Du and Commonwealth Bank of Australia (Compensation) - [2021] AATA 626

Du and Commonwealth Bank of Australia (Compensation) [2021] AATA 626 (25 March 2021)
Division:GENERAL DIVISION
File Number(s): 2018/5486
Re:Xue Yan Du
APPLICANT

AndCommonwealth Bank of Australia
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:25 March 2021
Place:Sydney

The reviewable decision made on 6 September 2018, being the decision of Comcare to affirm its earlier determination denying liability to compensate Ms Du in respect of the claimed injuries, is affirmed.
............................[SGD]............................................
Deputy President J W Constance
CATCHWORDS
WORKERS’ COMPENSATION – injury to cervical spine and lumbar spine – psychotic illness – whether Comcare liable to pay compensation – whether Applicant suffered an ailment – where Tribunal satisfied the Applicant suffered physical disorders in the neck and lower back – where Tribunal satisfied the Applicant suffered a psychotic disorders which includes an adjustment disorder with anxiety and depression – whether ailments contributed to, to a significant degree, by the Applicant’s employment – where factors other that the Applicant’s working conditions contributed to her physical ailments – where events in the Applicant’s workplace did not contribute to her psychotic condition to a significant degree – where Tribunal satisfied in the alternative that the Applicant made a wilful and false representation that she did not suffer that those diseases – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14
CASES
Griffiths v Australian Postal Corporation (2018) 158 ALD 298
REASONS FOR DECISION
Deputy President J W Constance
25 March 2021
Contents
A: Introduction
B: The Relevant Provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
C: The Issues
D: Issue 1: Did Ms Du suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
D11. Discussion
E. Issue 2: Were the ailments “contributed to, to a significant degree” by Ms Du’s employment by the Commonwealth Bank, and therefore diseases within the meaning of the Act?
E2. Neck and back ailments
Reasoning – back and neck ailments

E3. Mental ailment
Discussion
F: Issue 3: Did Ms Du at any time, for purposes connected with her employment or proposed employment, make a wilful and false representation that she did not suffer or had not previously suffered, from that disease?
F5: Discussion
G: Conclusion
A: INTRODUCTION

Ms Du commenced employment by the Commonwealth Bank of Australia as an Associate Risk Adviser in September 2017 for a probationary period of six months. Towards the end of the probationary period Ms Du was informed that she would not be offered permanent employment and her probationary employment was terminated.
In May 2018, Ms Du lodged a claim for compensation[1] in respect of an injury to the “cervical spine, lumbar spine, depression & anxiety”,[2] which she claimed to have suffered as a result of “repetitive using computer on a high-level table and prolonged periods of sitting.”[3] Her claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
[1] Exhibit R1 at 189.
[2] Exhibit R1 at 191.
[3] Exhibit R1 at 191.
Comcare determined that it was not liable to pay compensation in respect of the claimed injury. Ms Du requested this be reconsidered. On 6 September 2018, Comcare decided to affirm its earlier determination.[4] I will refer to the decision to affirm the determination as the “reviewable decision”. In September 2018, Ms Du applied to the Tribunal to review the reviewable decision.[5]
[4] Exhibit R1 at 12.
[5] Exhibit R1 at 1.
For the reasons which follow, the reviewable decision will be affirmed.
B: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) of the Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in subsection 5A(1) to mean:
(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.
Subsection 5A(2) provides:
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
“Disease” is defined in section 5B:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
“Ailment” is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Relevant also to this application is subsection 7(7) which is reproduced later in these reasons.
C: THE ISSUES
The following issues require determination:
(1)Did Ms Du suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
(2)If so, was the ailment or the aggravation “contributed to, to a significant degree” by her employment by the Commonwealth Bank, and therefore a “disease” within the meaning of the Act?
(3)If so, did Ms Du at any time, for purposes connected with her employment or proposed employment, make a wilful and false representation that she did not suffer, or had not previously suffered, from that disease?
D: ISSUE 1: DID MS DU SUFFER AN “AILMENT” OR “AN AGGRAVATION OF SUCH AN AILMENT” WITHIN THE MEANING OF THE ACT?
D1. Evidence of Ms Du
Ms Du provided a statement dated 1 April 2019[6] and gave evidence at the hearing.
[6] Exhibit A1 at 24.
Statement dated 1 April 2019
Ms Du commenced employment by the Bank on 7 September 2017.
Ms Du stated that she had not experienced “any other previous significant past medical issues, addiction, legal disputes or family history.”[7] At the time she commenced employment by the Bank she had no symptoms of anxiety or depression and was not suffering lower back pain. She was not consulting a psychologist.
[7] Exhibit A1 at [8].
Ms Du was on leave from 2-12 October 2017 by reason of the death of her father. On her return she “hit the floor running”,[8] working on a new project.
[8] Exhibit A1 at 27.
In early October 2017 Ms Du received an email from the Human Resources department reminding her to check the ergonomics of her workstation. She found sitting at her desk challenging to her posture as the height and slope of her desk often caused her to be unable to sit comfortably. She discussed her difficulties with the HR Manager and her Manager. Ms Du received advice as to steps she could take to improve her situation but these were unsuccessful. Eventually the Bank agreed to provide her with a stand-up desk but this had not occurred by the time Ms Du’s employment was terminated.
Ms Du was required to sit at a computer for long periods, performing repetitive tasks which placed strain on her neck. In order to use the mouse and the keyboard she repetitively used her hands, wrists and forearms at an awkward, slanted angle. She claimed that this activity caused significant injuries to her neck, back, shoulders, arms, forearms and wrists.
By late October 2017, Ms Du began to develop severe stiffness in her lower and middle back and her neck. The pain in her neck radiated through both shoulders, arms and wrists. She experienced severe “pins and needles”, particularly in her right arm which she used predominately to manipulate the mouse.
In relation to her mental injury, Ms Du said that from about October 2017 she was subjected to “multiple instances of workplace bullying and harassment”[9] by her co-workers including her supervisors. She gave extensive details of the incidents of bullying by numerous co-workers.[10]
[9] Exhibit A1 at 26.
[10] Exhibit A1 at 29-39.
Ms Du also gave evidence that she felt that she was in a toxic workplace and that she was stressed by her co-workers bullying each other:
The coworkers around me bullied each other. It made me feel it was a toxic work environment. Just watching them bully each other, made me stressed. [Ms S] talked to [Ms SA] very loud for at least 20 minutes beside [Mr P], which really annoying [Mr P]. [Mr M] ignored [Mr P] when [Mr P] tried to talk to him. [Mr F] talked to everyone except [Mr P] after [Mr P] and [Mr B] bullied each other. [Mr B] tried to ignore [Mr P] when [Mr P] greeting everyone when work finished. [Mr B] did this by making phone calls at that time. [Mr F] let [Ms S] writing on the board behind [Mr P] and [Mr M] to annoy [Mr P] and [Mr M]. [Mr M] started to talk on the phone whenever [Ms V] came to his desk. [Ms J] ignored [Mr P] when he tried to talk to her.[11]
[11] Exhibit A1 at 39.
In October or November 2017 Ms Du suffered an anxiety attack which she describes as follows:
I had an anxiety attack at work due to coworker’s bully and physical suffering from neck pain, shoulder pain and back pain. In October or November 2017, when I was at me desk, I started to feel heart beating fast and short breath. I was so scared but hesitated to tell my manager [Mr F] because I worried he would dislike me more. But I felt it was life threatening situation and I could not handle it myself, so I told my manager [Mr F] to call ambulance because I was not feeling well. I then lied down on the floor to rest and coworkers started to come to me. I told [Ms J]? who was beside me to write down the name of the multiple vitamin, vitamin E and etc. I was worried I would pass out and could not tell doctors all of these. Later [Mr F] got the first aid co-worker on the floor to help me. She check my situation and thought I was fine. I started to feel calm down and realised it was an anxiety attack. I then took half day off and my husband took me home to rest.[12]
[12] Exhibit A1 at 39.
By November 2017 Ms Du was suffering from intense neck, shoulder, middle and lower back stiffness. The discomfort was such that it became highly disruptive to her ability to do her work. The back and shoulder pain made her anxious and depressed and interfered with her sleep pattern.
Ms Du consulted her chiropractor on four occasions in November-December 2017 for treatment of the stiffness she was experiencing. This treatment provided only minor temporary relief.
In early February 2018 Ms Du suffered multiple spells of dizziness and was diagnosed as suffering vertigo. As a result of back pain and stress from co-workers, Ms Du experienced anxiety attacks and attended Royal North Shore Hospital on several occasions.
The termination of Ms Du’s employment on 2 March 2018 triggered a significant deterioration in her mental state. She experienced low mood, anxiety, lack of motivation and sleep disturbance.
At the time she made the statement (1 April 2019), Ms Du said:
As a result of my injuries, I continue to suffer the following restrictions and disabilities:
a.    Constant pain in my neck and upper back which extends down into both arms and wrists;
b.    When the pain gets really severe, I tend to stop what I am doing in order to lie down and rest. I place hot pads on the area that feels sore and swollen;
c.     Neck and upper back stiffness causes great difficulty in driving;
d.    Sitting, bending, or lifting causes great aggravation to lower back stiffness;
e.    Disturbed sleeping pattern due to pain;
f.   Frequent symptoms of vertigo and dizziness;
g.    Vertigo prohibits me from undertaking certain exercises which restricts my ability to stretch out my injuries, which only seems to aggravate them;
h.    Lack of confidence in performing self-care activities such as showering if I am alone in the house, for fear that I might fall over;
i.   Vertigo also restricts my ability to drive, as I do not feel confident in my ability to control the car when driving;
j.   Strain in my shoulders and neck restricts me from undertaking exercises that I really enjoyed previously such as yoga, swimming and cooking;
k.     The strain in my neck prevents me from performing leisurely activities such as reading and watching television for extended periods of time;
l.   I struggle to complete domestic cleaning tasks independently, particularly if it requires reaching up high over my head or standing on chairs, due to my vertigo;
m.   Aggravation to pain in neck when turning head/moving head up and down;
n.    Aggravation to pain in neck when sitting extended periods;
o.    Aggravation to pain in neck when standing extended periods;
p.    Aggravation to pain in neck when driving or sitting in motor vehicle;
q.    Aggravation to pain in neck when bending;
r.     Aggravation to pain in neck when lifting heavy objects;
s.     Aggravation to pain in neck in cold weather;
t.   Pain in neck radiates into left and right shoulders;
u.    Aggravation to pain in left and right shoulders when moving arms;
v.     Loss of strength in left and right arms;
w.   Weakness in left and right hands;
x.     Inability to lift heavy objects;
y.     Numbness to left and right hands;
z.     Pins and needles sensation to left and right hands;
aa. Headaches;
bb. Loss of libido;
cc. Stress;
dd. Frustration;
ee. Depression;
ff.    Mood swings;
gg. Anger bouts;
hh. Loss of concentration;
ii.     Broken sleep pattern;
jj.     Lethargy;
kk. Reclusive habits;
ll.     Loss of self-esteem;
mm.    Loss of confidence;
nn. Stress of relationship with spouse;
oo. Inability to return to pre-accidence employment;
pp. Loss of income;
qq. Loss of career opportunities;
rr.    Loss of independence;
ss. Reliance on family for home support.[13]
[13] Exhibit A1 at 46-47.
Ms Du’s oral evidence
Ms Du said that prior to January 2011 she had not experienced any psychological problems or problems with her back or shoulders. She experienced anxiety attacks in 2013 related to her travelling in Tibet earlier that year.
In February 2012 Ms Du consulted her General Practitioner because she was suffering from back pain.[14] In March 2014 she suffered a strain of her right lower back. In July 2014 she suffered pain in her mid-upper back, similar to an episode she had suffered five years previously. These episodes were sufficiently serious for Ms Du to consult her General Practitioner.[15]
[14] Transcript, 18 June 2020 at 258.
[15] Transcript, 18 June 2020 at 262.
In March 2015 Ms Du attended her General Practitioner suffering from back pain which had been continuing for a few weeks. She also attended her General Practitioner in June 2015 and in September 2015 suffering low back pain. On the latter occasion she reported that the pain had continued for a month.[16]
[16] Transcript, 18 June 2020 at t 263.
In 2016 Ms Du consulted her General Practitioner suffering from low back pain in March and April and suffering from a back condition and pain in her neck in December.[17]
[17] Transcript, 18 June 2020 at 263-264.
For various reasons Ms Du was on leave from 26 September 2017 until 11 October 2017, for two weeks during the Christmas-New Year period and during 2-13 February 2018.
D2. Ms Du’s attendances upon health professionals prior to her employment by the Bank
Associate Professor McGill provided the following summary of Ms Du’s attendances upon health professionals before she commenced employment by the Bank. I am satisfied this summary accurately reflects the records relating to both the physical and mental ailments considered by Associate Professor McGill:
21 February 2012. The computer generated notes from Chatswood Medical and Dental Centre commenced. The initial entry recorded back pain since the previous Thursday night and that she did not recall a twisting injury. She was working in an office as an analyst.
23 March 2013. She had costochondritis and it was noted that she had stress at work with a plan to resign soon.
17 April 2013. Stress at work was again noted.
13 February 2013. Difficulties with her then work were detailed.
2013. Multiple entries in regard to psychological difficulties, and somatic symptoms including palpitations, stomach ache, chest pain, buttock pain, pyriformis tenderness.
10 March 2014. She had right low back pain when lying on grass while reading two days previously and was continuing to experience symptoms. Anxiety and depression were again noted although she was improved in that regard but had ongoing issues in regard to pregnancy, relationship with in-laws.
2014. There were entries in regard to anxiety, palpitations, abdominal pain.
21 July 2014. She had pain in the mid thoracic spine "while washing her face this morning and since then getting pain at that site on moving her arms above shoulder level". Slight pain in the cervical spine was noted. Reassurance was provided.
27 June 2015. Left low back pain following yoga was recorded.
26 September 2015. Low back pain for one month radiating to the left leg with numbness.
28 March 2016. Low back pain without radiation.
1 December 2016. Dizziness, light headedness, on and off back pain following yoga were recorded. It was noted "c/o pain back of the neck - cause is severe anxiety/stress"
10 December 2016 "very non-specific symptoms - jumps all over; symptoms, weak, dizzy, numbness in the hands. Long consult about anxiety and other issues".
The entries dating from just before she commenced with the Commonwealth Bank to the first entry after she ceased work with the Bank were: 24 August 2017 (discussion of her father's metastatic cancer); 16 October 2017 (discussion of long history of infertility); 14 October 2018 (possible dog bite on outer aspect of ankle).
18 December 2016. The computer generated notes from Myhealth Chatswood commenced. The initial entry referred to dizziness and right leg weakness. She was receiving [redacted] treatment. Other information was recorded and the reason for the visit was determined to be anxiety.
January 2017. Anxiety, depression and [redacted] in April 2006 were recorded. At that stage she was unemployed. Psychological referral was provided.
2017. There were several entries related to pregnancy attempts which had been continuing for four years and it was noted that she had [redacted].
7 May 2017. She was experiencing ongoing back pain, and was [redacted].
D3. Evidence of Dr Porteous, Occupational Physician

Dr Porteous examined Ms Du on 16 January 2019 at the request of her Solicitors. He provided a report dated 16 January 2019[18] and gave evidence at the hearing.
[18] Exhibit A1 at 49.
Dr Porteous diagnosed Ms Du as suffering an aggravation of cervical and lumbar soft tissue strains and aggravation of probable pre-existing degenerative change. He also found that she suffered a condition in her upper thoracic area.[19]
[19] Exhibit A1 at 54-55.
When he gave evidence, Dr Porteous confirmed that the degenerative change was shown by X-ray to be in the lumbar spine.[20]
[20] Transcript, 16 June 2020 at 70.
In addition to the physical conditions, Dr Porteous reported that Ms Du probably suffered significant psychological sequelae from the physical conditions. He stated that a Specialist in this area would be required to comment further.[21]
D4. Report of Dr Singh, Orthopaedic and Spine Surgeon, 5 February 2019[22]
[21] Exhibit A1 at 56.
[22] Exhibit A1 at 97.
Ms Du was referred to Dr Singh in early 2019 by Dr Lim, Ms Du’s General Practitioner.
Dr Singh reported to Dr Lim, in part:
Thank you for referring Mrs Du who has neck and periscapular pain with pins and needles in both hands, left side being worse, secondary to C5-6 disc bulging. This is related to her work injury and at this point in time, she would like to persist with exercises and I am happy with this.
Dr Singh did not give evidence at the hearing.
D5. Evidence of Associate Professor McGill, Consultant Rheumatologist
Associate Professor McGill examined Ms Du on 19 September 2019 at the request of the Bank’s Solicitors. He provided a report dated 19 September 2019[23] and gave evidence.
[23] Exhibit R4.
In his report, Associate Professor McGill accepted that Ms Du experienced somatic symptoms of low back pain, mid thoracic spine pain, slight pain in the cervical spine and pain in the back of the neck.[24]
D6. Report of Dr George, Psychiatrist, 19 July 2018[25]
[24] Exhibit R4 at 7.
[25] Exhibit R1 at 299.
Dr George assessed Ms Du on 5 July 2018 at the request of the Bank. He did not give evidence at the hearing.
Under the heading Psychiatric History, Dr George reported, in part:
Later, in the interview, she indicated that her father had died in October 2017 from lung cancer, which was diagnosed a few months before his death. She said her brother and sister believed his condition was terminal and did not contribute any money for any treatment. Apparently, she did. This created a rift between her and her siblings and she does not speak to them now. She was tearful when talking about this aspect of her life. She gets on with her mother. It did appear that this was a significant cause of depression following her father’s death, which she is still grieving.[26]
[26] Exhibit R1 at 302.
Dr George diagnosed Ms Du as suffering chronic adjustment disorder with anxiety and depressed mood in combination with a prolonged bereavement disorder.
D7. Report of Dr Khan, Consultant Psychiatrist, 23 January 2019[27]
[27] Exhibit A1 at 95.
Ms Du was referred to Dr Khan in late 2018 or early 2019 by her General Practitioner, Dr Lim. He provided the report dated 23 January 2019. He did not give evidence at the hearing.
Dr Khan reported to Dr Lim, in part:
Mrs Du reported first experiencing difficulties with her mental health in 2013. She described a depressive and anxious cognition that developed in the context of psychosocial stressors. She engaged in psychological therapy until 2016 and her mental state stabilised thereafter. She did not require any psychotropic medications. Her history was suggestive of an adjustment disorder with mixed anxiety and depressed mood.
……
Ms Du presented with an adjustment disorder with mixed anxiety and depressed mood, a work-related psychiatric/psychological injury that developed as a result of her employment with the Commonwealth Bank of Australia. Her mental state has continued to improve and there is no clinical indication for psychotropic medications.[28]
D8. Report of Dr Lim, General Practitioner, 4 April 2019[29]
[28] Exhibit A1 at 95-96.
[29] Exhibit A1 at 103.
Dr Lim provided his report at the request of Ms Du’s Solicitors. He did not give evidence at the hearing.
Dr Lim reported, in part:
Mrs Xue Yan Du is a 45yrs 3mths old female, who initially presented for consultation on Tuesday, 1 May 2018 for an injury to Neck, back, psych. Mrs Du works for her employer as a Associate risk advisor.
On Friday, 2 March 2018 Mrs Du reported that whilst at work she suffered a Neck, back pain due to long periods of sitting, repetitive typing with a high level table. Psychological injury from workplace culture issues, and adapting to the CBA work environment. I have reviewed her medical records, and she has a long psychological history described from 2013-2016. She faced adjustment issues, with moving to Australia, being without family who were overseas, and marrying an Australian husband. She suffered further psychological distress during the process of [redacted].
She had depression management before working at CBA, was stable without medications, and some psychological sessions. She became stressed at work, and had to see her psychologist more frequently. There are also underlying family issues, with the death of her father shortly after commencing work.
………
In my opinion, Mrs Xue Yan Du has suffered a Neck, back, psych injury with a diagnosis of Cervical Spine aggravation (NDI: 60%); Lumbar Spine Strain (ODI: 58%); Depression, Anxiety (K10: 43). It is likely Mrs Du will benefit from an ongoing multidisciplinary management program.
D9. Evidence of Dr Walker, Forensic Psychiatrist
Dr Walker interviewed Ms Du on 25 October 2019 at the request of the Bank. He provided a report dated 12 December 2019[30] and gave evidence at the hearing.
[30] Exhibit R8.
In his report Dr Walker expressed the opinion that Ms Du did not have a psychiatric condition. He reported that:
Ms Du’s complaints about staff at the CBA and APRA suggest that she misinterprets the actions of others as hostile. Some people with a personality disorder tend to be ‘paranoid.’ Most people with chronic schizophrenia or a delusional disorder also tend to be ‘paranoid.’[31]
[31] Exhibit R8 at 6.
At the hearing Dr Walker expressed the opinion that Ms Du is suffering from a psychotic disorder which would explain her presentation, her history and the various diagnoses that have been made.[32] He revised his opinion after further consideration as his original diagnosis was provisional. He accepted that he did not make this clear in his report.[33]
[32] Transcript, 17 June 2020 at 139.
[33] Transcript, 17 June 2020 at 140.
In relation to the diagnosis of psychotic disorder, Dr Walker said:
My view, and based on what psychiatrists believe, I think a diagnosis of a psychotic illness supersedes all of the other diagnoses, whether they be depression or anxiety or an adjustment disorder. I’m also aware that Ms Du has quite often been to hospital with what appear to fairly minor physical symptoms. And certainly people with psychotic conditions misinterpret physical symptoms and they don’t follow normal illness behaviour which, you know, typically wouldn’t have someone going to a hospital Emergency Department with objectively a minor physical ailment. So I don’t think - I think rather than she’s had different conditions over time, I think she’s had a psychotic illness and it’s presented differently over time. And that’s why - that would explain the different diagnoses that have been made.[34]
Dr Walker referred to the findings of Dr Miao, Ms Du’s treating Psychiatrist in 2017, in support of the later diagnosis he had made.[35]
D10. Report of Dr Miao, Consultant Psychiatrist, 12 August 2020[36]
[34] Transcript, 17 June 2020 at 138.
[35] Transcript, 17 June 2020 at 137 and140.
[36] Exhibit A5.
During the hearing Counsel for Ms Du spoke to Dr Miao and obtained a written response to a series of questions he had earlier put to her. The report was taken into evidence with the consent of Counsel for the Bank.
Ms Du consulted Dr Miao in March 2017. Dr Miao made an initial diagnosis of Delusional Disorder, “having noted a persecutory delusion about her mother in law and poor insight although she was fully orientated with reasonable attention, concentration and memory.”[37]
[37] Exhibit A5 at 1.
Dr Miao reported, in part:
Ms Du consulted me a few times between 04/03/2017 to 27/05/2017 for Delusional Disorder with the persecutory delusion about her mother in law. When I explored personal history, Ms Du mentioned history of being bullied at work while she was employed by APRA, and also in Canada. Ms Du then returned to see me on the 16^th of Nov 2017 and the 23^rd of Dec 2017 for the grieving issue from her father’s death, complicated by the conflicts with her siblings regarding her father’s treatment before he passed away. She didn’t present any depressive or anxiety symptoms. She reported no more delusion about her mother in law. She did not report any other delusions either. She didn’t tell me that she had problems at work in Commonwealth Bank. She didn’t request any more sessions. The plan was that she would contact me if she needed.
………………..
Delusional disorder is a diagnosis with the main DSM-5 criteria of the presence of delusions with a duration of one month or longer. Delusions have many types, and persecutory delusion is one of them. Patients who suffer from delusion have the unshakable false belief in something untrue. Patients who suffer persecutory delusion believe that they are being persecuted despite a lack of evidence.
………………..
It is significant that Ms Du has made similar complaints in various workplaces over time. However, because Ms Du has never presented to me with this problem as a Presenting Complaint, without thorough assessment around this issue, it is difficult for me to say if there is any pathology, or what pathology is behind her complaints.[38]
D11. Discussion
[38] Exhibit A5 at 2.
Neck and back conditions
Ms Du sought treatment for back pain in 2012, 2014 and subsequently, including both her lower back and her mid-upper back (thoracic area). She consulted her General Practitioner suffering neck pain in December 2016.
When Ms Du consulted him on 2 March 2018, Dr Lim was of the opinion that Ms Du’s history was consistent with an aggravation of pre-existing conditions.
Dr Porteous diagnosed Ms Du as suffering an aggravation of cervical and lumbar strains. Associate Professor McGill was satisfied that Ms Du was experiencing pain in her back and neck when he examined her in September 2019.
Based on the evidence summarised above and set out in greater detail earlier in these reasons, I am satisfied that prior to, and since, the time she was employed by the Bank, Ms Du suffered ongoing physical disorders in her neck and in her middle and lower back. At times she suffered aggravations of these conditions. It follows that I am satisfied that Ms Du has suffered ailments, within the meaning of “ailment” in section 4 of the Act.
Psychological condition
All Practitioners agree that Ms Du suffers from a mental disorder, although the description of that disorder varies.
When Ms Du consulted Dr Lim in March 2018, he diagnosed her as suffering depression and anxiety. Four months later Dr George diagnosed her as suffering a chronic adjustment disorder with anxiety and depressed mood. Dr Khan made a similar diagnosis in January 2019.
Dr Walker provided a diagnosis of psychotic disorder which presented differently over time, and which included an adjustment disorder and anxiety and depression. Dr Walker provided a detailed explanation of the reason he made the diagnosis. I accept his evidence.
Based on the evidence I have referred to in the preceding three paragraphs and in paragraphs 42 to 55, I am satisfied that, prior to and since her employment by the Bank, Ms Du has suffered a psychotic disorder which includes an adjustment disorder with anxiety and depression.
E. ISSUE 2: WERE THE AILMENTS “CONTRIBUTED TO, TO A SIGNIFICANT DEGREE” BY MS DU’S EMPLOYMENT BY THE COMMONWEALTH BANK, AND THEREFORE DISEASES WITHIN THE MEANING OF THE ACT?
Ms Du’s evidence
I have set out the evidence of Ms Du earlier in these reasons. Having observed and listened to Ms Du give evidence, I have concluded that at times she exaggerated the symptoms she claims to have experienced as a result of her employment by the Bank. The list of symptoms she provided in April 2019[39] (reproduced at paragraph 26) of these reasons is not consistent with the medical evidence (such as that of Associate Professor McGill who assessed Ms Du in September 2019) and the history she gave to the medical professionals, including her treating practitioners.
[39] Exhibit A1 at 24.
Ms Du provided her statement of 1 April 2019[40] specifically for these proceedings, knowing that the cause of her mental condition was in issue. In that document she stated that “I have not experienced any other previous significant past medical issues ……”.[41] However she told Dr Khan, her treating Psychiatrist, that she first experienced difficulties with her mental health in 2013 for which she was treated until 2016.
[40] Exhibit A1 at 24.
[41] At paragraph 8.
Ms Du was questioned at length concerning her attendances upon her General Practitioners and medical Specialists. Where Ms Du’s evidence is inconsistent with that of the health professionals, I prefer the evidence of the latter.
Evidence of Ms Barter, Manager Once Removed of Ms Du at the Bank
Ms Barter provided a statement dated 6 May 2019[42] and gave evidence at the hearing.
[42] Exhibit R7.
Ms Barter was Ms Du’s Manager Once Removed during the time Ms Du was employed by the Bank. Mr Schulz was Ms Du’s Line Manager.
Ms Barter worked on the same floor as Ms Du and saw her daily during the working week.
Ms Barter stated, in part:
I am aware that Xue (Annie) Yan Du has alleged that she has been bullied and harassed by a number of staff. I am not aware of any incident where Annie has been bullied or · harassed; · Annie never approached me with any complaints about any staff member.
I am aware that Annie has also raised issues about her work station causing her injuries. At no stage did Annie raise any issues with me in relation to her work station. All I know is that a movable work station desk was ordered for Annie; this c)rrived after she finished employment with us. I had been made aware that Annie required this type of desk to be comfortable whilst sitting at work; however, I was not aware of any injuries sustained as a result of the work station Annie was using. In my time with CBA as head of that team1 Annie is the only staff member who made a request for a different desk and this request was accommodated.
…
I would describe the work environment as pretty good; staff talk to each other and help each other out. We have a diverse workforce; both in male and female ratios and with different nationalities. I have never noticed any workplace bullying or harassment in my team. Obviously, people can have cross words with each other but this is only in relation to work and when people are stressed or tired. There is no swearing or disrespect of staff; we work in a fast paced and open environment. Bad behaviour is just not tolerated.
At no stage did Annie inform me that she was feeling isolated, bullied or harassed by any staff member. Once again, I never noticed that occurring.
…
During that week I met with Annie formally once on the 21 February 2018. In this meeting we spoke about her work. This was a normal catch-up to assist her. I do not recall her raising any issues with other staff; I would certainly recall if Annie had said anything about being bullied or harassed.
I also checked in with Annie and other staff members on a daily basis. Once again Annie did not raise any issues with me.
I am satisfied that Ms Barter was an honest witness who gave her evidence to the best of her recollection. I accept her evidence.
Evidence of Mr Schulz, Ms Du’s Line Manager at the Bank
Mr Schulz provided a statement dated 6 May 2019[43] and gave evidence at the hearing.
[43] Exhibit R6.
Mr Schulz was Ms Du’s Line Manager during the time she was employed by the Bank.
Mr Schulz stated, in part:
I sat in close proximity to Annie whilst at work and closely supervised her like I did with other staff members. We sat at a pod of desks and I interacted with Annie as I would with any staff member. We had weekly 1-1 meetings about work tasks and any matters she wanted to raise. I also have an opendoor policy and I interact with staff by way of emails, desk discussions etc. outside of the weekly meetings. In those 1-1s Annie did not raise any issues with me until a meeting on the 16 February 2018. Prior to that Annie had not raised any issue about alleged bullying. I do not keep file notes of my 1-1 meetings. I see these as update meetings and a general discussion on progress; I also have an open-door policy so if we have not covered something in these meetings the staff member can come and see me later.
…
Annie never raised any issue about injures being received as a result of her work station. She did ask via an online process for her work station to be assessed in line with the CBA process around Operational Health and Safety assessments. I did not have any involvement in that process as it is done by the staff member online. As part of that process Annie had an assessment done on her work station by Warren on the 1 December 2017. On 27 November 2017 Warren sent Annie an email asking for a suitable date form him to perform an assessment on her workstation.
I followed up after that and Annie sent through the recommendations provided by Warren. I told her to see how the recommendation goes and for Annie to monitor the situation and advise me and Warren if she needed another assessment done.
…
I do not recall Annie ever discussing with me the fact that her work station was causing her pain or injuries. She asked for an assessment due to discomfort and this was carried out as per our procedure.
I am now aware that Annie has alleged that she has been bullied and harassed and made to feel isolated by a number of staff on various occasions. Prior to the 16 February 2018 Annie never brought anything to my attention; she never raised any concerns or complaints when I spoke with her. I also never noticed any staff member bullying, harassing or isolating her. I am not at rny desk the entire time during a day due to a number of meetings each day, however Annie had ample opportunity to raise her concerns with rne and with Angela. We also met on a weekly basis in our 1-1 meetings and I also answer rny emails where possible daily.
…
I would describe the work environment as normal and generally quite collaborative. I am not aware of any instances of bullying and/or harassment within the team. The atmosphere is certainly not toxic. I felt that that the team overall is very collaborative. To the best of my knowledge there have not been staff problems within the team.
…
On 16 February 2018 I had a meeting with Annie. In my file notes for this meeting, which I had made specifically due to the concerns raised by Annie; I have recorded that Annie "feels she might be bullied due to the fact that [Ms V] is not speaking to her. She felt that [Ms V] is speaking to everyone around her but not to her and even if she greets [Ms V] she doesn't always respond". I asked her if she tried to interact with [Ms V] to which she said she had not however would now do so. I reminded her that both Angela Barter and I have an open-door policy that that she is welcome to come and talk to us at any point to get assistance. I include a copy of these file notes in my statement as Attachment G.
I am satisfied that Mr Schulz was an honest witness who gave his evidence to the best of his recollection. I accept his evidence.
E2. Neck and back ailments
Evidence of Dr Porteous, Occupational Physician
In his report of 16 January 2019 Dr Porteous stated, in part:
She had some spinal symptoms in the past.
However, based on the information available today, I can only conclude that, on the balance of probabilities, the work factors at the CBA were plausibly the substantial cause of aggravation of her conditions and subsequently the ongoing symptoms.
The history today indicates that Ms Du had some previous cervical spine, probable upper thoracic spine and lumbar spine symptoms with details in the General Practitioner note referring to back pain in mid 2017, prior to the onset or increase in symptoms in these areas while working at the CBA, due to abnormal and poor ergonomic issues at CBA in her workstation.
She appears to have had both chiropractic and physiotherapy concentrated treatments at the end of 2017, indicating the severity of it and consistent with the CBA work factors substantially causing this.
In my opinion, there is a clear temporal association between the reported marked increase in symptoms in her cervical spine, onset of new thoracic symptoms and onset of increased symptoms in her lumbar spine as a result of the abnormal ergonomics in her workstation at CBA Bank and her current conditions. Clearly work was the main factor in the aggravation of her cervical and lumbar soft tissue strains and aggravation of probable pre-existing degenerative change.[44]
[44] Exhibit A1 at 55.

At the hearing, Dr Porteous said that the ergonomic situation at work described by Ms Du was sufficient to create the objective abnormality in Ms Du’s condition as described in his report. Dr Porteous had not seen the ergonomic assessment of Ms Du’s workstation at the time he gave his evidence.[45] He agreed that Ms Du had a “lengthy history of complaints relating to lower back symptoms”[46] before she started her employment with the Bank.
[45] Transcript, 16 June 2020 at 73.
[46] Transcript, 16 June 2020 at 67.
Report of Dr Lim, General Practitioner
On 4 April 2019, Dr Lim reported, in part:
From my understanding of the injured worker's role as an Associate risk advisor, it would be reasonable to conclude that the mechanism of injury was the indirect result of performing those specified tasks, and therefore an injury sustained during the course of employment. The history to date is consistent with aggravation of pre-existing conditions. I would be happy to clarify the extent of these prior conditions, if the specific details of these were required to assist with the claim.
Evidence of Associate Professor McGill
Following his examination of Ms Du on 19 September 2019, Associate Professor McGill reported, in part:
Her physical examination was entirely normal. She did not report any symptom while demonstrating a full range of movement, full power and a normal neurological assessment. Her imaging studies have demonstrated relatively minor constitutional degenerative change in the cervical spine. Those changes may have contributed to discomfort in the neck. The changes are clearly not related to her employment and not related to injury (employment related or otherwise).
There was no employment-related injury to the neck, back or limbs. Muscle tension has the potential to contribute to widespread symptoms of the type that she described. Anxiety, unhappiness, concern and uncomfortable posture can all contribute. I think symptoms she experienced during the period of time she worked for the Commonwealth Bank were predominantly determined by factors other than the physical nature of her work (statement influenced by the notes recorded by her general practitioners during that period). There is no possibility that her employment with the Commonwealth Bank continued to influence symptoms on any physical basis, after she ceased her employment.[47]
[47] Exhibit R4 at 7-8.
When he gave evidence, Associate Professor McGill said that the changes in Ms Du’s cervical spine are very common in the general population of her age and that there is no history of any injury to her neck, at work or otherwise, to influence the changes. Inheritance is by far the overwhelmingly identifiable cause of the changes.[48]
[48] Transcript, 17 June 2020 at 115.
When asked to elaborate on his opinion that there was no possibility that Ms Du’s employment continued to influence her symptoms after she left that employment, Associate Professor McGill said:
Yes, well there’s lots of things that can influence a perception of pain. I mean, I think the psychological stressors are of great importance in this particular case. But you know, if someone is in an uncomfortable position, that could cause them to have some aches at the time of being in the uncomfortable position. But none of those ‑ you know, uncomfortable position or activity, it doesn’t have any potential to continue to affect symptoms after removal from the uncomfortable position. So yes, there was no event at work, or activity at work, that had any potential to contribute to her symptoms after she ceased work. And in terms of whether the posture at work had any influence of her symptoms during the time that she was working, then the contemporaneous notes are the most valuable information. And if we look in her general practitioner’s notes during the period of time that she was with the Commonwealth Bank, which I understand was between September 2017 and March 2018, those notes do not suggest that her work ‑ the physical aspects of her work were having an influence on her symptoms.[49]
[49] Transcript, 17 June 2020 at 116.
Reasoning – back and neck ailments
Having considered the evidence to which I have referred, I am not satisfied that Ms Du’s employment by the Bank contributed to her back and neck ailments to a significant degree.
In reaching this conclusion I have preferred the opinion of Associate Professor McGill to those of Dr Porteous and Dr Lim and the evidence of Ms Du.
I am satisfied that Ms Du had a history of episodes of pain in her neck, mid-back and lower-back prior to her employment by the Bank. This history goes back to at least 2012 in regard to back pain, specifically, low back pain and mid-back pain in 2014. On 1 December 2016, the year before Ms Du commenced employment by the Bank, her General Practitioner recorded that she complained of “pain back of neck – cause is severe anxiety/stress”.[50]
[50] Exhibit R4 at 4.
Neither Dr Porteous nor Dr Lim provided detailed reasoning for their opinions that Ms Du’s physical ailments were contributed to by her employment by the Bank. They did not explain why they considered that there was a significant contribution in view of Ms Du’s history of neck and back problems.
Associate Professor McGill considered in detail Ms Du’s medical history. Based on his opinion that muscle tension arising from other factors, together with degenerative change, may have caused the symptoms experienced by Ms Du, I am satisfied that factors other than Ms Du’s working conditions contributed to her physical ailments.
Based on the evidence to which I have referred I am not satisfied that Ms Du’s employment by the Bank contributed to her back and neck conditions. My reasons for this conclusions are that:
·Ms Du had a history of back and neck complaints prior to her employment by the Bank;
·Ms Du was not a reliable historian and I am not satisfied that she accurately described the symptoms she suffered during her employment;
·during her employment Ms Du suffered considerable stress arising from matters unconnected with her employment which probably caused her muscle tension, a factor which can cause neck and back pain;
·Ms Du suffered degenerative change in her lumbar spine prior to her employment.
In Commonwealth vBeattie[51], the Full Court of the Federal Court said, in part:
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.
[51] (1981) 53 FLR 191 at 210.
I am satisfied in this matter that any pain suffered by Ms Du when she was at work was caused by pre-existing conditions and not by her employment.
Had I found that Ms Du’s employment made some contribution to her neck and back conditions, I am not satisfied that her employment by the Bank contributed to those conditions to a significant degree. In reaching this conclusion I note that “significant” means “substantially more than material”[52] and therefore imposes a higher threshold than had been required before the amendment to the Act in 2007. My reasons for this are the same as those set out earlier in these reasons.
E3. Mental ailment
[52] Subsection 5B(3).
Report of Dr Miao, Consultant Psychiatrist, 12 August 2020
Ms Du consulted Dr Miao in March 2017.
Dr Miao reported, in part:
Ms Du consulted me a few times between 04/03/2017 to 27/05/2017 for Delusional Disorder with the persecutory delusion about her mother in law. When I explored personal history, Ms Du mentioned history of being bullied at work while she was employed by APRA, and also in Canada. Ms Du then returned to see me on the 16^th of Nov 2017 and the 23^rd of Dec 2017 for the grieving issue from her father’s death, complicated by the conflicts with her siblings regarding her father’s treatment before he passed away. She didn’t present any depressive or anxiety symptoms. She reported no more delusion about her mother in law. She did not report any other delusions either. She didn’t tell me that she had problems at work in Commonwealth Bank. She didn’t request any more sessions. The plan was that she would contact me if she needed.
………………..
It is significant that Ms Du has made similar complaints in various workplaces over time. However, because Ms Du has never presented to me with this problem as a Presenting Complaint, without thorough assessment around this issue, it is difficult for me to say if there is any pathology, or what pathology is behind her complaints.[53]
[53] Exhibit A5 at 2.
Report of Dr George, Psychiatrist, 19 July 2019
Concerning Ms Du relating her symptoms of anxiety and depression to her employment by the Bank, Dr George reported:
………. her father died in October 2017. Subsequently, there was alienation from her brother and sister due to the fact that they did not contribute financially to his treatment, whereas she did. She was tearful when talking about the death of her father and the circumstances with her siblings. This appears to be a major precipitant to both anxiety and depression subsequently.[54]
………………..
I do not believe that her employment with the Commonwealth Bank has contributed to a significant degree. There have been other factors that have been of greater import and impacted on her at a personal and emotional level, as well as a psychological level. Her neck pain and back pain appear to be related to a pre-existing disorder and you will need to seek the opinion of a neurosurgeon or orthopaedic surgeon to comment in an independent report on these issues. Pain has contributed to her mental status.[55]
[54] Exhibit R1 at 304.
[55] Exhibit R1 at 305.
Report of Dr Khan, Consultant Psychiatrist, 23 January 2019
Dr Khan reported, in part:
Ms Du presented with an adjustment disorder with mixed anxiety and depressed mood, a work-related psychiatric/psychological injury that developed as a result of her employment with the Commonwealth Bank of Australia.
Report of Dr Lim, General Practitioner, 4 April 2019
Dr Lim reported, in part:
I have reviewed her medical records, and she has a long psychological history described from 2013-2016. She faced adjustment issues, with moving to Australia, being without family who were overseas, and marrying an Australian husband. She suffered further psychological distress during the process of [redacted].
She had depression management before working at CBA, was stable without medications, and some psychological sessions. She became stressed at work, and had to see her psychologist more frequently. There are also underlying family issues, with the death of her father shortly after commencing work.
From my understanding of the injured worker's role as an Associate risk advisor, it would be reasonable to conclude that the mechanism of injury was the indirect result of performing those specified tasks, and therefore an injury sustained during the course of employment.
In his report Dr Lim addressed the opinion expressed by Dr George:
Dr George provides an opinion of a Chronic Adjustment Disorder with Anxiety and depression. The declination makes mention of the fact that she has pre-existing Anxiety and Depression, with no reference to clinical notes. I have reviewed her clinical notes, and this was correct, but his opinion was formed based on a one off examination, and no mention was made of his review of her clinical notes. If this was correct, then his diagnosis was incorrect. I note that she did not consider her previous Anxiety and Depression issues as a problem, and was able to work for a period of time. There are many people in the population who may have those traits, but not a diagnosable condition. If this was the case for Ms Xue, one could make an argument that Dr George was correct with his diagnosis, and she had a psychological dysfunction that did not impact her work until she developed physical symptoms. Her workplace then lacked empathy to her situation (which she describes as bullying), which in an anxious type person, led to a deterioration of her psychological state. DSM V classes Chronic Adjustment Disorder with Anxiety and Depression as a diagnosable psychiatric condition. My opinion is supported by her treating psychiatrist, Dr Khan.[56]
[56] Exhibit A1 at 105.
Evidence of Dr Walker
Dr Walker is of the opinion that the psychiatric condition from which Ms Du suffers pre-dates her employment by the Bank. In his opinion Ms Du interprets events such that she believes people want to harm her. Her history shows instances of this occurring, in both her professional life and her family life, prior to her working for the Bank.[57]
[57] Transcript, 17 June 2020 at 137.
Dr Walker also expressed the opinion that a person with an untreated psychotic illness such as that suffered by Ms Du “virtually always”[58] denies having the illness.
[58] Transcript, 17 June 2020 at 147.
Discussion
Based on the evidence of Dr Miao, Dr George, Dr Walker, Ms Barter and Mr Schulz I am not satisfied that Ms Du’s employment by the Bank contributed to her mental ailment to a significant degree. In reaching this conclusion I have preferred their evidence to that of Dr Khan and Dr Lim. My reasons for this conclusion follow.
Dr Miao was Ms Du’s treating Psychiatrist during 2017, including time when she was employed by the Bank. During the first half of that year Dr Miao was treating Ms Du for a delusional disorder arising from her relationship with her mother-in-law. In November and December 2017 Ms Du consulted Dr Miao in relation to her grieving following the death of her father, complicated by conflict with her siblings. Ms Du did not mention alleged bullying in her workplace during these consultations.
The opinions of both Dr George and Dr Walker support the conclusion that events in Ms Du’s workplace did not contribute to her condition to a significant degree, if at all.
While Dr Khan is of the opinion that Ms Du suffered an adjustment disorder with mixed anxiety and depressed mood as a result of her employment by the Bank, he does not explain why he makes the causal connection between the two and does not appear to have considered the effect of the other stressors she was experiencing at the time.
Dr Lim expressed the view that “it would be reasonable to conclude that the mechanism of injury was the indirect result of performing those specified tasks, and therefore an injury sustained during the course of employment.” His opinion appears to be based on his assumption that Ms Du’s anxiety and depression was under control prior to her being employed by the Bank. However, while he refers to other factors, he does not explain why he did not take them into account in forming his opinion as to the mechanism of the condition suffered by Ms Du.
Dr Lim provided his reasons for disagreeing with Dr George, but his reasons for doing so are unclear.
Based on the evidence of Ms Barter and Mr Schulz, I am satisfied that the bullying in the workplace, as described by Ms Du, did not occur.
F: ISSUE 3: DID MS DU AT ANY TIME, FOR PURPOSES CONNECTED WITH HER EMPLOYMENT OR PROPOSED EMPLOYMENT, MAKE A WILFUL AND FALSE REPRESENTATION THAT SHE DID NOT SUFFER, OR HAD NOT PREVIOUSLY SUFFERED, FROM THAT DISEASE?
F1. Subsection 7(7) of the Act
As I have decided that Ms Du has not suffered a disease as defined in the Act, it is unnecessary that I consider whether Ms Du made a relevant wilful and false representation such as is referred to in subsection 7(7) of the Act. However, in case I am wrong in my previous conclusions in these reasons I turn to consider this issue.
Subsection 7(7) of the Act provides:
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.
F2. The representations
The Bank alleges that Ms Du made a relevant wilful and false representation in a document entitled Commonwealth Bank Pre-employment Medical Declaration.[59] This document was completed and signed by Ms Du and provided to the Bank prior to her being employed.
[59] Exhibit R1 at 84.
On the first page of the document the following appeared:
In some cases we may not be able to proceed with an offer of employment because of your particular medical condition/illness or injury or restriction.
You should be aware that failing to notify us of any relevant medical conditions now may mean that you are not protected by workers' compensation insurance if your work with us makes your medical situation worse in the future. In this regard it is in everyone's interest for you to be transparent about your medical condition.[60]
[60] Exhibit R1 at 84.
On the second page of the form the following question appeared:
Do you have, have you ever had, or have you ever sought medical treatment for any of the following medical conditions? If you answer ‘Yes’ to any medical condition, please provide further details of the condition in the space provided below including details of any treatment requirements and any adjustments that may be required in the workplace to accommodate that condition.[61]
The following conditions were then listed, among others not relevant in this matter:
·8. Back complaint or back injury (including conditions related to muscle or spinal discs or similar)*
·9. Neck complaint or neck injury (including conditions related to muscle or spinal discs or similar)*
·13. Mental or psychiatric conditions (including symptoms of depression or anxiety of any type or another ‘stress-related’ condition)*
Ms Du responded “no” in respect of each of the listed conditions.
[61] Exhibit R1 at 85.
Following the list of conditions, each of which was marked with an asterisk, Ms Du ticked a box immediately preceding the following:
I have read and understood all of the information and questions contained in this PEMD. I have also been given an opportunity to raise any issues or questions in relation to the requirements of the position and the medical questions that have been asked.
To the best of my knowledge and belief, the answers and information that I have provided are true and correct. I understand that if I do not answer the questions in this PEMD truthfully or if I make a wilful or false misrepresentation, it may render me liable to dismissal from employment (should my application succeed) and may also disentitle me to workers’ compensation under Section 7(7) of the Safety Rehabilitation and Compensation Act 1988.[62]
[62] Exhibit R1 at 87.
The document was signed by Ms Du on 9 August 2017.
I am satisfied that in the Pre-employment Medical Declaration, Ms Du made representations that she had not had, and had not sought medical treatment for, any of the following conditions:
·back complaint or back injury (including conditions related to muscle or spinal discs or similar);
·neck complaint or neck injury (including conditions related to muscle or spinal discs or similar);
·mental or psychiatric conditions (including symptoms of depression or anxiety of any type or another ‘stress-related’ condition).
The making of the representations by Ms Du is not in dispute.
F3. Ms Du’s evidence
At the hearing Ms Du said that at the time she completed the declaration, she did not feel that she was suffering from any psychological or physical problems or that she would require any treatment for such conditions while working for the Bank.[63]
[63] Transcript 16/06/20.
The following exchange took place between Ms Du and Counsel for the Bank:
COUNSEL FOR THE BANK: You understood didn’t you, Ms Du, when you completed that form that you were being asked, not only whether you suffered from any mental or psychiatric condition as described as at the time you completed the document but also whether you had ever suffered from such a condition or ever sought any medical treatment for such a condition?
MS DU: The reason I put “no” because at that time I was not suffered of - um, from any mental, mental condition. I was totally mentally healthy and this does not impact my work at all and I did not need any assistance from the work because they ask - for example, the CBA, they ask questions, are you disabled? Do you have the wheelchair, do you need any assistance? I said, “no”. Then they ask me, do you have a - the mental condition, do you need any assistance? I said, “no”. That’s why I put this. I don’t have any medical - - -
COUNSEL FOR THE BANK: Would you please listen very carefully to this question? I understand that you say that you had completely recovered as at the time when you completed that document but you understood at that time, didn’t you, that you were being asked whether you had ever had such a condition?
MS DU: I did have but it does not impact the work. This is the work question. It’s a work related question.
……
COUNSEL FOR THE BANK: And so you knew that if you answered “yes” to say that you had had previous mental health problems you would have been invited to give the details of the condition and the treatment that you had undergone and also to give details of any treatment requirements or adjustments that you thought might be necessary if you went to work for the Commonwealth Bank?
MS DU: M’hmm.
COUNSEL FOR THE BANK: But that was only if you answered, “yes.” What you were first required to do was answer the first part of the question whether you had, at the time of completing the document any such problems and you answered “no” but you understood you were also being asked whether you had ever had any such problems, didn’t you?
MS DU: Yeah, they asked me if I have mental problems and if this could impact the work so they [make adjustment][64] and they (indistinct) I don’t need that.
[64] Taken from the audio recording of proceedings.
COUNSEL FOR THE BANK: Just listen to me. It doesn’t anywhere in there say, does it, you only have to tell us about problems that you have had in the past if you think it will mean that you require adjustments to be made for you if we employ you. It doesn’t say that, does it?---
MS DU: It doesn’t say that but the purpose of the question is if you have tell us, we can adjust it. When I answer that question I, I was fully healthy. I don’t need any adjustment from CBA. I don’t need them do me a favour, I am fully capable of doing the work. That’s why I said “no”.
COUNSEL FOR THE BANK: You knew though that they were asking whether you had ever had such problems in the past, didn’t you?
MS DU: I just tell you the reason I put “no”.
COUNSEL FOR THE BANK: No. Listen to me Madam, you understood when you completed that document, didn’t you, that one part of the question was whether you had ever had mental health problems in the past. You understood that, didn’t you?
MS DU: I understand each word in the sentence. I just tell you the reason I put (indistinct).
…
COUNSEL FOR THE BANK: When you completed that document, you understood, didn’t you, that one of the questions you were being asked to answer was whether you had ever in the past had any mental health problems?
MS DU: I understand.
COUNSEL FOR THE BANK: You understood that at the time, didn’t you?
MS DU: Yeah.
COUNSEL FOR THE BANK: And you answered “no” to that question, didn’t you?
MS DU: Yeah.
COUNSEL FOR THE BANK: And that wasn’t true, was it?
MS DU: Um, the reason I put “no” is - okay you can say that not true but I tell you the reason.
COUNSEL FOR THE BANK: No, no, just answer the question please. It wasn’t the truth, was it?
MS DU: Correct.
COUNSEL FOR THE BANK: And you knew at the time that you answered it that the answer you were giving wasn’t true?
MS DU: Correct.
COUNSEL FOR THE BANK: And now, I asked you about Dr Walker the psychiatrist that you saw at the request of the bank last year; do you remember him?
MS DU: Ah, let me look. Dr Walker - okay. Okay, yeah, I can see this, okay.
COUNSEL FOR THE BANK: Now, he asked you about that document, didn’t he?
MS DU: Wait, where is the page?
COUNSEL FOR THE BANK: Don’t worry about where it is, he asked you about it when you spoke to him, didn’t he?
MS DU: I cannot recall unless you show me.
COUNSEL FOR THE BANK: I want to suggest to you that you told him that you didn’t declare your history of mental health issues in your pre-employment screen with the Commonwealth Bank was because you thought that it could reduce the likelihood of your being offered employment?
MS DU: I didn’t say that.
COUNSEL FOR THE BANK: You deny saying that, do you?
MS DU: Correct. I never said that.
F4: Evidence of Dr Walker

On 12 December 2019,[65] Dr Walker reported that he had taken a history from Ms Du which included the following:
Before starting with the CBA, she did not declare her history of depression because “it does not impact my capacity for work” and “I feel if I put that, maybe they will not hire me.”
When he gave evidence Dr Walker said that he was positive that this is what he was told by Ms Du.[66]
[65] Exhibit R8 at 1.
[66] Transcript, 17 June 2020 at 136-137.
For reasons I have already given, I do not regard Ms Du as a reliable witness. I prefer the evidence of Dr Walker.
F5: Discussion
When considering the application of subsection 7(7) it is necessary to consider the disease determined to have been the disease suffered by the applicant. This may be a different disease, or a disease differently described, to that described in the original claim for compensation.
In Griffiths v Australian Postal Corporation,[67] Flick J held that the following expression of the question posed by subsection 7(7) was correct:
The exclusion operates where the employee misrepresents that he or she did not suffer from that disease, namely the disease the subject of the present claim. If the claim is for a disease which is not the same as the disease previously suffered from, the exclusion does not apply.[68]
(Emphasis in original.)
[67] (2018) 158 ALD 298.
[68] Ibid at [25], citing Griffiths and Australian Postal Corporation [2017] AATA 1025 at [23].
His Honour observed later in the judgement:
And even the terminology employed by (for example) a treating practitioner at the outset may itself be changed or refined as the claim for compensation progressed through the decision-making process. An initial diagnosis of a “disease” at the time the claim for compensation is made is not decisive of the correct identification of the “disease” which attracts the entitlement to compensation or the “disease” which is the subject of a representation.[69]
[69] (2018) 158 ALD 298 at [34].
In this matter I have determined that the ailments suffered by Ms Du were:
·aggravations of pre-existing neck and back conditions; and
·a psychotic disorder which includes an adjustment disorder with anxiety and depression.[70]
[70] See paragraphs 58 and 62.
Had I decided that any of these ailments was contributed to, to a significant degree, by Ms Du’s employment by the Bank, I would have been satisfied that each ailment was a disease within the meaning of section 5B of the Act. Subsection 7(7) would then have been enlivened to determine whether the disease could be taken to be an injury within the meaning of section 5A.
Assuming that the back and neck conditions were diseases, did Ms Du represent that she had not had, or sought medical treatment for, those diseases?
I have found that Ms Du suffered from aggravations of pre-existing neck and back conditions. These are the same conditions as referred to in the Declaration made by Ms Du, namely, back/neck complaint or injury.
I am satisfied that Ms Du represented that she had not had, and had not sought treatment for aggravation of pre-existing neck and back conditions.
Assuming that the psychotic disorder was a disease, did Ms Du represent that she had not had, or sought medical treatment for, that disease?
I have found that Ms Du suffered from a psychotic disorder which includes an adjustment disorder with anxiety and depression. This is the same condition as is referred to in the Declaration made by Ms Du, namely, a mental or psychiatric condition (including symptoms of depression or anxiety of any type or another ‘stress-related’ condition).
I am satisfied that Ms Du represented that she had not had, and had not sought treatment for, a psychotic disorder which includes an adjustment disorder with anxiety and depression.
Were each of the representations “wilful and false”?
On the basis of my findings as to the neck, back and mental conditions suffered by Ms Du, together with her evidence at the hearing, I am satisfied that the representations made by Ms Du were objectively false.
I am satisfied also that each of the representations was made wilfully by Ms Du. My reasons for this conclusion are:
·initially Ms Du was evasive in her answers, but she admitted in cross-examination that she understood the questions being asked of her in the Declaration;
·Ms Du knew at the time she made the representations that they were untrue;
·Ms Du made the false representations because, at the time she made them, she believed that if she answered honestly she may not be offered employment by the Bank.
Were each of the representations made by Ms Du for purposes connected with her proposed employment by the Bank?
I am satisfied that the representations were made for purposes connected with Ms Du’s proposed employment on the basis that:
·the Declaration was required to be completed as part of Ms Du’s application for employment;
·the Declaration stated clearly that if answers were not given truthfully this may cause future employment by the Bank to be terminated and may affect the payment of workers’ compensation;
·Ms Du acknowledged that she read and understood this.
G: CONCLUSION
The reviewable decision made on 6 September 2018, being the decision of Comcare to affirm its earlier determination denying liability to compensate Ms Du in respect of the claimed injuries, will be affirmed.

I certify that the preceding 131 (one hundred and thirty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.................................[SGD].......................................
Associate
Dated: 25 March 2021

Date(s) of hearing: 16-18 June 2020, 17 August 2020 and 26 October 2020

Counsel for the Applicant: Graham Barter

Solicitors for the Applicant: N Taouk, Law Partners Personal Injury Lawyers

Counsel for the Respondent: Brendan Kelly

Solicitors for the Respondent: M Karekos, Commonwealth Bank of Australia

Date(s) of hearing:	16-18 June 2020, 17 August 2020 and 26 October 2020
Counsel for the Applicant:	Graham Barter
Solicitors for the Applicant:	N Taouk, Law Partners Personal Injury Lawyers
Counsel for the Respondent:	Brendan Kelly
Solicitors for the Respondent:	M Karekos, Commonwealth Bank of Australia