacted the Police Association and was told to seek another job as he could not fight the security clearance issue. About two days later he was called into his station by his superior officer, issued with the necessary security clearance and told to return to work. He was posted to Nauru for three months where he performed his duties without incident.
In July 2009, Mr Briouzguine met with his inspector. During the meeting, the inspector spoke to Mr Briouzguine in a manner which he found derogatory and humiliating. As a result he felt very distressed and required some days away from work on sick leave.
On 24 November 2009,[11] Dr Rees, Consultant Psychiatrist, reported to the Australian Federal Police in respect of Mr Briouzguine:
In my opinion Mr Briouzguine has suffered from a Major Depressive Episode with features of anxiety. There is no evidence of significant vulnerability to developing this type of disorder except that he a [sic] developed significant Anxiety Disorder in 2006 after concern that he may lose his job due to security clearance issues. Since this time he does appear to report higher levels of anxiety than previously and this may have predisposed him to being more vulnerable to developing his current problems with depression and anxiety. The trigger for his current depression and anxiety appears to be related to the meeting that he had with the inspector in the Aviation Intelligence Group and relates to him seeing this as a direct attack on his credibility and feeling very humiliated by this. Other issues include probable alcohol abuse which is in remission currently.
[11] Exhibit R1 at 30.
Dr Roberts, Consultant Forensic Psychiatrist, treated Mr Briouzguine in late 2009 on referral by his general practitioner, Dr Hon.
On 8 December 2009, Dr Roberts reported, in part:[12]
[12] Exhibit R1 at 40-41.
Mr Briouzguine presents with a constellation of symptomatology consistent with depression in which some obsessional traits are evident.
A formal diagnosis of a DSM-IV diagnosis of an Adjustment disorder with anxiety depression coupled with a degree of obsessionality was made.
…
Mr Briouzguine clearly sees himself as having been humiliated by circumstances and commented on not wishing to return to work with the AFP and of having applied for a position with a private security company undertaking work in Iraq.
…
Mr Briouzguine has returned to see me on 18.11.09, he commented on feeling a lot better but of him remaining “scared”, he referred to having received a letter from work which upset him, and that he had retreated from everyone, remaining in his room for two days.
…
Mr Briouzguine continues to maintain that he wishes to solve his problem by joining the Private security company serving with that Company in Iraq.
He is fully aware of the risks of this course of action but comments that he felt that if he undertook such service it would result in him proving himself, namely that he was still capable.
…
The history is suggestive of decompensation. There is a history of previous abnormality in terms of excessive alcohol ingestion in the past and Mr Briouzguine's response to the circumstances suggest a pre-existing vulnerability.
Based on his account and assuming the history given is true and accurate, his current presentation is substantially contributed to by the circumstances and conditions of his employment …
While Mr Briouzguine was working at Sydney Airport in 2009, the weapon issued to him was taken from his locker by a firearms instructor at a time when Mr Briouzguine was on sick leave. He was issued with a replacement weapon upon his return.
In June 2012, Mr Briouzguine ceased work at the Airport and surrendered the second weapon. He was then transferred to work as a security officer with the ANSTO Security Force at Lucas Heights where he was issued a third weapon.
In 2014, an incident occurred which Mr Briouzguine described as follows:
In 2014, a Glock 19 was found in the back pocket of the seat of a ANSTO patrol vehicle in the secure compound which was identified as my hand gun which had been handed (removed from my gun locker by the SPSO/firearm instructor, without my presents [sic] as I was off work on the sick leave) in at the airport when I went on leave in 2009. As a result of the Glock being found, there was a great deal of speculation at work as to whether I had something to do with the suspicious planting of the gun; whether I had not handed it in or the gun was originally stolen by me. Although my employer had directed that nobody discuss this issue and that it remained confidential, it was a topic of gossip and discussion in the office almost all day every day and during the night shifts.[13]
[13] Exhibit A1 at [40].
When he gave evidence, Mr Briouzguine said that it was his first weapon which was later located in the vehicle.
Over several months, Mr Briouzguine was investigated in relation to the gun located in the vehicle. He felt he was suspected of stealing the gun from the Airport in 2012 and believed that he was being “set up” by someone in management. The issue was regularly the subject of conversations between his fellow officers who were conducting their own investigations.
He described the effect of these circumstances:
Again, I felt that my integrity was being questioned for the third time. I felt humiliated again. This whole issue has had an enormous devastating effect on me as I have always held my head high and been confident in my abilities as an officer and as a valuable and integral member of my team and hurt I feel at being discarded not because of something I have done but because of malicious and subversive actions intent on destroying my credibility and therefore my career. After that incident with the weapon I feel and I felt diminished as a person because of the loss of standing within my working community, management and whole organisation. I felt demolished and completely humiliated.
…
On the daily bases [sic] to I was subject to the constant fishing for clarification of events from suspicious or disbelieving colleagues knowing they will run to our superiors or investigators to provide them with anything that could be twisted to use against me. I would say I constantly felt under siege and no longer feel as if I enjoy the confidence of some of my former team members and that I feel the entire establishment has now turned against me and in such circumstances I feel I was now considered a leper in the organisation and cannot possibly have a future within it. I couldn’t avoid such a stressful atmosphere at work and got unintentionally dragged in to it. Even coming home I was constantly discussing the issue with my wife, trying to find the answers or at least have some sort of support from her. And the downgrading of my perceived prestige as being an officer within the organisation. It created the negative impact on my health and my entire outlook for the future and I feel the loss of the position I held in such high esteem.[14]
[14] Exhibit A1 at [40]-[41].
Mr Briouzguine was interviewed by his team leader about the gun in late September 2014. He was told that “they were investigating everyone” and that he would be questioned last.

Mr Briouzguine gave evidence of the events of 3 October 2014:
On 3 October 2014, after a night shift, I was admitted to Hornsby Hospital with chest pain and was diagnosed with a myocardial infarction. … That was a last night shift before the break (last of 4) and it was quite intense with the constant conversation about the incident with the gun as some of the guys from work were contacted by the investigators in relation to the incident and everyone discuss the meeting and the information. I was completely exhausted and restless going through it over and over every shift. I lived listening other officers versions of the event and thinking/analysing it myself nearly every day and every minute of my past several weeks of life, at work and at home. That morning at approximately 5 AM I felt slightly unstable on the feet with the difficulty to breath normally. I felt extremely tired and weak. At the end of the shift around 5:35-5:45 I was so tired that I couldn’t even say a word as my tongue felt numb or frozen and it was impossible to say words. I felt as I was about to collapse. With this feeling I went to my car and drove home, however not long after I had to stop on the side of the road in the small car park to take a rest, as it was impossible to continue my journey home. Some time later (30-45 min.), after the quick nap I continued my trip. … I went straight to the bed. I collapsed and woke up after the lunch feeling weak and restless. … After dinner (no alcohol) we took our dog for a walk and after walking around 200 meters I started to feel very similar way as I felt early this morning, but this time I felt more pressure around the chest area and there was serious shortness of breath. We decided to return home and I went to the bed to get rest, however this time the pain increased significantly and I felt excruciated pain around my chest and arms, I was constantly moving around trying to find comfortable spot and it was impossible, I felt as I wanted to scream but couldn’t. The pain increased to the point that I felt I was definitely dying (my army friend recently died the same way in bed and after the heart attack). … Immediately after the arrival [at Hornsby Hospital] the medical personal acknowledged the presents of significant myocardial infarction and transferred me, on emergency vehicle, to the North Shore Hospital for the procedure …
As a result of this again near death experience, this caused my anxiety to heighten. This brought back memories of the near death experience that I had experienced in the military where I was wounded by gunshots.[15]
(Errors in original.)
[15] Exhibit A1 at [42]-[43].
When he gave evidence at the hearing, Mr Briouzguine agreed that in fact he had attended for two day shifts and two night shifts immediately prior to the heart attack.
Counsel for Comcare argued that I should not accept Mr Briouzguine's evidence as to the incident involving the Glock pistol and the events of 3 October 2014 unless it was corroborated. In particular, Counsel referred to the clinical notes of Dr Szekely, Mr Briouzguine's general practitioner.[16]
[16] Exhibit R10.
As Counsel correctly pointed out, Mr Briouzguine consulted Dr Szekely on numerous occasions between April 2010 and 27 September 2014 (the last consultation before Mr Briouzguine suffered the myocardial infarction). The clinical notes record Mr Briouzguine suffering psychiatric symptoms on 28 January 2014 which were unrelated to his employment. Between then and 27 September 2014, the only reference to work issues was made on 7 March 2014. That reference included “No stress at work”.[17]
[17] Exhibit R19, entry dated 7 March 2014.
I have considered also Dr Szekely’s reports dated 8 February 2017[18] and 7 June 2017.[19] She refers to Mr Briouzguine suffering an acute myocardial infarction “following his divorce from his wife”, but does not refer to Mr Briouzguine experiencing any work-related stress prior to the infarction.
[18] Exhibit R1 at 96.
[19] Exhibit R1 at 122.
Having heard and observed Mr Briouzguine give evidence, I am satisfied that he was an honest witness who gave his evidence to the best of his recollection. At times, when an inconsistency was pointed out to him he was prepared to acknowledge that he may have been mistaken in his recollection. Although there is no reference to the matters raised by Mr Briouzguine in Dr Szekely’s notes leading up to October 2014, I am not persuaded that I should not accept Mr Briouzguine's evidence. As is usually the case with the clinical notes of general practitioners, the notes in evidence are very brief and clearly do not purport to be a complete record of the subject conversations. Dr Szekely did not give evidence at the hearing.
I accept Mr Briouzguine’s evidence.
F. EVIDENCE OF MEDICAL PROFESSIONALS
Associate Professor Yiannikas, Consultant Cardiologist
Associate Professor Yiannikas examined Mr Briouzguine in March 2018 at the request of his solicitors. He provided a report dated 18 April 2018[20] and gave evidence at the hearing.
[20] Exhibit A2.
Associate Professor Yiannikas reported, in part:
Mr Briouzguine on the day of his acute myocardial infarction was very distressed and no doubt angry about the implications of his involvement in the firearm theft. This is a likely factor in the pathophysiology of his acute coronary occlusion and myocardial infarction. I suspect that he had a coronary lesion prior to the day of his myocardial infarction but in the setting of his extreme stress and anger, that he probably had a plaque rupture that occluded his right coronary artery.
…
… Whilst of course these events occur in such patients without any emotional trigger, I think there is sufficient data in the literature to suggest that in all probability his anger and emotional distress on the day of his myocardial infarction was an important contributor to his plaque rupture.[21]
[21] Exhibit A2 at 3.
When he gave evidence at the hearing, Associate Professor Yiannikas confirmed the opinions expressed in his report and that, in his opinion, on the balance of probabilities the myocardial infarction began while Mr Briouzguine was at work on 3 October 2014.
He explained the process as follows:
·the plaque in the lining of the heart ruptures;
·the rupture creates an environment of physiological events which can lead to complete blocking;
·the cells in the lining of the heart become more sticky and restrict the blood flow which causes the patient to feel unwell (this may involve spasm of the heart);
·the process may continue gradually until a complete thrombosis forms which causes complete occlusion.
In his opinion, the experience of anger has physiological consequences and stress is more likely than physical exertion to cause plaque ruptures. Plaque rupture is a feature of a significant proportion of the events which cause a myocardial infarction.
Professor O’Rourke, Cardiologist
Professor O’Rourke examined Mr Briouzguine in June 2018 at the request of the solicitors for Comcare. He provided reports dated 29 June 2018[22], 16 July 2018[23] and 11 February 2019[24] and gave evidence at the hearing.
[22] Exhibit R4.
[23] Exhibit R5.
[24] Exhibit R6.
Professor O’Rourke noted that an angiography undertaken on 3 October 2014 “showed a high-grade obstruction (80%) of the mid right coronary artery”.[25] The obstruction was extracted and identified as a thrombus. In his opinion, “Mr Briouzguine sustained coronary occlusion from coronary thrombosis with evolving myocardial infarction with symptom onset at 20.30 (8.30 pm). Myocardial infarction was aborted by rapid evaluation and angioplasty with clot extraction followed by dilation and stenting of the diseased artery”.[26]
[25] Exhibit R4 at 6.
[26] Exhibit R4 at 8.
Professor O’Rourke was of the view that Mr Briouzguine’s employment by the Australian Federal Police did not contribute to his heart condition; rather, pre-existing risk factors and issues related to his private life were the contributors.
Pathology tests conducted at Hornsby Hospital at 9:35pm on 3 October 2014 showed normal troponin levels. In the opinion of Professor O’Rourke, normal levels were not consistent with the onset of coronary occlusion and of myocardial infarction at 2pm or earlier that day, but were consistent with coronary occlusion having occurred within the previous two hours.
When he gave evidence, Professor O’Rourke said that the present state of medical knowledge is such that there “could be” a connection between atherosclerosis and depression and that in some situations major stress can cause myocardial infarction.
He also was of the opinion that the symptoms of heart attack suffered by Mr Briouzguine on the evening of 3 October 2014 were quite different to the symptoms experienced earlier that day. It was “an absolute coincidence”[27] that Mr Briouzguine suffered the symptoms he did during the morning of 3 October 2014. In response to questions by Counsel for Mr Briouzguine, he agreed that the symptoms Mr Briouzguine experienced towards the end of his shift “could be” consistent with ischaemia but based on other evidence he believed they were not.
[27] Transcript, 13 March 2019.
Dr Dinnen, Consultant Psychiatrist
Dr Dinnen assessed Mr Briouzguine in March 2018 at the request of his solicitors. He provided a report dated 9 April 2018[28] and gave evidence at the hearing.
[28] Exhibit A4.
Dr Dinnen reported, in part:
I believe the patient is suffering from chronic post traumatic stress disorder with associated major depressive disorder and a record of alcohol use disorder which may be in remission.
I believe the patient’s condition was connected to his employment but would agree with Dr Barrett that 50% can be attributed to his employment with the AFP and 50% to other factors, including his service with the Russian Military and his family problems. I note Dr Roberts initially suggested a 10% reduction should be made but clearly the circumstances outside the workplace are critical in the development of his chronic psychiatric illness.
The prognosis is not favourable. He does require ongoing psychiatric treatment of an expert nature to prevent further deterioration. I agree with Dr Barrett and others that there is not likely to be any significant improvement in his condition.[29]
[29] Exhibit A4 at 8.
Dr Dinnen expressed the opinion that Mr Briouzguine’s emotional state started to fluctuate when he began experiencing problems in his employment by the Australian Federal Police. The events surrounding the finding of the gun previously issued to him were very traumatic.
At the time of his assessment, Dr Dinnen diagnosed Mr Briouzguine as suffering from a chronic mental illness which prevented his working for the Australian Federal Police. He agreed that it was likely that Mr Briouzguine was in a better mental state at the time of the hearing than previously as he now has greater family support.
Dr Smith, Consultant Clinical & Forensic Psychiatrist
Dr Smith assessed Mr Briouzguine in July 2018 at the request of the solicitors for Comcare. He provided reports dated 26 July 2018[30] and 19 March 2019.[31] He gave evidence at the hearing.
[30] Exhibit R7.
[31] Exhibit R8
At the time of his assessment, Dr Smith provisionally diagnosed Mr Briouzguine as suffering:
·“Persistent Depressive Disorder, with Intermittent Major Depressive Episodes, Without Current Episode;
·Posttraumatic Stress Disorder (PTSD);
·Alcohol Use Disorder.”[32]
[32] Exhibit R7 at 18.
On 26 July 2018, Dr Smith reported, in part:
Mr Briouzguine described a period of anxiety preceding his myocardial infarction in October 2014 in relation to issues in employment, particularly with respect to an investigation regarding his weapon. He suffered a myocardial infarction in October 2014 and since that time he had become significantly depressed and anxious and also developed an exacerbation of his problematic alcohol consumption. He described significant fear of having a recurrent myocardial infarction and described obsessions with death and fear of death. Mr Briouzguine described persistent depressive symptoms of varying severity since 2014 and he had been unable to return to work. Although he had previously received psychiatric treatment with Dr Roberts up until 2011, he had not received psychiatric treatment of a sustained nature since 2014. He stated that his GP had prescribed antidepressant medication and he had received psychological therapy.
In my opinion, Mr Briouzguine presented with symptoms consistent with the diagnosis of Persistent Depressive Disorder, with Intermittent Major Depressive Episodes, without Current Episode. He also described a history consistent with the diagnosis of Posttraumatic Stress Disorder (PTSD) in relation to the 1988 traumatic incident when in the military and that condition was mild. He described a history consistent with the diagnosis of Alcohol Use Disorder with ongoing intermittent binge pattern alcohol use.
In my opinion, the predominant contributing factor to his current anxiety and depressive symptoms is a history of myocardial infarction in 2014 and his ongoing fear of death.[33]
[33] Exhibit R7 at 20.
Report of Ms Meylakh, Psychologist
Ms Meylakh first saw Mr Briouzguine on 16 October 2014 following his myocardial infarction. After several sessions in 2014, Mr Briouzguine informed Ms Meylakh that he was not ready for further treatment. At the time his depressive symptoms were “extremely high”.[34] He returned for a few sessions in 2015 and for nine sessions in 2016. Treatment was resumed in March 2017 as part of a General Practitioner Mental Health Plan.
[34] Exhibit R1 at 136.
On 20 January 2017,[35] Ms Meylakh reported that Mr Briouzguine’s “heart attack triggered and in some cases elevated these symptoms”.
[35] Exhibit R1 at 134.
G. REASONING
Having accepted Mr Briouzguine as a truthful witness, the determination of the issues in each application requires consideration of the varying opinions expressed by the medical professionals.
G.1: THE CLAIM IN RESPECT OF THE MYOCARDIAL INFARCTION (APPLICATION 2017/6572)
G.1.1 Has Mr Briouzguine suffered “an injury” being “a disease” or “an injury (other than a disease)” as defined in section 5A of the Act?
Section 5A is set out in paragraph 11 of these reasons.
In Military Rehabilitation and Compensation Commission v May,[36] the High Court considered the definition of “injury” prior to the insertion of s 5A. The relevant wording of s 5A is the same as that considered by the Court.
[36] [2016] HCA 19; (2016) 257 CLR 468.
As to the meaning of “injury” under the Act, the majority said:
The set of conditions answering the definition of “injury” in the Act relevantly comprises two sub-sets, “disease” and “injury (other than a disease)”, the latter sometimes referred to, not necessarily helpfully, as injury simpliciter. They comprise separate but related bases of liability. Each has a different meaning in the statutory scheme.
…
“Injury” in para (b) is used in its “primary” sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if “something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word” (emphasis added).
That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an “injury” in the primary sense.
However, as the Full Court correctly held, “suddenness” is not necessary for there to be an “injury” in the primary sense. A physiological change might be “sudden and ascertainable”. A physiological change might be “dramatic”. The employee’s condition might be a “disturbance of the normal physiological state”. That an “injury” in the primary sense can arise, and can be described, in a variety of ways does not mean that “suddenness” is irrelevant. As the Full Court said, “suddenness” is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.[37]
(Footnotes omitted.)
[37] [2016] HCA 19; (2016) 257 CLR 468 at 479-481 ([42], [45]-[47]).
The High Court provided guidance as to the manner of determining whether an employee has suffered an injury within the meaning of the Act. The precise evidence must be considered “on a fact by fact basis”.[38] The decision-maker must then consider whether the employee has suffered a “disease”. If the answer is “no”, it is necessary to consider whether the employee has suffered “an injury (other than a disease)”.
[38] [2016] HCA 19; (2016) 257 CLR 468 at 481 ([49]).
Both Associate Professor Yiannikas and Professor O’Rourke described the condition which affected Mr Briouzguine on 3 October 2014 as the rupture of plaque within the right coronary artery followed by the formation of a thrombus which substantially blocked the artery. This description is consistent with “an injury in the primary sense” as described by the High Court rather than “a physiological change from the natural progress of an underlying (and in one sense closely related) disease …”.
Although, the High Court stated, “suddenness” is not necessary for an injury in the primary sense, it is not irrelevant. In this case, the suddenness of the onset of symptoms suffered by Mr Briouzguine supports the view that there was a physiological change in Mr Briouzguine's body.
G1.2 Did the injury arise out of, or in the course of, Mr Briouzguine's employment by the Australian Federal Police?
On the basis of the evidence of Mr Briouzguine and Associate Professor Yiannikas, I am satisfied that the rupture of the plaque in Mr Briouzguine's artery and the formation of the thrombus (at least in part) occurred while Mr Briouzguine was at work on the morning of 3 October 2014.
In addition to the evidence contained in his statements to which I have referred, Mr Briouzguine gave evidence at the hearing that by 3:00am that morning he felt that his blood pressure was high, that he was completely exhausted, that his head “was ready to explode”, and that he was angry and really stressed. By 5:00am he felt pressure in his chest and he could not speak normally. Mr Briouzguine completed his shift at 5:45am.
I accept Mr Briouzguine's evidence set out earlier in these reasons. Based on Mr Briouzguine's history, Associate Professor Yiannikas expressed the opinion that it was likely that the rupture of plaque occurred while Mr Briouzguine was still at work. The fact that Mr Briouzguine's troponin levels were not elevated when he was admitted to Hornsby Hospital does not exclude the infarction having occurred before 5:45am that day, as these levels may remain normal while the infarction process is taking place.
I prefer the opinions of Associate Professor Yiannikas to those of Professor O’Rourke for the following reasons.
First, Professor O’Rourke dismissed the symptoms suffered by Mr Briouzguine while he was at work as “an absolute coincidence”,[39] yet he described the discomfort felt by Mr Briouzguine in his chest as “disturbing”. He said that the exhaustion felt by Mr Briouzguine before 5:45am and the exhaustion he felt later in the day were “probably unrelated”.[40] Bearing in mind the evidence of Associate Professor Yiannikas that the early symptoms were consistent with an infarction, I found this reasoning based on a coincidence unconvincing.
[39] Transcript, 13 March 2019.
[40] Transcript, 13 March 2019.
Secondly, Professor O’Rourke placed considerable weight on the records of Hornsby Hospital indicating that Mr Briouzguine first experienced the feeling of tightness in his chest at 8:30pm on 3 October 2014.[41] Under the heading Chief Complaint the relevant entry reads:
Patient c/o central chest pain radiating to the left arm
Started about 1hour ago (20:30) without warning.[42]
[41] Transcript, 13 March 2019.
[42] Exhibit R1 at 495.

These records are brief and I accept the evidence of Associate Professor Yiannikas that hospital discharge summaries are not always accurate. Further, there is no evidence of the questions asked of Mr Briouzguine or his condition at the time.
Whether or not the records are accurate in this case, I accept Mr Briouzguine's evidence that he experienced the feeling of tightness in his chest while he was at work that morning. I have found that he was an honest witness and I accept his description of his symptoms and the timing of them. If the records of the Hospital are accurate it is likely that Mr Briouzguine was referring to the severe pain radiating to his left arm which he was feeling at the time.
I am satisfied that the injury suffered by Mr Briouzguine arose in the course of his employment by the Australian Federal Police.
G.2: THE CLAIM IN RESPECT OF MENTAL CONDITIONS SUFFERED AFTER THE HEART ATTACK (APPLICATION 2017/6572)
G.2.1 Has Mr Briouzguine suffered “an ailment” or “an aggravation of such an ailment” within the meaning of section 5B of the Act?
Subsection 4(1) defines ailment as:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
I accept the evidence of Dr Dinnen that when he assessed Mr Briouzguine in March 2018 he was suffering from a chronic post-traumatic stress disorder with associated major depressive disorder. This is consistent with the provisional diagnosis made by Dr Smith in July 2018, referred to in paragraph 61 of these reasons.
It is not in dispute that this condition is an ailment within the meaning of the Act and I am satisfied that this is so.
G.2.2 Was the ailment or the aggravation of the ailment “contributed to, to a significant degree” by Mr Briouzguine’s employment by the Australian Federal Police and therefore “a disease” as defined in section 5B of the Act?
In July 2018, Dr Smith reported that in his opinion “the predominant contributing factor to his current anxiety and depressive symptoms is the history of myocardial infarction in 2014 and his ongoing fear of death”.[43] Dr Dinnen was also of the opinion that the experience of the heart attack “triggered off and exacerbated Mr Briouzguine's psychological problems”.[44] He said that at the time of the infarction Mr Briouzguine was facing death and this brought back the fear of death which he had experienced previously.
[43] Exhibit R7 at 20.
[44] Transcript, 13 March 2019.
On the basis of the evidence of Mr Briouzguine, Dr Smith, Dr Dinnen and the report of Ms Meylakh, I am satisfied that the experience of the myocardial infarction suffered on 3 October 2014 contributed, to a significant degree, to the aggravation of both the post-traumatic stress disorder and the depressive disorder suffered by Mr Briouzguine.
I note Comcare agrees that the myocardial infarction made a significant contribution to the aggravation of Mr Briouzguine's mental ailment. For the reasons stated in the preceding two paragraphs, I am satisfied this was an appropriate concession.
The next step is to consider whether there is the necessary causal link between Mr Briouzguine's employment and the myocardial infarction he suffered. As the Act requires a contribution, to a significant degree, to the aggravation of the ailment by the employment, Mr Briouzguine cannot simply rely on the finding that Comcare is liable to compensate him in respect of the infarction to provide that link. The finding of liability in relation to the infarction is based on the temporal relationship between the employment and the infarction, not on a causal one.
On the basis of the opinion of Dr Dinnen, I am satisfied that Mr Briouzguine's emotional state started to fluctuate when he began experiencing problems in his employment. On the basis of the reports of Dr Rees[45] and Dr Roberts[46] in 2009 (see paragraphs 28 and 30 of these reasons), I am satisfied that the problems began no later than that year. I accept the evidence of Dr Dinnen that the incident involving the weapon which had been issued to Mr Briouzguine was very traumatic and a major problem for him.[47]
[45] Exhibit R1 at 26.
[46] Exhibit R1 at 35.
[47] Transcript, 13 March 2019.
On the basis of the evidence of Associate Professor Yiannikas and Mr Briouzguine, I am satisfied that the combination of anger and emotional distress Mr Briouzguine experienced as a result of events in his workplace prior to his myocardial infarction was a significant contributor to the plaque rupture and consequently to the myocardial infarction.[48]
[48] See extract from the report at paragraph 46 of these reasons.
In accordance with the above, I am satisfied that the causal link between Mr Briouzguine's employment and the aggravation of the mental conditions he suffered following his myocardial infarction is established. I am satisfied also that his employment contributed to the aggravation of those conditions to a significant degree.
G.2.3. Was the disease “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [Mr Briouzguine's] employment?
Although Comcare raised the issue of reasonable administrative action in its Amended Statement of Issues, Facts and Contentions dated 1 March 2019, this issue was not argued at the hearing. On the evidence before me, I am not satisfied that any of the actions taken in respect of Mr Briouzguine's employment meet the exclusion in subsection 5A(1) of the Act.[49]
[49] Comcare v Martin [2016] HCA 43; (2016) 258 CLR 467.
G.2.4. Is compensation payable in respect of the injury?
I am satisfied that Mr Briouzguine has suffered an injury in accordance with subsection 14(1) of the Act, being an aggravation of a chronic post-traumatic stress disorder with associated major depressive disorder.
On the basis of the evidence of Dr Dinnen and Dr Smith, I am satisfied that this injury has resulted in an incapacity for work by, and impairment of, Mr Briouzguine.
Having assessed Mr Briouzguine in March 2018, Dr Dinnen concluded that he required ongoing psychiatric treatment to prevent further deterioration. Dr Smith also diagnosed Mr Briouzguine as suffering an ongoing condition in July 2018.
Mr Briouzguine consulted Ms Meylakh of 16 October 2014 for treatment in respect of his depressive symptoms.[50] In accordance with subsection 7(4) of the Act he is taken to have sustained the injury on that date.
[50] Exhibit R1 at 134.
G.3. THE CLAIM FOR PERMANENT IMPAIRMENT AND NON-ECONOMIC LOSS (APPLICATION 2018/4658)
G.3.1. Has Mr Briouzguine suffered an injury or injuries which have resulted in a “permanent impairment” within the meaning of section 24 of the Act?
Mr Briouzguine claims that the psychological injury suffered by him, being an aggravation of his chronic post-traumatic stress disorder with associated major depressive disorder, has resulted in his permanent impairment.
As I have already found that the injury has resulted in Mr Briouzguine suffering an impairment, it is necessary to determine whether that impairment is “permanent”.
The relevant provisions of the Act
Subsection 24(1) provides:
Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
In subsection (4)(1), permanent is defined to mean “likely to continue indefinitely”.
Subsection 24(2) provides:
For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
Evidence
Dr Dinnen
As set out in paragraph 57 of these reasons, Dr Dinnen is of the opinion that it is unlikely that there will be any improvement in Mr Briouzguine’s condition. In his report of 9 April 2018,[51] Dr Dinnen added:
I also consider him to be permanently incapacitated for any form of employment, in agreement with the psychiatric panel decision noted above.
I believe he has been unfit for any form of employment since the heart attack in 2014 which triggered off and exacerbated the underlying psychiatric problems.
I do not believe he would be suitable for rehabilitation or retraining. I believe he continues to be a risk. Ongoing management should also include close monitoring of any recurrence or exacerbation of any substance abuse disorder.
Panel Assessment for Commonwealth Superannuation Corporation[52]
[51] Exhibit A4 at 8.
[52] Exhibit R1 at 99.
The psychiatric panel decision referred to by Dr Dinnen was carried out by Drs Chambers and Hong, Consultant Psychiatrists, in early 2017 to determine Mr Briouzguine's capacity under the Public Sector Superannuation Scheme.
On 20 March 2017, the Panel reported, in part:
In view of the chronicity and severity of his posttraumatic stress disorder and associated anxiety and depressive symptoms it is our opinion that he will not be able to return to work in either his previous position or any other position in accordance with the requirements of total and permanent incapacity.
With regard to the likely date of incapacity for any further work from a psychiatric perspective, it is likely that he has been incapacitated from the time of his myocardial infarction in early October 2014.
…
In the panel’s opinion Mr Briouzguine is unlikely to ever work again in a job for which he … is reasonably qualified by education, training or experience.[53]
In the Public Sector Superannuation Scheme Trust Deed, “totally and permanently incapacitated” means that, “because of a physical or mental condition, the incapacitated person is unlikely ever to work again in a job for which he/she:
ois reasonably qualified by education, training or experience; or
ocould be so qualified after retraining.”[54]
[53] Exhibit R1 at 103.
[54] Exhibit R1 at 100.
Dr Smith
On 26 July 2018, Dr Smith noted that Mr Briouzguine had not received psychiatric treatment “of a sustained nature” since he suffered the myocardial infarction in 2014.[55] He had been taking antidepressant medication and had received psychological therapy. At the same time, Dr Smith reported that Mr Briouzguine had developed a new relationship in 2015 and married in 2016.
[55] See paragraph 62 of these reasons.
Under the heading Adaptation/Employability Dr Smith reported:
Mr Briouzguine stated that he had not engaged in any study or voluntary work. He stated that he had started to think about the work he might be able to engage in. He stated that on Thursdays he is involved in book covering as community service for seven hours.
…
By his own account Mr Briouzguine‘s condition had improved to some degree treatment consistent with him developing a relationship and subsequently marrying in 2016. He reported positivity and hope for the future. He is able to travel independently (for example, to this assessment) and he described some social contact with other friends. For those reasons, in my opinion, Mr Briouzguine did not present as substantially impaired as reported by Dr Dinnen.[56]
[56] Exhibit R7 at 7, 20.
Mr Briouzguine
In his statement made 26 February 2019, Mr Briouzguine said, in part:
I have been trying to work on it and fight it [his mental state], however it seems impossible to do it on my own. The medicine is stabilising some of the symptoms, however I believe I need more professional help. I really want to get back to my normal life as I miss it a lot. I want to be that friendly and social guy, working and looking after my family, the person I used to be prior to these events.[57]
[57] Exhibit A1 at [53].
When he gave evidence at the hearing, Mr Briouzguine repeated that he wanted to get better and needed further professional help. He continues to take medication, but is trying to reduce his daily dose of at least one of the medications. He said that all of the psychologists he had consulted advised him to see a specialist psychiatrist.
Mr Briouzguine sought treatment by Ms Meylakh, Psychologist, very shortly after suffering the myocardial infarction. He continued to seek treatment from her intermittently until and including 2017. He has been restricted to 10 sessions per annum, paid for through the Medicare system. He has been unable to afford further such treatment.
Mr Briouzguine was retired by the Australian Federal Police on invalidity grounds in March 2017.
In January 2019, Mr Briouzguine started living with his parents. He helps to care for his parents and provides assistance to his former wife and to his adult son.
Report of Ms Meylakh, Psychologist
In her report dated 20 June 2017, Ms Meylakh expressed the opinion that Mr Briouzguine was unfit to ever work again in a job for which he was reasonably qualified. She referred to his need to stabilise his daily life, be free of unnecessary work-related stress factors and to continue his appropriate medication and treatment. Only then would he be considered for any available means of rehabilitation.
Referring to a treatment plan, Ms Meylakh said:
Despite the fact that I initially saw Mr. Briouzguine in 2014, he certainly has not received sufficient psychological treatment. Usually the treatment program has two major strands: pharmacotherapy supervised by a psychiatrist and psychological intervention.
Treatment goals are related to improving function and resuming normal activities.
… I believe that given the right treatment and opportunity to recover, Mr. Briouzguine will be able to improve significantly on his mental condition. He is already recognising the importance of the change and is actively working towards assisting himself. I would schedule him for fortnightly sessions and I would posit that given the complexity of his condition his treatment would extend for a minimum of 18-24 months.[58]
[58] Exhibit R1 at 137-138.
Discussion
The relevant impairment from which Mr Briouzguine suffers is the aggravation of chronic post-traumatic stress disorder with associated major depressive disorder. He has suffered this impairment since October 2014. Although the impairment is now of five years’ duration, the treatment Mr Briouzguine has received has been limited.
In Filla v Comcare Australia,[59] the Federal Court referred to the role of paragraph 24(2)(c) of the Act as follows:
It is my view that s 24(2)(c) of the SRCA raises in substance at least one and possibly two questions for Comcare (or, on a review by the AAT of a decision made by Comcare, the AAT): first, what, if any, reasonable rehabilitative treatment exists for the particular impairment whose permanence is under consideration; and, secondly, assuming that some reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration, has the employee undertaken all of it?
The first of those two questions is, in my view, one for rehabilitation experts whose expertise is appropriate to the particular impairment whose permanence is under consideration; it will be for them to identify such reasonable rehabilitative treatment, if any, as exist for that impairment. If they answer the first of those two questions by identifying some reasonable rehabilitative treatment which exists for the particular impairment, then the answer to the second of those two questions should follow without much difficulty.
The only purpose of requiring those two questions to be answered is that their answers will assist in the determination of whether the particular impairment under consideration is a permanent one …
I now turn to the assistance which the answers to the two questions may provide in determining whether a particular impairment is permanent.
If, for instance, reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration and the employee has already undertaken all of it, that is obviously a matter which will tend in favour of the impairment’s being permanent.
If, on the other hand, although reasonable rehabilitative treatment does exist for the particular impairment the permanence of which is under consideration, the employee has not yet undertaken all of it, that is a matter which may, depending on the circumstances, tend either against or in favour of the impairment’s being permanent.
For instance, the employee may: be willing to undertake the treatment; have been unable for some reason to do so yet, but be able to do so in the near future. That is a matter which would tend against the impairment’s being permanent.
In Comcare v Filla,[60] the Full Court of the Federal Court approved the above statement of the law.
[59] [2001] FCA 964; (2001) 115 FCR 144 at 157-158 ([55]-[61]).
[60] [2002] FCAFC 286; (2002) 115 FCR 163.
On the basis of the evidence of Dr Smith and the report of Ms Meylakh, I am satisfied the psychiatric and psychological treatments are reasonable rehabilitative treatment within the meaning of subsection 24(2) of the Act.
I turn now to the question of whether Mr Briouzguine has undertaken all such treatment.
On more than one occasion, Mr Briouzguine has stated that he wishes to get better and to return to a normal life working and caring for his family. I am satisfied that he genuinely wishes this to be the case. He has readily conceded that he has been unsuccessful in his attempts to cope with his mental condition himself and that he needs more professional help.
Mr Briouzguine has sought treatment by consulting his General Practitioner, Psychiatrist, Dr Barrett and Psychologist, Ms Meylakh. He has taken the medication he has been prescribed. I am satisfied that he has followed the professional advice given to him to the extent that his financial circumstances have allowed. Unfortunately, he delayed seeking compensation under the Act until May 2017 and further time passed while his claim was being resolved.
Dr Dinnen and others have expressed the view that Mr Briouzguine’s condition is unlikely to improve. However, I prefer the evidence of Dr Smith that when he assessed Mr Briouzguine he was not impaired to the extent expressed by Dr Dinnen.
Dr Dinnen did not have as detailed a history of Mr Briouzguine's family situation, including his remarriage, as did Dr Smith. In addition, since January this year Mr Briouzguine has been living with his parents. I accept the evidence of Dr Smith that Mr Briouzguine‘s improved social relationships and greater positivity indicate that his prospects of rehabilitation are better now than those expressed by Dr Dinnen. When Dr Dinnen was made aware of Mr Briouzguine's re-marriage he agreed that his social withdrawal was not such an important consideration.
Mr Briouzguine himself indicated a need for further professional assistance. The likely benefit of such assistance is supported by the opinion of Ms Meylakh that, given the right treatment and opportunity to recover, he will be able to improve his mental condition significantly. I take into account that Ms Meylakh treated Mr Briouzguine for a number of years following his myocardial infarction.
While I accept that Mr Briouzguine has sought medical assistance on many occasions and has followed the advice given to him, he has not undertaken all reasonable rehabilitative treatment for the impairment he suffers. It is unfortunate that some years have passed in which he could have obtained such treatment had he received financial assistance to do so. On the basis of the evidence I have referred to, I am satisfied also that it is likely that there will be an improvement in his condition if further psychological and psychiatric treatment is provided to him.
I am not satisfied that the impairment suffered by Mr Briouzguine is “permanent” within the meaning of section 24 of the Act. This means that, at this time, Mr Briouzguine is not entitled to compensation under sections 24 or 27 of the Act.
H. CONCLUSION
Application 2017/6572
The decision under review, being the decision made by Comcare on 11 September 2017, will be set aside.

In substitution, it will be decided that Comcare is liable to pay compensation to Mr Briouzguine in accordance with these reasons in respect of injuries, being:
(1)myocardial infarction which occurred on 3 October 2014;
(2)aggravation of chronic post-traumatic stress disorder with associated major depressive disorder which occurred on 16 October 2014.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, Comcare shall pay the costs incurred by Mr Briouzguine in these proceedings.
Application 2018/4658
The decision under review, being the decision made by Comcare on 15 August 2018, will be affirmed.

I certify that the preceding 127 (one hundred and twenty seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

........................................................................
Associate
Dated: 27 September 2019

Dates of hearing: 11, 13 and 14 March 2019

Counsel for the Applicant: Mr L Grey

Solicitors for the Applicant: Turner Freeman Lawyers

Counsel for the Respondent: Mr B Kelly

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 4197

27 September 2019

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Appeal

Causation

Statutory Construction

Remedies

Dates of hearing:	11, 13 and 14 March 2019
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	Turner Freeman Lawyers
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Sparke Helmore Lawyers