Hawk and Linfox Armaguard Pty Limited (Compensation) - [2021] AATA 800

Hawk and Linfox Armaguard Pty Limited (Compensation) [2021] AATA 800 (8 April 2021)
Division:GENERAL DIVISION
File Number(s): 2019/1587
Re:Hawk
APPLICANT

AndLinfox Armaguard Pty Limited
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:8 April 2021
Place:Sydney

The reviewable decision dated 22 March 2019 is set aside and remitted to the Respondent to make a determination on the amounts payable to the Applicant pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
..........................[SGD]..............................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
WORKERS COMPENSATION – psychological injury suffered in the course of employment – whether Applicant continues to suffer from effects of accepted psychological condition – whether Applicant’s psychological condition results in ongoing need for medical treatment under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Applicant’s accepted psychological condition results in ongoing incapacity for employment – whether Applicant is entitled to compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – decision set aside and remitted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16 and 19
Administrative Appeals Tribunal Act 1975 (Cth) s 42C
Cases
Lonergan v Comcare [2005] FCA 377
Tregear and Australian National University [2019] AATA 316
Ramirez Gamonal and Comcare [2019] AATA 3321
Ganley and Comcare [2003] AATA 14
Martin and Australian Postal Corporation [2002] AATA 250
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
8 April 2021
Introduction

The Applicant, Mr Victor Hawk, is 47 years of age. He migrated to Australia in 1998 and currently lives with his wife and four-year-old son.
The Applicant commenced employment with the Respondent, Linfox Armaguard Pty Limited as a Cash Transit Officer in 2006. He had previously worked at another company before this in a similar role.
On 4 March 2013, the Applicant was involved in an attempted armed robbery in the course of his employment with the Respondent when the armoured van he was travelling in was the subject of an attempted armed robbery whilst delivering cash to a bank.
On 5 March 2013, the Applicant consulted his General Practitioner and was diagnosed as suffering from a psychological condition as a result of the incident and he was referred to a psychologist, Mr Zoran Protulipa, in relation to "severe Anxiety related to his professional duties".
On 7 March 2013, the Applicant was referred to psychiatrist Dr Elena Scherbak in respect of his "symptoms and signs suggestive of PTSD after he was attacked at work/armed robbery 4.03.13". He was also referred to a psychiatrist Dr Alex Pilsky on 11 March 2013.
On 7 March 2013, the Applicant completed a claim for workers' compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of a psychological condition sustained as a consequence of his involvement in an armed hold up on 4 March 2013. The Applicant noted in his claim form that he had previously suffered a similar symptom, injury or illness, following an armed hold up he had experienced on 31 May 2005.
On 13 March 2013, a Determination was issued on behalf of the Respondent which accepted liability for the Applicant's psychological condition, being "generalised anxiety" under section 14 of the Act. The Respondent commenced making payments to the Applicant for medical expenses and incapacity payments in accordance with sections 16 and 19 of the Act.
On 19 April 2013, the Applicant’s treating psychiatrist, Dr Pilsky, reported:
Victor told me his problems started in 2005 whilst he worked for Brinks Security. At the time he was only on the job for a few months. He was licensed to carry fire arms. Him and his partner were ambushed as they got out of the car to pick up a large amount of cash from a bank. Victor had a gun pointed to his head and was forced to lay down on the ground. At some stage a shot was fired and Victor thought that his partner was killed. He felt helpless at the time. In fact, his partner was alive but the assailants got away with the cash. Since then, he experienced anxiety about working as a guard and there was also some insomnia and flashbacks of the initial armed robbery. Never the less Victor managed to come back to work fairly soon after as an Armoured truck driver. However, when he started working for Armaguard he again went back to all duties including driving an Armoured truck as well as carrying cash.
The most recent armed robbery happened on the 4 March 2013 at Broadway Shopping Centre. Both Victor and his partner parked the truck and wanted to get out to get some coffee. They didn't have much money with them. The partner got out of the truck first and was ambushed and hit by heavy object. Then Victor saw an assailant wearing a mask with what looked like a sniper rifle in his hands. Victor told me that it seemed like if it could have shot through the armoured glass. He locked the truck and layed (sic) down whilst making contact with the company which immediately alerted Police.
…
Diagnostically, Victor is suffering from post traumatic stress disorder. This is directly related to the recent armed robbery in 2005 Victor had some features of subsyndromal PTSD. There is no pre-existing mental illness to account for current symptoms.
…
With regards to work, Victor can currently do a maximum of 12 hours per week in light office based duties. He is not ready to recommence any employment. There is no doubt that he will never be able to work on the road or in the office handling money or servicing the armoured trucks. He may be able to work in a supporting office role as in IT or Business Development as he knows the industry quite well. All attempts to put him to work in his previous duties are bound to cause a severe relapse of his PTSD and carry a risk of permanently incapacitating him.
Dr Pilsky has provided various medical reports in relation to the Applicant's progress and the continuing need for further treatment.
On 22 April 2013, the Applicant returned to work for the Respondent on duties in the office and administration area on reduced hours.
On 5 August 2013, Dr Pilsky reported:
Victor is suffering from PTSD and since he was pressured to return to unsuitable duties he has become extremely anxious, irritable, had difficulty concentrating, insomnia. At this stage, Victor is totally unsuitable for any work at least until a meeting is arranged between myself and his rehabilitation consultant.
On 14 August 2013, the Applicant attended a meeting with Dr Pilsky, the Respondent’s Human Resource Manager and his work manager. At that meeting, the Applicant was advised that the Respondent was unable to continue to provide the Applicant with suitable duties to perform. The Applicant last worked for the Respondent on 20 August 2013.
Arrangements were made for the Applicant to undergo an independent medical examination with consultant psychiatrist Dr Samuel Harvey. In his report dated 7 May 2014, Dr Harvey observed:
While it is likely that some other factors, such as Mr Hawk's previous exposure to an armed hold-up and a previous episode of low mood, may have increased the risk of Mr Hawk suffering from Generalised Anxiety Disorder, I think it is reasonable to assume that Mr Hawk's current condition remains substantially attributable to the workplace injury in March 2013.
…
I think Mr Hawk does have capacity to return to work. While he continues to suffer from some generalised anxiety and agoraphobic symptoms, these appear to be reasonably well controlled on his current treatment regime and do not appear to be limiting his activities outside of the workplace. Given the nature of Mr Hawk's anxiety symptoms and in particular his specific anxieties around enclosed spaces and working near guns or large sums of money, I think at present he is not able to return to his pre-injury or modified duties. However, I think he is fit to return to a completely different role either within the Linfox group or with an employer other than Linfox. At present, I think this would need to be at reduced hours, and I would initially suggest no more than 4 hours per day, 3 days per week.
Dr Pilsky provided a further report dated 25 February 2015 indicating that the Applicant's capacity for employment had been significantly downgraded following a physical health concern and an adverse development with respect to the court case against the perpetrators of the armed robbery.
On 29 March 2016, the Applicant was referred to psychologist Mr John Kearney for "care and review of management of his PTSD". In a rehabilitation services report dated 30 March 2016, the Applicant's psychologist detailed the following:
He reported that he has tried to find work in other fields to his current occupation but has struggled. He is a security guard and he has been involved in intense armed robberies on two occasions. The first was in 2005 and the second on 4/3/13. He said the most recent one was particularly scary as his face was shown on the news and so the robbers have a picture of him and he fears for himself and his family.
This fear of being discovered has not been mentioned of late and it appears it is not of much concern to him at present.
…
Continuous debilitating headaches: Patient reports that he still has on average 3-4 headaches a week.
High sensitivity to noise and crowds: He is easily irritated in crowds or in noisy environments
Poor sleep overall: Also has nightmares.
Severely reduced concentration and memory in relation to even basic cognitive tasks: This can be seen in his struggles to learn new information and keep track of basic daily activities.
Reduced mood and motivation: Affect is low and completing basic activities of living is often difficult.
The Respondent organised an arrangement for the Applicant to undergo an independent medical examination with psychiatrist Dr Robert Lewin, who stated in his report dated 19 May 2016:
During 2005, Mr Hawk consulted a psychologist. He described treatment over several months. He could not recall the name of the psychologist. He could not provide details about the nature of the treatment. When asked whether he was given antidepressant medication or not, he said he could not remember this.
…
I asked Mr Hawk further questions about the period of 12 months prior to March 2013. He described general feelings of worry and apprehension. This was not associated with enduring impairment of functioning. He was more on guard than expected.
…
The clinical picture was of intense worry. I am not able to form a judgement about whether this worry was reasonable or excessive in the circumstances. Mr Hawk was convinced that all these concerns were reasonable and that there was a very real risk that he and his family would be murdered by robbers. For example, he feared some form of extortion attempt, using his family.
…
The events which followed are important. Mr Hawk described his perception that his safety was placed in jeopardy. He believed that police undertook their interview and enquiries in an unprofessional manner, further jeopardising his welfare. He described ruminating about these matters at considerable length. He became convinced that these events had also placed his family in jeopardy.
…
I noted a range of symptoms consistent with the diagnosis of Generalised Anxiety Disorder.
In a medical report dated 25 October 2016, Dr Tcherkas documented that the Applicant's prognosis was "poor" and that he will "remain unfit for work as a Security Officer or any other suitable work given the limits of his education or training or experience he ceased work in March 2013".
The Applicant lodged a compensation claim for permanent impairment and non-economic loss dated 30 January 2017 in respect of his accepted psychological condition.
Dr Robert Lewin, Adult General & Forensic Psychiatry, stated the following in a report dated 3 March 2017:
He described an Anxiety Disorder. In May 2016, I diagnosed Generalised Anxiety Disorder.
…
I concluded that, approximately 4 years after the armed hold-up, the provision of a group-based treatment program is indicated. The requirement for other forms of intervention in addition to outpatient psychiatric counselling and therapy will depend upon his clinical response to that intervention.
The Applicant underwent an examination with consultant psychiatrist Dr Julian Parmegiani, who stated in his report dated 6 April 2017:
Mr Hawk had no history of mental illness, substance abuse or self-harm before the robbery of 31 May 2005. Psychiatric symptoms arising from this robbery abated within weeks.
…
Mr Hawk remained angry towards his employer. Mr Hawk believed that Armaguard questioned the veracity of his symptoms, and did not offer suitable duties. Mr Hawk believed that his employer restructured the workplace in order to terminate his employment. The relationship with his employer broke down irretrievably.
…
Indefinite psychiatric and psychological treatment however is not indicated. At present Mr Hawk is consulting Dr Pilsky once per month. Allowance should be made for another 6-8 appointments with Dr Pilsky over the next 12 months, with a view of returning Mr Hawk's long-term care to his general practitioner. Mr Hawk will need psychotropic medication for the next 3-5 years and probably longer.
…
Mr Hawk's relationship with his employer has broken down irretrievably. Whilst it is unlikely that Mr Hawk will be able to return to work in situations that place him at risk of harm, he could begin a graduated return to work in other roles with a different employer.
At the request of former claims managers CGU Insurance, Dr Parmegiani, provided a supplementary report dated 18 May 2017 in which he stated:
Mr Hawk could perform any work, as long as it does not expose him to a risk of armed robbery.
Mr Hawk could begin a graduated return to work program, and eventually resume full-time employment within 4-6 weeks.
On 1 June 2017, the Respondent issued a Determination accepting liability to pay the Applicant lump sum permanent impairment and non-economic loss compensation on the basis of a 10% Whole Person Impairment (WPI) in respect of his accepted psychological condition, having regard to sections 24 and 27 of the Act.
On 21 June 2017, the Applicant formally requested a reconsideration of the Determination dated 1 June 2017. On 22 August 2017, a Reviewable Decision was issued affirming the Determination dated 1 June 2017 relevant to the Applicant's entitlement to the payment of lump sum permanent impairment and non-economic loss compensation pursuant to sections 24 and 27 of the Act.
On 21 June 2018, pursuant to 42C of the Administrative Appeals Tribunal Act 1975 (Cth), a consent decision was issued by the Tribunal, which varied the Reviewable Decision dated 22 August 2017 to allow for further compensation.
The Applicant underwent an examination with consultant psychiatrist Dr Wasim Shaikh, and in his report dated 18 July 2018 Dr Shaikh documented:
Mr Hawk has not returned to formal work roles in the past five years. However, he has undertaken volunteer roles. He has trained as a dive master, and volunteered on the Great Barrier Reef with Mike Ball Dive Expeditions. He last did this for a week 18 months ago. Whilst he attempted to train as a dive instructor, he struggled with the pressure of the training. He also experienced headaches. Mr Hawk states that he does enjoy scuba diving and spear fishing.
…
I struggle to see ongoing benefits and therapeutic reasons for appointments with his psychiatrist. I would, however, support monthly appointments with a psychologist for supportive input. Note that this recommendation is unlikely to lead to obvious further improvements.
I would support the use of his antidepressant medication, and Lyrica in the foreseeable future.
…
The only incapacity for employment would be in relation to a return to the security field. I see an incapacity to return to work as a road crew officer to be permanent. He may be able to consider a return to Armaguard in a different capacity, but I suspect he would not be too keen on doing the same. Ideally, he should receive rehabilitation intervention towards a return to alternative employment.
The Respondent obtained Facebook and other online material in relation to the Applicant, including photographs and his online Star Now profile.
The Applicant underwent an independent examination with psychiatrist and pain management consultant Dr Graham Vickery on 18 September 2018. In his report dated 3 October 2018, Dr Vickery observed:
Mr Hawk's affect range was reactive while his behaviour and mood were appropriate. His history and presentation were consistent, and he was able to relate a coherent, chronological and comprehensive history.
There was no melancholic depression, paranoid delusional ideation or formal thought disorder. There was no cognitive impairment in his concentration or memory.
Mr Hawk was tense when discussing the armed hold up. There are some nightmares where "I'm in the truck on my own and I have to finish the run or I am being held-up again." There is avoidance behaviour and hypervigilance however this is improving, and he is now able to go out in public and he enjoys recreational activities with his friends.
…
Mr Hawk currently suffers from Post-Traumatic Stress Disorder due to the armed hold up which is resolving.
…
Mr Hawk requires further psychiatric treatment in respect of the diagnosed psychological condition with Dr Pilsky every month or so for up to a further ten sessions.
…
It is my opinion that Mr Hawk should be able to perform as a Photographer/Videographer for up to twenty hours a week.
Covert surveillance was carried out in relation to the Applicant on 28 September 2018, 27 October 2018 and 28 October 2018, showing the Applicant completing activities such as driving, going for a walk, grocery shopping, picking his son up from school, catching public transport and participating in a photoshoot in a park for varying periods of time.
Dr Vickery was provided with this surveillance footage, along with copies of the Applicant's online material and he subsequently provided a supplementary medical report dated 29 November 2018 in which he formed the following conclusions:
The video was reported to be the primary factor that has caused his ongoing fear for Mr Hawk's safety and his psychiatric injury due to his belief that his face was visible and that he could be easily identified.
…
It is my opinion the diagnosis cannot be maintained with knowledge of this video and in addition to the absence of any attempt by the attackers to make contact with Mr Hawk since the incident in 2013.
…
It is my opinion that the reported presenting complaints are not an accurate representation of Mr Hawk's restrictions.
…
It is my opinion in light of the updated evidence that Mr Hawk does not have any work incapacity and that he can work as a Photographer/Videographer without any restrictions.
…
It is my opinion the psychiatric injury has resolved and there is no psychiatric disorder preventing Mr Hawk returning to work. Other factors may include malingering.
In light of this evidence, the Respondent provided correspondence to the Applicant dated 30 November 2018 foreshadowing their intention to issue a new Determination decision.
Dr Pilsky provided a report dated 10 December 2018 in support of the Applicant continuing to receive entitlements, where he stated:
The video of the incident was only part of the process that caused Mr Hawk's psychiatric injury. Prior to the video being taken, Mr Hawk was trapped in his car whilst the assailant outside possessed assault rifles and he feared for his life. This was the main cause of his psychiatric injury.
Further, Mr Hawk reported that the video was not the exact copy of what was shown on television at the time and that his face would have been visible on the original version.
With regards to Mr Hawk's ability to work this has indeed been improving and he has been working up to 20 hours per week. He may well develop increased capacity in the future, however this capacity is not automatic and I do not believe he possesses capacity to work full-time hours at present due to ongoing symptoms of PTSD.

On 10 December 2018, psychologist Dr Kearney reported:
Mr Hawk continues to suffer hyperarousal symptoms whenever he is outside his home and in public spaces.
…
These symptoms have been exacerbated by the knowledge that he has been followed and observed.
…
Of course he is out and about sometimes, I have strongly encouraged him to do so. Graded exposure to fears is a fundamental part of Trauma-focussed Cognitive Behaviour Therapy. However, because of his severe hypervigilance, Mr Hawk becomes exhausted after a few hours of being in public and is unable to sustain these activities in a regular or full time way. I'm sure that your videos would also show this pattern.
…
This conclusion appears to be at least partly based on seeing that Mr Hawk's face was not visible during an armed robbery attempt on an Armaguard van. If Mr Hawk was in fear of his life at the time, and believed that he was vulnerable and that his face was visible during the robbery, then that would be enough to traumatise him. Finding out later that his face wasn't visible is not going to automatically reverse the damage.
Statements were provided by Mr Mikhail Denissov and Ms Larissa McLean to the effect that the Applicant's face was visible in the news footage. On 19 December 2018, the Applicant's former solicitor provided copies of relevant news articles pertaining to the incident and statements were also provided to this effect.
On 4 January 2019, the Respondent issued a Determination finding the Applicant to have no present entitlement to the payment of compensation for medical treatment expenses and incapacity benefits pursuant to sections 16 and 19 of the Act in respect of the Applicant's accepted psychological condition.
On 21 February 2019, the Applicant's solicitors formally requested a reconsideration of this Determination.
On 22 March 2019, the Respondent issued a Reviewable Decision affirming the Determination dated 4 January 2019.
The Applicant then lodged an Application for Review in the Administrative Appeals Tribunal (the Tribunal) in relation to the Reviewable Decision dated 22 March 2019.
The law
The Respondent’s general liability to pay compensation is set out in section 14(1) of the Act, which provides as follows:
Compensation for injuries
(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.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
“Incapacity for work” is defined in section 4(9) of the Act and can be a total or partial incapacity:
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
In relations to the claim for ongoing medical expenses for the Applicant, section 16 of the Act relevantly states as follows:
Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Regarding the Applicant’s incapacity for work, section 19 of the Act provides:
Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
In the current matter, the Applicant must establish on the balance of probabilities that he continues to suffer from the effects of his accepted psychological condition and that his accepted psychological condition results in an ongoing need for medical treatment and/or an incapacity for employment.
The evidence
The Applicant’s evidence
The Applicant confirmed his statements of March 2013 and February 2018.
He said that he was born in Russia but has lived in Australia for 22 years. He speaks English almost fluently, but it is his second language.
The Applicant was taken by his representatives through a detailed chronology of the events surrounding his injury in 2013, which is outlined in the background I have previously set out.
In 2013, the Applicant was driving a cash van for the Respondent in the course of his employment and was involved in a violent armed robbery. During the armed robbery, the Applicant said he heard screams and gun shots, but he followed company instructions to wait inside the vehicle until the police arrive. He thought his partner, who was outside the vehicle at the time of the armed robbery, had been killed, but he could not see what was happening as he was trapped in the vehicle throughout the incident.
After the police arrived, the Applicant was asked to leave the van but found it very difficult to move. After getting out of the van he was questioned by police in the middle of the street. He was very concerned at the time that his face was visible to passers-by. In fact, a bystander made a video of the incident on his mobile phone which was shown on the news. A friend of the Applicant’s saw it and told him he had recognised him. The Applicant said that this coverage made him very upset and he felt that the armed robbers, if they were angry about being caught, might harm him or members of his family. After the incident, the Applicant said that he slept with a knife and sometimes a speargun.
In 2016, the Applicant received a letter to attend court to give evidence about the incident, but the Applicant refused to go. His treating doctor agreed that this was the correct decision.
It is relevant that the Applicant had been the victim of a similar incident in May 2005 when a gun was pointed at his head and the Applicant believed he was going to be killed, which was particularly traumatic given that his only child had just been born. The Applicant said that he had taken a couple of weeks off work after the 2005 incident and went to a psychologist two or three times, but he did not think this was helping him. He did not receive any ongoing medical treatment and said that he had not had any mental health issues before the incident. He went back to light duties for a couple of months but then got a license to drive an armoured vehicle.
In May or June 2006, the Applicant started working for the Respondent in a similar position to that which he had worked in with his previous employer, namely as a cash transit officer. He worked for 35 to 45 hours each week, mainly doing night shift work.
Before starting work with the Respondent, the Applicant was studying information technology and took some time off work on a contract at Mitsubishi before starting with the Respondent.
As a result of the 2013 armed robbery incident, the Applicant suffered a psychological injury and received compensation from the Respondent in the form of medical treatment expenses and incapacity benefits under section 16 and 19 of the Act. The Applicant had some time off after the incident, but later returned to light duties in a different position for the Respondent.
The Applicant had been previously offered an office job with the Respondent but had initially refused the offer because the salary was substantially less than he had been receiving and he had some concerns with other terms and conditions. In addition, the Applicant claimed that he had been insulted and abused by the Transport Manager at the Respondent company. The Applicant said that after his meeting with the Transport Manager he saw his doctor and the psychiatrist, who certified him as unfit for work. Evidence was given that the Applicant went to Russia for a holiday and when he returned and said he would then take the position the offer was no longer available, as someone else had filled the position. He was terminated with effect from 1 June 2018. The Applicant said he had lost his Security and Gun license, but in any event, he never wanted to work in the security industry again.
The Applicant felt angry and frustrated by the termination of his employment, as he said the termination had been conveyed to him at a time when he was on leave with an appropriate medical certificate. He said he had signed the letter of termination in order to keep receiving benefits and that he had received his last payments from the Respondent in January 2018. The Applicant was reminded that prior to receiving the letter of termination he had not been working with his previous workplace for two years and nine months because he “could not go back to that environment”.
Once the Respondent had stopped paying medical expenses, the Applicant had to start paying for medical expenses himself. He had not applied for Centrelink benefits as he wanted to look after himself, although he went on Centrelink during the COVID-19 pandemic.
The Applicant gave evidence that he had applied for many positions as part of his rehabilitation, but that he had not been successful in securing appropriate employment.
The Applicant said that he was still on the same medication as had been prescribed by his psychiatrist, General Practitioner and endocrinologist after the termination of his employment. He said he suffered from the following medical conditions:
(a)difficulty with concentration;
(b)feeling stressed and unable to cope in public;
(c)nerves around loud noises;
(d)tinnitus;
(e)periodic chest pain;
(f)low mood;
(g)sexual disfunction; and
(h)feelings of injustice.
Over the last few years, the Applicant had also noticed that he has begun to stutter when he speaks. He said that he had previously had the problem but that after the armed hold up it has progressively become much worse.
The Applicant said that he had started to drink heavily in order to sleep. He said that approximately four months ago he had gone to hospital for rehabilitation in relation to his difficulties with alcohol use. He also attends a weekly addiction program. The Applicant says that he can only sleep for approximately four to four and a half hours each night, he has difficulty driving long distances and he becomes tired very quickly.
The Applicant said that he had seen a neurologist for headaches about two years after the 2013 incident, but nothing had been found.
The Applicant gave evidence that his social life was much less than before, and he had become more withdrawn from friends. The Applicant said that he had undertaken some overseas travel, either to see family in Russia when his father was diagnosed with cancer, or for his underwater photography. The applicant had visited New Caledonia, French Polynesia, Bali, Russia and the Baltic States.
The Applicant gave evidence that he had started scuba diving and photography because he wanted to have something to do to occupy his time now that he was no longer working for the Respondent. He said that he wanted to be able to earn a living and that he liked creative businesses. He had registered an Australian Business Number (ABN) for his photography business, which started as a hobby. He currently attended photography groups and had met people through collaborating on photography and doing photography shoots. Most of the photography shoots the Applicant had completed for free for exposure. As a result of his photography being put out into the public arena, the Applicant has received a number of offers of work. He said it was not a lot and perhaps totalled eight jobs.
He said that his social media profile and social media engagement were designed to try and grow his business and that he had the full support of his doctors in relation to this work. The Applicant said that he had set up a photography studio in the garage of his home, as this meant that he did not have to travel to other places to conduct photography shoots with models. The proximity of the studio gave him much greater flexibility if he was feeling unwell and had to cancel or rearrange a photography shoot.
His tax returns from 2019 – 2020, which were before the Tribunal, showed he made very minimal earnings from his jobs. The Applicant had also undertaken some acting jobs as an extra on a couple of occasions since the 2013 incident. He said he found acting work with people really stressful and tiring. The Applicant gave evidence of seeing Dr Vickery and outlining his problems with this line of work to him in relation to his mental health.
The Applicant had made a Total Permanent Disability (TPD) claim alleging total and permanent disability to obtain a monetary release of his superannuation in 2017. He had made this claim with the support of his doctors and his then legal advisors, Maurice Blackburn Lawyers. The Applicant gave evidence that at the time he made the claim he had not read all of the documents himself but when he signed the documents he was not sure that he would ever be able to work again. The Applicant said that he was “broken” by the treatment he had received from the Respondent. He said that he had applied for many jobs after the incident, but that this was primarily because he had been told by the Respondent that his benefits would be stopped if he did not apply for at least eight jobs per week.
The Applicant was receiving treatment from Dr Kearney and Dr Pilsky who prescribed medications for him such as Lyrica and Seroquel to manage his medical condition. The Applicant’s General Practitioner had also prescribed sleeping pills, medication for anxiety, valerian and Panadeine Forte, amongst other things. The Applicant did not remember going to see a psychologist, Ms Mary Langcake.
When questioned about the psychological symptoms the Applicant had suffered before 2012, he said he had been thinking about death but that those thoughts had resolved after a few weeks. He could not remember whether he had told Dr Pilsky about any symptoms and he also could not remember if he had spoken to Dr Pilsky about seeing Dr Vickery.
Dr Tcherkas in his General Practitioner’s notes reported the Applicant being stressed and tired and suffering from headaches. The Applicant was questioned about various symptoms recorded by his General Practitioner, but he did not remember discussing with him his inability to sleep and the consequent stress he experienced.
The Applicant was also questioned about problems with heart arrhythmia which he had experienced whilst he was still residing in Russia. The Applicant also outlined a history of gastrointestinal disturbance, known as Gastro-oesophageal reflux disease (GORD).
The Applicant gave evidence that the information he had told his doctors was not selective to try and maximise his entitlements. Under cross-examination, the Applicant said that he did not remember why he did not tell the doctors about his headaches and any underlying symptoms prior to the 2012 incident, although he agreed that he had had a brain scan. The Applicant said that he could not remember and reiterated that he was not simply giving evidence in order to maximise his claims.
The Applicant felt that his condition had worsened since 2014 and that jobs he could have done then he could not do now. He said that he would have difficulty with an office job now because he could not concentrate well, particularly for long periods of time. He said he really only felt capable of doing creative work that would allow for flexibility in hours and environment and would not cause him significant stress.
Mrs Elena Hawk’s evidence
Mrs Elena Hawk, the Applicant’s wife, gave evidence before the Tribunal. Mrs Hawk was taken to her statements dated 14 February 2018 and 9 September 2020, which she affirmed.
Mrs Hawk met her husband at school in Russia, they have been married for some 22 years and they have one son.
Mrs Hawk said that she worked full time but had been working three days per week since the end of September 2020 because of the COVID-19 pandemic. She works as a dressmaker. Normally she works an eight-hour day and has approximately two hours of travel to and from work. She would leave for work at 7:30AM and return around 6:30PM.
Mrs Hawk was aware that the Applicant had experienced armed hold ups in 2005 and in 2013 during the course of his previous employment.
She said that she had noticed changes in her husband, particularly since the incident in 2013. These included the Applicant being quiet and withdrawn, not eating, having difficulty sleeping, experiencing headaches, irritability and being difficult to communicate with. In her observations, the Applicant had changed physically and emotionally. The intimacy in their relationship had dropped away and she had to spend considerable time getting the Applicant to perform tasks during the day, as he had problems with his memory and also attending to his personal hygiene as if “appearance does not matter anymore”. Under cross-examination, Mrs Hawk said that the Applicant sometimes stays in his pyjamas all day or for consecutive days and that she would call him from work to remind him to shower and change his clothes, as outlined in her statement to the Tribunal.
Mrs Hawk said that the Applicant had a box for his daily medication and that he was able to manage that himself, despite it taking him longer than normal to get these medical affairs in order.
Mrs Hawk said that their social life as a couple had been dramatically impacted since 2013 and that the Applicant experienced a high level of social anxiety.
She said that she was very concerned about the Applicant’s wellbeing, in particular his heavy drinking which initially started three or four years ago and has now led to the Applicant drinking heavily every day to enable him to relax and then fall asleep.
Mrs Hawk said that there had also been a deleterious effect of the Applicant’s relationship with his son and that he needed to be reminded to participate in activities with his son. She felt that the Applicant’s condition was starting to adversely impact their son emotionally and that she had seen changes in their son’s behaviour.
Mrs Hawk said that she strongly supported the Applicant in his photography, diving and other extracurricular activities. In particular, she said that photography had been very positive for the Applicant. She said that anything was better than the Applicant “just lying on the couch” and that she encouraged him to keep himself busy. In her view, photography provided a form of therapy for her husband. Mrs Hawk was less supportive of the Applicant’s acting roles, which she thought were very stressful for him in his current mental state.
Mrs Hawk said that the Applicant was able to organise photoshoots including organising the appropriate equipment, people and appointments. She said that the Applicant had benefited from having a photographic studio in the garage in the comfort of their home, which made it easier for the Applicant to have the photography shoots when he felt able to. However, if there were offsite photoshoots, the Applicant organised them himself or someone who he was collaborating with arranged the shoot and the Applicant solely attended.
Under cross-examination, Mrs Hawk said that she knew that the Applicant was on social media to promote himself as a photographer and that he was seeking to build connections through social media. She also accepted that the Applicant has some social contact with other people through social media and through his work as a photographer.

When cross-examined, Mrs Hawk said that the Applicant was able to get himself to functions but that he came home exhausted afterwards and needed to take medication for headaches. He would also use alcohol to cope. Mrs Hawk was cross-examined in relation to her attendance with her husband at a beauty pageant where the Applicant was taking photographs, which she said lasted approximately three hours. She accepted that the Applicant had been able to take photographs but said that he had sought to distance himself from other photographers.
When questioned as to whether the financial outcome of the case was affecting her evidence, Mrs Hawk said that she was telling the truth. I found Mrs Hawk to be an open and credible witness.
Dr Bertucen and Dr Vickery’s concurrent evidence
Dr Bertucen and Dr Vickery gave concurrent evidence at the hearing so they could each hear and comment on the evidence of one another.
Dr Bertucen is a consultant psychiatrist engaged by the Applicant and Dr Vickery is a psychiatrist engaged by the Respondent, who both prepared and affirmed they relied upon their reports before the Tribunal.
Dr Vickery and Dr Bertucen were asked to outline the matters which they both agreed to in relation to the Applicant. Both doctors agreed that the Applicant suffered from Post-Traumatic Stress Disorder (PTSD) as a result of the incident in 2013, but that it was now in remission to differing extents. Both doctors agreed that the Applicant was now capable of full-time employment, but in Dr Bertucen’s opinion not in his pre-injury occupation or a similar occupation. In his report dated 14 October 2019, Dr Bertucen said “Mr Hawk, in my opinion, is permanently psychologically incapable of returning to his pre-injury occupation (or similar duties such as security work, etc., which may involve the potential for confrontation)”. Dr Bertucen said in particular that the Applicant would be very vulnerable for remission in certain circumstances, for instance if he were to return to work as a security guard or was exposed to a work situation similar to that of his previous employment. Neither doctor would sign off for the Applicant holding a firearms license because of his psychological condition.
There was agreement between Dr Pilsky and Dr Bertucen that the Applicant needed some form of ongoing medical treatment, in contrast to Dr Vickery. There were some differences as to the Applicant’s ongoing diagnoses. It appeared to be agreed that if the Applicant was in remission for PTSD which was significantly related to the hold up in 2013 and that he should receive further treatment for this if something else were to happen to re-trigger the PTSD.
The doctors agreed that in 2020 most of their medical concern related to the Applicant’s alcohol usage. The Applicant still had an underlying persistent depressive disorder which had led to his alcohol abuse. There was some relationship between the Applicant’s PTSD, the traumatic incident and alcohol abuse, which then fuelled his depression to a greater or lesser degree, as alcohol is a depressant. There was also general agreement that the alcohol use issues were recently impacted by COVID-19.
The doctors agreed that the Applicant was now said to be in remission from his alcohol abuse. The Applicant was said to still be on heavy medication in relation to his alcohol use, which demonstrates how serious the problem continues to be. Withdrawal of the medications would, in the opinion of the doctors, lead to relapse. It was said that although he should continue with his medications, he did not need to see a psychiatrist and that there should only be occasional visits to Dr Pilsky. In Dr Bertucen’s report dated 14 October 2019, he said that the Applicant should continue his current psychological treatments every four to eight weeks and trauma-based counselling with a psychologist at a similar frequency.
In relation to the connection between the 2005 and 2013 armed hold up incidents, the evidence was that the Applicant had recovered from the initial incident and returned to work as a security guard fairly smoothly after two weeks leave, but that that incident laid the foundation for his future psychological problems as a result of the 2013 incident. In other words, the incident in 2005 had laid a foundation for the future and there was a cumulative effect of both incidents.
Under cross-examination, reference was made to the fact that the Applicant may have had pre-existing psychological conditions in 2011 and 2012, as detailed in the material provided by the Applicant’s treating General Practitioner, Dr Tcherkas. Both doctors made the point that their diagnosis was dependent on information provided by the Applicant, but Dr Bertucen noted in particular that his diagnosis of PTSD would not have been affected if he had been made aware of the General Practitioner’s notes, as he believes it is really a separate issue. Dr Bertucen also felt that the headaches from which the Applicant suffered in 2011 and 2012 would not have necessarily precluded him from returning to his old job in the security industry. He said there were many explanations for the headaches the Applicant experienced, including the Applicant’s shift work. He was of the opinion that the reason the Applicant could not return to his position at his previous work was as a result of the traumatic incident in 2013.
Dr Bertucen said that the Applicant’s depressive disorder could have been due to his problems in finding work and not being able to provide for his family, although he noted that PTSD almost always involves depression. It was noted that at the time of the Applicant’s first appointment with Dr Bertucen, he reported that he was not depressed, and Dr Bertucen said that he may not have been suffering from any psychiatric illness prior to 2013.
Dr Bertucen’s attention was drawn to a Kessler Psychological Distress Scale (K10) assessment which the Applicant undertook, where he reported feeling depressed all of the time. At that time, the Applicant’s psychologist, Mr Zoran Protulipac, wrote back to the Applicant’s General Practitioner saying that he did not see any depression but that there was a family history of anxiety. Dr Protulipac said the Applicant was likely suffering from trait anxiety, alongside issues of trauma from the 2005 incident. Dr Bertucen said that some people are more vulnerable to anxiety, but in most incidences where people think they are depressed they are, in fact, depressed.
Dr Vickery thought that the Applicant’s K10 score of 21 meant that he probably did have a mental illness, which could have been mild PTSD from the 2005 incident. He said he had no doubt that there were several underlying reasons for the Applicant’s symptoms prior to 2013. The Applicant may have been vulnerable to anxiety and depression and there can also be a relationship between tension headaches and depression or PTSD.
In relation to his alcohol use, Dr Bertucen said that the Applicant’s alcohol consumption had fluctuated over the last several years depending on the stress he had suffered, but that the Applicant had potentially used alcohol as a coping mechanism since 2005.
When re-examined by Counsel for the Applicant, the doctors agreed that someone with heightened anxiety may well over present to their treating General Practitioner. Dr Bertucen noted in particular that the Applicant’s constant presentation to his General Practitioner may have stemmed from this. He felt that the General Practitioner had always taken appropriate steps to limit medical causes for the Applicant’s physical symptoms and that was why anxiety was seen as a relevant factor.
The doctors were supportive of the Applicant’s photography work and Dr Bertucen said that he was a “good photographer” and that underwater photography would be relaxing and therapeutic for the Applicant.
Dr Pilsky’s evidence
Dr Pilsky is the Applicant’s treating psychiatrist. He has been a psychiatrist for some 14 years and has been treating the Applicant since March or April 2013. Dr Pilsky said he has seen the Applicant on some 100 occasions and had provided many medical reports for the Applicant. He said that the Applicant’s case was a particularly complex one.
At the hearing, Dr Pilsky said he had last seen the Applicant on 19 November 2020. His current diagnosis was that the Applicant suffered from chronic PTSD and that it was moderate to severe but fluctuated. He said the Applicant also suffered from alcohol use disorder which was currently in remission.
Dr Pilsky said that the cause of the Applicant’s PTSD was the armed hold up in 2013, which lead the Applicant to be in fear of his life and also to have serious concern for his partner’s life. Dr Pilsky said that it was that incident which continues to cause problems for the Applicant in relation to his mental health and day to day functioning.
Dr Pilsky said he knew less about the first incident in 2005, which may have caused the Applicant to experience anxiety, insomnia and fear, but the Applicant had returned to work “fully functioning” right after this 2005 incident occurred. Dr Pilsky said that the 2005 incident had led the Applicant to have a heightened awareness of safety issues and that this would have been a pre-disposing factor to any further incidents of a similar nature.
When questioned about the notes of the Applicant’s General Practitioner, Dr Tcherkas, in 2010 to 2012, Dr Pilsky said that he saw those as “busy General Practitioner” notes. In his opinion, the Applicant’s headaches and other problems were due to shift work rather than any enduring psychiatric disorder as a result of the 2005 armed hold up incident.
Dr Pilsky said that he was in a good position to assess whether the Applicant was a “malingerer”, and that he did not believe this was the case. His current symptoms were continuing to affect his capacity to work. Dr Pilsky set out the Applicant’s symptoms as follows:
(a)constant anxiety (average/moderate);
(b)periodic panic attacks (becoming less severe);
(c)mild to moderate low mood (not severe depression);
(d)mild lack of enjoyment;
(e)hypervigilance;
(f)negative thoughts;
(g)attention difficulty;
(h)intrusive memories of the 2013 incident;
(i)insomnia; and
(j)periodic nightmares.
Dr Pilsky said he had seen some improvement in the last two years, especially as the Applicant had completed an alcohol detox program in hospital. The Applicant was on a range of medications including anti-depressants, naltrexone for his alcohol use, Lyrica and Melatonin.
Dr Pilsky said that the Applicant sees Dr John Kearney every three or four weeks for treatment of his PTSD. Dr Pilsky was of the view that the Applicant needed to continue his current treatments and engage in exposure therapy with his psychologist on an ongoing basis.
When questioned as to the level of work the Applicant could now perform, Dr Pilsky said that he did not believe that the Applicant could return to work as a security guard. He said that the Applicant would not be fit for any kind of security work. He also said he would never certify the Applicant as a suitable person to hold firearms.
When questioned as to the Applicant holding a fake gun as part of his role as a film extra, Dr Pilsky said that this was a different kind of stress and would not impact the Applicant as adversely. During cross-examination, Dr Pilsky said that the applicant’s PTSD was, in his opinion, likely connected and triggered by the security vehicle he was trapped in at the time of the armed hold up rather than the gun element of the offence. Therefore, he did not believe there was necessarily a clear link between the applicant’s PTSD being triggered and holding a fake gun.
Dr Pilsky also said the way the Respondent had treated the Applicant in terms of finding further employment with the company had caused the Applicant considerable distress and feelings of belittlement.
Dr Pilsky was cautiously sceptical about the Applicant’s opportunity for future employment. He felt that with the Applicant’s level of anxiety, stress and his difficulty remaining calm in everyday situations, he could possibly work four to five hours every second day. Dr Pilsky said that he was sceptical of the Applicant’s capacity to make a living as a photographer. He thought that the Applicant’s level of stress would fluctuate depending on the situation and circumstances, which meant that he would need a great deal of flexibility in engaging in future work. In his view, the Applicant needed continuing treatment and medication to function in any occupation.
Dr Pilsky said that the Applicant’s alcohol use disorder was due to anxiety and hypervigilance caused by his PTSD and that there was a well-recognised causative relationship between PTSD and alcohol use disorder, although he was unable to cite any definitive medical evidence at the hearing.
Dr Pilsky was questioned about a previous report he had made in favour of the Applicant’s TPD claim in 2017. When questioned, Dr Pilsky said that he considered it likely that the Applicant would not return to work in any occupation at that time. He said that ‘foreseeable future’, in his view, referred to a couple of years. When cross-examined about whether he thought that at the time there was any real chance of the Applicant returning to work, Dr Pilsky said that he would need to see the legislation and examine the Applicant again and he may or may not come to the same conclusion.
When cross-examined, Dr Pilsky had said that there had been some improvement in the Applicant’s condition and a degree of stabilisation but that, in his view, the Applicant’s PTSD was chronic and that it followed a fluctuating course.
When taken to the notes of Dr Tcherkas, the Applicant’s General Practitioner, and specifically the notes in 2010 to 2012, he said that the General Practitioner was a very busy person and what he noted was not particularly unusual. Dr Pilsky said that after the 2005 incident the Applicant had suffered trauma that was never attended to properly. Dr Pilsky agreed that some of the matters listed by the Applicant’s General Practitioner could in fact be classic symptoms of PTSD.
Dr Pilsky said it would have been useful to have this letter from the Applicant’s General Practitioner presented to him when he was completing his examinations of the Applicant. He also said that the practice of psychiatry was more subjective than other forms of medical areas and there was a greater reliance on what the patient said at the time than in other branches of medicine. Dr Pilsky accepted that in his work the welfare of his patients was of primary importance rather than a forensic examination to find out and question the truth of what the Applicant presented and what might have occurred.
Dr Pilsky was not aware that the Applicant had a brain scan in June 2012 but said that there was a complex relationship between headaches and psychiatric conditions which could exacerbate anxiety headaches. Dr Pilsky said that he still believed the core of the Applicant’s problem was being trapped in the van in 2013 as a result of the armed hold up and his consequent concern for his own life and his colleague’s life. Dr Pilsky did not believe it was likely that the Applicant had undiagnosed PTSD prior to the 2013 incident.
Dr Pilsky was not aware of the Applicant’s anger towards people of Middle Eastern appearance, which was said to also be as a result of the 2013 incident.
Dr Pilsky disagreed that the Applicant’s external activities indicate in any way that he is not suffering from PTSD. Dr Pilsky understood that the Applicant was able to organise photoshoots, some other activities and had some capacity to look after himself at home but said that his capacity fluctuated and was limited. Dr Pilsky was aware in September 2018 that the Applicant was trying to participate in external activities and said that his panic attacks increased at that time.
The judgement
In this case, much turns on findings as to the credibility of the Applicant. In this regard, there were four main issues in relation to the Applicant’s credibility that the Respondent’s representative drew the Tribunal to:
(a)The first issue is whether there was any discrepancy or inconsistency between the Applicant’s evidence to his treating doctors and, in particular, whether the Applicant suffered symptoms which were subsequently attributed to his injury prior to the date that injury occurred but had not mentioned this to his treating doctors.
(b)The second issue in relation to credibility was in relation to the Applicant’s TPD claim, which was granted by his superannuation insurer in early 2017, and whether the Applicant had been deceptive or misleading in making this TPD claim.
(c)The third issue is whether the Applicant had failed to accept suitable duties and the Respondent’s offer of employment.
(d)The fourth issue is whether the Applicant has been deceptive in his efforts to participate in normal life routines, including catching trains, trying to establish himself as a photographer and attending functions to take photographs, participating in underwater photography expeditions, training as a dive master and also seeking roles as an actor, including in action movies involving guns.
The Applicant’s disclosure of medical issues
In relation to the first issue, there were numerous reports from the Applicant’s treating General Practitioner for the period from 2006 – 2012.
During the hearing, the Applicant gave evidence about the incident he was also involved in in 2005, where he was held up at gun point and thought that he was likely going to be killed. This incident occurred shortly after his wife gave birth to his only child. The Applicant gave evidence that he had only taken a “couple of weeks off” work and he had been to see a psychologist two or three times, but felt it was not particularly helpful. He went back to light duties for a couple of months and later got a license to drive a van so that he was able to drive armoured vehicles. He did not have any ongoing treatment or medication as a result of this incident.
The Applicant gave evidence that he did not have any previous history of mental illness.
In March 2013 whilst working for the Respondent, the Applicant was involved in another armed robbery during which he heard screams and a gunshot. He followed the safety instructions which required him to wait in the locked vehicle for the police to arrive. When the police arrived, he found it difficult to get out of the van and once he was able to do so he said he was questioned by the police in the middle of the street and he was concerned that his face was visible and a video of the incident was taken. The Applicant said he felt fearful as a result of this and thought that the armed robbers and their associates may harm him and his family. He also felt very angry and after the incident he had spent a period sleeping on the couch armed with a knife and speargun in case he needed to protect his family. The Applicant said he took time off as he was suffering from headaches and dizziness. He said that he saw a doctor and was referred to the same psychiatrist “as in 2004”. He had treatment for approximately six months and then went to see Dr Pilsky. He subsequently lodged a worker’s compensation claim.
The Applicant’s reference to 2004 took place during his evidence in chief as to the period when he was working for the Respondent between 2006 and 2012. The transcript records the following:
Well, any issues at work between 2006 and 2012?---Like, I had kind of trouble with Linfox management. I had kind of troubles to do long shifts at night time. It was kind of difficult, but I was doing the job. I liked the job because during the day I could sleep later and I could actually go and take my son to the school and come back to pick him up which was suitable for me. I like it. I liked that a lot.
And did you see anybody in 2012 about these issues?---In 2004? Yes. Yes, something happened to me. Something happened to me as my mind, like, my - I started thinking about this. Not like going to suicide myself, no. Something like - something in my head hurts and I - I was very touchy. I was very touchy. I start thinking about sensitive stuff, I started to cry straight away, so it was in 2004, and that’s why I went to my GP. I talked to my GP and he sent me to psychologist.
Okay, and you saw a psychologist, I think, once or twice?---Yes. Yes, exactly.
And did you keep seeing him?---I was seeing him for - for few times probably, but that feeling went off. It stopped.

It was clear that the Applicant suffered some confusion in relation to his medical history but I do not consider this surprising in light of the number of medical visits, particularly to his General Practitioner over a long period of time and the fact that the Applicant had clearly suffered PTSD.
The Applicant was also likely affected by the events in 2005, although on the evidence present, I could not be satisfied that he suffered PTSD as a result of that incident. I note that Dr Pilsky, who has seen the Applicant over a long period of time, gave evidence that, in his opinion, the Applicant did not suffer PTSD as a result of the 2005 incident and that knowing all the evidence would not have changed his subsequent diagnosis of the Applicant. Dr Pilsky noted in particular that after the 2005 incident the Applicant had been able to return to work and perform the same duties shortly after the incident returned, in sharp contrast to what had occurred after the incident in 2013.
Put in context, it is apparent that the Applicant was mistaken or confused in his reference to 2004. In 2004, he did not work for the Respondent, but he consulted his General Practitioner to see a psychologist after the previous incident. I am also not satisfied that the Applicant attempted to mislead the Tribunal, the Respondent or doctors in relation to previous anxiety and pre-existing headaches or migraines.
The Applicant was, in my view, quite open in relation to the fact that he had suffered from anxiety and headaches prior to the incident in 2013. It was clear from his evidence, however, that the issues were clearly different from the mental and physical issues that arose as a result of the 2013 incident. I note the Applicant’s evidence as follows:
And headaches. You’ve never had any problems with headaches before?---I did have headaches before, but not like now. Not like every day. Not like every morning. Not like after little stress the headache come up.
And have you also had problems with stress other 10 than the few weeks that you had after the last incident with Briggs?---I had kind of stress when I was at Armaguard working at night shifts. So it was a stressful situation and I told my doctor about it. I was doing long night shifts and I had kind of (indistinct words) so what it means is the stress has gone so it did happen before 2 October.
Before when, sorry?---Before 2 October.
Right. And how long did you continue to see your doctor about your stress and being anxious?--Probably-I visited once in the city.
Just the one?---Might be a couple of times, it wasn’t like recent.
And they asked you about whether or not you’d had any other psychological problems?---Never had any psychological problems (indistinct words) - sorry, once. It was in 2012 I had a kind of feelings, wrong feeling, about the death so not like psychological things, no, I’m not talking about this stuff, no. I never
(indistinct words), I was thinking the death of somebody close to me and
(indistinct words) so my doctor sent me to this psychologist, Dr Stoneham.
(Indistinct words), yes, yes. It was just a year before the second incident happened. But that (indistinct words) problem was for about a few weeks and it’s gone.
So you didn’t tell anyone about that; did you?---To who? I told my doctor.
I note again that Dr Pilsky was quite clear that his diagnosis of the Applicant or views on causation would not have changed if all of the Applicant’s medical history prior to 2012 had been disclosed to him. There was also no suggestion from Dr Bertucen that the Applicant was evasive or self-serving in relation to his medical history and Dr Vickery’s opinion that the Applicant was ‘malingering’ seemed to have been based primarily on viewing the evidence of the Applicant participating in day-to-day actives such as catching a train.
In considering the evidence, I am not satisfied that the Applicant attempted to deliberately mislead the Tribunal, the Respondent or doctors in relation to previous anxiety and pre-existing headaches or migraines. I also note and give weight to the evidence of Dr Bertucen and Dr Vickery which is not contradicted by any other evidence that it is not unusual for a person with the Applicant’s psychological condition to over-present to doctors with a range of symptoms. The Applicant’s medical history should be viewed in this light.
The Applicant’s 2017 TPD claim
The Applicant was cross-examined at length as to his TPD claim and whether the Applicant had misled his superannuation company when he applied for this claim. This claim was accepted, and the Applicant received a sum of approximately $300,008 thousand dollars from his super account in 2017. The Applicant gave evidence that he had made the claim in 2015 on the advice of his lawyers at the time, Maurice Blackburn.
It was put to the Applicant on behalf of the Respondent that he was not, in fact, permanently disabled at the time. The Applicant’s evidence was that he had relied on the advice of his previous lawyers in putting together the claim and upon medical reports provided to them of the Applicant’s medical state at that time. There was no evidence of any positive representation made by the Applicant in a claim form or otherwise.
I note that there was no evidence provided to the Tribunal as to the definition of Total and Permanent Disablement in the relevant insurance policy or details, including the written material provided as part of the claim. I note further that the claim was clearly independently assessed by the independent trustee of the superannuation fund and the Applicant was found to have met the criteria for the TPD claim
There is simply no evidence that would justify a finding that the Applicant made the claim in bad faith or that he or his lawyers at the time had made other than full and proper disclosure to the trustee of the superannuation fund. The Applicant was open about the fact that he had made the claim and that he had made it in circumstances where there was doubt that he would ever work again (he had not worked for four years) and that he wanted access to the money to better provide for his wife and son in circumstances where he did not believe he could work.
The Respondent’s offer of further employment
In relation to the third issue, namely the failure of the Applicant to accept another position with appropriate duties with the Respondent, the Applicant gave evidence that he had sought a number of positions with the Respondent, including office work, database work and logistics. He thought at the time he would have been capable of doing the work, but he did not think he would be able to perform those roles now. In fact, the Applicant thought that his condition had worsened since 2014.
In any event, in relation to the job that was offered to him by the Respondent, the Applicant’s evidence was that there were a number of reasons why he did not accept the job, including that this job would pay him less money. Further, the Applicant gave evidence that the relationship with his employer had broken down and he felt that he had been bullied and belittled by a senior manager after the incident and that it would be very difficult for him to go back to work in such an environment. The Applicant said he was “broken” by the way he was treated by the Respondent. No evidence was put forward to contradict the Applicant’s version of what took place between him and the workplace manager in question. The Applicant was questioned about a trip to Russia around this time, but the evidence does not indicate that this played any part in his decision not to accept a job offer from the Respondent.
I note that the Applicant’s termination of employment and the letter accompanying this dated 19 June 2018 does not suggest that his refusal to undertake suitable duties was the reason for his termination.
Accordingly, to the extent that this matter is relevant to the issue which the Tribunal must ultimately decide, I find that the Applicant gave his evidence truthfully even though there may have been various factors surrounding the offer of employment that he could not remember.
The Applicant’s recreational activities and attempts to build a new career
The final matter to be dealt with in relation to the Applicant’s credibility relates to his attempts to establish himself as a photographer and to find creative work in the fields of photography and acting.
In this regard, I note that the Tribunal was graced with many pages of what were described as ‘tasteful nudes’ and underwater photographs taken by the Applicant. There was also evidence as to the Applicant’s acting jobs and rather unremarkable surveillance evidence taken by the Respondent of him undertaking various activities including sitting on a train. The Applicant has also completed a range of course since he has ceased work with the Respondent, including diving and photography courses.
The Applicant gave evidence that he had bought photographic equipment and tried to attract work as a photographer primarily by using social media. He found that he was able to work in an ad hoc way in the photography business and he gave evidence that this flexibility suited his medical conditions and he found it therapeutic. He had also sought acting work because that was also episodic in nature and could also arranged to suit his need for intermittent work. The Applicant gave evidence under cross-examination that he had undertaken a course in underwater diving so that he could become an underwater photographer and he found the underwater environment very peaceful and again quite therapeutic for him. The Applicant had also sought to improve his photography skills and had attended photography groups where he met people and started to do photoshoots. An agency had also offered him work as an extra on a film. The Applicant had set up a photographic studio in his garage so that he could avoid a lot of travelling on public transport and for flexibility.
The Applicant advertised his photography on his website and his aim was to build his business. It was quite clear from the evidence, including the Applicant’s tax returns, that he had not earnt a great deal of money from the business. His work in acting and photography was undertaken with the support of his doctors and family.
I accept the Applicant’s evidence that he was trying to find alternatives that may allow him to make a living, given his mental health issues and that he was genuinely trying to provide for his family. I do not think anything in relation to the Applicant’s credibility turns on the nature of the photographs he was taking. Rather, it appears that he found a market niche which allowed him to develop his business and provided a creative outlet for him.
Much was made of the fact that the Applicant had attended a Ms Lebanon function and had taken photographs. The Applicant made no attempt to hide the fact that he had attended this event. The Applicant’s wife gave evidence that she had accompanied the Applicant to the Ms Lebanon function and that it had caused him considerable anxiety. I accept his evidence, corroborated by his wife, who I found to be an entirely honest witness, that it had been very stressful for him and that he had used alcohol to try to keep himself calm.
The Applicant had also travelled on the train and there was reference to video footage of him sitting on the train. There was also reference to the Applicant picking his son up from school and driving the car. The Applicant gave evidence that during the train trip he had listened to music to keep himself calm, but that he found the journey stressful and anxiety inducing.
The Applicant was also questioned about his role as an extra in a movie where there was violence and guns. He said that he was able to make the distinction between reality and a make-believe situation on film. This was further reinforced by the evidence of Dr Pilsky, who said that it was quite conceivable that the Applicant’s PTSD would not be triggered in such a situation if this was not the thing that ‘triggered’ his PTSD from the 2013 traumatic incident.
I find nothing sinister in the Applicant seeking to find alternative ways of making a living, providing for his family and leading a productive life in a way that was compatible with his underlying health conditions.
The Applicant’s wife said that his photography work was like therapy for him and that it was important for the Applicant to keep busy rather “than just lying on the couch”. She said that the Applicant is always exhausted when he attends functions and that he always tried to be polite and behave appropriately on social occasions.
Footage of the Applicant sitting on a train, driving a car and picking up his child from school along with pages of so called “tasteful nude” photographs do not, in the circumstances of this case and in my opinion, meaningfully inform a decision as to the Applicant’s credibility as a witness nor as to whether he suffers from the accepted psychological condition. Put simply, the fact that the Applicant suffered a psychological condition would not necessarily prevent him doing the above. Further, the footage of the Respondent cannot capture the Applicant’s psychological state. For example, he noted he was anxious at the time and had coping strategies in place such as listening to music.
I find that the Applicant was quite honest and credible in relation to the evidence he gave about his work, the circumstances in which he undertook that work and the stress which he suffered as a result of it. I also accept that he was making a positive effort to find useful activities to occupy his time and to try and develop a long-term career which was consistent with his health conditions.
Overall, I find the Applicant to have been an honest witness despite the fact that he suffered from memory lapses and at times became irritable and displayed signs of anxiety, which meant that his evidence was interrupted from time to time by his need to have a brief break.
Issues for determination
The Tribunal is asked to review the Respondent’s decision dated 22 March 2019, which affirmed the decision of the Respondent dated 4 January 2019. The decision of the Tribunal is one based on the balance of probabilities as to the Applicant’s condition and in that respect, all of the evidence placed before the Tribunal which relates to the Applicant’s ongoing medical status is considered to be relevant.
In its determination dated 4 January 2019 and in the subsequent review, the Respondent relied heavily on the evidence of Dr Vickery. In his first report dated 3 October 2018, Dr Vickery was of the view that the Applicant’s condition was a consequence of his employment with the Respondent. However, Dr Vickery provided a supplementary report on 29 November 2018 and stated that in his opinion the psychological effects flowing from the Applicant’s accepted injury had resolved and that there was “no psychiatric disorder” preventing the Applicant returning to work. Dr Vickery was of the view that any ongoing symptoms were due to factors other than the Applicant’s accepted psychological conditions, which might also include “malingering”. The Respondent noted the receipt of other reports from Dr Pilsky and others but concluded that on the balance of probabilities, Dr Vickey’s evidence was to be preferred and therefore the Applicant was not entitled to compensation.
The issues for determination by the Tribunal are as follows:
(a)Whether the Applicant continues to suffer from the effects of his accepted psychological condition, arising from the incident of 4 March 2013; and
(b)If so, whether the Applicant requires ongoing medical treatment in respect of this condition pursuant to section 16 of the Act; and/or
(c)Whether the Applicant continues to suffer from an incapacity for employment as a consequence of his accepted psychological condition, such as to give rise to an entitlement to compensation pursuant to section 19 of the Act.
Does the Applicant continue to suffer from the effects of his accepted psychological condition arising from the incident of 4 March 2013?
The first issue to be considered is whether or not the Applicant continues to suffer from his accepted psychological condition after 21 January 2019. In that regard, the evidence from Dr Pilsky, Dr Bertucen and Dr Vickery is highly relevant. At the hearing, the Tribunal had the benefit of concurrent evidence from Dr Vickery and Dr Bertucen. There was also evidence and a lengthy cross-examination of Dr Pilsky, the Applicant’s psychiatrist.
A lot of time at the hearing was spent on the Applicant’s general history, including his mental health, with reports of his general practitioner and others going back as far as 2010. However, in my view, those reports were of limited relevance. The Applicant may have suffered from headaches, insomnia and a variety of other conditions prior to the incident on 4 March 2013, but the psychological injury suffered as a result of that injury was accepted under the Act and it appears that the Respondent was of the opinion that the Applicant suffered from that injury until January 2019, when the claim was rejected. It may be that some long-term symptoms persisted from the prior incident, but this does not mean that the Applicant did not suffer his medical condition substantially as a result of the 4 March 2013 incident. I note also the evidence of Dr Bertucen and Dr Pilsky that people with the Applicant’s medical condition are more likely to over present to General Practitioners. I accept this was the case with the Applicant. Accordingly, much of the evidence as to visits to the Applicant’s GP is of little weight.
Dr Pilsky, who has been treating the Applicant and had seen the Applicant on some 100 occasions, gave evidence that although the Applicant had shown improvement, he continued to suffer some symptoms which resulted from his accepted condition. He said that the Applicant’s condition was particularly complex. He gave evidence that the Applicant continued to suffer for the accepted condition and required ongoing medical treatment, although in Dr Pilsky’s opinion the Applicant had made some progress in the last two years, especially in relation to his alcohol dependence. Dr Pilsky said at the hearing, consistent with his written reports, that the impact of the incident continues to cause the current level of symptomology. Dr Pilsky saw the Applicant’s PTSD as being chronic and that it followed a fluctuating course.
Dr Pilsky gave evidence that in his opinion the Applicant was unable to return to work as a security guard and the Applicant would not be fit for any kind of security work. He said he would never verify the Applicant as a suitable person to hold a firearms license or to deal with firearms. Dr Pilsky was of the view that the Applicant may be able to work in the future but that given the Applicant’s anxiety, stress and difficulty remaining calm in everyday situations he would need to work part time. Dr Pilsky said that even though the Applicant was trying to find work as a photographer, he was sceptical of the Applicant’s capacity to make a living in that profession because of his level of stress. In his view, the Applicant needed continuing treatment and management of ongoing medications required to allow him to function in any occupation in the future.
Dr Pilsky accepted appropriately, in my view, that the welfare of his patients was of primary importance to him. Whilst he was not aware of the Applicant having a brain scan in June 2012, he said there was a complex relationship between underlying headaches and psychiatric conditions which might exacerbate headaches.
Dr Pilsky was of the view that the Applicant’s external activities provided no indication of whether he was suffering from ongoing PTSD symptoms. Dr Pilsky said that at the time the Applicant was trying to participate more in external activities during December 2018, his panic attacks became worse. Dr Pilsky was also firmly of the opinion that the Applicant did not have undiagnosed PTSD prior to the 2013 incident.

Dr Vickery in his original report dated 3 October 2018 held similar views to Dr Pilsky in relation causation and PTSD due to the armed hold up, but he also said that this was resolving. However, in his reports dated 29 November 2018 and 16 March 2020, he was subsequently of the view that the condition had resolved and the Applicant did not suffer any incapacity for employment as a consequence of the work-related condition. In his final report, Dr Vickery went so far as to raise the possibility that the Applicant may be “malingering” rather than suffering from any ongoing psychological injury.
Dr Bertucen is a consultant psychiatrist who saw the Applicant on 27 September 2017 and 26 September 2020 and provided reports to the Tribunal. Both Dr Bertucen and Dr Vickery believed that the Applicant’s PTSD was now in remission.
Both doctors also referred to the Applicant’s alcohol abuse, but also agreed that this was in remission. Both doctors were of the view that the Applicant had underlying personality issues and that he needed significant medication to stop him reverting to heavy use of alcohol. The doctors felt that he did not require ongoing treatment and that the alcohol dependence issue could be dealt with on occasional visits to Dr Pilsky. Dr Bertucen in particular was of the view that whether the Applicant may have suffered some effects from the incident in 2005 would not change his opinion on the effects of the 2013 incident. He also felt that ongoing headaches could be explained by a variety of conditions, such as shift work, and the reason he could not return to work was because of his ongoing PTSD. In relation to the Applicant’s depression, Dr Bertucen said that if people say they feel depressed they usually are. Both doctors were supportive of the Applicant’s photography work and Dr Bertucen felt that underwater photography would be relaxing and therapeutic for the Applicant.
On balance, I accept the evidence of Dr Pilsky that the Applicant continues to suffer from the effects of his accepted psychological injury, although he does show signs of improvement. There is some support for Dr Pilsky’s view insofar as Dr Bertucen said that the Applicant has suffered Post-Traumatic Stress Disorder as a result of the 2013 incident, but that it is in substantial remission and in a very attenuated form.
As explained above in dealing with the Applicant’s credibility, I do not find his medical history indicates that he has been untruthful or that he attempted to mislead his doctors. He clearly has suffered from headaches and other medical issues overtime, but there is nothing to indicate that this is not real. Many people suffer from headaches, reflux and other conditions over long periods of time and some psychological conditions may lead to over presentation with symptoms such as a headache.
I also see nothing sinister in the Applicant seeking to find an outlet for his creative talents. The Applicant gave very clear evidence that he wanted to find useful ways to occupy his time and try to earn a living for his family. There was nothing in any of his endeavours which, in my opinion, provided objective evidence that he was in fact ‘malingering’ or that engaging in these activities meant that his conditions had been resolved. In fact, Dr Pilsky’s evidence was that he supported these activities apart from the acting and that they were assisting the Applicant. I also accept the evidence of the Applicant’s wife who supported these activities because it was better than her husband “lying on the couch”. I do not accept Dr Vickery’s opinion as to the Applicant’s creative work indicating any form of “malingering”.
Dr Bertucen and Dr Vickery saw the Applicant on no more than two or three occasions, whereas Dr Pilsky has treated the Applicant over a long period of time and has seen him on more than 100 occasions. The fact that he acknowledged that his focus was on the welfare of his patient does not mean, in my opinion, that his evidence as to the Applicant’s medical condition is in any way unreliable or compromised. Indeed, it is his obligation to act in the best medical interests of his patient. Dr Pilsky agrees that the Applicant has in fact shown improvement, but he does not believe that that improvement is sufficient to mean that the Applicant does not continue to suffer from the effects of his medical condition and he confirmed that the Applicant continues to require medical treatment.
On this basis, I am satisfied that the Applicant continues to suffer from the accepted injury.
Does the Applicant require ongoing medical treatment in respect of this condition pursuant to section 16 of the Act?
There were varying opinions by the three doctors as to the level of any potential ongoing medical treatment that the Applicant required. Dr Pilsky, the applicant’s treating psychiatrist, thought the Applicant would need ongoing support both in terms of regular consultations with him and his psychologist, in contrast to Dr Vickery who did not believe the Applicant needed ongoing medical treatment. Dr Bertucen in his evidence agreed that the Applicant may require some further treatment such as pharmacotherapy and GP consultations and indicated that this should continue for some time and not be suddenly stopped. I note that all of the doctors agreed that whilst the Applicant’s PTSD may be in remission, it could be triggered by further exposure to a significantly stressful situation.
Further, I note that the Applicant’s condition is currently being managed by treatment and consults with his doctor, psychologist and psychiatrist regularly, which has helped to control and keep the treatment in remission.
It is not for the Tribunal to determine the number of occasions upon which it is appropriate for the Applicant to see Dr Pilsky or his psychologist. Clearly, on the evidence, he does not need to see Dr Pilsky as regularly as he did before January 2019, but it is still necessary for him to have reasonable ongoing medical treatment. During the hearing, the Tribunal received no submissions from any party as to how frequent the Applicant’s visits to his doctor might be or how any medical benefit entitlements should be calculated from January 2019. Accordingly, this is properly a matter to be remitted to the Respondent for determination. I note that this is not a finding that reasonable treatment should extend indefinitely but rather should be re-assessed in light of the Applicant’s progress.
Does the Applicant continue to suffer from an incapacity for employment as a consequence of his accepted psychological condition, such as to give rise to an entitlement to compensation pursuant to section 19 of the Act?
It is now necessary for the Tribunal to consider the definition for incapacity in section 4(9) of the Act. The definition of incapacity is contained in section 4(9)(b) of the Act. The Federal Court in Lonergan v Comcare [2005] FCA 377 said that “incapacity for work” is to be decided according to the terms of the definition but said that the issue of “suitable employment’” was a separate concept to be understood in the context of section 19(2) of the Act.
It is clear from the above evidence that the Applicant is not capable of returning to his pre-injury employment as a cash transit officer. This was agreed by all three doctors at the hearing who said that the Applicant could not be licensed to carry firearms and should not be involved in work that involved the use or carriage of firearms. This would seem to be an indispensable part of the Applicant’s employment and even if he did not carry a firearm himself, it is likely that it would be carried by those with whom he would need to work in close proximity. I am therefore satisfied that the Applicant cannot carry out the same type of work he was engaging in prior to the 2013 injury.
Both Dr Bertucen and Dr Vickery agreed that the Applicant is now capable of some work, but not in his pre-injury occupation. Dr Bertucen felt that the Applicant would be likely to regress if he were to return to work as a security guard or was exposed to similar work to that in which he had previously been engaged. Dr Vickery and Dr Bertucen were of the view that the Applicant would be able to engage in another type of suitable employment, although Dr Pilsky was of the view that the Applicant would not be able to work full time, but that the Applicant would be capable of working four to five hours every second day in a suitable occupation. I accept the evidence of Dr Pilsky that this might appropriately be clerical work.
I note that the Applicant has been certified as partially incapacitated by his General Practitioner on a number of occasions since 21 January 2019. On the evidence before the Tribunal, it is impossible for the Applicant to return to working in his previous employment in the security industry. This is not simply because it may be difficult for him to do so. The medical evidence is quite clear that he cannot return to such work.
From January 2019, I find that the Applicant still had a partial incapacity for work within the definition of section 4(9) of the Act.
Having dealt with the anterior question in relation to incapacity, the Tribunal must now make a determination as to section 19(2) of the Act. The Tribunal was presented with no evidence as to the amount of compensation payable and how it should be calculated. I note that any calculation by the Tribunal in these circumstances is likely to be both arbitrary and unfair. Certainly, the Respondent did not suggest any calculations or amounts or present any evidence in this regard to the Tribunal. I note further that the issue was not addressed in either party’s Statement of Facts, Issues and Contentions, nor in evidence before the Tribunal and was raised in final submissions.
Contrary to the Respondent’s submissions, it is not necessarily a matter for the Tribunal to determine what would constitute suitable employment for the Applicant and how much the Applicant would be able to earn in a particular situation. There are a number of decisions where the Tribunal has taken this approach (Tregear and Australian National University [2019] AATA 316; Ramirez Gamonal and Comcare [2019] AATA 3321; Ganley and Comcare [2003] AATA 14; Martin and Australian Postal Corporation [2002] AATA 250). These are matters which in the circumstances of this case are properly to be determined by the Respondent.
In light of the findings above, it is appropriate for the Tribunal to remit the issue of determining the monetary compensation available under section 19(2) of the Act to the Respondent.
Decision
Given the evidence before the Tribunal, the correct or preferable decision is to set aside the reviewable decision dated 22 March 2019 and for the matter to be remitted to the Respondent to make a determination on the amounts payable to the Applicant pursuant to sections 16 and 19 of the Act in light of the findings of the Tribunal.
The Applicant has also sought that the Respondent pay the Applicant’s costs on a party / party basis, as agreed or taxed. Such orders are very rare in the Tribunal and I find nothing in this case which would warrant such an order.

I certify that the preceding 182 (one hundred and eighty -two) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...........................[SGD].............................................
Associate
Dated: 8 April 2021

Date(s) of hearing: 23, 24 and 25 November 2020

Counsel for the Applicant: Dan Steiner

Solicitors for the Applicant: Shalyn Matthew, Gerard Malouf & Partners

Counsel for the Respondent: Matthew Gollan

Solicitors for the Respondent: Emily Stower, HWL Ebsworth Lawyers

Date(s) of hearing:	23, 24 and 25 November 2020
Counsel for the Applicant:	Dan Steiner
Solicitors for the Applicant:	Shalyn Matthew, Gerard Malouf & Partners
Counsel for the Respondent:	Matthew Gollan
Solicitors for the Respondent:	Emily Stower, HWL Ebsworth Lawyers