Bromham and Comcare (Compensation) - [2017] AATA 1515

Bromham and Comcare (Compensation) [2017] AATA 1515 (20 September 2017)
Division:GENERAL DIVISION
File Number(s): 2015/1233
Re:Marjut Bromham
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Bill Stefaniak AM RFD, Senior Member
Date:20 September 2017
Place:Sydney

The reviewable decision made 3 March 2015, being the decision of Comcare that on 9 December 2014 Ms Bromham had no entitlement to compensation in respect of medical expenses or to incapacity payments in respect of an injury which occurred on 19 September 2005, is set aside.
The matter is remitted to Comcare for reconsideration of Ms Bromham’s entitlement to compensation under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act1988 (Cth) in accordance with these reasons for decision.
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 of the proceedings incurred by the Applicant.
......................................[sgd]..................................
J W Constance
Deputy President
CATCHWORDS
WORKERS COMPENSATION – hearing on remittal – entitlement to compensation for medical expenses – entitlement to incapacity payments – psychological injury – adjustment disorder with depressed mood – where there is a compensable injury – whether Applicant continued to be entitled to compensation for the cost of medical treatment obtained in relation to compensable injury – whether Applicant continued to be incapacitated from work as a result of the compensable injury – whether psychological condition had resolved – where conflicting medical evidence – decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
REASONS FOR DECISION
Deputy President J W Constance
Bill Stefaniak AM RFD, Senior Member
20 September 2017
INTRODUCTION

This matter was heard by us in April 2016. Following an appeal to the Federal Court it was remitted to the Tribunal for further hearing in accordance with the Court’s Reasons for Judgment published on 1 March 2017.
When the matter came on for further hearing we heard additional submissions by the parties. Neither party called additional evidence. As a result parts of these reasons are the same as those previously published by us.
In June 2006 Comcare accepted liability to compensate Ms Bromham under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of a psychological injury she suffered in September 2005. From then until 9 December 2014 Comcare paid compensation for medical treatment obtained in relation to the injury and for incapacity suffered as a result of the injury.
In these reasons we refer to “the compensable injury”. So that there can be no confusion, we are referring to the injury suffered by Ms Bromham in September 2005 “as a result of being moved from one workplace to another and feeling that her new role was not commensurate with her former experience and training.”[1] The move took place in August 2005 and involved Ms Bromham being transferred from one workplace to another, both within Canberra suburbs. Counsel for Comcare confirmed that her client agreed that this was an accurate description of the compensable injury.[2]
[1] Exhibit R1 p.118-119.
[2] Transcript 30/06/17 at p-321.
In March 2015 Comcare affirmed its earlier decision that on 9 December 2014 the injury had resolved and at that time no further compensation was payable. Ms Bromham has applied to the Tribunal to review the decision made in March 2015.
For the reasons which follow the reviewable decision will be set aside. In substitution it will be decided that continuously since 9 December 2014 and at the time of this decision, compensation has been payable in respect of medical expenses and incapacity in accordance with the Act.
BACKGROUND
Ms Bromham was born in 1956. She commenced employment with the ACT Emergency Services Authority in 1993 as a finance and debtors officer. She was later promoted to the position of procurement officer in the Stores Department.
On 10 August 2005 Ms Bromham was informed by her supervisor that management had decided that she would be moving from Stores Department to the Finance Department in another suburb of Canberra. She had not been previously advised of the impending move.[3]
[3] Exhibit R1 p.7.
Ms Bromham started work in the Finance Department on 24 August 2005.[4]
[4] Exhibit R1 p.9.
The facts set out in the following 23 paragraphs are agreed by the parties. We are satisfied that the matters agreed accurately reflect the evidence before us. Unless otherwise stated the paragraphs have been taken from the Applicant’s Statement of Facts, Issues and Contentions. References to documents with the pre-fix “T” are references to documents in exhibit R1.
On 8 November 2005 the Applicant submitted an accident/ incident report (T7) to the ACT Emergency Services Authority. The particulars of the “incident” provided by the Applicant were “Management informed me that my position was being relocated to Curtin (Finance) after eight years. No consultation.” Particulars of “injury or disease” provided by the applicant included “Stress, depression, high blood pressure and blood sugar level.”
On 6 December 2005 the Applicant submitted a workers compensation claim form (T8) to the Authority. On the form the applicant particularised her “diagnosed condition” as “Stress, blood pressure and blood sugar level”. In answering the question of part(s) of body injured the Applicant particularised “psychological system”.
On or around 14 November 2005 the Authority referred the Applicant to Lisa Castles & Associates Rehabilitation and Occupational Health Consultants to enable the provision of an Initial Needs Assessment Report. In a report dated 31 January 2006 (T9) Jill Shanahan Occupational Therapist/ Rehabilitation Consultant provided a recommendation for a Return to Work Plan to be opened for the Applicant for three months.
On 1 February 2006 Respondent requested provision of a report from the Applicant’s treating general practitioner Dr T. Phengsiaroun (T10).
On 3 March 2006 Jill Shanahan Occupational Therapist referred the Applicant to the Calvary Private Hospital for psychological treatment (T16).
In a report to the Respondent dated 10 March 2006 (T17) Dr Phengsiaroun opined that “In my opinion, there is a strong relationship between Ms Bromham’s current symptoms of anxiety/ depressive disorder and her employment as described above and is not due to pre-existing condition”.
Dr Phengsiaroun also reported that the Applicant had low back pain since 1991, exacerbated by a fall in 1999, which caused injury to breast implants, thoracic spine, shoulders and hands and chipped her tooth. He also noted a motor vehicle accident in 1999 that caused further injury to the Applicant’s back, an injury when the Applicant was ‘crushed in a filing compactus’ in 2000 and an injury in 2003 when a guillotine fell on the Applicant’s foot. Dr Phengsiaroun was also of the opinion that the Applicant’s ’anxiety/depressive disorder’ was not permanent and would improve.[5]
[5] Respondent’s Statement of Issues, Facts and Contentions para.3.4; Exhibit R1 p.113.
In compliance with a Respondent request, on 23 March 2006 the Applicant attended an Independent Medical Examination consultation with Dr John Saboisky consultant psychiatrist. In his report dated 26 April 2006 (T18) Dr Saboisky opined “I believe she suffers from an adjustment disorder with depressed mood as a result of being moved from one workplace to another and feeling that her new role was not commensurate with her former experience and training”.
Dr Saboisky also reported that the Applicant’s adjustment disorder with depressed mood was not permanent and would settle.[6]
[6] Respondent’s Statement of Issues, Facts and Contentions para.3.5.
In a determination dated 8 June 2006 (T20) the Respondent accepted liability pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 for an “adjustment reaction with depressive reaction”.
Undercover letter date 29 June 2006 the Respondent requested provision of a report from the Applicant’s treating psychiatrist, Dr May Matias (T21).
In an undated report to the Respondent (T22) Dr Matias diagnosed the Applicant was suffering from an adjustment disorder with depressed mood. In respect to causation, Dr Matias opined that the applicant “presents with depressive symptoms due to difficulty in adapting to a stressful situation, namely the relocation to Curtin Central Office without prior consultation, the loss of her familiar work environment, the fact that she was the only one transferred as a result of the relocation.”
In a report to the Authority dated 27 July 2006 (T25), the Applicant’s treating psychologist Judy Collett opined that the Applicant currently had no capacity to work and “while it is likely that she will make some improvement I doubt that this would be to the level where she can be effective in the workplace. It may be expedient for both her and the workplace to consider the option of retirement on medical grounds”.
In a report to the Respondent dated 18 October 2006 (T29) Dr May Matias opined that the Applicant was still “fairly suicidal and very fragile at present as a result of the injury she sustained on 20^th September 2005, following her unexpected transfer from Belconnen Storage to Finance headquarters at Curtin”.
In response to a request made by the Authority, on 22 November 2007 and 27 November 2007, Dr Andrew Lark, Occupational Physician provided reports pertaining to the Applicant’s potential medical retirement (T33 & T34). In his report dated 27 November 2007 Dr Lark found that the applicant “was found to be manifestly totally and permanently incapacitated for all work, in accordance with the ComSuper criteria”.
Dr Lark confirmed that the Applicant reported high levels of pain in her left knee, right foot, hands, arms and shoulders. Dr Lark was of the opinion that the Applicant was ‘manifestly totally and permanently incapacitated for all work’ mainly due to widespread arthritis that particularly affected the knee joints.[7]
[7] Respondent’s Statement of Issues, Facts and Contentions para.3.8.
In response to a referral provided by Dr Lark, on 28 November 2007 the Applicant attended an Independent Medical Examination consultation with Dr Graham George, Consultant Psychiatrist. In his report dated 3 December 2007 (T35) Dr George noted that the Applicant had not been able to work for two & a half years prior to his assessment. Dr George opined that the Applicant was suffering from “chronic major depression and also from chronic pain disorder.” Dr George noted his agreement with Dr Lark’s opinion that the applicant was “manifestly totally and permanently incapacitated for all work.”
Dr George reported that the Applicant said she had marked depression relating to her pain, lack of mobility and decrease in general activities.[8]
[8] Respondent’s Statement of Issues, Facts and Contentions para.3.9.
In a report to the Respondent dated 5 December 2007 (T36) Dr May Matias provided an updated diagnosis in respect to the applicant of “a major depressive disorder in view of the severity and duration of the condition.” Dr Matias also noted that she was not optimistic that the Applicant could return to work.
Dr Matias reported that the Applicant’s psychological health was impacted by pain and disabilities from physical injuries.[9]
[9] Respondent’s Statement of Issues, Facts and Contentions para.3.10.
In compliance with a Respondent request, on 28 March 2008 the Applicant attended an Independent Medical Examination consultation with Dr William Glaser, consultant psychiatrist. In his report dated 21 April 2008 (T38) Dr Glaser opined that the Applicant was suffering from “a major depressive disorder which is of moderate severity”. Dr Glaser also stated that “It needs to be emphasised that this lady, because of her depressive disorder, is currently at moderate risk of serious self-harm either through direct attempts to harm herself (e.g by taking excessive doses of her medications) and/or neglect of her self care (i.e loss of interest in monitoring her diabetes)”. In respect to causal factors, Dr Glaser opined that they included “the chronic and progressive pain and disability caused by various work-related injuries, and the distress caused by the sudden and unexpected decision to move her place of work…”
Effective on 11 July 2008 the Applicant was retired on invalidity grounds (T40, T41 & T43).
In a supplementary report to the Respondent 6 August 2008 (T44) Dr Glaser opined that “Ms Bromham’s current psychiatric problems are clearly a continuation of the difficulties which started to trouble her around August 2005 and which were a response to the work-related stressors discussed in my previous report….. Finally, I think it would be reasonable to emphasise my previous concerns regarding the severity of this lady’s current psychiatric problems associated with her moderate risk of serious self-harm. It would be reasonable to point out that delays or difficulties in the claim handling process could well increase this risk.”
LEGISLATION
Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) 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 16(1) provides:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Note: Compensation is not payable under this subsection in relation to certain defence‑related claims (see Division 2A of Part XI).
Subsection 19(2) provides in part:
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula [set out]:
THE REVIEWABLE DECISION
By the reviewable decision made 3 March 2015[10] Comcare affirmed its earlier determination[11] that on 9 December 2014 Ms Bromham had no entitlement to compensation in respect of medical expenses or to incapacity payments in respect of her injury. The determination was made on the basis that at that time Ms Bromham’s psychological condition had resolved.
[10] Exhibit R1 p.303.
[11] Exhibit R1 p.295
THE ISSUES
Section 14 of the Act provides for a determination as to whether Comcare is liable to pay compensation for a claimed injury. Section 16 sets out the circumstances in which compensation is payable for medical expenses obtained in relation to an accepted injury. This section requires Comcare to consider each expense claimed and to make a decision whether or not compensation is in fact payable. Similarly section 19 requires Comcare to decide upon the compensation payable for each claimed period of incapacity. Neither section 16 nor 19 require Comcare to revisit the original decision made under section 14 that compensation is payable in respect of the injury.
The Tribunal stands in the shoes of the original decision-maker and it must take into account all of the evidence before it. The issues we must decide follow.
(1) Has Ms Bromham any entitlement to compensation for medical expenses incurred at any time on or since 9 December 2014, in relation to the compensable injury?
(2)Has Ms Bromham any entitlement to incapacity payments at any time on or since 9 December 2014, in relation to the compensable injury?
CONSIDERATION
Comcare’s argument
Comcare argues that on and since 9 December 2014 Ms Bromham is not entitled to compensation for medical expenses or incapacity payments as during the whole of that time she has not suffered any effect of the compensable injury.
When the matter was first argued before us it was put on behalf of Comcare that “there is insufficient evidence to establish that the compensable condition continues to contribute to Ms Bromham’s psychological condition, if she suffers from one”.[12] We do not agree that this is the correct approach to the task before us. Ms Bromham does not have to again show that Comcare is liable to compensate her in respect of the injury she suffered in 2005. Whilst neither party bears an onus of proof, there is an evidentiary burden on Comcare which must be discharged if the decision under review is to be affirmed. For this to occur we have to be satisfied on the evidence before us that, on the balance of probabilities, Ms Bromham does not suffer at present from the effects of the compensable injury and has not done so since 9 December 2014. If we cannot be so satisfied the reviewable decision must be set aside.
[12] Transcript 13/04/16 p-305.
The argument put on behalf of Comcare at the hearing on remittal was as follows:
(a)the correct diagnosis of Ms Bromham’s condition is a “relapsing remitting major depressive condition, disorder”;[13]
(b)she has been in a period of remission since 9 December 2014 and in that period has not suffered a condition outside the boundaries of normal mental functioning;[14]
(c)alternatively, “if she does suffer from a condition outside the boundaries of normal mental functioning behaviour, then it is no longer contributed to, to the requisite degree, that being a material contribution”.[15]
The evidence in support of Comcare’s argument
[13] Transcript 30/06/17 p-322.
[14] Transcript 30/06/17 p-322.
[15] Transcript 30/06/17 p-322.
The evidence of Dr Vickery Psychiatrist and Pain Management Consultant
Dr Vickery assessed Ms Bromham on 20 October 2014 at the request of Comcare. He provided reports dated 20 October 2014,[16] 31 August 2015[17] and 29 February 2016[18] and gave evidence.
[16] Exhibit R1 p.280.
[17] Exhibit R2.
[18] Exhibit R3.
In the opinion of Dr Vickery, when he assessed Ms Bromham on 29 October 2014 her psychological condition had resolved and there was no objective clinical evidence of a diagnosable DSM-IV-TR psychiatric disorder or injury. Further, Ms Bromham was not suffering from a condition outside the boundaries of normal mental functioning and behaviour and did not require psychological treatment.
When he gave evidence Dr Vickery agreed that Ms Bromham may be suffering a chronic illness dating back to 1990 but that such illness, if it exists, is not related to her employment by the Authority. In his view Ms Bromham has a vulnerability to develop major depression. However, her view that the incident at work in 2005 is a major factor in this vulnerability is a misattribution. Misattribution in these circumstances is not uncommon.
The evidence of Mr O’Neill, Clinical Psychologist
Mr O’Neill assessed Ms Bromham on 18 June 2015 at the request of Comcare’s Solicitors. He provided a report dated 19 June 2015[19] and gave evidence.
[19] Exhibit R4
Mr O’Neill reported:
There was a chronic major depression which is now in remission. There is claimed persistent pain with negative impact on life style. There was some over reporting of psychological symptoms.
Ms Bromham has been absence (sic) from work for 9 years. I am of the opinion that she would be fit to do office based administrative tasks of a sedentary nature for approximately 4 hours per day, four days per week. She would require a structured rehabilitation program to assist with this, given her significant absence from work. Pending on her ability to cope with that over a 3 to 6 month period, she could then be reviewed for the likelihood of upgrading those hours close to her normal pre-injury role.
……
Ms Bromham has benefitted greatly from psychological treatment. She may benefit from 3 further sessions phased out over the next couple of months to consolidate treatment gains, reinforce the importance of self-management, whilst developing a written relapse prevention plan.
Given the past chronicity of her condition, she may require an occasional booster session, up to 1 to 2 sessions per year. It is not possible to determine how long this could be required for. …

When he gave evidence, Mr O’Neill agreed that Ms Bromham was the type of person who would take offence more readily than others and that she may have attributed all of the problems to the incidents which occurred in her workplace. He agreed that Ms Bromham’s transfer in August 2005 was “very significant”. However, when a person is removed from the situation which has caused depression it is expected that the depressive symptoms will resolve within six months.
Further, Mr O’Neill agreed that crying can be a symptom of depression, although not necessarily so. He agreed that it is possible that Ms Bromham has suffered a relapse of depression, as there is “a lifetime of vulnerability”.
The evidence on behalf of Ms Bromham
Ms Bromham’s evidence
When asked as to her various medical conditions, Ms Bromham said that her right knee is “very good” but that her left knee continues to be very painful. She no longer suffers pain following an operation on her thumbs and she described the condition of her neck and spine as “good”. These conditions would not prevent her returning to her previous employment.
Prior to the incident in August 2005 which caused Ms Bromham’s compensable injury there were a number of incidents in her workplace which caused her distress. The first of these incidents occurred in about 1996. However Ms Bromham continued to attend work until the incident in August 2005, which she described as “the breaking stone”. She attempted suicide in 2005 on two occasions. At the time her physical difficulties caused her some stress but were not so severe as to prevent her attending work.
Ms Bromham left her home in Canberra in 2006. She referred to this decision as “running away” as she no longer felt safe. She felt “useless and could not cope anymore”. She then travelled alone in her campervan until August 2008 at which time she arrived at her son’s home in Gladstone, Queensland. During her travels she continued to take anti-depressant medication, obtaining prescriptions from various general practitioners along the way.
Whilst Ms Bromham was staying with her son she helped him renovate his home. She did tiling and painting work for approximately seven hours per day for three months.
Ms Bromham met Mr Newitt whilst staying in Gladstone. In December 2008 she left Gladstone accompanied by Mr Newitt, who travelled in a separate motor home. Since that time Mr Newitt has acted as Ms Bromham’s carer. At some time thereafter he was granted a carer’s pension in relation to Ms Bromham. He continues to be her carer.
Having left Gladstone Ms Bromham and Mr Newitt travelled through Queensland, New South Wales, Victoria and South Australia before returning to the Australian Capital Territory. In Victoria she stayed at a friend’s home and cared for her friend’s dogs. She also visited her brother.
On returning to Canberra she sold her home. She says at that time her mental condition was not improving. She continued to take Effexor, which had been prescribed to treat her depression. After selling her home Ms Bromham and Mr Newitt travelled to Taree on the north coast of New South Wales where Ms Bromham purchased the home in which they now live.
Since the injury Ms Bromham has continued to consult general practitioners who have continued to prescribe Effexor. In April 2016 her general practitioner was Dr Kang. There is no evidence to suggest that this has changed.
At her home in Taree, which is situated on a battle-axe block, Ms Bromham has had a high boundary fence constructed and keeps the windows locked. She does not like leaving home and spends considerable time sleeping. She is concerned that “people will judge me.” She attributes this to being humiliated by her male work-colleagues when she was employed by the Authority.
In Taree Ms Bromham has joined a patchwork group which meets weekly. For some time she went to the homes of other members but now, at her request, the group meets at her home. Occasionally she has attended social gatherings outside her home with members of the group and their partners.
Mr Newitt does most of the shopping. On most occasions Ms Bromham remains at home. Mr Newitt continues to care for Ms Bromham, making her meals, reminding her to take her medication, cleaning the house and accompanying her to appointments. At times they go to the library and borrow audio books which Ms Bromham listens to at home.
Ms Bromham says that about once per month she awakes screaming. She says that this happens less often than previously, but is worse when she is dealing with Comcare. She continues to take Effexor.
Evidence of Dr Newlyn, Consultant Psychiatrist
Dr Newlyn assessed Ms Bromham in May 2013 at the request of her Solicitors. He provided reports dated 24 May 2013,[20] 28 July 2015[21] and 12 February 2016[22] and gave evidence.
[20] Exhibit R1 p.235.
[21] Exhibit A1.
[22] Exhibit A2.
In the opinion of Dr Newlyn, at the time of the initial assessment Ms Bromham was suffering Major Depressive Disorder caused by the work incidents reported in her history along with the employment duties and employment practices. In May 2013 Dr Newlyn reported (as described by Ms Bromham) the following as “the signal event” in relation to the psychiatric injury current at that time:
In 1994 I transferred to ACT Emergency Services. I worked with them until 2005. I had started in financial services at Curtin. Then they created a position at Belconnen where there was nothing to do. I worked with 3 guys who didn’t want me there. When they relocated to another site I was put behind a screen so I wasn’t seen. Then the Oracle system was introduced and I created purchase orders, recorded items and matched accounts. When I was transferred from Belconnen to Curtin I had no duties and felt kicked in the guts.[23]
In his opinion Ms Bromham was unfit to work in the open labour market.
[23] Exhibit R1 p.240.
Dr Newlyn reassessed Ms Bromham in July 2015. His report includes the following verbatim record of Ms Bromham’s description of her condition at that time:
I was on a high dose of Efexor but I can’t remember when I reduced the dose. I was on antidepressants in Canberra. I have been on Efexor since 2005.
I used to be on Panadeine Forte… My doctor doesn’t want me to take Panadol Osteo 12 a day but there are days I just need to take 12.
I have been diabetic since 1999 and started insulin in early 2014.[24]
[24] Exhibit R1 p.5.
Dr Newlyn maintained the diagnosis of major depressive disorder, which he then described as chronic. Ms Bromham’s symptoms have been present since 2005 and will continue for her lifetime. In his opinion Ms Bromham remained totally unfit for her pre-injury employment.
In his report of 12 February 2016, having considered the reports of Dr Vickery and Mr O’Neill, Dr Newlyn maintained the views he had expressed in his earlier reports.
When he gave evidence Dr Newlyn said that Ms Bromham’s depressive condition could have been in remission for an extended period while she was travelling around the country in her motor home. This was prior to 9 December 2014, being the date on which Comcare decided to cease payments of compensation.
Evidence of Dr Sjostedt, Clinical Psychologist
Ms Bromham consulted Dr Sjostedt in February 2012 on referral by her General Practitioner, Dr Kang. He provided reports dated 29 February 2012[25] and 30 June 2015[26] and gave evidence.
[25] Exhibit A7.
[26] Exhibits A11 & A13.
Following the initial consultation Dr Sjostedt reported to Dr Kang that he had administered various questionnaires to Ms Bromham which showed that she was in the severe range for depression and that she had very low self-esteem and self-confidence. He concluded in the report that:
Today, Marjie is still severely traumatised. She is socially phobic, anxious and completely avoidant. She is depressed, very lethargic and suicidal. She refuses to answer the telephone or to open personal mail or emails. She rarely goes out and her life has become very small.[27]
[27] Exhibit A7.
By the time he provided his report of 30 June 2015, Ms Bromham had consulted Dr Sjostedt on an additional 47 occasions. At the time of this report Dr Sjostedt was of the opinion that Ms Bromham suffered severe clinical depression and was extremely severely anxious and stressed; her high level of anxiety led to panic disorder and panic attacks.
Dr Sjostedt further reported that:
…for nearly the first two years of our therapeutic relationship Ms Bromham could not speak of what happened to her at the ACT Emergency Services Authority without breaking out into bouts of perspiration and heavy breathing, i.e., she verged on having panic attacks. She would become visibly distressed and would often have to leave our sessions quite abruptly whenever required to remember and discuss the bullying and harassment that her so-called work colleagues, at the Belconnen Emergency Services stores, perpetrated against her.[28]
[28] Exhibit A6 p.5.
In the report Dr Sjostedt provided a list, expressed in Ms Bromham’s own words, of the circumstances she said led to her psychological condition. These are:
·an incident in 1996 when Ms Bromham was told she needed special furniture because she had “fat legs”;
·the treatment of her complaint concerning a male employee walking through the office not wearing a shirt;
·her being transferred to the Emergency Services stores where she felt “out of sight, out of mind”;
·being told she was not wanted in stores and becoming frustrated as she had no work to do;
·being told to “stop acting like a girl” during a public meeting after she had complained about the conduct of fellow-employees towards another employee;
·a discussion in August 2005 concerning her impending transfer back to the Curtin office;
·an incident in August 2005 when she was told to “shut up” by her supervisor in the presence of several other employees.
In the opinion of Dr Sjostedt, Ms Bromham suffered the following mental conditions in June 2015:
·Clinical depression;
·Generalised Anxiety Disorder;
·Panic Disorder;
·Post Traumatic Stress Disorder; and
·Social Phobia.
Evidence of Mr Ian Bromham, son
After Ms Bromham stopped working Mr Bromham observed his mother to become emotionally erratic and to suffer extreme mood swings. She lost her social network in Canberra and became increasingly reluctant to leave her home.
Mr Bromham visits his mother in Taree and also arranges for her to visit him and his son in Sydney.
In his opinion his mother’s mental health deteriorated during the two years prior to his giving evidence in April 2016. She is more tearful and appears to be sadder than before. She has become increasingly concerned that people are watching and following her and has made her home more secluded with high fences and dense vegetation.
Evidence of Mrs Gotts, friend
Mrs Gotts has known Ms Bromham as a member of the quilting group and as a friend since 2011 or 2012. She has observed Ms Bromham at times to be tearful and appearing to her to have a very flat mood. For the first 12 months of their friendship Ms Bromham’s condition appeared to be improving, but since then it appears to have worsened and she has appeared to Mrs Gotts to have become more depressed.
Evidence of Mrs Halsey, friend
Mrs Halsey also met Ms Bromham through the quilting group. They have become close friends. Prior to retiring Mrs Halsey was a Psychiatric Nurse.
In her statement dated 5 April 2016[29] Ms Halsey said:
My initial perception of Margie’s demeanour in the weeks and months after I first met her was that she was “all over the place”. By this I mean that during the course of the group meetings she would become visibly upset and from time to time cry for no apparent reason. When I got to know Margie better over time she placed me on notice that she had suffered a psychological injury which was related to her work.
From time to time when she became teary during the course of the group meetings Margie would say words to the effect of “what is the point in going on?” When Margie made this statement I would just listen as there was nothing more I could do.
It remains my opinion that Margie’s demeanour “is all over the place’. There have been a number of times in recent months both at group meetings and at her house when Margie will start crying for no apparent reason.
There have been times when I have gone to Margie’s house to visit her and she has still been in bed in her pygmas [sic] even though it is quite late in the day… On the days when I go to her residence and she is still in bed she is very quiet, lethargic and difficult to engage with. On these occasions it is difficult to sustain a conversation with her.
[29] Exhibit A10.
DISCUSSION
Having considered all of the evidence, including all of the documents in exhibit R1 (the documents filed in accordance with section 37 of the Administrative Appeals Tribunal Act 1975), we are not satisfied that, at any time on or since 9 December 2014, Ms Bromham has not been entitled to compensation in respect of the cost of medical treatment obtained in relation to the injury sustained by her in September 2005.
We are also not satisfied that, at any time on or since 9 December 2014, Ms Bromham has not been incapacitated for work as a result of the injury.
We have reached these conclusions as we are satisfied on the balance of probabilities that Ms Bromham has continuously suffered from the condition of adjustment disorder with depressed mood, first suffered about 9 September 2005 and for which Comcare accepted liability to pay compensation until 9 December 2014.
On the evidence before us we are satisfied that Ms Bromham has suffered from a depressive condition continuously since 9 December 2014 and that this is the same condition as that for which Comcare accepted liability to compensate Ms Bromham and which was caused by her being moved from one workplace to another and feeling that her new role was not commensurate with her former experience and training.
We find that Ms Bromham was an honest witness who gave her evidence to the best of her recollection. It may be that at times she perceived situations to be more detrimental to herself than may have been perceived by others, but we are satisfied that any such perceptions were based on situations which did occur. In this regard it is to be noted that liability was accepted on the basis of events which occurred within the workplace.
There is no doubt that Ms Bromham suffered several serious medical conditions prior to the compensable injury and that these conditions have continued to have an effect on her physically. However, based on Ms Bromham’s evidence we are satisfied that these conditions did not prevent her working, before the compensable injury and would not have prevented her working thereafter.
Based on the evidence of Dr Newlyn and Dr Sjostedt we are satisfied that the transfer of Ms Bromham from one workplace to another in August 2005 and her perception that her role was not commensurate with her previous experience, has continued to contribute to her condition in a “material degree”. Dr Newlyn described this as “the signal event” contributing to Ms Bromham’s mental illness as at May 2013. Our reasons for preferring the evidence of Dr Newlyn and Dr Sjostedt in this regard are set out later in our reasons for this decision.
At the time Ms Bromham was injured, “injury” was defined in section 4 of the Act to include “a disease suffered by an employee”. In the same section “disease” was defined to mean:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation. [30]
[30] The definition of injury was amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No.54/2007). That amendment applies only to an injury sustained on or after 13 April 2007.
Taking into account the reports of Dr Phengsiaroun of 10 March 2006,[31] Dr Saboisky of 26 April 2006[32] and Dr Glaser of 21 April 2008,[33] it is apparent that Ms Bromham’s transfer in August 2005 seriously affected her and that the effects lasted considerably longer than was expected at the time.
[31] Exhibit R1 p.113.
[32] Exhibit R1 p.115.
[33] Exhibit R1 p.211.
Ms Bromham has been receiving treatment for the condition almost continuously since 2005. This included weekly attendances at a group therapy program at Hyson Green until October 2007.[34] She was initially prescribed Effexor by Dr Matias, Psychiatrist, in 2006 and continued to obtain prescriptions for this drug during her travels in her campervan. As at April 2016 she continued to take Effexor under the supervision of Dr Kang.
[34] Exhibit R1 p.213.
During 2006 Ms Bromham was treated by Dr Gibson, Psychologist as well as Dr Matias.
Having assessed Ms Bromham in November 2007 (over two years after the onset of her disorder) Dr George reported:
Ms Bromham has great difficulty with functions of daily living, such as dressing and self-care, mobility, travelling, leisure activities and social interaction and has an inability for ongoing work. She has a combination of both physical impairment and psychiatric impairment and I agree with you that she presents at present as being manifestly totally and permanently incapacitated for all work. I also agree that it seems that she will require assistance with personal or nursing care on a daily basis within the next two years[35].
[35] Exhibit R1 p.204.
Dr Glaser assessed Ms Bromham in March 2008 at the request of Comcare. This assessment took place almost three years after the incident which caused her injury.
In a report dated 21 April 2008[36] Dr Glaser noted that Ms Bromham used to enjoy a number of hobbies and social activities and “going out” generally. He noted that she was unable to enjoy the activities in which she had been previously engaged and had lost contact with her church group and friends. The evidence of Ms Bromham, Mr Bromham, Mrs Gotts and Mrs Halsey, that she no longer has a wide circle of friends and is restricted in her activities, supports the conclusion that the condition referred to by Dr Glaser in 2008 is continuing and that Ms Bromham has not recovered from the effects of the injury she suffered in 2005.
[36] Exhibit R1 p.211.
Dr Glaser further reported:
In terms of the current psychiatric state, she is suffering from a Major Depressive Disorder which is of moderate severity. The current symptoms include tearfulness, depressed moods, feelings of “flatness”, sleep disturbance, preoccupations with thoughts of self-harm, disturbances in her appetite and weight, fatigue, loss of motivation and feelings of hopelessness and pessimism…….
The causes are mainly work-related and include the chronic and progressive pain and disability caused by various work-related injuries, and the distress caused by the sudden and unexpected decision to move her place of work …… [37]. (Emphasis added).
Again, this is consistent with Ms Bromham suffering from a condition which has lasted considerably longer, and is of greater severity, than was expected.
[37] At p.217.
Dr Sjostedt has been Ms Bromham’s treating psychologist continuously since November 2012. Ms Bromham has consulted him frequently during this time. As a practitioner who has treated his patient over that period of time, normally his opinion would be given considerable weight. However, unfortunately Dr Sjostedt regarded himself as an advocate for Ms Bromham and expressed his views on the circumstances of her employment in an argumentative and, at times, inappropriate manner. Nevertheless, we do take into account his opinion that Ms Bromham is still severely traumatised by the events in her workplace, including her transfer in 2005.
We have taken into account also that Dr Newlyn agrees with Dr Sjostedt that Ms Bromham continues to suffer from a Major Depressive Disorder caused by incidents which occurred to her at work, including her transfer in 2005.

We prefer the views expressed by Dr Newlyn and Dr Sjostedt to those of Dr Vickery and Mr O’Neill.
When he gave evidence Dr Newlyn expressed the opinion that Ms Bromham has a chronic recurrent major depressive disorder and is not fit to return to work.[38] In his clinical practice he has patients who have never been able to return to work although they have periods of appearing to be functioning at a very high level. It is his experience that once they are in a workplace situation they rapidly deteriorate and cannot get out of their depression.
[38] Transcript 11/04/16 p-88.
We find the views of Dr Newlyn consistent with the evidence of Ms Bromham, Mr Bromham, Mrs Gotts and Mrs Halsey as to her condition at the time they gave evidence. We accept their evidence. Dr Newlyn’s opinions are also supported by the reports of Dr Phengsiaroun, Dr Saboisky, Dr Matias, Dr Lark and Dr George to which we have referred. All these practitioners referred to the role the August 2005 transfer played in the development of Ms Bromham’s condition. They also provide evidence that Ms Bromham’s condition persisted longer than was foreseen initially.
Dr Sjostedt has the advantage of having been able to assess Ms Bromham’s mental state during more than 50 consultations since February 2012. Despite our reservations as to the manner in which he gave his evidence we are satisfied that he holds the opinions he has expressed. These support the conclusions reached by Dr Newlyn.
Dr Vickery and Mr O’Neill each assessed Ms Bromham on one occasion only. It may be that Ms Bromham presented in a better state on those days than on others. We also accept that she may have been in remission to some extent during her travels throughout several states in her campervan. However, this is not the period under consideration.
It is argued that Ms Bromham’s social activity since she has been living in Taree indicates that her depressive condition has resolved, supporting the opinion of Dr Vickery. We accept the evidence of Ms Bromham, Mr Bromham, Mrs Gotts and Mrs Halsey in this regard. We do not agree that her participation in the quilting group and her attending a small number of social events with friends from that group is evidence of a normal social interaction by a person of Ms Bromham’s age and background.
We accept the evidence of Dr Newlyn and Dr Sjostedt that Ms Bromham continues to need treatment for her depressive condition and continues to be unable to return to work as result of her suffering that condition. We repeat that we are satisfied that the condition referred to is the mental condition caused by her transfer in August 2005 and her feeling that she was not valued in her new position.
Although Dr Vickery and Mr O’Neill are of the opinion that Ms Bromham is fit to return to work, Mr O’Neill acknowledges that she would continue to need counselling support and would not be able to return to full-time employment immediately. Even on the evidence of Mr O’Neill, Ms Bromham is entitled to ongoing payments under both section 16 and section 19 of the Safety, Rehabilitation and Compensation Act. To this extent Mr O’Neill’s opinion does not support the decision under the review.
CONCLUSION
The reviewable decision made 3 March 2015, being the decision of Comcare that on 9 December 2014 Ms Bromham had no entitlement to compensation in respect of medical expenses or to incapacity payments in respect of an injury which occurred on 19 September 2005, will be set aside.
The matter will be remitted to Comcare for reconsideration of Ms Bromham’s entitlement to compensation under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act1988 in accordance with these reasons for decision.
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 of the proceedings incurred by the Applicant.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Bill Stefaniak AM RFD, Senior Member

.......................................[sgd].................................
Associate
Dated: 20 September 2017

Date(s) of hearing: 30 June 2017

Counsel for the Applicant: I Bradfield

Solicitors for the Applicant: LHD Lawyers

Counsel for the Respondent: K Slack

Solicitors for the Respondent: Sparke Helmore

Date(s) of hearing:	30 June 2017
Counsel for the Applicant:	I Bradfield
Solicitors for the Applicant:	LHD Lawyers
Counsel for the Respondent:	K Slack
Solicitors for the Respondent:	Sparke Helmore