Dalton and Comcare (Compensation) - [2018] AATA 2923

Dalton and Comcare (Compensation) [2018] AATA 2923 (16 August 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2017/5526
GENERAL DIVISION  )
Re: Cassandra Dalton
Applicant
And: Comcare
Respondent
CORRIGENDUM
TRIBUNAL:              Mark Hyman, Member
DATE OF CORRIGENDUM:   7 September 2018
PLACE:                    Canberra
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 to read as set out immediately below.
The Tribunal decides that in the present matter the exclusion in subsection 7(7) of the Safety, Rehabilitation and Compensation Act 1988 is not enlivened.
...................................................................
Mark Hyman, Member
Division:                  GENERAL DIVISION
File Number(s):      2017/5526
Re:Cassandra Dalton
APPLICANT

AndComcare
RESPONDENT

AndSecretary, Department of Social Services
JOINED PARTY

DECISION
Tribunal:Mark Hyman, Member
Date:16 August 2018
Place:Canberra

The tribunal sets aside the decision under review, and in substitution decides that the exclusion in subsection 7(7) of the Safety, Rehabilitation and Compensation Act 1988 is not enlivened.
..........................[sgd].......................................
Mark Hyman, Member
Catchwords
COMPENSATION – bullying and isolation – psychological condition - whether the applicant’s claim is for an injury or a disease - exclusion for wilful and false representation that the applicant had previously suffered from the disease for which compensation is now claimed – whether the representations were for purposes connected with employment – whether the disease denied in the representations was the same as that for which compensation was claimed - diagnosis of adjustment disorder – alternative diagnosis of dysthymia – potentially compensable disease not the same as the disease denied in the representations - claim is not excluded
Legislation
Administrative Appeals Tribunal Act 1975 s 37
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 7, 14, 16, 19
Cases
Abrahams and Comcare [2006] FCA 1829
Anderson and Australian Postal Corporation [2016 AATA 228
Bailey v Broadside Marine Contractors Pty Ltd [2017] FCAFC 219
Comcare v Mooi [1996] FCA 1587
Griffiths and Australian Postal Corporation [2017] AATA 1025
Griffiths v Australian Postal Corporation [2018] FCA 520
Kennedy and Comcare [2015] AATA 334
National Australia Bank Ltd v Georgoulas (2013) FCA 1412
Prain v Comcare [2017] FCAFC 143
Telstra v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Mark Hyman, Member
16 August 2018

At the heart of this matter is the compensation claim of the applicant, Ms Cassandra Dalton. Ms Dalton is the applicant in a number of related matters before the tribunal, with file numbers 2016/7009, 2017/21, 2017/2085, 2017/2141 and 2017/2391, in addition to the present matter. In all six matters Comcare is the respondent. In two of them the applicant is not Ms Dalton but the Secretary, Department of Social Services, Ms Dalton’s employer at the relevant time. The Secretary is a joined party in the present matter. In a reviewable decision dated 17 July 2017 Comcare decided that subsection 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) operates to exclude Ms Dalton’s claimed injury. On 12 September 2017 Ms Dalton applied for review of that decision by this tribunal. This decision is about whether subsection 7(7) of the SRC Act operates to exclude Ms Dalton’s claim.
The tribunal held a hearing on 23 July 2018. The scope of that hearing was limited to the application of subsection 7(7) of the SRC Act. Ms Dalton appeared and gave evidence; she was represented by Mr Karl Pattenden of Counsel, instructed by Mr Walter Hawkins of Maurice Blackburn. Comcare was represented by Ms Sarah Wright of the Australian Government Solicitor. The Secretary was represented by Mr Aabid Nawaz, a departmental advocate. Comcare called as an expert witness Dr Antonella Ventura, a consultant forensic psychiatrist, who gave evidence by telephone.
The tribunal had before it:
·the documents (the “T-documents”) provided under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) in matter 2017/5526, matters 2016/7009 and 2017/21, and matter 2017/2141; and
·additional documents provided before the hearing or tendered in the course of it, including a statement by Ms Dalton, a supplementary report and additional statement by Dr Ventura, and a copy of a pre-employment health declaration by Ms Dalton dated 23 November 2012.
ISSUES
The only issue before the tribunal is whether Ms Dalton made one or more wilful and false representations that she had not previously suffered from the same disease, or substantially the same disease, for which she is now seeking compensation. If so, Comcare would not be liable for compensation under the SRC Act and all Ms Dalton’s matters before the tribunal would fall away. If not, all the matters continue before the tribunal.
THE LEGISLATIVE FRAMEWORK
The legislation governing this matter is the SRC Act, which provides for compensation to be paid in respect of injuries occasioned by employment. Section 5A of the Act defines an injury for the purposes of the Act. An injury is either a disease (diseases are covered by section 5B – see below) or an injury other than a disease, or an aggravation of such an injury, arising out of or in the course of employment. Section 5B then reads as follows:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Section 4 defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 7 contains a number of provisions dealing with diseases. For present purposes the relevant provision is subsection 7(7), which reads as follows:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Section 14 of the SRC Act is the gateway provision for compensation. It provides that liability to pay compensation arises in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment (subject to exclusions not presently relevant). Section 16 provides for compensation for medical expenses and section 19 provides for payment where an injury makes an employee incapacitated for work.
THE FACTS
The context to Ms Dalton’s claim is that she took up employment with the Department of Social Services, beginning on 25 February 2013. On 17 May 2013 she lodged a claim for compensation[1] for “acute stress reaction” and “acute anxiety”, nominating 16 April 2013 and “middle of April” as the date she was injured or first noticed she was ill. Ms Dalton answered the question “have you ever had a similar symptom, injury or illness, work-related or otherwise?” by ticking the “Yes” box and adding “I suffer from Anxiety when in stressful situations. Dates unknown”, and answered the question “Have you ever received medical treatment for a similar injury or illness” by ticking the “No” box. Later in the form Ms Dalton added information about the circumstances under which the condition arose, identifying bullying, segregation and isolation at work as contributing factors or causes.
[1] T3, folios 19-31, 2016/7009 & 2017/21.
Medical evidence
Ms Dalton has seen a number of psychiatrists in the years since 2013, and they have provided diagnoses of the condition from which she was suffering and have offered opinions regarding the contribution to her condition by the workplace. A number of other doctors have also provided reports of varying kinds. On the basis of recently available medical records, Comcare has asserted that many of the psychiatrists’ reports cannot be relied on because Ms Dalton did not reveal her prior medical history of psychological issues with any completeness or precision.
The first report[2] was completed on 5 August 2013 by Dr Zeeva Cohen, a psychiatrist, at Comcare’s request. Dr Cohen reported limited events from Ms Dalton’s past medical history, including a few counselling sessions around 2010; short-term use of anti-depressant medication in 1994; and an anxiety attack in about 2000. Dr Cohen diagnosed Ms Dalton with “Adjustment Disorder with Depressed and Anxious Mood at the time of interpersonal conflict at work” based on the Diagnostic and Statistical Manual of Mental Disorder (DSM-IV). The diagnosis was phrased to the effect that Ms Dalton “may have suffered” from that condition. Dr Cohen also indicated that Ms Dalton said that her condition had “mostly resolved” by the time of the consultation.
[2] T5, folios 37-45, 2016/7009 & 2017/21.
Comcare accepted liability for Ms Dalton’s condition on 20 September 2013[3].
[3] T7, folios 146-151, 2016/7009 &2017/21.
On 2 May 2014 Dr Paul Appleton, a general practitioner, wrote to Comcare[4], it appears in answer to questions that Comcare provided, although the letter requesting answers is not in evidence. Dr Appleton said that Ms Dalton’s condition was work-related; that her condition had been diagnosed by the psychiatry registrar at the practice as “adjustment disorder with anxious mood”; and that the attempts to place Ms Dalton in a conventional office had been “doomed to failure”, given her personality and background.
[4] T11, folios 165-6, 2016/7009 &2017/21.
Following a determination by Comcare denying liability for incapacity in February-March 2014[5], and Ms Dalton’s request for that determination to be reconsidered, Comcare sent Mr Dalton to see another psychiatrist, Dr Norman Rose. His report[6], dated 13 November 2014 does not come to an independent diagnosis (he was not asked to provide one) but repeats the diagnosis of Dr Cohen. Dr Rose gathered a very general history of Ms Dalton, with a focus on her family and social background. His conclusion was that she was still affected by her compensable condition in early 2014. He noted that her symptoms included social withdrawal, anxiety attacks, depression and occasional thoughts of suicide.
[5] T12, folios 167-8, 2016/7009 & 2017/21.
[6] T17, folios 195-212, 2016/7009 & 2017/21.
Dr Rose produced a supplementary report[7] dated 13 January 2015, at Comcare’s request. In that report he stated that the diagnosis of Ms Dalton’s condition was adjustment disorder with mixed anxiety and depressed mood; that the condition appears to have arisen from the events of 22 April 2013 (although noting Ms Dalton’s past history of depression and “most unsatisfactory, difficult and dysfunctional upbringing”); and concluded that no other condition had superseded the employment-related condition.
[7] T18, folios 213-216, 2016/7009 & 2017/21.
On 5 September 2016 Ms Dalton’s general practitioner, Dr Vishal Arya, wrote to a Comcare delegate providing a medical report on Ms Dalton[8]. That report noted a diagnosis of “Adjustment reaction with mixed emotional features”, giving the symptoms as sadness, hopelessness, crying spells, nervousness, anxiety, worry, desperation, trouble sleeping, difficulty concentrating, feeling overwhelmed, ignoring important tasks, avoiding family and friends. The condition was attributed to work events occurring on 22 April 2013.
[8] T25, folio 249, 2016/7009 & 2017/21.
There was a flurry of determinations and requests for reconsideration in the middle of 2016. Comcare sent Ms Dalton to see a consultant forensic psychiatrist, Dr Antonella Ventura, who provided a report[9] dated 19 September 2016. Dr Ventura reported Ms Dalton’s psychiatric history as being suicidal in 2007 and anxiety attacks on and off since 2001. Dr Ventura noted that “Ms Dalton reported symptoms consistent with chronic depressed mood and persistent depressive disorder (dysthymia in DSM 5) which in my opinion is not related to her compensable condition.” She noted also from Dr Cohen’s report that Ms Dalton’s current symptoms were not present when that examination was conducted, and that her diagnosed adjustment disorder had mostly resolved. Dr Ventura concluded that Ms Dalton’s current psychiatric condition was “not a result of her workplace injury but is multifactorial”. Dr Ventura went on the say that Ms Dalton’s current diagnosis was persistent depressive disorder or dysthymia; and that her compensable condition of adjustment disorder “is no longer present”. Ms Dalton’s current condition was not attributable to Commonwealth employment.
[9] T26, folios 250-260, 2016/7009 & 2017/21.
On 21 October 2016 Dr Alexandra Lord, a general practitioner, wrote to a Comcare delegate in response to Dr Ventura’s report. After repeating earlier diagnostic information and symptomatology, she raised a concern that Dr Ventura might not have seen Dr Rose’s report of 13 January 2015. She expressed uncertainty over how an underlying psychiatric condition could be distinguished from one occasioned by events in the workplace.
Comcare sent Dr Ventura Dr Rose’s report and Dr Lord’s letter. Dr Ventura provided a brief supplementary report, dated 15 November 2016. She noted Dr Rose’s report and Dr Lord’s letter (misdescribed as from “Dr Low”) but did not resile from her earlier comments.
Comcare sent Ms Dalton to a further psychiatrist, Dr Scott Clark, who provided a report[10] dated 1 February 2017. That report notes Ms Dalton’s past psychiatric history as involving no contact with mental health professionals, no psychiatric hospitalisation and no psychiatric medication prior to 2013. Dr Clark diagnosed adjustment disorder with mixed anxiety and depressed mood. Later in the report he suggested that Ms Dalton’s psychiatric state at the time he saw her could be described either as a recurrence of that condition, or as a chronic depression. Dr Clark generally agreed with Dr Ventura that “the causes of the recurrence of psychological symptoms are likely to be multifactorial” and that Dr Ventura’s diagnosis of chronic depression (dysthymia) was equally valid with his own diagnosis of a recurrence of an adjustment disorder. Dr Clark attributed the condition to a mixture of the workplace incident in April 2013, subsequent action in the workplace, and unrelated factors such as family; but not to the natural progression of an underlying condition.
[10] T4, folios 8-21, 2017/2141.
In March 2017 a patient summary[11] was obtained from Winnunga Nimmityjah Aboriginal Health Service, the general practice Ms Dalton attended. Those notes made Comcare aware of Ms Dalton’s prior history of mental health problems. This summary, which is outlined below, provided the basis for the reconsideration determination which is the reviewable decision in this matter. On the basis of this information Comcare sent Ms Dalton to see Dr Ventura once again, but that appointment did not proceed, as according to Dr Ventura Ms Dalton displayed aggression and became abusive, and Dr Ventura decided that Ms Dalton was not voluntarily consenting to the assessment. This is recorded in a letter to Comcare dated 27 June 2017[12].
[11] T4 and T4.1-T4.13, folios 10-250, 2017/5526.
[12] Exhibit R1.
Dr Ventura did supply, however, a supplementary report[13] taking into account all the information now available from the medical records. In that report, dated 27 June 2018, Dr Ventura declines to depart from her previous opinion: she affirms that Ms Dalton has an underlying persistent depressive disorder or dysthymia, which she has had most of her adult life; and relies on her original report for pre- and post-employment stressors. Dr Ventura declined to answer some questions – specifically those related to the truthfulness of Ms Dalton’s claims not to have had previous psychiatric conditions and medical treatment for them, and to the causation of her conditions, because she had not been able to re-examine Ms Dalton.
[13] Exhibit R2.
The clinical notes provided by Ms Dalton’s general practice under summons record numerous medical interactions that touch on her mental health. The earliest is a report[14] dated 22 January 2002 by Dr Ann Harrison, at that time a trainee psychiatrist. The report, addressed “Dear Peter” (possibly Dr Peter Sharp, a general practitioner at the practice in 2004) includes a good deal of detail about Ms Dalton’s family situation and reaches the following conclusion:
Cassandra fits the criteria for a Major Depression, however I believe she probably has a Dysthymia and personality deficits, with underlying bereavement issues and a background of neglect. I have indicated we need to exclude endocrine disorders, given her obesity, and anaemia, as these can both aggravate tiredness… She was reluctant to change medication so I suggested she increase her Paroxetine to 40mg daily, to help contain her general anxiety. Additionally I will review her weekly for supportive psychotherapy.
[14] T4.1, folio 208, 2017/5526.
The records from the period 2004-2013 contain numerous references to matters that might fall under mental health. Many of them appear to be nothing more than an observational comment on Ms Dalton’s mental state at the time of a visit – “still looking for work; depressing her” or “very stressed and unhappy with family situation” – or a record of recent events – “felt anxious on bus in peak hour”. Frequently the notes appear to point to the difficult relationships within Ms Dalton’s family. But others suggest a more serious issue with greater medical significance:
·On 26 February 2009 a note records that Ms Dalton was “feeling very low” and that she refused anti-depressants, but had been given a Centrelink medical certificate for two weeks for depression[15];
[15] T4, folio 27, 2017/5526.
·On 13 May 2009 a note states that Ms Dalton “suffers from depression” and that a medical certificate was given for three weeks[16];
[16] T4, folio 28, 2017/5526.
·On 4 November 2009 the treating doctor recorded “depressed mood” and after noting surrounding events suggested “To think about trmt [sic: treatment] for depressed mood”[17];
[17] T4, folio 32, 2017/5526.
·On 13 May 2010 a psychologist assessed Ms Dalton for the purposes of finding her employment, concluding that her symptomatology did not meet the criteria for any diagnosis, despite high levels of psychological distress[18];
·On 1 October and 5 October 2010 clinical notes[19] refer to anhedonia and on 8 October 2010 Ms Dalton asked for a mental health plan, and said she had thoughts of death although no suicidal ideation. A mental health plan was prepared for her.
The representations
25. Comcare initially put forward three representations as potentially triggering the subsection 7(7) exclusion, but at the hearing Ms Wright chose not to rely on the first of them (that involving employment by Australia Post). That first representation remains important, however, as Mr Pattenden has relied on some of the information in that representation in making his case; and Ms Wright also relied on it to support her argument that the later representations were not only false, but wilfully so.
26. The three representations are as follows:
·On 5 December 2012 Ms Dalton, with the help of her then general practitioner, Dr Andrew Palfreman, completed a questionnaire[20] for employment at Australia Post. In that questionnaire Ms Dalton answered “No” to questions whether she had ever experienced the following: “depression”; “anxiety, nervous illness or breakdown which you have discussed with a doctor or counsellor”; “conflict or stress at work that required medical treatment or counselling” (the first representation).
·On 23 November 2012 Ms Dalton completed an employment health declaration[21] for employment at the Department of Social Services (at that time called the department of Families, Housing, Community Services and Indigenous Affairs). In that declaration Ms Dalton denied having ever had medical advice or treatment for “mental or nervous condition, anxiety state or any depression” (the second representation).
·On 17 May 2013 Ms Dalton lodged her claim for compensation[22] under the SRC Act. As noted above, in answer to question 16 of the claim form, dealing with whether she had ever suffered a similar symptom, injury or illness, Ms Dalton stated that she suffered from anxiety when in stressful situations, and in answer to question 17 denied ever having received medical treatment for a similar injury or illness (the third representation).
CONSIDERATION
[18] T4.8, folio 228, 2017/5526.
[19] T4, folios 46-7, 2017/5526.
[20] T4.13, folio 246, 2017/5526.
[21] T5.1, folios 252-4, 2017/5526.
[22] T3, folios 19-31, 2016/7009 & 2017/21.
Is Ms Dalton’s condition a disease or an injury (other than a disease) under section 5A?

The exclusion in subsection 7(7) operates only on a disease – that is, it does not apply to an injury other than a disease. It appears to be common ground that Ms Dalton’s condition is an ailment: the statements of facts, issues and contentions by both Ms Dalton and Comcare proceed on that basis, without ever raising the distinction explicitly. Further, it is clear from medical records that Ms Dalton’s psychological condition leading to the claim for compensation developed over a period of weeks and months rather than demonstrating the dramatic, sudden, definite or distinct change characteristic of an injury other than a disease (Bailey v Broadside Marine Contractors Pty Ltd [2017] FCAFC 219 (Bailey) at [82]-[112] and at [115] (Reeves and Derrington JJ); Prain v Comcare [2017] FCAFC 143 (Prain) at [55]-[78] (Kenny, Tracy and Bromberg JJ). Ms Dalton began work at the Department on 25 February 2013 and the clinical notes of her general practice show a record of her raising concerns about the workplace on 7 March, 27 March, 22 April, 29 April and 8 May[23]. She lodged her claim on 17 May 2013. The gradual development of the condition suggests that Ms Dalton was grappling with an ailment.
[23] T4, folios 94, 95, 96, 97, 2017/5526.
No argument was made to me, and the evidence does not suggest, that the condition for which compensation is sought is an injury under paragraphs 5A(1)(b) or (c) of the SRC Act.
I find that Ms Dalton’s condition was an ailment under the SRC Act.
The operation of subsection 7(7)
The definition of a disease in subsection 5B(1) of the SRC Act means that a finding that a claimant is suffering from a disease requires an anterior finding that the claimant’s ailment was contributed to, to a significant degree, by the claimant’s employment. The use of the word “disease” in section 7, however, appears to be the general or ordinary use of that term rather than the technical sense established by section 5B, and so the nexus with employment does not need to be demonstrated. That was the position taken by Reeves and Derrington JJ in Bailey (at [66], with regards to different legislation but with provisions closely similar to those in the SRC Act).
The requirement in subsection 7(7) is that four elements are established with regard to one or both of the contested representations (the second and third representations):
(a)that Ms Dalton made the representation for purposes connected with employment or proposed employment by the Commonwealth or a licensed corporation;
(b)that the representation was to the effect that she did not suffer, or had not previously suffered, from the disease for which she now claims compensation;
(c)that the representation was objectively false; and
(d)that the representation was not only false but wilfully so.
The drafting of subsection 7(7) requires that all four of the above elements are established. Mr Pattenden, for Ms Dalton, has stressed that although in a formal sense in tribunal processes neither side bears the onus of establishing any matter, the exclusion under subsection 7(7) requires the party asserting that the exclusion applies to bring forward the facts that establish that exclusion. It is certainly the case that the exclusion of a person from access to compensation is a serious denial of what would otherwise be the person’s normal entitlements associated with employment. It is therefore up to the party asserting the exclusion to ensure that the facts clearly demonstrate the conclusion sought, on the balance of probabilities.
Were the representations for purposes connected with employment?
The second representation was made for the purposes of obtaining employment with the Department of Social Services. It has not been challenged by the applicant that it was a representation made for purposes connected with proposed employment by the Commonwealth, and I so find.
Mr Pattenden asserts that the third representation was not made “for purposes connected with” Ms Dalton’s employment. The basis of this argument is that the representation was for purposes connected with Ms Dalton’s illness. That conclusion was reached in similar circumstances by Senior Member Cremean in Anderson and Australian Postal Corporation [2016 AATA 228 (at [109]), but in other matters the tribunal has come to the opposite conclusion (see Griffiths and Australian Postal Corporation [2017] AATA 1025 at [16] (Deputy President Humphries); Kennedy and Comcare [2015] AATA 334 at [35] (Deputy President Hack)).
The entire point of a claim for compensation is to draw a connection between a person’s injury or illness and their employment. It seems perverse to deny the connection with employment in any aspect of the claim form. I find that the third representation was for purposes connected with Ms Dalton’s employment.
In either representation did Ms Dalton deny having the same or substantially the same disease as that for which she claimed compensation?
The drafting of subsection 7(7) requires that the representation by the claimant is that he or she had not previously suffered from “that disease”; and “that disease” clearly refers back to “a disease suffered by an employee” at the beginning of the subsection. In National Australia Bank Ltd v Georgoulas (2013) FCA 1412 (Georgoulas), Perry J noted that the drafting implies that the condition the subject of the representation is the same or substantially the same as the claimed disease; that the two conditions have similar symptoms is insufficient (at [74] and [77]). Perry J further found in Georgoulas (at [62]-[72]) that for a psychological condition the condition earlier suffered and subsequently denied must pass the test of materiality set in Comcare v Mooi [1996] FCA 1587 (Mooi), that is, the condition is “outside the boundaries of normal mental functioning and behaviour” (at [12]).
What then is “that disease” for which Ms Dalton is seeking compensation? The authorities suggest that the diagnosis of the potentially compensable disease for these purposes is that established by the processes of examination and investigation by the relevant medical professionals, rather than that stated on the claim form (see Abrahams and Comcare [2006] FCA 1829 at [20]-[23]). In the case of a psychiatric condition that usually means diagnosis by a psychiatrist. Several expert reports are in evidence in Ms Dalton’s matter: by Dr Cohen, two by Dr Rose, three by Dr Ventura, and one by Dr Clark. The diagnosis by Dr Cohen, Dr Rose and Dr Clark was of an adjustment disorder, variously phrased: adjustment disorder with depressed and anxious mood (Dr Cohen); adjustment disorder with mixed anxiety and depressed mood (Dr Rose’s second report); adjustment disorder with mixed anxiety and depressed mood (Dr Clark). Dr Ventura noted that Ms Dalton had previously suffered from an adjustment disorder, but took the view that it had largely resolved by the time of their consultations, and diagnosed an underlying and longstanding dysthymia or persistent depressive disorder; Dr Clark stated that that diagnosis was equally valid to his own.
Ms Wright, for Comcare, pointed out that most of the experts who examined Ms Dalton were not aware of her prior psychiatric history. She argued that their diagnoses were therefore of dubious value as expert evidence. The only expert who had seen the clinical notes from the general practice Ms Dalton regularly attended was Dr Ventura, and she had arrived at a different diagnosis, namely dysthymia. According to Ms Wright, Ms Dalton’s consistent history of receiving medical attention for depression, coupled with Dr Ventura’s diagnosis of a longstanding depressive illness, clearly showed that Ms Dalton’s psychiatric condition throughout, including the condition for which she claimed compensation, was depression. Mr Pattenden, for Ms Dalton, argued that the diagnosis arrived at for the potentially compensable condition was plainly some variant of adjustment disorder, relying on the expert reports of Drs Cohen, Rose, Clark and Ventura.
It is clearly the case that Ms Dalton did not report all of her earlier psychiatric history, although it appears that she was open to at least some of the experts about the difficulties within her family. The absence of a detailed psychiatric history may have coloured the diagnoses arrived at by those doctors who did not have all the information at their disposal; Dr Ventura acknowledged in oral evidence that Ms Dalton’s psychiatric history was relevant to the diagnostic process. But I note that Dr Rose, in his second report, stated:
Ms Dalton has had a past history of depression and a history of having had a most unsatisfactory, difficult and dysfunctional upbringing. Having said that, however, the current psychiatric condition is one that appears to have arisen on or about 22.04.2013.
Further, even when Dr Ventura was made aware of Ms Dalton’s psychiatric history, she declined to make any change to her earlier diagnosis. And while she certainly identified an underlying dysthymia, she also distinguished that from Ms Dalton’s compensable condition. This opinion was tested in oral evidence. Dr Ventura said that the compensable condition – the adjustment disorder – involved an additional set of symptoms which were temporary and had resolved by the time of the consultation. From Ms Dalton’s history, she had concluded that it was the stressors at her work that had brought on the condition. The condition, which might be given a name such as an adjustment disorder by a psychiatrist, would align with that identified in the claim form as “acute stress reaction, acute anxiety”. This would be a new condition imposed on top of the background condition of dysthymia. When asked how the two could be distinguished, Dr Ventura said that although it might not be easy to tell the conditions apart acutely, the exacerbation of the underlying condition involved in the new superimposed condition would involve an exacerbation also of the symptoms. She said that the new condition might have lasted an indefinite time, but from Dr Cohen’s notes thought that it had largely resolved by the time of the latter’s consultation, because the stressors had been removed.
In cross–examination Dr Ventura added little more except to confirm her opinion that dysthymia and adjustment disorders were separate and distinct diagnoses; that anxiety and depression (or depressed mood) could be symptoms of either condition, but that neither alone was a diagnosis of a psychiatric condition in itself.
On the basis of the expert evidence available to me, flawed as much of it is by Ms Dalton’s withholding of information, the disease for which Ms Dalton is seeking compensation is best characterised as an adjustment disorder. Ms Wright’s thesis that Ms Dalton suffered throughout from depression, of which she suffered an aggravation or elevation in 2013, is plausible enough, but it has minimal support from the experts, including from her own witness, Dr Ventura. Despite attempts by Ms Wright to encourage Dr Ventura to identify the compensable condition as depression or dysthymia, Dr Ventura declined to do so. Ms Wright made what she could of Dr Cohen’s having found that Ms Dalton “may have suffered” from an adjustment disorder; but regardless of the phrasing used, that statement was provided in answer to a request for a specific diagnosis and is the only diagnosis Dr Cohen made. And although Drs Cohen, Rose and Clark may not have been aware of Ms Dalton’s full psychiatric history, it would be a giant leap if I were to decide on that basis that their diagnoses were wrong, and to substitute my own, especially given Dr Ventura’s reluctance to do so.
For the subsection 7(7) exclusion to apply, a previous condition and the condition for which compensation is now sought must align, and must be denied. Ms Dalton’s denial in the second representation was of having received medical advice or treatment for “mental or nervous condition, anxiety state or any depression”. In the third representation she said that she had not previously suffered from “a similar symptom, injury or illness” apart from anxiety in stressful situations, and had not received medical treatment for a similar injury or illness.
Whether or not these representations were true (and I make no finding on that point), they were not, in my view, about the same or substantially the same condition for which Ms Dalton has claimed compensation. In the words of Comcare’s written version of its final submissions, “What is relevant here is whether Ms Dalton has made a wilful and false representation that she had not previously suffered from the mental condition for which she seeks compensation.” Adjustment disorder, which in DSM 5 comes in several variants (with anxiety, with depressed mood, with mixed anxiety and depressed mood, and so on) is given as a separate and distinct condition in a chapter given over to “Trauma- and Stressor-Related Disorders”; the section on differential diagnosis distinguishes adjustment disorders from major depressive disorder, for example, on the basis of symptomatology. Depressive disorders, including dysthymia, have a chapter of their own.
Depression and anxiety appear as symptoms of many of the psychological disorders described in DSM 5. Mental illnesses are notoriously difficult to diagnose and it is very common that different psychiatrists will arrive at different diagnoses of the same patient; yet here an identical or closely similar diagnosis was arrived at by four different experts. Adjustment disorder was the potentially compensable condition. It is plain that Ms Dalton had previously suffered from a psychiatric condition, as she was diagnosed with major depressive disorder by Dr Harrison in 2002 and Dr Ventura later diagnosed a longstanding condition of dysthymia since early adulthood. It appears, too, that it would be reasonable to conclude, on the basis of these opinions, that Ms Dalton’s mental state at various earlier times was outside the boundaries of normal mental functioning and behaviour – that is, the condition met the test set in Mooi. But the potentially compensable adjustment disorder was not the same or substantially the same as the depression earlier diagnosed, nor the same as the conditions she denied previously having. Comcare’s reliance on the diagnosis of Dr Arya, who diagnosed “adjustment disorder with anxiety and depression” is of no assistance, as it is clear that in that diagnosis depression is one of the symptoms of the adjustment disorder. Further, I can see no evidence of Ms Dalton having suffered from an adjustment disorder at any earlier time (and no argument was put to me that she had), and her denial cannot be understood as referring to a previous adjustment disorder (whether diagnosed or not). I find that Ms Dalton did not make a representation that she did not suffer, or had not suffered, from the disease for which she was now claiming compensation.
As noted above, all of the elements of the subsection 7(7) exclusion must be made out. One of those elements has not been established, in respect of either the second or the third representation. The exclusion under subsection 7(7) of the SRC Act does not operate. Comcare provided in a written version of its final submission a detailed summary of relevant recent cases, drawing not only on Bailey, Georgoulas and Prain but also on Telstra v Hannaford (2006) 151 FCR 253 and Griffiths v Australian Postal Corporation [2018] FCA 520. That summary seems to me an entirely fair account of the case law (and I accept the point that the later disease does not have to be a continuation of the earlier one for the subsection 7(7) exclusion to apply, a conclusion explicitly made in Baliey), but I am not persuaded that the summary assists Comcare’s case. Indeed it lends support, in my view, to the conclusion that the representations made by Ms Dalton are not of the kind that is disentitling under subsection 7(7) of the SRC Act.
Ms Wright, for Comcare, made an attack on Ms Dalton’s credit, and also demonstrated the frequency with which there are references to depression – some in passing, some more substantial – in Ms Dalton’s prior medical history. But her attack on Ms Dalton’s credit goes to whether the representations were false and, in particular, whether they were wilfully so. The demonstration of the omnipresence of depression in Ms Dalton’s medical past would only assist if I were to find that “that disease” – the disease for which Ms Dalton claims compensation – were depression or some variant of it. I can accept much of Comcare’s submissions regarding the importance of an applicant providing true and accurate and complete information on a claim form; and the argument that Ms Dalton did not do so has a great deal of force. But that is not the test set in the subsection and the representations by Ms Dalton, whatever their truthfulness or otherwise, do not have the exclusionary effect argued for by Comcare. And as one element in the subsection 7(7) test has not been established, I do not need to turn my mind to either the truth of the representations, or, if one or both were false, whether Ms Dalton was wilful in the making of either or both.
Mr Pattenden argues that as the reconsideration determination decided that Comcare was not liable to pay compensation under section 14 because of the exclusion in subsection 7(7) of the SRC Act, if I were to conclude that the exclusion does not apply the section 14 liability issue would be accordingly decided. The result, he argued, would be that Comcare would be liable to pay compensation (although I infer that he would accept that the dimensions of that liability would remain to be decided, under the other matters that have been brought before the tribunal). Ms Wright argued that it would remain open to Comcare to dispute other grounds for section 14 liability as Ms Dalton’s matters go forward.
The outcome in this matter, given that I have decided that the subsection 7(7) exclusion does not operate, is that Comcare is liable to pay compensation to Ms Dalton provided the other requirements of the SRC Act are met. The implication is that it remains open to Comcare to put forward and argue other grounds for denying liability as this and the other five matters before the tribunal come to be heard.
Mr Pattenden raised the issue of the costs in respect of this preliminary matter. Any question of the costs associated with this issue can be decided later in the context of the costs of the matter as a whole.

51. I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman

52.

..............................[sgd]......................................
Associate
Dated: 16 August 2018

Date(s) of hearing: 23 July 2018

Solicitor for the Applicant: Maurice Blackburn Lawyers

Solicitors for the Respondent:

Solicitor for the Other Party:

Self represented

Self represented