Cartajena and Comcare (Compensation)

[2019] AATA 1410

Cartajena and Comcare (Compensation) [2019] AATA 1410 (24 June 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2016/4911
GENERAL DIVISION  )

Re: Ana Cartajena
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:  Mr A. Maryniak QC, Member

DATE OF CORRIGENDUM:            23 July 2019

PLACE:            Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. In the first line of the Decision, Application No. 2014/4911 is changed to Application No. 2016/4911.

2. In paragraph 83 (a) of the Reasons for Decision, Application No. 2014/4911 is changed to Application No. 2016/4911.

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

Member

Division:GENERAL DIVISION

File Number(s):      2016/4911; 2017/4441; 2017/4486

Re:Ana Cartajena

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:24 June 2019

Place:Melbourne

1.In Application No. 2014/4911 the reviewable decision is affirmed.

2.In Application No. 2017/4441 the reviewable decision is set aside and substituted with a decision that the Applicant is entitled to compensation under s 16 of the Act in respect of the treatment found to have been obtained in relation to the acute anxiety reaction and PTSD and reasonable for her to obtain, on and from 19 June 2017.

3.In Application No. 2017/4486 the reviewable decision is set aside and substituted with a decision that:

a.the acute anxiety reaction and PTSD has resulted in the Applicant sustaining a degree of permanent impairment of 10%;

b.the Applicant has no need for supervision and direction in activities of daily living; and

c.otherwise, the matter be remitted to the Respondent to assess the degree of suffering (if any), following further medical assessment so as to ensure that any such suffering as may be present relates to the accepted condition and not any pre-existing or subsequent developing condition.

4.Pursuant to s 67 of the SRC Act the Tribunal proposes to order that the Respondent pay one third of the Applicant’s costs in this matter.  However, the Tribunal will consider any written submissions on costs (limited to 3 pages) lodged with the Tribunal within 28 days, prior to finalising the Costs Order.

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

Mr A. Maryniak QC, Member

Catchwords

COMPENSATION – acute anxiety reaction – post-traumatic stress disorder – whether the Applicant suffers an injury – where Respondent accepted liability under s 14 – where Respondent subsequently denied liability under s 16 – where Respondent denied liability under ss 24 and 27. 

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Re Andnopoulos and Secretary to the Department of Social Security (1984) 7 ALN N54

Beezley v Repatriation Commission (2015) FCAFC 165
Re Martin and Commonwealth (1983) 5 ALD 277
McDonald v Director General of Social Security [1984] FCA 57
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Re Sadek and Commonwealth (1988) 14 ALD 771
SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321
Prain v Comcare [2017] FCAFC 143
Zdziarski v Telstra Corporation Ltd [2015] FCA 2017

Secondary Materials           

Jenkinson KJ, ‘Notes on the Commonwealth Employees’ Compensation Act 1930-1964 41 Australian Law Journal 114-115

Safety, Rehabilitation and Compensation Act Review Report – February 2013, Peter Hanks QC

REASONS FOR DECISION

Mr A. Maryniak QC, Member

24 June 2019

1. The Tribunal is reviewing the following three decisions:

   (a)The reviewable decision dated 18 July 2016 made on behalf of the Respondent by a delegated review officer, where the review officer affirmed a determination dated 28 April 2016, that the Respondent is not liable to pay compensation for the cost of psychological sessions from 28 April 2016 under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), in respect of ‘acute anxiety reaction and post-traumatic stress disorder’ (‘PTSD’).

   (b)The reviewable decision dated 13 July 2017 made on behalf of the Respondent by a delegated review officer; where the review officer affirmed a determination dated 19 June 2017, that the Respondent is not liable to pay compensation for all medical treatment under s 16 of the SRC Act, in respect of ‘acute anxiety reaction and PTSD’.

   (c)The reviewable decision dated 13 July 2017 made on behalf of the Respondent by a delegated review officer, where the review officer affirmed a determination dated 22 May 2017, that the Respondent is not liable to pay compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act, in respect of ‘acute anxiety reaction and PTSD.’

   Relevant legislation

2. Subject to Part II of the SRC Act, s 14 of that Act imposes a liability on Comcare to pay compensation in the circumstances for which it provides. In particular, s 14(1) relevantly provides that “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”. The word “injury” is defined in the SRC Act. 

3. By virtue of ss 4(1) and 5A(1), “injury” in the SRC Act means:

   (a)a disease suffered by an employee; or

   (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or 

   (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. 

4. By virtue of ss 4(1) and 5B(1), “disease” in the SRC Act means:

   (a)an ailment suffered by an employee; or

   (b)an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. 

5. Section 5B(2) further provides that:

   In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a)the duration of the employment;

   (b)the nature of, and particular tasks involved in, the employment;

   (c)any predisposition of the employee to the ailment or aggravation;

   (d)any activities of the employee not related to the employment;

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

   This subsection does not limit the matters that may be taken into account.

6. Section 5B(3) states that in the SRC Act:

   significant degree means a degree that is substantially more than material.

7. The word “ailment” is defined in s 4(1) to mean:

   any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

8. Section 16 of the SRC Act provides for compensation in respect of medical expenses. For present purposes, it is sufficient to refer to s 16(1), which reads:

   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.

9. Section 19 concerns compensation for injuries resulting in incapacity. The provision “applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies”: s 19(1). Section 24(1) provides that where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury. Section 27 deals with compensation for non-economic loss, which Comcare is liable for if compensation is payable in respect of an injury under s 24.

   The Issues

10. In summary, the first issue to be determined, as agreed between the parties, is whether in respect of the acute anxiety disorder and the PTSD deemed under s 7(4) of the SRC Act to have occurred on 1 May 1998, either at 28 April 2016 or 19 June 2017, the effects of the disorder had ceased or whether they continued, (either as a disorder identified in those terms or as a causally consequential disorder).  The determination of this issue requires the answer to  a preliminary question of whether the disorders are an injury or a disease for the purposes of the SRC Act.  For the reasons set out below, the Tribunal finds in favour of the Applicant on this first issue. In accordance with the Agreed Decision Tree provided to the Tribunal by the parties, various further issues requiring determination are dealt with below.

    Evidence Overview

11. The Applicant gave oral evidence,  was cross-examined by the Respondent, and questioned by the Tribunal; as were the following witnesses:

    (a)George Anasson, the Applicant’s psychiatrist;

    (b)Alla Demutska, the Applicant’s psychologist;

    (c)Ruth McNair, the Applicant’s G.P.;

    (d)Justin Nathan Lewis, consulting psychiatrist for the Applicant; and

    (e)Brendan John Spence, consulting psychiatrist for the Respondent.

12. The documentary evidence before the Tribunal comprised documents provided under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) (the T documents and Supplementary T documents), and various other statements and medical reports.[1]

    [1] Exhibits A1 to A5 and R1 to R5.

13. The parties are at issue on aspects of onus and standard of proof.  It is trite to say there is no formal legal onus appropriate to the Tribunal.  However, the Respondent submits it remains for the person seeking benefits to satisfy the Tribunal of the relevant facts upon which such claimed entitlement depends.  The Applicant disputes this.

14. Consistent with the principle that this Tribunal is not bound by the rules of evidence, it may inform itself on any matter in such manner as it thinks appropriate: s 33(1)(c) of the AAT Act. There must be a factual foundation to support any decision of the Tribunal.

15. Where a party wishes to assert and indeed establish a fact it is a matter of first principles that the party “… who asserts, or [s]he who seeks a result, must prove.”[2]  Similarly, it would be very difficult for this Tribunal to decide that a person was permanently incapacitated for work, for example, without evidence from that person.[3]

    [2] Re Martin and Commonwealth (1983) 5 ALD 277 at 287.

    [3] Re Andriopoulos and Secretary to the Department of Social Security (1984) 7 ALN N54.

16. The relevant factual foundation must be made out during the hearing of the matter, upon the material before the Tribunal.  The body of evidence before the Tribunal is to be assessed.  Where a Tribunal is “not satisfied” of a matter, based upon the evidence of an applicant this does not mean that the Tribunal has placed an onus on that applicant.  It is just a way of stating the conclusion that it has reached upon all the evidence before it.[4]

    [4] SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321 at [22].

17. If a Tribunal is left in a state of uncertainty as to whether the facts necessary to activate the statutory power have been established, it must decide against the exercise of that power.

18. In the Tribunal’s view, the Respondent is correct in its submission that it remains for the person seeking benefits to satisfy the Tribunal of the relevant facts upon which such entitlement depends,[5] unless such facts are self-evident within the body of evidence already before the Tribunal.

    [5] Beezley v Repatriation Commission [2015] FCAFC 165 at [68].

19. In any event, the Tribunal’s task here is to look at the evidence before it in total and then determine the correct or preferable decision based upon such evidence.

    Background to the Claim being accepted on 14 August 1998

20. The Applicant claimed she previously suffered anxiety and depression in around 1994 or 1995.

21. The Applicant was employed by the Department of Defence (the Department) as a staff counsellor, having commenced that role in around 1995. At the relevant time, the Applicant was based in Canberra.

22. On 27 April 1998, the Applicant wrote to the Senior Staff Counsellor that on that day, she received a malicious voicemail from a female voice. She said that she had reported the call to Telstra.  It appears that her supervisor, Garry Craven, listened to the call, recalled that the caller “seemed to be proffering (sic) [the Applicant] a warning”, but said his recollection was “somewhat sketchy”.

23. On 6 July 1998, the Applicant lodged a claim for workers’ compensation, seeking compensation in respect of an ‘adjustment disorder with anxiety’. The Applicant said that she first noticed the condition in April 1998, in the context of receiving threatening and malicious telephone calls at work.

24. In August 1998, the Applicant was referred by her general practitioner, Dr Sue Morton, to Linden Hilgendorf, psychologist, for assessment and advice.

25. The Applicant appears to have continued to receive telephone calls after submitting her claim. The Department’s telephone system wouldn’t allow  external calls to be traced.

26. Comcare accepted liability under s 14 of the SRC Act for “acute anxiety reaction” on 14 August 1998, over 20 years ago.

    Background subsequent to Claim being accepted – post 14 August 1998

27. The Respondent provided the following summary of events relating to the Applicant after 14 August 1998.

    (a)Between 1 May 1998 and 15 August 2016, the Applicant received compensation for various medical expenses, including psychology sessions. The Applicant also received incapacity payments between 18 May 1998 and 26 February 2009 (incapacity payments ceased on that day because the Applicant turned 65 on 27 February 2009).

    (b)In the period following the Applicant’s claim, various matters ensued, such as an attempt to have the AFP investigate the threatening telephone calls, issues to do with transferring the Applicant’s personal items from Canberra to Melbourne, the Applicant receiving a mysterious package (that turned out to contain inconsequential items), amongst other such matters.

    (c)On 9 December 1999, the Department wrote to Ms Fraser (then psychologist for the Applicant) suggesting that the Applicant undertake a work trial with the Military Rehabilitation and Compensation Service, with a view to transferring to that Service. The Department also proposed that the Applicant undertake project duties rather than telephone work.

    (d)On 4 March 2000, Dr Morton wrote to Comcare expressing her opinion that the Applicant was capable of returning to work, but only  to perform duties more appropriate to her qualifications, being a junior ASO1.

    (e)On 4 May 2001, Ms Fraser requested Comcare accept responsibility for payment of hospitalisation costs,  she and the Applicant’s then general practitioner, Dr Barbara Burge, believing the Applicant to be at risk of self-harm.  Comcare denied liability that same day, the delegate not being satisfied that the need for hospitalisation was related to the Applicant’s compensable condition.

    (f)On 26 May 2001, Dr Morton reported her view that the Applicant was now totally and permanently incapacitated for any kind of employment due to the severity of her condition. Dr Burge provided the same opinion on 30 May 2001; as did psychiatrist Dr Alec Dempster on 3 June 2001.

    (g)On 22 June 2001, Dr David Gras, occupational physician, examined the Applicant for the purposes of determining whether the Applicant met the grounds for retirement on the basis of medical invalidity. Dr Gras appeared to be of the view that the Applicant met those grounds. Dr Peter Smith, psychiatrist, was also of the view that the Applicant was not and would never be suitable for employment, and recommended that the invalidity claim be expedited in the interests of the Applicant’s psychological health.

    (h)The Applicant verbally requested Comcare  accept liability for her hospitalisation on 9 October 2001. By letter dated 25 October 2001, the delegate informed the Applicant that she was again not satisfied that the need for hospitalisation was due to the Applicant’s compensable condition. The delegate found that:

    (i)the Applicant’s then-present symptoms were the result of undertaking the process to become retired on invalidity grounds and were hence not related to her compensable condition; and

    (ii)medical evidence provided by Dr Paul Kornan and Dr Gras did not support the requirement for hospitalisation. The delegate referred to Dr Kornan’s opinion in particular that the Applicant required ‘supportive treatment rather than some type of extensive treatment’. On that basis, the delegate determined that any suggestion for [the Applicant] to be hospitalised… cannot be justified or considered ‘reasonable treatment’ within the meaning of the Act in relation to [her] compensable condition.

    (i)Dr Ashok Mishra, psychiatrist, wrote to Comcare on 25 October 2001 in support of the Applicant’s claim for hospitalisation costs. However, on 4 February 2002, Comcare again rejected it on the basis that any need for hospitalisation was not a result of the Applicant’s compensable condition.

    (j)The Applicant retired on invalidity grounds on 8 May 2002.

    (k)The Applicant did not appear to claim compensation for psychological treatment between July 2002 and December 2006 and between March 2007 and July 2013.

    (l)On 11 February 2014, Comcare notified the Applicant of its intention to determine no present entitlement for psychological treatment under s 16 of the SRC Act. The delegate was not satisfied that the Applicant’s then-current psychological treatment was directly related to her compensable condition. The delegate was relying on the evidence of Dr Ruth McNair, general practitioner, and Ms Jacinta Kearney, treating psychologist, to the effect that the Applicant’s symptoms had been exacerbated due to her sister taking ill and the consequent need to use the telephone. These symptoms were reported to be consistent with PTSD, rather than acute anxiety reaction – the accepted condition.

    (m)Dr George Anasson, psychiatrist, wrote to Comcare in support of the Applicant’s continued claim on 1 May 2014, citing the link between PTSD and acute anxiety symptoms.

    (n)On 3 March 2015, following the provision of a medico-legal report by Dr Jennifer Majoor, psychiatrist, Comcare accepted liability under s 14 of the SRC Act for PTSD in addition to the previously accepted acute anxiety reaction.

    (o)On 28 April 2016, Comcare determined that it was not liable to pay compensation for psychology sessions under s 16 of the SRC Act. The delegate was not satisfied that work was a significant contributing factor towards the Applicant’s symptoms, the Applicant not having worked for some considerable time. The delegate noted that the Applicant had had 240 psychology sessions since her injury nearly 20 years earlier.

    (p)The Applicant requested reconsideration of this determination on 26 June 2016.

    (q)On 18 July 2016, Comcare affirmed its determination. The review officer was satisfied that it was reasonable to expect that after the 221 psychology sessions the Applicant had between August 1998 and July 2002, the Applicant would be able to self-manage her condition. The review officer was satisfied that this was demonstrated by the breaks in treatment between 2002 and 2006 and between 2007 and 2013.

    (r)Further, the Applicant’s most recent psychology treatment plan did not indicate how the stated goal of “reduction in anxiety and PTSD symptoms” could be achieved; nor did the plan adopt a self-management approach. Hence, the review officer was not satisfied that continued psychology treatment constituted “reasonable medical treatmen”’ under the Clinical Framework for Delivery of Health Services (Clinical Framework).

    (s)The Applicant by her solicitor lodged an application for review of this decision  with the Tribunal  on 13 September 2016.

    (t)The Applicant lodged a claim for compensation for permanent impairment and non-economic loss on 28 November 2016, in respect of a “psychological and/or psychiatric illness”. Dr Ruth McNair certified in the claim that the Applicant’s condition was permanent, required ongoing treatment, and would fluctuate over time.

    (u)Following the receipt of the report of Dr George Anasson and Dr Brendan Spence (see below), on 22 May 2017 Comcare advised the Applicant of its intention to determine “no present liability” and invited the Applicant to provide further information to support her claim. Comcare made a determination in accordance with its advised intention on 19 June 2017, finding that the Applicant is no longer entitled to compensation under s 16 of the SRC Act from 19 June 2017.

    (v)Also on 22 May 2017, Comcare denied liability to pay compensation for permanent impairment and non-economic loss on the basis that the degree of impairment was less than 10%.

    (w)Both the 22 May 2017 permanent impairment determination and the 19 June 2017 “no present liability” determination were the subject of a reviewable decision dated 13 July 2017. Both determinations were affirmed. The Applicant sought review of both these decisions by the Tribunal.

    Injury or Disease?

1. In written closing submissions, the Applicant made submissions as to  her current condition, as set out in paragraphs 29 to 33 below.  The Respondent noted that the Applicant attempted to characterise her condition as an injury other than a disease.

2. The Applicant continues to suffer from chronic PTSD that is relevantly connected with her Commonwealth employment. The injury has been identified by Comcare as an “acute stress reaction and post traumatic anxiety disorder” and ascribed a date of injury of 1 May 1998.

3. The Applicant contended that the injury identified is both:

   (a)an injury (other than a disease), being a mental injury that arose out of or in the course of her Commonwealth employment; and

   (b)a disease, being an ailment, to which the employment contributed to in a material degree.

4. The injury (other than a disease) “arose out of … employment”, in that it was sustained because of the frightening telephone calls, including listening to voice mails received on the telephone system, which she received at her office or workstation at the Department at 14 Moore Street, Canberra, and receiving telephone calls were a normal part of her employment duties as a staff counsellor. It was thereby sustained “in consequence of events to the risk of occurrence of which he has been exposed by the nature, conditions, obligations or incidents of the employment”.[6]  It makes no difference that there was one single traumatising call or a series of traumatising calls that should cause injury. Injuries arise from employment from repeated trauma involving hurt or harm.

   [6] See Jenkinson KJ, “Notes on the Commonwealth Employees’ Compensation Act 1930-1964” Australian Law Journal Vol. 41, p 114-115.

5. Equally, the traumatising telephone calls, including the voice mails, were the material employment contributors to her PTSD ailment.

6. At the time the injury was sustained, it had compensable sequels:

   (c)the reasonable need for medical treatment, the first being on or about 1 May 1998, which was identified by Comcare as the date of injury and,

   (d)it resulted in:

   (i)incapacity for work, starting in 18 May 1998 the Applicant ceasing work by late 1998 and, from late 1998, such incapacity having been continuous, and

   (ii)impairment, as defined in s 4(1) SRC Act as “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”

7. The Applicant also referred the Tribunal to historic medical evidence from  2000 to 2001.  The Tribunal notes the permanently incapacitating effects (as at February 2002) resulted in the Applicant’s invalidity retirement from the Australian Public Service from 19 February 2002.  The Applicant submits there was no break in psychological counselling save for the period between 2002 and 2006.  The Applicant continued to see her medical practitioner and continued to use psychotropic medication, being Prozac.

8. Whether or not a mental illness is to be categorised as a “disease” or an “injury (other than a disease)” depends upon the nature and incidents of the psychological change.  The Full Court in Prain v Comcare [2017] FCAFC 143 at [77] expanded upon this while discussing Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468:

   …It is relevant, in this context, also to bear in mind the statement of the plurality (at [52]), that “the existence of a physical or mental ‘injury’ (in the primary sense of that word) will generally be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological or disturbance of the normal physiological state.

   The Full Court added in Prain at [59]:

   Referring to the different statutory inquiries relevant to “disease” and “injury (other than a disease)”, their Honours emphasised (at [56]) “the importance of the distinction drawn by the Act between ‘disease’ and ‘injury (other than a disease)’ in the definition of ‘injury’ in s 4(1) of the Act” and noted that the distinction “recognises that each creates a different basis for liability under the statutory scheme”. On the one hand, the definition of “disease” in s 5B(1) of the SRC Act requires that, for the purposes of the SRC Act, a “disease” must be an ailment or an aggravation of an ailment; and that ailment or aggravation must have been contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. That is, the SRC Act requires “a higher level of work connection in the case of a disease” to attract liability: see Burch [1998] FCA 944; 85 FCR 264 at 268. On the other hand, an “injury (other than a disease)” must be “a physical or mental injury arising out of, or in the course of, the employee’s employment”. That is, in the case of an injury “in the primary sense” (also called an “injury simpliciter”) liability depends on a lower level of causal or temporal connection with the employee’s work.

9. The Applicant previously suffered anxiety and depression in around 1994 or 1995.  The Applicant received the relevant telephone calls from April 1998 and liability for “acute anxiety reaction” was accepted on 14 August 1998.  The Applicant appeared to develop further symptoms over time which led to the Respondent accepting liability for PTSD in 2015.

10. On balance, the evidence before the Tribunal does not support the existence of an injury involving a sudden ascertainable or dramatic physiological or disturbance of the normal physiological state, and the Tribunal finds, as submitted by the Respondent, that the Applicant’s ailments of acute anxiety reaction and PTSD are properly to be identified as a disease (per s 5B(1), being ailments rather than injuries (other than disease)).  Such ailments are disorders of psychological functioning.

    Novus actus interveniens

11. The parties were at issue as to the extent to which various serious life stressors subsequent to the original employment-related disorder could impact upon the question of whether previous employment remained a significant contributing factor.  The Applicant submitted that before the novus actus will be regarded as the only cause of the incapacity, it must be shown that the incapacity which would have resulted from the injury has ceased to exist, and that the incapacity which does exist has resulted from the new cause as the sole cause.[7]  The Applicant maintains that a complete break in the causal relationship is required.

    [7] Re Sadek and Commonwealth (1988) 14 ALD 771.

12. However, the Respondent referred the Tribunal to the Full Federal Court decision in Prain. For compensation to be payable under s 19 or equivalent the Tribunal must be satisfied of the continued existence of an injury as defined in s 5A of the SRC Act. In Prain the Full Court was dealing with an appeal relating to a decision to discontinue paying compensation to a claimant for whom entitlement to compensation had previously been accepted (and was not challenged).

13. The Respondent submitted that the Full Court determined that the factors relevant to the determination of whether the ailment was contributed to, to a significant degree, by employment as outlined in s 5B(2) remained relevant for the consideration of whether liability existed under ss 16 and 19 of the Act (as opposed to those being considerations relevant only to the question of liability under s 14 of the SRC Act.)[8]

    [8] Prain at [82]-[83].

14. The Respondent submitted that as a consequence, for the factors in s 5B(2) to be relevant, as they were said to be in Prain, the requirement is not, a complete break in the causal relationship but rather, a requirement for ongoing “significant contribution” by employment to the relevant disease.

15. Whilst the Applicant has identified some earlier decisions such as McDonald v Director General of Social Security [1984] FCA 57 which related to Social Security legislation, the Respondent submitted that Prain is the most recent relevant authority.

16. The Respondent submitted that such an approach is consistent with the view that compensation under the Act is not simply paid out on an ongoing basis; rather the Respondent responds to claims for compensation on a ‘claim as made basis’.[9]

    [9] SRC Act s 69(a); Safety, Rehabilitation and Compensation Review Report – February 2013, Peter Hanks QC at [7.143].

17. The Respondent contends that the Tribunal needs to be satisfied that any present liability for incapacity, medical treatment expense and permanent impairment exists as at the time of the loss to which the entitlement claimed responds, which:

    (a)for incapacity, is at the time of the incapacity allegedly suffered;

    (b)for medical treatment, is at the time that an expense or requirement for treatment is incurred; and

    (c)for permanent impairment, is the date of the Tribunal decision upon such impairment.

    The Applicant’s claims relevant to this matter all relate to periods  after the amendments to the Act on 13 April 2007. 

18. However, the Tribunal is bound by Zdziarski v Telstra Corporation Ltd[10] which  factually accords with this matter, as opposed to Prain which is distinguishable on its facts.  Here, as determined in accordance with s 7(4) of the Act the relevant date of ailment is determined to be 1 May 1998.  The Respondent’s argument that the stricter “significant contribution” test should apply is rejected.  The relevant test is the pre-13 April 2007 test of “material contribution”.

    [10] [2015] FCA 207 (Perram J) at [16]-[18].

    The Medical Evidence

19. The Tribunal has considered the body of medical evidence before it.  The parties elected  not to comply with the earlier Direction made for concurrent medical evidence to be given during the hearing of this matter.  The Applicant in closing submissions highlighted and relied upon the following reports and evidence:

    (a)Ms Elizabeth Gunn provided Comcare with a contemporaneous report dated 24 February 2007 about five sessions which concluded that “Ms Cartajena still suffers from Chronic PTSD … which is directly related to the incident she experienced when she worked for the Defence Department (Canberra) as a Staff Counsellor” and she noted the direct consequences were: “… not been able to deal with the demands of daily life since this time. She fluctuates from feeling overwhelmed by her anxiety to feeling depressed. She continues to have nightmares and reoccurring thoughts of suicide. During her nightmares she grinds her teeth to such an extent that she has severe headaches the next morning. Ms Cartajena continues to experience great anxiety when answering her home phone; her anxiety is accentuated when she hears no response. Mr Cartajena suffers from constant headaches which are directly related to her high generalised anxiety level. Chronic PTSD is a long term illness. Ms Cartajena requires regular therapy sessions in addition to anti- anxiety and anti-depressant medication in order that she is able to manage psychologically.”

    (b)Ms Jacinta Kearney, clinical psychologist, had provided a report of 24 September 2013 which, despite the suggested alternative causation, was clear that the difficulties Ms Cartajena experienced in 2013, “is directly related to the occurrence of post traumatic stress disorder she has experienced while working at the Department of Defence”.

    (c)Ms Alla Demutska, the current treating psychologist, gave evidence wholly supportive of the continuing effect of post traumatic stress disorder sustained in Defence employment in 1998 with the inability to cope with demands of everyday life. Her report of 11 November 2016 set out her diagnosis of PTSD of chronic duration.  The diagnosis was  based on the identical set of symptoms that others had noted before in various consultations and examinations – intrusive recollection of the events; hypervigilance and constant anxiety; avoidance of reminders of the events; sleep disturbance and nightmares; anger and frustration; diminished ability to think and concentrate; social isolation; diminished self esteem; depressed mood, fatigue and loss of energy and markedly diminished interest/pleasure in activities. She did not depart from any of those opinions under cross-examination and supported the view that Ms Cartajena needed ongoing treatment for her PTSD.

    (d)Dr Jenifer Majoor, consultant psychiatrist, examined Ms Cartajena on behalf of Comcare on 12 December 2014 and provided a report dated 22 December 2014. Dr Majoor assessed Ms Cartajena as suffering from “PTSD, Chronic” and that diagnosis was fulfilled on the criteria:

    “as she described threatening messages that were left on her voice mail that she said made her feel vulnerable and as if her life was in danger and she appears to have responded with helplessness and horror. She describes suffering from intrusive recollections and recurrent distressing dreams of the events. She also has persistent avoidance of stimuli associated with the trauma such as avoidance of reading material associated with the event. And avoidance of landline calls. She also describes a sense of a foreshortened future and emotional numbing and inability to having caring feelings. She reported persisting symptoms of increased arousal with poor sleep, irritability, poor concentration, hypervigilance and an exaggerated startle response”.

    (e)Dr Amanda White, of Sinergy Pty Ltd, conducted a neuropsychological assessment and provided a report to Comcare’s legal advisers in the course of the present review proceedings, dated 10 February 2017, which said that:

    (i)“Ms Cartajena would continue [on the current assessment] to meed (sic) the Diagnostic and Statistical Manual Fifth Edition (DSM-V) criteria for a diagnosis of chronic Post Traumatic Stress Disorder with significant anxiety symptoms”.

    (ii)Dr White attributed the injury to the “events experienced in 1998 related to her employment with the Department of Defence including suspicious phone calls and the perceived inaction and lack of adequate response from her employer contributed to her condition”.  She continued:

    “Since her diagnosis in 1998, records suggest that her symptoms, particularly her anxiety, may be exacerbated by other events over time such as difficulty liaising with her sister’s nursing home and further suspicious phone calls over the past few years. It is unclear of the origin of these phone calls of if they are related, however such a possibility exists in Ms Cartajena’s mind and results in flashbacks to events and feelings experienced from 1998. Her symptoms appear to be exacerbated in response to the decision of Comcare to terminate cover for ongoing therapy and the associated legal and medical appointments in which she is required to revisit the events of 1998. In my view, these have resulted in an intensification of Ms Cartajena’s feelings of resentment, abandonment, disappointment, isolation and mismanagement she associates with her employer in 1998. She continues to ruminate on her belief that the investigation by her employer was inadequate and that she was not protected.

    Records suggest a possible episode of depression and anxiety in reaction to a workplace claim of bullying in 1994. Ms Cartajena has poor recall of this event. This, as well as her living in Chile, observing social unrest in South America and subsequent migration to Australia cannot be excluded as factors increasing her vulnerability to maladaptive coping to stressors later in life however there is no evidence of any pre-existing congenital or underlying pathological condition.”

    (iii)Dr White concluded that Ms Cartajena “requires ongoing treatment” and that such treatment with a psychologist would “assist with the management and control of her symptoms …. I note that she reports therapy encourages her to engage with society and maintain social networks and relationships. This is important given that Ms Cartajena is quite socially isolated”.

    (f)Dr George Anasson, the treating consultant psychiatrist, gave evidence and maintained the opinions in his report.  Dr Anasson:

    (i)Has seen the Applicant over an extended period of time from 2009 up to 2018.

    (ii)In all that time he has had approximately 50 sessions of treatment with his patient varying between 30 to 45 minutes each.

    (iii)Over the period of his treatment he  prescribed the Applicant  Fluoxetine (Prozac) between 60 and 80 mg per day. That was described as a relatively high dose of that medication, required to control the continuing symptoms.

    (iv)He provided  reports dated 1 May 2014 and 10 February 2017 to the Respondent, as well as a report dated 1 March 2018.  In that last report he noted, consistent with his earlier reports, the following issues:

    (I)As to diagnosis:

    The Applicant’s predominant ongoing presentation is of an anxiety based problem characteristic of people with a chronic Post- Traumatic Stress Disorder. She has an underlying generalised anxiety problem with concerns about her and the health of her sister who is currently in a nursing home. However she continues to experience marked hyperarousal reactions to simple telephone calls leading to a sense of panic, palpitations and excessive sweating. She continues to have repeated distressing dreams and poor quality of sleep. Apart from being triggered by telephone calls to her home or mobile phone she has an excessive and distressing response to any situations where she might feel harassed or poorly considered by persons either personally or in a professional capacity.

    (II)As to the incapacity and impairment and its relationship to injury:

    The chronicity of the Applicant’s symptoms now ongoing since her initial WorkCover claim in the late 1990’s have led to a marked deterioration in self-esteem and his emotional sensitivity and reduced ability to respond to situations in a manner that is helpful to her. She harbours a very negative self-belief and an expectation that others consider her in this manner. She therefore avoids a number of social interactions and has difficulties maintaining healthy relationships. She feels untrusting with many other people particularly new persons which furthers her social isolation.

    (III)The relationship to the employment injury:

    However, in this case a very clear link was made between the index events in her claim and the development of typical PTSD symptoms.

    (IV)As to the need for continuing treatment:

    Over the years as a result of this initial episode the Applicant has required ongoing psychotropic medication which has assisted to reduce both some of these symptoms and also symptoms from a long-term supportive and psychotherapeutic process. Simply put this lade developed clear symptoms of an illness with required treatment and requires ongoing treatment to this point. She continues to experience other stressors which do not relate to her initial complain but I feel she deals less well with all her ongoing life challenges because of the continued presence of the PTSD.

    (g)Dr Ruth Nair, the treating general practitioner from the Northside Clinic in Fitzroy North, gave evidence concerning her role in the Applicant’s treatment. She provided a report dated 11 January 2017 stating that  the Applicant required periodic psychiatric support, including review by her psychiatrist, Dr Anasson, ongoing medications including Prozac and Seroquel, and regular psychological counselling. Dr Nair noted that life stressors tend to trigger a more acute anxiety response but that  the Applicant has managed to “return to her chronic level of anxiety following each one of these in my experience.

    (h)Dr Justin Lewis, consultant psychiatrist, gave evidence for the Applicant. He had examined the Applicant on 3 August 2017 and provided a report dated 8 August 2017 [Exhibit A4].  He provided a supplementary report,  containing an impairment assessment in accordance with the provision of the approved Comcare Guide Table 5.1, dated 8 September 2017 [Exhibit A5]. His evidence in both the reports and his oral evidence  favoured the conclusion of a continuing chronic PTSD injury related to the threatening phone calls received in the Defence Department employment in which she “genuinely feared for her safety”. His reports showed:

    (i)He had access to  earlier reports, going back to the  occurrence of the injury.

    (ii)On his direct observation in the mental state examination he noted “… she became visibly agitated when describing her traumatic workplace difficulties. In particular, she developed a significant stutter when describing the traumatic events at work”.

    (iii)At the time of his examination the Applicant was  using Fluoxetine at 80mg per day and  Seroquel 25mg per day.

    (iv)He concluded that Ms Cartajena’s “current level of functioning is at significant variance to her pre-injury level of functioning in a social, occupational and recreational sense.”

    (v)The severe traumatisation symptoms had a poor prognosis [at 12(e)]:

    It has been some 18 years since her workplace difficulties, and she continues to present with high levels of post-traumatic stress symptoms including recurrent nightmares, avoidance, and hyperarousal symptoms. Her symptoms have persisted despite consistent psychiatric support. She presents as an individual who has lost significant confidence and self-esteem.

1. In response, Dr Spence, Consultant Psychiatrist for the Respondent, stated the following:

   The report of psychiatrist Dr George Anasson dated 10/2/17 diagnosed the claimant as suffering with chronic Posttraumatic Stress Disorder. Treating psychologist Dr Alla Demutska dated 11/11/16 concurred with this diagnosis. I note that neither of these practitioners had access to the range of documentation available for this consultation. Neither has detail of the events and difficulties from prior to her employment at the Department of Defence that, in my opinion, indicate the claimant has a significant pre-existing history. Neither report addressed her enduring style of interacting with others.

   I also note that in his recent report Dr Anasson dated 10 February 2017 did not describe significant ongoing avoidance symptoms related to events at work. He did describe symptoms of arousal, anxiety and some re-experiencing phenomena and noted that –

   “These symptoms are triggered by situations where her sense of harassment (sic) and poor treatment at the hands of others leads to re-experiencing of a number of symptoms of this condition.”

   I consider that the claimant's presentation and mental state during my assessment was quite different to the picture given by her treating psychologist at the time of her report 11/11/16. In contrast to her treating psychologist I did not gain a description of significant ongoing avoidance symptoms related to a diagnosis of PTSD. The worker described being able to take incoming phone calls for her mobile and the landline at home. The worker has been engaged with friends, visits her sister and entered a course at the University of the Third Age. She did not describe a sense of a foreshortened future. She has continued to dispute the liability of Comcare for her psychological treatment, has had to undergo numerous medicolegal assessments. She was able to give an adequate account of events at work, in my opinion, without undue distress or dysregulation. Whilst she described intermittent dreams about events at work every 3 months this had not changed in intensity or frequency for the last two years. She was not clinically depressed. She described good energy, motivation and pleasure in some activities.

   Considering all of the above information I did not think that the worker met the criteria for Post traumatic Stress Disorder- chronic in duration, at this time. I consider it difficult to find a diagnosis on Axis 1 alone that captures her presentation well. In my opinion the diagnosis that best fits for her presentation is an Adjustment Disorder with anxiety.

   I consider the worker's current presentation needs to be understood in the context of her long­term personality functioning. I have not put a firm diagnosis for Axis II but was struck by the worker's longstanding sense of injustice and victimhood both before and after events at her work in 1998. The worker has been keen and determined to enter into disputes in many different domains of her and her sister's life. She has entered into protracted disputes in relation to her sisters care, is considering re-commencing a legal dispute concerning her sisters finances in Chile, and presents fiercely determined to be found wanting and deserving of Commonwealth funded treatment in this current dispute. She is very forthright and adamant in her opinion and has a tendency to externalise blame upon others. In my opinion this long-term way of being has interrupted her ability to enter into ongoing adaptive relationships at times throughout her life, both before and after the claim.

2. As to the prognosis for the Applicant’s psychiatric condition, Dr Spence stated that she has ongoing significant psychosocial stressors  as a result of the ongoing care of her sister, legal disputes in Chile, and her own health problems.

3. In Dr Spence’s expert opinion, the Applicant:

   … has had ongoing inter-current stressors not related to her Commonwealth Employment. I note the claimant jointly holds her home mortgage with her sister and another housemate.- I note that her sister's physical and mental health has deteriorated over the last four years and she has been moved to a nursing home with increasing cognitive impairment. Ms Cartajena continues to be her sisters Enduring Medical and Financial Power of Attorney, conditions with considerable responsibility. She describes entering into ongoing dispute with her sister's nursing home and engaging the health services commissioner at that time. She has also launched an ongoing legal dispute in Chile regarding her sister's finances that she appears clearly distressed by. She is currently considering engaging a new lawyer in Santiago in relation to this issue.

   Additionally she has developed ongoing medical problems of her own including osteoarthritis, hyperparathyroidism requiring surgery in 2016 and gastrointestinal complaints.

   I consider that these inter-current stressors, combined with her enduring way of being and keen sense of injustice contribute to her ongoing intermittent distress and requirement for psychological treatment.

4. Further, he stated:

   I consider that the worker does not meet the criteria for Posttraumatic Stress Disorder at present. She presents with intermittent anxiety and upset in relation to perceived injustices and interpersonal difficulties. These factors are described above.

   In my opinion the worker’s ongoing need for psychological treatment in relation to her claimed injury has diminished over time. Her ongoing desire for treatment and support occurs more in relation to her enduring personality function, her long-term sense of injustice and ongoing significant stressors in relation to the care of her sister.

5. Dr Spence was of the view that the Applicant was very fixed in her opinion that all of her difficulties stem from her period of employment with the Department

6. Dr Spence considered that the Applicant did not meet the criteria for PTSD.  She presented with intermittent anxiety and upset in relation to perceived injustices and interpersonal difficulties. 

7. Dr Spence was of the opinion that the Applicant, as at November 2017, suffered from an Adjustment Disorder with anxiety that is chronic in duration rather than PTSD.  Her resumption of mental  health treatment since 2009 has been “in the setting of a range of intercurrent stressors unrelated to employment”.  He stated that she has “very strong views about events in employment and causation of her ongoing issues with her mental health that have been difficult to broaden, challenge and integrate in relation to other aspects of her developmental history and serious ongoing stressors in her life.  She has remained in treatment with practitioners who have not chosen to particularly challenge her very narrow, defended concept and understanding of her current mental health issues.  She has moved away from treating practitioners whom she felt did not confirm her view of her issues.”

   Consideration

8. The Tribunal observed that the Applicant was an exceedingly poor witness prone to giving self serving evidence and accepts the Respondent’s submissions in this regard. She gave her evidence with little regard to the truth, tailoring her answers to her perceived interests, even where, upon occasion, her answer about specific factual matters had earlier been to directly contrary effect.[11]

   [11]  For example: Transcript 22 October p 61: at line 25 Did you tell her about your relationship with your mother?--- Yes. Very conflictive.  And at line 40: I see. How was your relationship with your mother?---Warm.

9. The Applicant avoided giving direct responses to questions that she was asked in cross- examination and would not volunteer matters against her perceived interests when asked to do so. Instead her approach to giving evidence when cross-examined was to await specific propositions derived from documents, to see what might be capable of being established independently, rather than candidly answering questions from her own recall.

10. The Applicant nevertheless frequently denied any memory of matters that it is plain from clinical notes she had discussed with treating practitioners (even as recently as a few months ago), and which the Tribunal can readily infer were life events that were concerning and in some cases intensely distressing for her.

11. It is evident from her answers to questions about why she told the Respondent certain things in correspondence about what was happening in her life,[12]  that the Applicant was prepared to exaggerate in the interests of obtaining what she trenchantly regarded as her right. She conceded when pressed that she had been prepared to tailor her story to the Respondent to attempt to have her ‘right’ vindicated for example, in cross-examination:

    That seems to indicate, does it not, that you were suffering, in your words, "Severe and grim hardship upon your finances"?---At that time probably is an exaggeration, because it was a letter to the system.

    I see?---And (indistinct) for the system all the things in superlative, you don't go anywhere.[13]

    [12]  Exhibit A1.

    [13]  Transcript 22 October page 37 at [10] - The Respondent submitted the indistinct word was “unless” which the Tribunal accepts.

12. In giving her evidence the Applicant portrayed a sense of right and entitlement to ongoing compensation regardless of the questions being put to her or the true cause of her ongoing psychological disorders.  Such an approach by the Applicant is consistent with Dr Spence’s concerns that each of the Applicant’s various medical witnesses have not received a “complete” history from the Applicant.  Obviously, their medical opinions are limited by the information provided to them by the Applicant.  The Tribunal accepts the Respondent’s submissions as to the limitations of the medical evidence given on behalf of the Applicant.  The Tribunal finds that such medical evidence is not truly independently corroborative as it is ultimately reliant to various degrees upon the information provided by the Applicant.

13. The Tribunal infers that, as a trained counsellor, the Applicant well knew what symptoms of PTSD were diagnostic and that, where necessary or convenient to her interests, she volunteered those symptoms or exaggerated them in order to establish her condition and its compensability, whether she truly had them or not.

14. Since the events at the Department, the Applicant was able to take up studies, qualified as a marriage celebrant, has undertaken involvement in litigation at VCAT, has pursued insurance companies successfully for benefits under a policy, has acted as the legal guardian for her sister, advocates strenuously and effectively in respect of the quality of her sister’s care, has managed several legal matters, has made complaints and representations on behalf of her sister, and is effectively the day-to-day carer for her friend Barbara.

15. It is likely the Applicant, prior to employment with the Department, suffered from psychiatric symptoms for which treatment was necessary in her homeland in Chile and subsequently in Australia. Evidence for that proposition arises from the clinical notes of Dr Demutska, which refer to difficult early life events, a dysfunctional relationship with her mother who subjected her to abusive treatment[14] and had her psychiatrically assessed, and the fact that the Applicant herself sought treatment from a psychologist once in Australia (in respect of which treatment it is recorded that “sessions ended in the bedroom”).[15]

    [14]  See Transcript, 24 October page 22 at line 5 “Her mother was quite two-faced, in a way. So, she had a very well - she's - she was well presented in the community. However, at home she was quite abusive to her kids, and to Ana in particular”.

    [15] Transcript 24 October 2018 page 27 from line 5.

16. That psychiatric condition likely had similar manifestations by way of symptoms to those claimed in respect of the subject conduct.[16] Dr Demutska, after being asked how certain life experiences preceding employment had affected the Applicant, was asked to consider the similarity of such symptoms with those from PTSD.

    And I want to suggest to you that those references to having no power, having no influence are precisely the sorts of feelings that your therapy with the applicant has been addressing in the guise of her PTSD condition?---Being, yes, not important.

    Yes. It's exactly what your treatment is directed to in this lady's PTSD condition, isn't it, those sorts of feelings?---It would be one of them, yes.

    …

    Another would be her pervasive sense of anxiety? --- Yes.

    [16] Transcript 24 October2018 page 30 from line 20. See also the evidence of Dr Anasson at page 19 of the Transcript of 23 October 2018.

17. The treatment notes disclose that the overwhelming majority of consultations with the Applicant’s current treating psychologist deal with matters apparently remote from the symptoms said to result from the original PTSD condition and that the matters which concern the applicant now are the “inter-current stressors” to which the medical experts such as Dr Spence referred, and which arise from longstanding and patently concerning life events.

18. The Tribunal notes that the Applicant’s treating psychiatrist Dr Anasson was so unconcerned about her claimed phobia of telephones that he called her on the telephone to suggest she re-attend for assessment.[17]

    [17] Transcript 24 October2018 page 30 from line 20. See also the evidence of Dr Anasson at page 19 of the Transcript of 23 October 2018.

19. That pattern of focus on inter-current stressors is similar to earlier clinical treatment  from other practitioners such as Ms Gunn, where (save for the early consultations that appear directed to founding the basis for the treatment being compensable by the Respondent as due to her accepted ailment) her apparent concerns are not the anxiety from telephones, or loss of memory or nightmares or flashbacks of the events at the Department, but anxiety and depression provoked by the numerous ‘inter-current stressors’ she has had to endure since.

20. Amongst these are apparently significant financial issues, the Applicant’s relationship with her friend and housemate Barbara, her relationship with her infirm and dependant sister, her sister’s health, her care and disputes in relation to same, litigation in respect of serious losses, family issues in Chile, her sister’s estate and other matters of similar import requiring legal advice in Chile.

21. The Tribunal finds that any such need as the Applicant has for psychological treatment is not treatment in relation to the accepted workplace disorder. Indeed, her treatment regime is not likely to assist, even if her need for counselling were in respect of PTSD symptoms, since the Applicant stridently resists participation in that form of therapy most useful in addressing them (Cognitive Behavioural Therapy).[18]

    [18] Transcript, 24 October 2018 page 18 from line [20].

22. Indeed, the Tribunal notes that the Applicant had no need of psychological treatment from 2002 to 2006 and re-attended (with Ms Gunn) when inter-current stressors propelled her.  She gave the following answers in cross-examination: [19]

    Yes, and in 2006, just before you go back to seek treatment from Ms Gunn, you say:

    2006, it has been the year of litigation, and once more I have been overloaded with the legal complexities, which are an unknown field for me.

    ?---M'mm.

    …

    MR SNELL: You see, when you saw Ms Gunn in 2007 you gave her a history about those matters with the builder, didn't you?---I probably did. It probably was the reason I saw her. Who knows.

    [19] Transcript, 22 October 2018 page 40.

23. After that period of treatment, The Applicant had a further break from psychological treatment, which underlined the fact that her acute anxiety reaction and PTSD condition were not such that they required ongoing treatment by a psychologist, and do not do so now. Hence, the Tribunal finds the psychological treatment obtained since the date of cessation which is not in respect of the accepted injury cannot be compensable as treatment reasonably necessary for her to obtain, as required by s 16 of the Act.

24. From the Applicant’s medical evidence, it is plain from the history of the Applicant’s pre-morbid health that each practitioner records in their reports, that the Applicant did not give a full or candid account of prior symptoms, prior treatment from a therapist, assessment by a psychiatrist or any of the various matters that Dr Demutska has since elicited from her (concerning her early life and the abusive relationship with her mother as well as the highly unusual and irregular relationship she had with her therapist some 30 years earlier).

25. The Tribunal therefore gives less weight to the opinions expressed by medical experts where it is apparent that their conclusions are founded upon an incorrect or incomplete clinical history. Such a limitation, to one extent or another, applies to all of the medical witnesses who have examined or treated the Applicant.

26. The defective history to doctors (and indeed to this Tribunal via her statement and oral evidence) is something for which the Applicant bears the sole responsibility. She is not entitled to a presumption that her condition continues and all of her symptoms relate to her accepted injury (as the doctors she relies on essentially conclude), when none of them have a proper neutral history on which to base their opinions.

27. The limitations in regard to the Applicant’s history of psychiatric symptoms and treatment significantly diminishes the confidence which this Tribunal has that the doctors’ conclusions on the aetiology of her condition are soundly based; or that the symptoms now present are from the PTSD, and not a pre-existing or subsequently developing psychiatric disorder. The potential overlap between PTSD symptoms and symptoms of a disorder of mood or a lifelong generalised anxiety condition are obvious from the evidence given by Dr Anasson, when he was questioned about the issue by the Tribunal and the Respondent’s counsel in cross-examination.

28. Upon consideration, the following further conclusions are evident from the reports and evidence of Dr Spence, Consultant Psychiatrist, called by the Respondent:

    (a)He did not think the Applicant “was experiencing clinically significant avoidance at present that related to events and work in 1998”.

    (b)At first the Applicant “denied having any past psychiatric history.  Initially she could not, or did not want to recall having mental health treatment in 1994.  With prompting she recalled seeing a therapist for a brief period after difficulties at work”.

    (c)The Applicant had a Comcare claim for “reactive anxiety”, a period of 6 months off work, was reviewed by a consultant psychiatrist and  commenced upon the antidepressant medication Fluoxetine.

    (d)The Applicant had engaged in discrete episodes of psychological treatment from 1999, which continued until February 2002.  She then had nearly a 5 year gap, resuming in December 2006 for about 3 months.  She had a total of about 240 psychological sessions.

    (e)The Applicant has enduring personality traits that had an impact upon her wellbeing and ability to maintain harmonious relationships with others for a considerable time before her employment at the Department, and since.

    (f)There was a broad description of intermittent anxiety and sensitivity to others in social situations.  There were themes of anger and rumination about the claims process and other difficulties in her life.

29. On balance, the expert evidence of Dr Spence is preferred by the Tribunal over the Applicant’s own self-serving evidence and the medical evidence given on her behalf, for the reasons discussed above.  The Tribunal notes that Dr Spence did agree  under cross-examination that the Applicant should continue to have psychiatric treatment and continue with medication.

    FURTHER ISSUES FOR DETERMINATION

30. In light of the observations and findings made above, the Tribunal makes the following findings with respect to the further issues for determination in this matter.

    Psychological Treatment only on and from 26 April 2016 – Application No. 2016/4911

1. The Tribunal is of the view, on balance, that psychological counselling treatment on and from 28 April 2016 is not reasonable for the Application to obtain.

   Medical treatment on and from 19 June 2017 – Application No. 2017/4441

2. The Tribunal finds that such medical treatment on and from 19 June 2017 is obtained in relation to acute anxiety reaction and PTSD at least in part, and is therefore reasonable for the Applicant to obtain.

   Does the injury result in an ‘impairment’? – Application No. 2017/4486

3. The Tribunal finds that the Applicant does have an impairment which results in part from the acute anxiety reaction and PTSD.

   Is the impairment permanent and if so what is the degree of permanent impairment?

4. The Tribunal finds that the Applicant’s impairment is permanent.  Whilst Dr Lewis, on the information provided to him, concluded that such level of impairment was to be assessed at 25%, Dr Spence concluded a 10%  level of impairment.  On balance, the evidence of Dr Spence is preferred, consistent with the consideration and findings above.

   Does the Applicant have a ‘need for some supervision and direction in activities of daily living’?

5. On balance, considering all the evidence before the Tribunal as discussed above, the Tribunal finds that the Applicant has demonstrated a capacity to conduct her life day–to-day without any established need for supervision and direction in activities of daily living.

   What is the Applicant’s non-economic loss, assessed under Part I of Division 2 of the Guide?

6. Due to the inconsistent and incomplete nature of the medical evidence before the Tribunal, largely due to the incomplete and inconsistent histories of relevant matters obtained by her treating and assessing practitioners, the Tribunal finds that it is appropriate that this aspect be remitted to the Respondent.

   DECISION

7. Accordingly, the Tribunal orders as follows:

   (a)In Application No. 2014/4911 the reviewable decision is affirmed.

   (b)In Application No. 2017/4441 the reviewable decision is set aside and substituted with a decision that the Applicant is entitled to compensation under s 16 of the Act in respect of the treatment found to have been obtained in relation to the acute anxiety reaction and PTSD and reasonable for her to obtain, on and from 19 June 2017.

   (c)In Application No. 2017/4486 the reviewable decision is set aside and substituted with a decision that:

   (i)the acute anxiety reaction and PTSD has resulted in the Applicant sustaining a degree of permanent impairment of 10%;

   (ii)the Applicant has no need for supervision and direction in activities of daily living; and

   (iii)otherwise, the matter be remitted to the Respondent to assess the degree of suffering (if any), following further medical assessment so as to ensure that any such suffering as may be present relates to the accepted condition and not any pre-existing or subsequent developing condition.

   (d)Pursuant to s 67 of the SRC Act the Tribunal proposes to order that the Respondent pay one third of the Applicant’s costs in this matter.  However, the Tribunal will consider any written submissions on costs (limited to 3 pages) lodged with the Tribunal within 28 days, prior to finalising the Costs Order.

   I certify that the preceding 83 (eighty-
   three) paragraphs are a true copy of the
   reasons for the Decision herewith
   of Mr A. Maryniak QC

   …………[sgd]…………………………………
   Associate

   Dated:   24 June 2019

   Dates of hearing  22-24 October 2018

   Date of Last Submission received     21 November 2018    

   Counsel for the Applicant                   Mr Mark Carey

   Solicitors for the Applicant                 Arnold Thomas & Becker

   Counsel for the Respondent              Mr Michael Snell

   Solicitors for the Respondent            Lemann Snell Lawyers