BZMK and Comcare (Compensation)

[2022] AATA 136

BZMK and Comcare (Compensation) [2022] AATA 136 (2 February 2022)

Division:GENERAL DIVISION

File Numbers:         2017/4578, 2017/5514

Re:BZMK  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:2 February 2022  

Place:Melbourne

The Tribunal affirms the decisions under review.

...[sgd]....................................................................

Dr Stewart Fenwick, Senior Member

Catchwords

COMPENSATION – denial of liability for permanent impairment – determination to cease liability for medical expenses and incapacity payments – initial diagnosis of adjustment disorder – whether psychological condition of major depressive disorder was contributed to, to a significant degree, by employment – decisions affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Military Rehabilitation andCompensation Commission v May [2016] HCA 19
Wiegand v Comcare [2002] FCA 1464

Woodhouse v Comcare [2021] FCAFC 95

REASONS FOR DECISION

Dr Stewart Fenwick

2 February 2022

BACKGROUND

1. BZMK has applied to the Tribunal for review of two decisions made in 2017 in respect of an accepted claim for adjustment reaction with mixed emotional features, which was originally approved on 29 October 2014. The claim arises from BZMK’s experience of supervision issues in the workplace, said to last for some years. The matters can be briefly summarised as follows:

   (a)2017/4578: by a claim dated 7 December 2016, BZMK sought compensation for a permanent impairment described as ‘Mental – Major Depressive Disorder’ (MDD), citing impaired mental and emotional functioning. The claim was rejected, and this outcome was maintained in a reconsideration decision dated 15 June 2017 (‘permanent impairment decision’). BZMK lodged an application at the Tribunal for review of this decision on 31 July 2017; and

   (b)2017/5514: on 15 June 2017 Comcare made a determination that there was no present liability for medical expenses and incapacity payments. This decision was varied in a reconsideration decision dated 17 August 2017 (‘cessation of liability decision’). (The variation related to the calculation of incapacity payments under s 20 rather than s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act)). BZMK applied to the Tribunal for review of this decision by application dated 7 September 2017.

2. At the time of the decisions under review, BZMK’s condition was diagnosed as Major Depressive Disorder. Comcare determined that BZMK did indeed have a permanent impairment but considered that employment was not the most significant contributing factor because of a history of psychological illness.

3. Following a twenty-year career in the Royal Australian Air Force (RAAF), BZMK was medically discharged in 2002. She was then appointed to a civilian role in the Department of Defence and, at the time of her original claim, BZMK was performing a technical assessment role in a team responsible for aircraft spare parts. BZMK’s claim was founded upon allegations of harassment and bullying over a period of approximately two years. Her issues came to a head on 23 May 2014 when BZMK spoke to a colleague in an emotional outburst considered out of character, and involving threats of harm to herself and her supervisor.

4. BZMK took medical leave and a return-to-work program commenced on 4 August 2014. BZMK lodged a complaint about her treatment in the workplace and her initial claim for compensation, also in August 2014. A process called a Quick Assessment conducted by an independent person was initiated to review the situation. BZMK did not return to work in any capacity after October 2014, and ultimately retired on invalidity grounds in July 2016.

5. The hearing took place on 24–25 June 2019 and 27–30 July 2020. The substantial gap between the two hearing periods was the result of the employing agency, the Department of Defence, locating documents created in the Quick Assessment after the hearing had commenced. It was agreed that an adjournment was necessary in order that BZMK could review the material. A further witness statement was provided in due course.

6. At the commencement of the second hearing period the Applicant’s representative requested a confidentiality order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) because of the sensitive and personal nature of the evidence, and the severely compromised psychological state of BZMK. The Respondent’s representative opposed the application. I consider that it is appropriate to grant such an order due to the nature of aspects of the evidence and BZMK’s mental state, noting that she presented as emotionally fragile during the hearing.

7. Statements of Facts, Issues and Contentions (SFIC) were lodged by both parties, and the Respondent lodged bundles of ‘T’ documents in respect of each matter (pursuant to s 37 of the AAT Act). Due to the duration between hearing dates, the parties lodged written submissions in closing. In contrast to the parties’ initial statements, which number a modest 16 pages in total, the closing submissions reach to just over 100 pages (the majority being Applicant submissions). The other materials lodged exceed 1,200 pages.

8. Evidence was given by: BZMK; her husband, ‘H’; Dr David Weissman (consultant psychiatrist); Dr Norbert W. Pomorin (consultant psychiatrist); Dr Frank Kai Tai Chow (psychiatrist); Dr John Fotakis (GP); and a manager from BZMK’s workplace ‘M’. The following exhibits were admitted at the hearing:

   (a)Statement of BZMK dated 28 February 2019 (Exhibit A1);

   (b)Statement of H dated 28 February 2019 (Exhibit A2);

   (c)Further statement of BZMK dated 22 July 2020 (Exhibit A3);

   (d)Report of Dr Fotakis dated 26 June 2020 (Exhibit A4);

   (e)Report of Dr Weissman dated 28 March 2020 (Exhibit A5);

   (f)Report of Dr Pomorin dated 25 April 2017 (Exhibit A6);

   (g)Bundle of documents relating to Quick Assessment (Exhibit R1);

   (h)Bundle of summonsed documents (Exhibit R2);

   (i)Report of Dr Chow dated 19 April 2018 (Exhibit R3); and

   (j)Supplementary report of Dr Chow dated 24 April 2019 (Exhibit R4).

   LEGISLATION

9. Liability for the different kinds of compensation arising in this matter stems from s 14 of the Act hence compensation is payable in respect of an injury if it results in death, incapacity, or impairment.

10. The compensation arising in the permanent impairment decision is that payable for permanent impairment under s 24 of the Act. The compensation arising in the cessation of liability decision is that payable for medical expenses under ss 16 and 20 for incapacity payments.

11. No liability for compensation arises unless it is determined that an Applicant has sustained an injury as defined in s 5A of the Act. Under this section, an injury can be in the form of a disease (further defined in s 5B), a physical or mental injury (sometimes referred to as an ‘injury simpliciter’), or an aggravation of such injury.

12. This provision excludes from the definition any of these forms of injury if they were sustained ‘as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’. Various forms of reasonable administrative action are identified in s 5A(2) of the Act, without limiting what action might meet that test.

13. Disease is defined in s 5B of the Act as being an ailment or an aggravation thereof ‘that was contributed to, to a significant degree’ by the employment. Significant degree means ‘a degree that is substantially more than material’. Under s 4, an ailment means ‘any physical or mental ailment, disorder, defect or morbid condition (whether of a sudden or gradual onset)’.

14. In determining whether employment contributed to a significant degree to an ailment or its aggravation, the following matters may be taken into account under s 5B(2) of the Act:

    (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; and

    (e)Any other matters affecting the employee’s health.

    ISSUES

15. The parties differ about the correct approach to decision-making in this matter. This is somewhat evident from the initial SFICs but is explored at length in closing submissions.

16. With respect to the cessation of liability decision, it is contended for the Applicant that the decision made is unsound because it shifts the burden to demonstrating that there is a ‘continuing significant contribution’ of employment (ASubs [222]). It is also said that reassessment of an Applicant’s circumstances may only arise when relevant circumstances so justify (ASubs [198], [225]).

17. I think it can fairly be said that the core contention in respect of this decision is that the Respondent has improperly applied the statutory tests, or perhaps improperly sought to reapply the statutory tests, for an injury. It is submitted for BZMK, further, that the correct approach is to place the burden upon the Respondent in respect of demonstrating no continuing entitlement.

18. The Respondent’s submissions address the question of BZMK’s injury, in the statutory sense, in greater depth than the existence of any permanent impairment. Accordingly, the material deals  substantively with the cessation of liability decision.

19. The Respondent cites the decision of the Full Court of the Federal Court of Australia Woodhouse v Comcare [2021] FCAFC 95, in which Derrington J (with Rangiah and Collier JJ agreeing) states that the relevant causative link with employment must remain for liability to exist (at [85] and [89]).

20. With respect to the question of onus, the Respondent submits, in brief, that the authorities highlight the need for a sufficiency of evidence in the making of administrative decisions.

21. On the whole, in respect of these foundational issues, I consider that the Respondent’s submissions are a better interpretation of the approach the Tribunal should take.

22. Accordingly, the issues that arise are the nature and extent of the Applicant’s medical condition, and consideration of whether it satisfies the statutory definition of ‘injury’. This includes any consideration as to administrative action. If, as contended by the Respondent, this threshold is not met, then there is no need to determine the issue of permanent impairment.

    EVIDENCE

23. I set out here a summary of relevant parts of the extensive material lodged in this matter. This provides context for the decisions under review, and evidence at hearing, particularly with respect to BZMK’s medical history.

    Medical evidence

24. BZMK’s service medical history (Exhibit R2) discloses instances of treatment for mental health issues. The most critical episodes comprise hospitalisation in 1982 after an overdose, consultation over work-related stress issues in 1999, psychiatric treatment, and the prescription of antidepressants in 2001 and 2002. BZMK was diagnosed by two separate psychiatrists with Major Depression, and was treated by a psychiatrist for an extended period.

25. Records of prescription are found in BZMK’s GP medical record (T39 2017/4578, pp 331–333) and a PBS statement. The PBS statement was not formally admitted into evidence but was cited during cross-examination of BZMK. In summary, there are records for the prescription for antidepressants in every year between 2002 and 2013. In early 2005 BZMK was prescribed antidepressants by an RAAF doctor, and discussed her past depression and psychiatric treatment with her GP (T39 2017/4578, pp 261–262). BZMK also consulted her GP about depression in relation to work stress in 2006 and in 2010, relating to a daughter’s medical condition.

26. Upon the incident at work arising in May 2014, Dr Fotakis certified BZMK as unfit for work  based on a diagnosis of ‘anxiety, depression secondary to harassment/bullying at work’ (T39 2017/4578, p 414). This appears to have remained the basis for absences later in the year, with further certificates issued, for example, in October 2014 (T25 2017/5514, pp 522–524), and indeed the certificates provided by Dr Fotakis through until BZMK’s separation from employment in 2016.

27. On 14 October 2014 Dr Pomorin issued a letter ‘To whom it may concern’, declaring BZMK unfit for work due to ‘Major Depressive Disorder’ (T25 2017/5514, p 523).

28. Ms Claudina Garcia, psychologist, prepared a report for Comcare, dated 23 September 2014 (T4 2017/5514, pp 30–33) and BZMK consulted Ms Garcia during 2014. Ms Garcia diagnosed ‘Anxiety and Depression’, being at the severe end of the range for both. Her report notes that BZMK informed her about stress migraines in 1999, postnatal depression, and that BZMK stated she took antidepressants ‘on and off for a period of time’. Ms Garcia stated she had insufficient medical material to determine whether BZMK’s condition was an aggravation of a pre-existing condition.

29. Dr Ash Takyar, consultant psychiatrist, prepared a report for Comcare dated 29 September 2014 (T5 2017/5514, pp 34–43). He diagnosed ‘adjustment disorder with mixed anxiety and depressed mood’. Dr Takyar records a history of ‘at least one major depressive episode’, noting that BZMK ‘described a full resolution of symptoms after treatment’. Dr Takyar observed that BZMK was ruminating about feeling helpless and worthless.

30. Dr Peter Farnbach, consultant psychiatrist, prepared three reports during 2015, directed to the Department of Defence, dated 6 January 2015 (T7 2017/5514), 21 August 2015 (T9 2017/5514), and 30 November 2015 (T11 2017/5514). Initially, he agreed with Dr Takyar’s diagnosis, but by the time of his second report BZMK’s condition led Dr Farnbach to diagnose entrenched MDD. Modest gains later in 2015 indicated that her MDD was partially resolved. Throughout, Dr Farnbach notes prominent angry ruminations, and he also notes a preoccupation with the workplace, and concern the employer had a hidden agenda.

31. A Comcare Clinical Panel Review was conducted in September 2016 (T13 2017/5514) and states that BZMK ‘has a major depressive illness which has improved but not resolved with psychiatric treatment’. It states further: ‘many of the perpetuating factors of depression are psychological e.g. retirement from work, resentment of colleagues’.

32. Dr Chow diagnoses ‘major depressive disorder in partial remission’ in his report dated 8 March 2017 (T18 2017/5514). He notes the diagnosis of depression in 2002, and that the condition had improved prior to the development of her current condition. Based on BZMK’s own reporting, Dr Chow considered that BZMK had improved somewhat over the previous six months but had plateaued. He considered that while BZMK’s situation at work had previously significantly contributed to her condition, as this was two years ago, and BZMK had separated from the employer, ‘her condition is now perpetuated by her ongoing fixated mindset and unresolved anger’. Dr Chow assessed the employment related contribution to BZMK’s whole person impairment for her psychiatric condition to be 10%.

33. In his supplementary report dated 29 April 2019 (Exhibit R4) Dr Chow states that, on the basis of further material provided to him, BZMK had continued to use antidepressants during her employment and ‘a deterioration after her ceasing her medication would suggest her pre-existing condition was not resolved’. Her condition was therefore an aggravation. Dr Chow also states that BZMK ‘decompensated’ after a meeting at work in October 2014.

34. Dr Pomorin’s report dated 25 April 2017 (Exhibit A6) was prepared by way of reply to Dr Chow’s  first report. However, BZMK first consulted him on 10 July 2014. He states the treatment of BZMK at work ‘caused her to decompensate into a major depressive disorder’ and that negative thoughts about her employer are ‘still driven’ by depression and self-esteem issues. He considers her feelings of unresolved anger to be part of BZMK’s original condition of MDD.

35. Dr Weissman diagnoses a ‘moderately severe, chronic Major Depressive Disorder’, and provides a probable diagnosis of Generalised Anxiety Disorder in his report dated 28 March  2018 (Exhibit A5). He states his agreement with Dr Pomorin that BZMK’s grievances and anger form part of her condition. Dr Weissman acknowledges a past history of ‘mixed depressive disorder’, but understood there was no treatment or medication between 2002 and 2014. He assessed BZMK to have a permanent impairment level of 25%, with a moderately severe amount of psychiatrically based functional impairment.

36. BZMK’s GP Dr Fotakis provided a report dated 26 June 2020 (Exhibit A4). He states that BZMK suffered depression and anxiety for ‘at least 15 years, mainly well controlled’ as a result of  family and workplace issues. He describes it as ‘exacerbated to a great extent’ by conflict and bullying at work in 2014. Dr Fotakis states that BZMK was taking antidepressant medication for the ‘overwhelming majority of time between 2005 and 2014’. 

37. Finally, I note the reports of Ms Demmi Burgess, Workplace Rehabilitation Consultant (T41 2017/4578, T26 2017/5514), deal with BZMK’s return to work. Ms Burgess prepared eight reports between September 2014 and July 2015. In summary, BZMK returned to work five hours a day, four days per week, on 4 August 2014 having been permanently placed in an alternative area, on alternative duties. She never again returned to work following a meeting with the ‘Commanding Officer’ on 6 October 2014. According to  BZMK’s husband and Dr Pomorin, Ms Burgess states, this meeting exacerbated BZMK’s condition and, in the latter’s words, it was a ‘sharp step backwards’.

    Applicant’s allegations

38. I include here summaries of written material to add context  to the evidence at the hearing. This section draws on BZMK’s initial and further statements (Exhibits A1 and A3), and her formal complaint (attached to Exhibit A3), and material relating to the Quick Assessment (Exhibit R1).

39. BZMK’s complaint states that ‘no single incident’ is responsible for her condition and that it arose from a combination of incidents over approximately three years. However, she identifies and summarises seven incidents or scenarios in 2011–2013, and 19 incidents or scenarios in 2014. BZMK states that bullying and harassment became ‘unbearable’ after the appointment of her manager, M, and that M was ‘unable or unwilling to address issues’ and also contributed to the bullying and harassment.

40. The following is a brief summary of BZMK’s statements about her concerns about treatment in the workplace from 2011:

    (a)belittling and questioning of her skills by colleagues;

    (b)undermining and micromanaging actions by her supervisor, S, and being left out of internal communications;

    (c)that in one instance S lied about having provided incorrect information on a certain product managed by the team;

    (d)that S actioned her work while BZMK was away on leave creating errors, including on 22 May 2014;

    (e)that her manager M did nothing to stop the treatment, and told BZMK she could not be transferred to another area;

    (f)being excluded from a team meeting after arranging intervention by an equity adviser; and

    (g)that the Quick Assessment into her complaint appeared to be confined to the incident on 23 May 2014 rather than exploring her wider concerns.

41. In the bundle of materials (Exhibit R1) there are two records of conversation with BZMK’s senior manager. The record of a debrief following the Quick Assessment, dated 19 August 2014, notes discussion of BZMK’s preferred outcomes, amendments to the manager’s statement, and BZMK’s rehabilitation and return to work.

42. The record of a further conversation, dated 1 October 2014, notes the discussion of the fact that BZMK’s claim for compensation indicated that her underlying concerns had not been properly addressed. The manager stated in the meeting: that he considered all relevant persons were interviewed where possible (eight in total); that the process was conducted in accordance with internal Defence policy guidelines; and, that instances of unacceptable behaviour, harassment and bullying had not been substantiated.

    Evidence at hearing

1. In her evidence, BZMK expressed some dissatisfaction at being discharged from the RAAF on medical grounds in 2002. However, BZMK acknowledged experiences of stress-related leave, and her history of clinical treatment and the prescription of antidepressants.

2. BZMK described her treatment as leading to feelings of sadness and self-doubt, and also anger and humiliation. BZMK also maintained that M had done nothing about her situation, and described managing her work situation with the assistance of a counterpart who often acted as an intermediary.

3. BZMK acknowledged several work absences as a result of the stress from her situation. BZMK also acknowledged swearing and using threatening words in relation to S in the incident on 23 May 2014. BZMK considered that the meeting that followed was dominated by this incident, and that her broader concerns were not addressed.

4. BZMK stated in evidence that presently she is ‘nervy’ in traffic and relies on her husband to shop for fear of meeting people she knows. She stated that her memory and concentration were good before commencing in the technical role.

5. In cross-examination, BZMK was taken through aspects of her service medical record and her history of medication. She did not demonstrate a detailed recall of aspects of her mental health treatment in the military. BZMK stated that she reduced her use of antidepressants following discharge, and also that in subsequent years she would ‘start and stop’ her medication.

6. Asked why her GP medical record did not disclose complaints about stress at work, BZMK responded that she used to ‘put up with it’. She acknowledged instances of personal stress including her husband’s posting to Afghanistan, and a daughter’s diagnosis of Asperger’s Syndrome.

7. BZMK was not able to confirm there had been a gap in the prescribing of antidepressant medication between August 2013 and May 2014, but she acknowledged that a decision was taken with Dr Fotakis in September 2013 to ‘slowly wean off Lovan’. This was related to her concern about weight gain.

8. BZMK stated that in her ‘own mind’ the Quick Assessment was not conducted properly. Asked whether she considered calling witnesses in the Tribunal hearing to corroborate her concerns about treatment in the workplace, BZMK stated she did not think to ask anyone.

9. With respect to her work performance, BZMK accepted that most of her routine performance appraisals were ‘not too bad’, that her superiors made positive comments about her work, and that a report authored by S was not unfairly critical of her. She also accepted the proposition that her supervisor was entitled to give her direction in relation to her work.

10. BZMK could not recall when she had first approached M for a transfer, and accepted it was her perception that her manager had simply rejected the proposition.

11. When recalled to give evidence upon the resumption of the hearing, BZMK stated, consistent with her further statement, that she raised in interview during the Quick Assessment an incident of an unwanted shoulder massage delivered to her by S.

12. BZMK accepted in further cross-examination that this was a serious allegation to make, and that it was not included in her formal complaint. She also accepted it was appropriate for S to become involved in her work when she was on leave. BZMK also agreed she had been given the opportunity to discuss the matters raised in her complaint with the investigator appointed.

13. In his evidence, BZMK’s husband stated that when he met his wife she was very outgoing, enjoyed socialising and had a great work ethic but this changed within five to six months of becoming a technical assessor. H considered her response to this work stress was quite different to her previous difficulties when in the RAAF.

14. H stated that he was unable to recall making comments in the meeting on 23 May 2014 to the effect that he was trying to get BZMK to return to her medication, but acknowledged discussion of her medical attendances. H understood that BZMK had just been ‘venting’ at work, and could not understand how things turned out the way they did.

15. Under cross-examination, H agreed that BZMK was responsible for the household during his absences for work but denied that she was stressed or depressed. H acknowledged however that he had attended a consultation with Dr Fotakis in relation to BZMK’s stress.

16. In his evidence, BZMK’s manager stated that he considered that S was dedicated and keen, hard-working and well-reputed. M was not aware of any performance issues relating to BZMK and agreed that she was a good and productive team member.

17. M stated that he would certainly not describe her as timid in the workplace, and that she put her views forward and was a normal member of the team. M also stated that BZMK did not like people ‘playing in her space’ and was very protective of her work. However, if she was away then the involvement of others was unavoidable.

18. In respect of her supervisor, M stated that S spoke quickly and ‘with an accent’, and would sometimes ‘go off without the whole concept’. He stated that because of this he could be a little difficult to work with. However, he did not consider that S ever treated people in an unacceptable manner. M stated that he sat within a couple of metres of both BZMK and S, and was not aware of anything between them that would trigger action.

19. In relation to BZMK’s request to move, M stated that he did not gain the impression that she did not like working with S, and that it was absolutely incorrect that he gave her a ‘blunt no’ to the transfer request. He tried to figure out a way to make such a move, but it was not possible due to a review underway in relation to the future contracting-out of services undertaken by the team.

20. Under cross-examination, M stated that he considered it unrealistic to expect that no-one else become involved in an individual’s work. However, had he known the situation was of a level that would lead to the May 2014 incident,  he would have taken action.

21. M stated that to the extent he was aware of issues in the workplace, they were of a low-level compared to other problems as there had also been two instances of what he described as unacceptable conduct in the workplace.

    Medical witnesses

22. Dr Fotakis in his evidence confirmed that BZMK had experienced depression due to family issues. He stated that while she was prescribed medication for quite some time for anxiety and depression, she had been ‘otherwise good’ between 2006 and 2014.

23. Dr Fotakis described her use of antidepressant medication between 2005 and 2013 as ‘prophylactic’. He presumed it was playing a role, as she did not receive clinical treatment for her mental health for the majority of those years.

24. Dr Fotakis considered that BZMK began to suffer severe MDD after the 2014 incident at work and has not really recovered since that time. He described BZMK as withdrawn, jittery and anxious and stated family members attend medical consultations with her. He also stated that since the rejection of her claim BZMK felt belittled again and constantly ruminates. In her mind, nothing is resolved.

25. Under cross-examination, Dr Fotakis acknowledged BZMK had attended the same clinic from at least 2002. He was taken to a medical record of 30 October 2005 stating that BZMK ‘relives in the past’ and feared a recurrence of workplace issues. Dr Fotakis noted the dosage of 3 x Lovan tablets was higher than his usual prescription.

26. Dr Fotakis could not remember who raised the point, but accepted that ‘we decided’ to wean off Lovan in 2013. He stated that symptoms of depression usually do become worse after ceasing medication, and that the decision to do so is not usually made in cases where depression is ongoing.

27. Dr Weissman stated in evidence that in his opinion, the ‘angry ruminations’ described by Dr Farnbach were consistent with the history he had obtained. Dr Weissman considered that BZMK suffered from MDD and that her anger arose from severe frustration at being isolated, belittled and subjected to condescension. He stated that was specific to her experiences at work.

28. Dr Weissman stated that BZMK’s initial adjustment disorder had shifted to become a chronic MDD of moderate intensity. Prior to the alleged incident, BZMK was hard working and had good self-esteem; and he agreed with Dr Farnbach’s opinion that only work-related factors had a bearing on her presentation.

29. After accepting that he had not been aware of BZMK’s use of medication between 2002 and 2013, Dr Weissman stated that in contemporary practice, antidepressant medication is now seen more as preventive or prophylactic. This can be so even when the condition is fully resolved, and medication is often used to lessen the likelihood of a further episode if stressors occur in the future.

30. When asked about Dr Chow’s assessment that BZMK had a ‘fixated mindset’, Dr Weissman stated that this was not psychiatric terminology, and was a disappointing if not ‘insulting’ term. He stated BZMK’s poor prognosis was due to her MDD, not any ‘ongoing fixation’, and her anger was itself a symptom.

31. Dr Weissman agreed with Dr Chow’s assessment that BZMK would have reduced resilience without the support  of antidepressants, and not being on medication in the presence of stressors would increase the likelihood of a relapse. However, he considered that based on all the information and his clinical experience, BZMK probably had ‘a significant depressive syndrome’ prior to the May 2014 incident.

32. Dr Weissman described BZMK’s present level of activity as very basic and stated she has social withdrawal, high reliance on others, marked sleep disturbance, and reduced libido. BZMK had experienced good quality of life prior to the issues at work and would not be totally incapacitated but for those experiences.

33. Under cross-examination, Dr Weissman could not explain the absence of a detailed medical history in his report, and disagreed that he had failed to deal thoroughly with her use of medication. He accepted that he was not informed about her request for a transfer. Dr Weissman did not disagree with Dr Chow’s view that BZMK was significantly disappointed when her formal complaint was not upheld, noting he had not been informed about this.

34. A considerable amount of time was taken in Dr Chow’s evidence to confirm with him the nature and extent of the medical history he was provided for the preparation of his reports. Specifically, he confirmed that he understood BZMK had a period of depressive illness while with the RAAF. He agreed with Dr Pomorin that her condition in 2014 was a continuation of her earlier decompensation from work stressors.

35. Dr Chow stated that, given the ongoing nature of BZMK’s medication, its cessation in 2013 would in his opinion cause a relapse of symptoms.

36. In relation to his assessment of permanent impairment, Dr Chow stated that this was largely contributed to by BZMK’s pre-existing condition. He did not wish to trivialise her perception of difficulties at work, but based on her history, he considered the underlying psychiatric condition to be a greater contributor.

37. Under cross-examination, Dr Chow stated that depression can carry a bias in perception of events, but that, in his opinion, this would ordinarily resolve over time. In BZMK’s case, the angry ruminations became an issue in itself, and as in a lot of compensation cases, the mindset is perpetuated by the process itself.

38. Dr Chow stated that the issue is what is medically normal or abnormal, given the number of years that have passed since onset of symptoms. After considerable further questioning, Dr Chow maintained his position that work was not the most significant contributing factor to her condition when examined in 2017.

39. Dr Chow stated that he did not consider a patient would continue medication for ten years based only on a single prior episode, and it was usually an indication of an underlying condition.

40. Dr Pomorin stated in evidence that he had conducted 52 consultations with BZMK over six years. They were more frequent in the earlier years, and he last saw her in May 2020. Presently, BZMK is prescribed twice the daily recommended dose of Fluoxetine (Prozac), which he considered a high dose.

41. Dr Pomorin stated that he did not consider cessation of medication caused BZMK’s decompensation in 2014. He considered that patients can ‘go backwards’ in this situation, but it would declare itself earlier, usually in a few weeks. His opinion was based on his original understanding that BZMK had not been continuously on medication, but, notwithstanding this was the fact, he maintained the view that any relapse would occur within a few weeks.

42. He stated that he considered Dr Chow’s opinion that angry ruminations should resolve over time was ‘semantics’ and ‘absurd’. He stated that the workplace was the cause of BZMK’s depression, and this had never resolved. Dr Pomorin did not consider the symptom cluster could be ‘torn apart’ in this way.

43. Dr Pomorin stated that there was a less than 50% chance of BZMK recovering as she had not improved in the last two-to-three years, which was not a good prognostic indicator. He noted that there had been an improvement in BZMK’s presentation from 2014, and that she has come back from a state of being ‘very damaged’. For example, BZMK no longer needs her husband as an escort at appointments. Dr Pomorin also identified the period of 2002 to 2014, during which BZMK held down employment, as a period of remission in her depressive condition.

44. With respect to the factors contributing to her condition, Dr Pomorin stated that BZMK was stressed by her perception of bullying and was not a person who could handle interplay between people. He did not consider there were factors outside of work, such as medical issues with her daughter, that were of any real significance.

45. Under cross-examination, Dr Pomorin stated that he had a referral relationship with a DVA advocate, and that BZMK had approached the advocate in relation to a potential claim arising from her military service.

46. Dr Pomorin stated that he did not accept that the consistent prescription of antidepressant medication by her GP necessarily accorded with a diagnosis of depression. He stated that when he first met BZMK she was a very sick individual, and he accepted her reporting that she had not been in the same state prior to 2014.

47. Questioned further about his written opinion that BZMK experienced a ‘continuation’ of her first decompression from experiences at work, Dr Pomorin stated that the situation in 2014 was rather a ‘reprise’ or an ‘echo’ of past experiences. Despite the reference to ‘continuation’ arising in the context of the proposed DVA claim, Dr Pomorin stated that he never considered BZMK to have a strong veteran’s entitlement case.

48. Dr Pomorin stated that he was not aware that BZMK had been admitted to hospital in 1982 when serving in the RAAF, or that she had been referred to as obsessive in clinical assessment. Dr Pomorin accepted that there was a similarity in the symptoms BZMK was reported as having in 2001, along with a diagnosis of moderate depression, and those experienced later.

    SUBMISSIONS

    Applicant

49. It was submitted on BZMK’s behalf that her grievances in the workplace go to the heart of her psychological deterioration, culminating on 23 May 2014. It was submitted (following Wiegand v Comcare [2002] FCA 1464, at [24] (Wiegand)) that the question is whether a stressor to which the Applicant is vulnerable occurred, and her perception of such stressors is what is relevant.

50. It was further submitted that employment continues to be a significant contributing factor to her condition, and that her ongoing ruminations and anger are employment-related. Dr Farnbach had identified that BZMK’s condition may become chronic and disabling, and had found her to be totally and permanently incapacitated. On this basis, it was submitted that Dr Chow’s analysis of her psychological condition was flawed and unfounded.

51. The submissions highlight a number of matters in the medical evidence:

    (a)hat BZMK’s longstanding anxiety and depression was well controlled but greatly exacerbated by her experiences in the workplace in 2014;

    (b)Dr Takyar considered that BZMK had recovered from any earlier mental health episodes and Dr Pomorin did not see any causal link with the current condition;

    (c)Dr Weissman considered BZMK had a good quality of life prior to 2014, was of the view that her anger was not generalised or in isolation;

    (d)the evidence favours a finding of permanent impairment resulting from BZMK’s accepted psychiatric injury, best described as a MDD, and that Dr Weissman’s assessment is the most persuasive; and

    (e)the medical evidence uniformly associates BZMK’s condition with her employment, with the exception of the evidence of Dr Chow, who, it is submitted, is a specialist of limited experience.

52. With respect to the statutory definition of BZMK’s condition it is submitted on the Applicant’s behalf that that it should be construed as an ‘injury other than a disease’, and that it has been accepted as such by the Respondent.

53. It is submitted by the Applicant that the Respondent takes a ‘shotgun approach’ to a range of potential administrative actions in respect of BZMK’s employment. In summary, it is submitted that: the meeting on 23 May 2014 is not relevant as BZMK’s injury had already occurred at this point; in the alternative, it was not conducted in a reasonable manner; the QA process occurred after her injury; and, the weight of evidence supports the view that the request for transfer, the May meeting, and the QA did not cause or contribute to her condition.

    Respondent

54. In its submissions, the Respondent also addresses BZMK’s perception of events in the workplace with reference to Wiegand. The submissions refer to a later passage (at [34]) which maintains essentially the same key points raised for the Applicant.

55. The Respondent submits that BZMK suffered recurrent episodes of depression from 1999; and, from August 2010, was regularly prescribed antidepressant medication, until weaning off Lovan in September 2013.

56. With reference to BZMK’s complaint of bullying and harassment,  the Respondent submits that the Applicant did not bring to the hearing any evidence supporting her allegations, and the Tribunal should draw an inference that any such witness would not have assisted her case.

57. The Respondent submits that BZMK should be understood to have been suffering chronic depression prior to her appointment in the Department of Defence, which was a fluctuating pre-existing disorder. Angry rumination has been a feature of this disorder.

58. With respect to specific workplace issues,  the Respondent submits that M’s handling of the transfer request  amounts to reasonable administrative action. Further, on and from 23 May 2014, BZMK’s condition was contributed to by reasonable administrative action. The Respondent  also submits that  her condition was contributed to by her experience of the compensation process through late 2014 and into 2015.

59. The Respondent submits that Dr Chow’s opinion should be preferred, and that this opinion is not ‘illogical’, particularly in light of his interpretation of BZMK’s pre-existing history. Further, BZMK’s ruminations are significantly concerned with the administrative actions noted above.

    CONSIDERATION

60. The first issue that arises is the nature and extent of BZMK’s condition.

61. I consider that the initial independent diagnoses of adjustment disorder were influenced by the relatively restricted information about BZMK’s medical history available at the time of these diagnoses. I accept that three separate medical experts came to this conclusion but note, for example, that Dr Farnbach records that he had been unable to discuss his diagnosis with BZMK’s treating clinician Dr Pomorin. Put simply, BZMK’s symptoms from May 2014 appeared at this time most explicable by reference to her account of circumstances at work.

62. Equally, the evidence of those practitioners with the most direct relationship with BZMK, Dr Fotakis and Dr Pomorin, appeared to emphasise the view that BZMK had a depressive disorder. There is some lack of precision  by Dr Pomorin, partly as his written report postdates his engagement with BZMK by several years. However, Dr Fotakis appeared unambiguous in his opinion that he had been treating BZMK for depression for some time.

1. When Dr Weissman was presented in evidence with a wider picture, particularly as to the prescription of antidepressants, he also expressed a similar view, that is, that BZMK may well have had a longstanding depressive condition.

2. I am satisfied from the evidence overall, that BZMK was prescribed antidepressant medication almost continually from the early 2000s through to 2013. BZMK herself was not able to be specific about her actual use, but the medical record would appear to support the view that there is a persistent and prolonged pattern of use of antidepressant medication.

3. Dr Fotakis described this as a prophylactic measure and stressed, as did Dr Pomorin, that BZMK was asymptomatic and coping well prior to 2014. He also observed that BZMK had largely not been receiving clinical treatment, perhaps bar the engagement of a psychologist in relation to BZMK’s handling of her daughter’s medical condition. Dr Weissman was of the opinion that the prophylactic use of medication was an accepted practice and added that it may occur in cases where depression has resolved.

4. The term prophylactic was not explored at the hearing, but I consider it reasonable to understand it in the ordinary medical sense, that is, a preventive measure particularly in the sense of averting the onset of disease or infection.

5. All of the medical witnesses called by BZMK in this matter demonstrated reluctance to conclude that her condition was a result of anything other than her experiences at work, as described by her. However, there was, I consider, general agreement at the hearing that the cessation of antidepressant medication was likely to lead to a lessening of BZMK’s capacity to withstand the impact of any stressors.

6. I note that Dr Pomorin was firmly of the view that this enhanced vulnerability would declare itself within weeks. He was also firm in his insistence that BZMK’s condition was not a continuation of her earlier decompensation. However, I do not consider that the adjustment of his language substantially changes the equation in this case. I also note his originally limited appreciation of BZMK’s medical history, despite the extensive number of consultations.

7. The issue of diagnosis is further complicated by the evidence indicating the appearance of a more serious form of BZMK’s condition sometime between late-2014 and mid-2015. Dr Pomorin is the first to identify MDD, and this is followed somewhat later by Dr Farnbach’s diagnosis.

8. The circumstances surrounding this diagnosis were not explored in detail at the hearing, but I have set out above an elaboration of the wider medical evidence, which reflects upon this period.

9. The evidence overall indicates that the chronic and disabling form of BZMK’s condition arose as a result of BZMK’s ongoing concerns about the unresponsiveness of her employer to her various claims regarding the workplace. This crystallised as a result of the meeting at work on 6 October 2014, leading to the diagnosis of MDD, which I also find to be ongoing.

10. I am also satisfied that prior to this, BZMK was being treated for an extended period of time, including through prescription of medication, for ongoing and longstanding depression. Depression was a feature of the early diagnosis provided of adjustment disorder, following 23 May 2014. However, I find that the weight of medical opinion is that BZMK’s condition, on and from this date, was an aggravation of a long pre-existing underlying depression.

11. BZMK’s representative contended that the Tribunal should find that BZMK suffered an ‘injury’. I do not consider that any evidence has been provided to support such a finding. I say this because of the nature of the finding as to the aggravation of her pre-existing condition.

12. The Act does not preclude an injury arising from a mental condition. However, I note that the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19, particularly the decision of Gageler J (at [75], [81]), emphasised the need for evidence of an identifiable physiological change. Notwithstanding this might need to be read as ‘psychiatric’ change in relation to matters of mental health, I also do not consider the evidence to substantiate such a finding.

13. Accordingly, I consider BZMK’s mental health conditions meet the definition of an injury in the form of a disease. Specifically, I find that immediately following 23 May 2014, BZMK suffered an aggravation of her pre-existing depressive condition, and subsequently, after a meeting in October 2014, she experienced a further aggravation of this condition into MDD.

14. The second issue for consideration, then, is whether given the evidence, her ailments were contributed to, to a significant degree, by BZMK’s employment.

15. I consider the relevant test for liability to be stated in Woodhouse, which was briefly referenced above. The court in that case (at [85]) discusses the ‘continuing contribution’ requirement, being that liability needs to be founded on the ongoing satisfaction of the relevant causal connection with employment.

16. In this matter, however, I am of the view that the relevant causal connection, in the sense required by the Act, was never present. I make this finding for the following reasons.

17. The Act requires, in s 5B, that employment make a substantially more than material contribution to a person’s ailment, taking into account at least the matters specified in s 5B(2). In respect of the first aggravation of, I consider the weight of medical evidence demonstrates that BZMK was rendered vulnerable to workplace stressors after ceasing the use of anti-depressant medication, after a period of quite prolonged use. Moreover, BZMK was predisposed to the aggravation of her underlying ailment through her particular sensitivity around task management in the workplace, a situation that had indeed arisen in earlier employment.

18. The error identified in the Tribunal’s reasons in Wiegand (at [21]) however was the failure to assess a given vulnerability in the context of the statutory test (with the test for causation now different, and enhanced). The particular problem in this matter is determining whether any claimed stressor meets the ‘reality test’. This means that I must be positively persuaded on the weight of evidence that claimed stressors, in the context of BZMK’s vulnerability, meet or exceed the statutory test of making a ‘substantially more than material’ contribution to her condition.

19. There is a significant body of claims by BZMK about  a history of a pattern of treatment in the workplace, and several specific instances of claimed bullying and harassment. To address the most serious claim first, I consider the Respondent’s contention as to the alleged shoulder rub is appropriate. This is a serious allegation that arose after an adjournment in the hearing and is not capable of resolution on the basis of the limited evidence; it cannot  form part of this consideration.

20. BZMK’s manager presented his evidence in a direct manner and was unambiguous in his view that he did not arbitrarily reject her request for a transfer. He stated he was in a position to observe BZMK and her supervisor and had not observed any obvious issues. M also presented a different perspective of BZMK in the workplace. She appears on his evidence to have been considered, through performance appraisals, competent and indeed also confident enough to engage actively in the workplace.

21. This evidence does not necessarily address, nor therefore resolve, the gamut of BZMK’s claims. While the wider body of evidence indicates that BZMK’s formal workplace complaint was not established, the central plank of her grievance has been that her allegations were not properly investigated. It is a challenging proposition to suggest that BZMK’s present situation arises solely out of, for example, a single instance of the correction or alteration of a task by her supervisor immediately prior to BZMK’s emotional reaction in the workplace on 23 May 2014 (on the assumption that instance of correction took place).

22. I raise this proposition only to illustrate the potential extremes available on the material before me. As I have noted, the challenge is making robust findings on probative evidence. To find in favour of BZMK I must find that certain experiences in the workplace amount to a substantially more than material cause of her condition, including when balanced against the medically based findings I have made as to her underlying vulnerability. This finding is not open on the evidence I have before me.

23. Were I to consider that such a finding was in fact open to be made, the Act then requires me to consider whether, having met the definition of an injury in the form of the aggravation of a disease (ailment), the injury arose from reasonable administrative action taken in a reasonable manner. As I have noted above, I consider the evidence to demonstrate that the further aggravation of BZMK’s condition arose following a meeting in October 2014 to discuss issues including the outcome of the Quick Assessment (which had been conducted and concluded in August).

24. Careful consideration would therefore then need to be given to whether the broad definition of reasonable administrative action in s 5B(2) of the Act could embrace this meeting, noting also that it took place in the context of BZMK’s return to work and claim for compensation. It is not necessary to make this finding, but on the basis of my appreciation of the evidence as a whole, it is likely that this test would be met.

25. Accordingly, I find that the correct and preferable decisions in each of BZMK’s applications is that the decisions under review be affirmed.

    DECISION

26. The Tribunal affirms the decisions under review.

I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decisions herein of Dr Stewart Fenwick

....[sgd]...................................................................

Associate

Dated: 2 February 2022

Dates of hearing:	24–25 June 2019, 27–30 July 2020
Date final submissions received:	30 August 2021
Counsel for the Applicant:	Ms Cassie Serpell
Solicitors for the Applicant:	Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr John Wallace
Solicitors for the Respondent:	Australian Government Solicitor