Hennessey-Milne and Comcare (Compensation) - [2018] AATA 4453

Hennessey-Milne and Comcare (Compensation) [2018] AATA 4453 (28 November 2018)
Division:GENERAL DIVISION
File Number: 2016/6090
Re:Christopher Hennessey-Milne
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:28 November 2018
Place:Canberra

The Tribunal affirms the Decision under review.
........................................................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION – appropriate diagnosis - underlying personality issues – ongoing adjustment disorders – whether Applicant suffered an ailment or aggravation of an existing ailment – whether applicant suffered a psychiatric condition caused by, or materially contributed to, by his employment – New South Wales Police Force – Department of Education and Training – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Abrahams v Comcare [2006] FCA 1829; 93 ALD 147
Australian Postal Corporation v Lucas (1991) 33 FCR 101
Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219
Bird v Commonwealth (1988) 165 CLR 1
Comcare v Mooi (1996) 69 FCR 439
Comcare v Porter (1996) 70 FCR 139
Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Lim v Comcare [2016] FCA 709
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
National Australia Bank Ltd v Georgoulas [2013] FCA 1412; 217 FCR 882
Newham and Australian Telecommunications Company (1990) 22 ALD 783
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Pedersen and Comcare [2016] AATA 449.
Pettiford and Comcare (2014) 139 ALD 411
Prain and Comcare [2014] AATA 593; 142 ALD 393
Prain v Comcare [2017] FCAFC 143; 256 FCR 65
Read v Military Rehabilitation and Compensation Commission [2018] FCA 848; 158 ALD 537
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328
SECONDARY MATERIALS
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
REASONS FOR DECISION
Deputy President J Sosso
28 November 2018
INTRODUCTION

Mr Christopher Hennessey-Milne (the Applicant) applied to the Tribunal for a review of a decision by Comcare of 27 October 2016, that it had no present liability for medical expenses and incapacity payments under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) – Exhibit 1 T1 pp. 12 – 20.
The Applicant had an accepted workers’ compensation claim in respect of major depression/anxiety disorder and post traumatic stress disorder (PTSD), with a date of injury of 26 May 2005 – Exhibit 1 T3 pp. 22 – 35.
APPLICANT’S HISTORY UNTIL 2004
The Applicant was born in 1972 and is currently 46 years of age. He grew up and attended school in Sydney, where he claimed he experienced a stable family life and had good relations with his parents and his older brother – Exhibit 1 T5 p. 46.
After graduating from high school in 1989, the Applicant commenced working as a laboratory assistant at the University of Sydney. The Applicant testified that during the time he was employed in this capacity he experienced no interpersonal problems with his co-workers – Transcript (Tr.) 21 May 2018 p. 15.
In 1994 the Applicant commenced work carrying out coal seam stress measurements with the South Coast Coal Mines. This employment required the Applicant to go underground and drill holes to determine whether the overburden of the rock structure had sufficient structural integrity to hold up the coal mining operations. The Applicant testified that this work involved a risk to his well-being but that he was not stressed and in fact enjoyed it – Tr. 21 May 2018 p. 16.
Between 1995 and 1999 the Applicant was enrolled at the University of Newcastle and completed a Science Degree, first majoring in geology but later in biology – Tr. 21 May 2018 p. 16.
It was during this time that the Applicant met his future wife who was also enrolled in a Science degree. They married on 13 November 1999 – Exhibit 1 T5 p. 47.
During 2000-2001 the Applicant was employed by the New South Wales Police Force. He commenced duties as a probationary constable. The Applicant testified that he had hoped to be employed in a scientific or forensic capacity, but was posted to Coonamble for three years – Tr. 21 May 2018 p. 16.
Prior to being posted to Coonamble, the Applicant apparently enjoyed his Police service. In 2005 he informed Mr Ken Smith, a Rehabilitation Consultant, as follows – Exhibit 1 T5 p. 47:
“…his mentors were good, knowledgeable and encouraging. He felt a purpose in life. Being involved in real policing gave him the feeling he was making a real difference of benefit to the community. He also realised that he would have to learn policing before getting into Scientifics.
After the 2000 Olympics he was schooled in public order policing and given riot training. Mr Hennessy-Milne reported that he enjoyed working with police who were relaxed, not officious and not out to start trouble. He learnt how to handle suicide matters, traffic incidents and break and enters…”
After being posted to Coonamble, the Applicant began experiencing difficulties at work. He told Mr Smith that his only support was a Detective Constable who personally mentored him and a husband and wife police team – Exhibit 1 T5 p. 47. He, apparently, had indifferent to bad relations with other police officers, and gave the following testimony – Tr. 21 May 2018 p. 17:
“In terms of the interactions between you and your co-workers, were there any particular behaviours towards you that you found problematic? --- Yes. The constant reminders of when I made mistakes in previous months was – was very disheartening and belittling. The way that other constables would talk to me and not give a good explanation of how to do a particular job, whether it was using the police computer system or how to operate certain pieces of - of machinery that I didn’t get trained in during the academy. There was no – there was not – they were – I felt they were too busy or didn’t want to teach me how to become a police officer after I left the academy.
And what effect did those matters that you’ve just described have on you as time went by, if anything? --- I felt a total failure. I felt like a loser. During my time, I felt that maybe policing wasn’t the best choice, or maybe policing in a small country town wasn’t the best choice. I discussed this matter with my wife.”
The Applicant told Mr Smith that by the latter part of 2001 he was so stressed that he was becoming irrational and “considered ending it all with his service pistol, because he was being seriously bullied now by his colleagues and didn’t know how to react to their treatment. He could feel himself ‘unravelling’” – Exhibit 1 T5 p. 47.
The Applicant developed a significant drinking problem, and he informed Dr Robert Lewin in November 2008, that during his time in Coonamble, he was consuming 30 or more standard alcoholic drinks daily or in excess of 200 standard drinks per week – Exhibit

1 T32 p. 196. This, in turn, led to disputes with his wife and a general deterioration in his married life.
Contemporary police records disclose that on 3 August 2001, the Applicant commented to staff at Coonamble Police Station that due to work relationship issues he did not trust himself with his firearm. His service revolver was removed and the Applicant took sick leave from 3 August 2001 until 10 August 2001. The Applicant was not immediately given his service revolver on his return to duties – Exhibit 9 p. 9.
In a memorandum dated 20 August 2001, Acting Inspector Desmond Organ determined that the Applicant be restricted to non-operational duties, and he had a number of restrictions placed on him (e.g. not to work alone in public areas of the Coonamble Police Station alone) – Exhibit 9 pp. 10, 14.
On 16 October 2001, an incident occurred involving the Applicant and a fellow Police Officer – Exhibit 9 p. 16. A previous incident of the same general nature involving the same Police Officer had been reported in May 2001 – Exhibit 9 p. 6. The Applicant is reported to have agreed that the 16 October 2001 incident had occurred and he is reported to have said that: “I was stupid” – Exhibit 9 p. 16.
The Applicant testified that matters “came to a head” by November 2001 when he felt suicidal and unloaded his firearm – Tr. 21 May 2018 p. 17.
Police records disclose that on 19 November 2001 the Applicant contacted Walgett Police Station by telephone. The Applicant informed the Police Officer who answered his call that he was resigning from the Police Service, that he was unable to handle working at Coonamble due to recent events and then broke down and starting crying. He then said that he would carry out what he intended to do in August, and when asked what that was, he outlined a previous suicide threat. Very shortly thereafter Police went to the Applicant’s home and the Applicant was transported to Coonamble Hospital for assessment – Exhibit 9 p. 22.
The Applicant subsequently resigned from the Police Force. Mr Smith noted that the Applicant was diagnosed at this time with Acute Stress Disorder, which he stated later became PTSD – Exhibit 1 T5 pp. 47 – 48. Ms Yvonne Fisher, Psychologist, noted in a report dated 25 October 2005, that the Applicant had been diagnosed with depression in 2001 but had “recovered from this episode….and was not depressed prior to the playground incident in April 2005” – Exhibit 1 T8 p. 66.
The Applicant and his wife decided to make a fresh start as teachers, and in 2002 the Applicant enrolled at the University of Technology (Ku-ring-gai Campus) and was awarded a Diploma of Education after completing full-time studies for one year – Tr. 21 May 2018 p. 19.
The following year (2003) both the Applicant and his wife obtained employment in the ACT Department of Education and Training as full-time teachers. The Applicant’s first posting was to Alfred Deakin High School, where he taught mathematics and science. When asked by Mr Grey of Counsel if he had any difficulties interacting with staff or students, the Applicant answered in the negative – Exhibit 1 T5 p. 48; Tr. 21 May 2018 pp. 19 – 20.
In early 2003 the Applicant developed an episode of diarrhoea whilst on a camping holiday which lasted approximately four weeks when it resolved spontaneously. However, in September 2004 the condition returned and soon thereafter the Applicant began bleeding from the bowel. Dr Roger Lee, in a report dated 27 October 2004, diagnosed the Applicant with ulcerative colitis – Exhibit 8 p. 11. A colonoscopy was performed and

Dr Lee concluded that the Applicant was suffering from inflammatory bowel disease, probably Crohn’s disease, and prescribed Prednisone 50 mg daily and Salazopyrin – Exhibit 8 p. 12. On 23 November 2004, Dr Lee, after examining the Applicant, opined that he had “made an excellent recovery from his colitis” – Exhibit 8 p. 19. This diagnosis was reconfirmed when the Applicant was further examined by Dr Lee on 21 December 2004 and 29 March 2005 – Exhibit 8 p. 20 – 21. Dr Lee reduced the Applicant’s dosage of Prednisone from 10 mg to 5 mg daily on 21 December 2004 with the expectation that it would cease being prescribed one week thereafter – Exhibit 8 p. 20. The Applicant testified that the “cortisone” made him hungry and short tempered – Tr. 21 May 2018 p. 20.
GOLD CREEK SCHOOL
In early 2004 the Applicant transferred to Gold Creek School where he was appointed as a Science Teacher Level 1 and assigned Year 8 and Year 9 students – Exhibit 1 T5 p. 51. The Applicant testified that for his first year at the School there were no significant problems; however, when a new Principal was appointed, with consequent administrative changes, problems arose – Tr. 21 May 2018 pp. 20 – 21.
The evidence discloses that in November 2004, Mr Ross Butlin was appointed Principal of Gold Creek School – Exhibit 1 T5 p. 44.
Mr Smith recorded the following description of how the Applicant perceived his time at the School – Exhibit 1 T5 p. 48:
“Transferred to Gold Creek School, Mr Hennessey-Milne reported that he served five terms before encountering serious difficulties. He stated that he progressively found himself becoming more and more angry during 2004 and it built up to a crescendo in Term 1, 2005 before he was reported to the Principal by colleagues for venting anger in the staffroom in an inappropriate way. The Principal interviewed him on the last day of Term 1, 2005 and he has not worked since.
Mr Hennessy-Milne reported that the reason for his anger building up was because he saw the same thing happening to him as happened at the NSW Police. He was placed in no-win situations, for example ‘playground duty involved breaking up endless school fights’. He reported feeling vulnerable and scared in doing his duty as an arbiter in the playground. He felt other teachers would not engage in these matters or offer assistance to him. He claimed he was not given backup support for doing his job and felt powerless.”
The Applicant prepared a Statement which, although undated, bears a date stamp of

2 August 2005 and was annexed to his compensation claim. In the Statement, the Applicant set out his recollection of the events that led to him making a compensation claim – Exhibits 1 T5 pp. 41 – 42; 9 pp. 31 – 32:
“1. Around the second or third week of Term 1 2005, approximately mid February, I was involved in attempting to prevent a fight from occurring in the playground of Goldcreek School, senior campus. The majority of the school cohort was in attendance. I felt that I had a duty of care to the combatants and witnesses and was required to diffuse the situation. I attempted to negotiate with the people involved, however the press of students hindered me. I felt that I was unable to push through the group of observing students without putting myself at risk of potential assault complaints made by the students or injury to myself.
2. After the matter, I became very anxious of potential ramifications in relation to how the situation was handled. I was also remembering similar situations that I had been in, and became terrified at carrying out playground duty. During the altercation, I received no support from other teachers, or the deputy principal to assist in diffusing the situation.
3. Some days later, I was spoken to by the Deputy Principal in relation to my actions and asked why I acted in the way I did, and why I did not do more to attempt to prevent the altercation from happening. I was also questioned in relation to how I acted when dealing with a particular student. I explained the situation fully to her, stating that I was unable fully understand (sic) the situation as there were numerous students looking on, and I had no way to approach the combatants. I also voiced my concerns about possible complaints or injuries. I felt that she was dismissive of my concerns and thought I was under stress.
4. I voiced my concerns again at a staff meeting, and felt my concerns should not be taken seriously. I felt that going on playground duty to carry out my legal obligations of duty of care to students was putting me at risk. Consequently, I had more and more anxiety about my duties.
5. I was becoming increasingly irrational and short tempered as the term proceeded. Furthermore, I was becoming confused and concerned about my state of mind.
6. Regularly, approximately once every two or three days, during playground duty, I was involved with fights and altercations between students. After these fights, I was becoming increasingly dysfunctional and unable to concentrate. My heart rate and breathing rate increased, I had head rushes and became shaky. I found it difficult to reach lessons after these incidents, and my temper was extremely short. These feelings continued for a number of hours, even up to a day afterwards. I was becoming very concerned that I would say something unprofessional during these incidents…
8. On Friday the 8^th of April, 2005, an event occurred that compounded the matter. I took my class out onto the basket ball courts on the last period of the day, to do some out door Mathematics activities. A number of previous students were sitting outside the school, near where I was situated. I was aware what the circumstances why these students were no longer attending the school (sic). I was concerned for the welfare of my class. Before I was able to remove my class, Stephen James-Smout, a School Leader C, approached me and questioned me in an aggressive manner why I had not asked these people to move on. I felt that I was expected to control my class, and remove these people without his support. My class contained a number of challenging students, one of which was acting in an aggressive manner towards me and other people in the class. In my opinion that I was unable control either situation (sic).”
9. At the end of the same day a second incident involving a student occurred. This incident involved a student who was acting towards me in an aggressive and threatening manner…”
The Applicant testified that the school brawl he encountered involved somewhere between 100 and 200 students. Some of those involved “were as large as myself and some of them boasted that they were known to police or known to criminal families.” Further, the Applicant testified that his efforts to stop the brawl were met with “absolute disdain” and some of the students told him to “fuck off”. The Applicant testified that he was in fear that he would get punched and that some of the smaller students who were watching the brawl would get injured. The brawl only ceased when the school bell was sounded marking the end of the lunch period, and the brawl lasted for about 45 minutes – Tr. 21 May 2018 pp. 21 – 23.
It should be noted that the School Principal, Mr Butlin, in a report dated 18 August 2005, disputed this version of events. He made the following comments in response to paragraph 1 of the above Statement – Exhibit 1 T5 p. 39:
“The school does not have any record of this particular incident involving Chris as far as I can calculate. As the date is not specified it is difficult to correlate any incident reports. The incident reports of this time do not mention Chris.”
The Applicant’s testimony about the events of 8 April 2005 is not consistent with paragraph 8 of his 2005 Statement – Tr. 21 May 2018 pp. 23 – 24:
“There is a record of another incident happening in around 8 April that year that concerns I think what are described as previous students sitting outside the school near where you were doing some outdoor mathematics activities with your class. Do you remember that? --- I do remember that.
That involved an executive teacher called Stephen James Smoult, I believe.
What happened? Just tell us what happened briefly? --- Stephen James Smoult came up to me and demanded to know why these students were sitting near the school. I hadn’t actually noticed these students, nor did I recognise them to be either previous students or students of the school. I was more interested in trying to teach my mathematics class.
What did Mr James Smoult say to you? --- Words to the effect of, ‘Why are those students there and why haven’t you sent them away?’
What did you say?--- I said I didn’t even notice them, I was concentrating on teaching my mathematics class.
Was there any consequence from that interaction?--- I felt very disappointed and offended that a teacher would barge into my class and ask an explanation about something that had nothing to do with me.
Did it have any effect on your state of mind? --- Yes, it had. It made me even more – made me feel even more angry; made me feel even more unsupported and even more disillusioned.”
The two accounts are quite different. In the 2005 Statement, the Applicant asserted that he noticed the ex-students and was making efforts to move his class. However, in his testimony the Applicant testified that he did not notice or recognise the former students. The Applicant was cross-examined by Ms Wright of Counsel on these discrepancies. The Applicant’s explanation was as follows – Tr. 21 May 2018 pp. 49 – 50:
“As I said, this is now 13 years old, or thereabouts, and my memory hasn’t been as good as I would like it to be with all the things that have happened, particularly over the last two years.”

Mr Butlin provided a report on the Applicant which is dated 17 April 2005. He noticed a decline in the Applicant’s demeanour during 2005, which was also commented on by other staff members. He referred to a Swimming Carnival where the Applicant acted in an introverted manner and gave short, sullen answers to people’s questions and conversation. Mr Butlin was concerned that the Applicant was depressed, and stated that the Applicant told him that he was stressed, his wife was unwell, he was uncomfortable in the playground and with some students in the classroom. Mr Butlin claimed that the Applicant was then worried about his future and was drinking heavily.
Mr Butlin also referred to concerns raised by students, which included – Exhibit 1 T5 pp. 44 – 45:
“Speaking to students inappropriately such as saying – ‘I’ll kill you! I’ll be out in only six years, and then I can come back to teaching’
Shouting – ‘I’m f***ing sick of you’
Discussing his history of psychiatric admissions with the class
They also raised concerns about some erratic behaviours including:
Slamming book boxes together
Punching the wall and thumping the whiteboard
Kicking the furniture
Roaring at the class when the class was quiet
Regularly yelling at the class
Whole class punishments.”
The Applicant denied, when giving evidence, that he had ever threatened to kill a student – Tr. 21 May 2018 pp. 25 – 26.
Mr Butlin concluded his report by stating – Exhibit 1 T5 p. 45:
“My concern for his well-being and for the safety of the students at Gold Creek, prompted me to contact Injury Prevention.”
When questioned by Mr Grey, the Applicant said that he was concerned as well, and then elaborated – Tr. 21 May 2018 p. 24:
“I was concerned that I was becoming a danger to myself and a danger to the students. I was also concerned that I was unable to properly do my job.”
The events of 8 April 2005 were on the final day of Term 1, and the Applicant did not return to work at Gold Creek School thereafter – Exhibit 1 T5 p. 48.
EVENTS AND MEDICAL TREATMENT 2005 - 2009
The Applicant was examined by Dr Leon Le Leu, Occupational Physician, on 19 April 2005, who referred him to Dr Graham George, Consultant Psychiatrist. Dr George assessed the Applicant on 12 May 2005 and prepared a report dated 16 May 2005 – Exhibit 8 pp. 25 – 29.
The Applicant informed Dr George that he had felt depressed over the past few months and had been unable to get enjoyment out of normal activities. Despite this, his sleep had been reasonable and he had not noticed much difference in his appetite or libido. Overall, the Applicant described himself as feeling morose and suffering panic attacks several times a day – Exhibit 8 p. 27.
Dr George diagnosed the Applicant with generalised anxiety disorder with panic phenomena. Dr George’s conclusions were as follows – Exhibit 8 p. 29:
“It appears he was not coping well in the workplace. He has become progressively depressed over time and he may have a clinical depression underlying his current anxiety. However, essentially, he presents with a Generalised Anxiety Disorder with panic phenomena.
Mr Hennessy-Milne has had no treatment for his anxiety. He is in need of anxiety management education in a cognitive behavioural framework. He should continue to attend an B.A.P. Counsellor and he may need up to twelve sessions with a psychologist. He also needs to be on anti-depressant medication with anxiolytic effect and I suggest he talk to his doctor with respect to this.”
Dr Le Leu provided a copy of this report to the Gungahlin Medical Centre so that the Applicant could receive the appropriate medication and treatment from his General Practitioner (GP) – Exhibit 8 p. 31. In his correspondence with the Gungahlin Medical Centre, Dr Le Leu opined that he felt that it was most likely that the Applicant was suffering from depression.
On 26 May 2005, the Applicant presented at the Gungahlin Medical Centre and was treated by Dr Felicity Donaghy. She observed that the Applicant presented with symptoms of lowered mood, irritability, anxiety, anger, anhedonia and inability to concentrate.

Dr Donaghy outlined the Applicant’s experience at Gold Creek School and said that this had triggered memories of his experience as a Police Officer “where he witnessed violence and felt he was unsupported by his colleagues.” – Exhibit 1 T4 p. 36.
Dr Donaghy diagnosed the Applicant with a major depressive episode with post-traumatic stress disorder.
Dr Donaghy referred the Applicant to Dr May Matias, Consultant Psychiatrist. Dr Matias continues to treat the Applicant and the Applicant testified that he has always had a good rapport with her and that he honestly had told her over the years how he felt and why – Tr. 21 May 2018 p. 27.
In a letter to Dr Matias dated 3 June 2005, Dr Donaghy referred to the Applicant’s history of depression related to his service as a Police Officer and noted that he left the service in 2001 “because of the violence and corruption he had been there for 18/12.” – Exhibit 8 p. 45.
At the date of this referral, Dr Donaghy stated that the Applicant was being prescribed Aropax 20mg 1 daily and Salazopyrin tablet 500mg once daily – Exhibit 8 p. 45.
Dr Matias provided a report to Dr Donaghy which is dated 7 June 2005. The contents of this report are not materially different to the report of 28 August 2005 below – Exhibit 8 pp. 46 – 48.
On 15 June 2005, the Applicant submitted a claim for compensation where the diagnosed condition was said to be depression/anxiety disorder and post-traumatic stress disorder and that he had been injured at the Gold Creek School playground – Exhibit 1 T3 pp. 25, 27. The details of the events leading up to and following the injury were said to be in an Attached Statement, which is the document set out above at paragraph 25. The Applicant reported that he had been referred to Dr Matias – Exhibit 1 T3 p. 25.
In response to a Question about whether he ever had a similar symptom, injury or illness before, the Applicant answered that he had experienced anxiety stress disorder, and had been treated by Dr Veronica South on 9 May 2002 – Exhibit 1 T3 p. 26. Dr South was at that time a Sydney based consultant psychiatrist, and the Applicant was treated by her several times – Exhibit 1 T7 p. 62.
On 10 August 2005, Dr Matias wrote to Dr Donaghy and reported that the Applicant was responding well to Aropax and that his symptoms were slowly improving with decreased irritability, better sleep and increased motivation – Exhibit 8 p. 54.
Dr Matias supplied a report to Comcare on 28 August 2005 – Exhibit 1 T6 pp. 53 – 59.

Dr Matias outlined the version of events she was provided by the Applicant, and upon which she based her assessment. She noted that the Applicant told her that he had other non-specific work-related depressive symptoms, including: poor sleep, early morning wakening, poor concentration, memory psychomotor retardation and decreased libido and energy. She also reported that the Applicant had considered suicide and had a plan for shooting himself with a shotgun.
Dr Matias reached the following conclusion about the then mental state of the Applicant – Exhibit 1 T6 pp. 54 - 55:
“I believe Mr Hennessy-Milne suffers from a depressive episode, according to definition stated from ICD10 Classification of Mental and Behavioural Disorders. He qualifies for the diagnosis and fulfils the following criteria: Depressive episode – last for more than two weeks. He reports depressed mood to the degree that he is abnormal which is present for most of the day and almost every day. This has sustained for at least two weeks. There is loss of interest in activities which are normally pleasurable and he reported decrease in energy. He also reports a loss of confidence, decreased libido, recurrent thoughts of death and suicide, decreased self confidence with diminished ability to concentrate, as well as psychomotor retardation and sleep disturbance. There is also a change in appetite noted by the patient. There are no hallucinations or delusions noted and this episode is not attributed to a psycho-active substance or any organic cause. There is also no evidence of any previous hypermanic or manic symptoms.
This depressive episode is described as severe without psychotic symptoms due to the number of somatic symptoms present and the level of distress is severe. There is also significant loss of function sustained by the individual.”
Dr Matias opined that the Applicant’s “depressive episode” was caused by repeated exposure to schoolyard violence, exacerbated and perpetuated by feelings of powerlessness and being unsupported in his role as a teacher – Exhibit 1 T6 p. 55.

Dr Matias outlined the following employment factors which she opined were directly linked to the Applicant’s condition – Exhibit 1 T6 p. 56:
1Repeated exposure to schoolyard violence
2Poor support by management and other teachers whilst performing playground duty
3Lack of measures of ventilation and debriefing to support traumatised employees doing schoolyard duty.
Dr Matias was of the view that the Applicant’s then current condition was not due to a pre-existing condition, but developed from exposure to schoolyard violence. She gave the following assessment – Exhibit 1 T6 p. 55:
“From the history, Mr Hennessy-Milne was not suffering from any psychiatric problems prior to this episode, which started in Term 1 in 2005. However, Mr Hennessy-Milne did have vulnerability to developing anxiety disorders and depressive episodes, due to his previous experience in the police force. I believe his past psychiatric history he suffered from an acute stress disorder due to workplace stress (sic). Mr Hennessy-Milne did not receive any treatment for this acute period of stress whilst in the police force and his symptoms remitted when he left the force.”
Dr Matias opined that the Applicant was “vulnerable” to developing depressive and anxiety symptoms, stating that this was:
“due to his previous episode of acute stress suffered whilst he was in the Police Force, which has made him more sensitive to similar situations, which makes him more susceptible to developing clinical syndromes, namely major depression and anxiety disorders such as Post Traumatic Stress Disorder.” – Exhibit 1 T6 p. 57.
Finally, Dr Matias opined that the Applicant would be unfit to work for approximately three to six months, and his recovery would be dependent upon his response to anti-depressant medication and psychological treatment – Exhibit 1 T6 p. 57.
At the request of Comcare, the Applicant was assessed on 12 September 2005 by

Dr John Saboisky, Consultant Psychiatrist. In his report of 30 September 2005,

Dr Saboisky opined that the Applicant had suffered from an adjustment disorder with both features of anxiety and depression, specifically linked with his inability to cope adequately with conflict within the school playground. Dr Saboisky, however, also referred to the Applicant’s alcohol problems and the fact that he was being treated with steroids in late 2004. He stated – Exhibit 1 T7 p. 64:
“…steroids are notorious for causing mood instability and may have been the major cause of his mood and behavioural dysregulation.”
Dr Saboisky opined that it was “improbable” that the Applicant’s then current condition was due to a pre-existing condition, but that he “may have been predisposed because of a pre-existing condition” – Exhibit 1 T7 p. 64. Moreover, Dr Saboisky found it “difficult to believe” that the playground incidents “could have caused the type of illness that he had” and thought it possible that the emotional dysregulation was caused by steroids and aggravated by work factors – Exhibit 1 T7 p. 64.
Dr Saboisky opined that there was a relationship between the Applicant’s condition and his employment, but was unsure whether the work-related problems were the result of his condition or whether they caused his condition – Exhibit 1 T7 p. 64.
Finally, Dr Saboisky opined that the Applicant was then “over the worst of his condition” and was fit to return to work, though not at Gold Creek School.
It was at this time that the Applicant had a “flare” of colitis and he was again prescribed steroid treatment, despite the potentially negative side effects with respect to his mood – Exhibit 8 p. 66.
Comcare requested a further report from Dr Matias, and in her report of 23 November 2005, she referred both to the Initial Needs Assessment of Mr Smith as well as the above report of Dr Saboisky.
Dr Matias was in general agreement with the observations and conclusions of Mr Smith, but disagreed with Dr Saboisky’s observations about the possible impact of the Applicant’s steroid use. Whilst conceding that steroids may affect mood, Dr Matias pointed out that the Applicant ceased taking steroids before the commencement of Term 1 2005. Dr Matias agreed with Dr Saboisky that the Applicant had a previous history of depression, but by the time he commenced teaching, he had recovered from his experiences with the New South Wales Police Force. As to the Applicant’s vulnerability, Dr Matias made the following observations – Exhibit 1 T10 pp. 72 – 73:
“I also agree that Mr. Hennessy-Milne has a vulnerability to developing depressive episodes because of his past history and sensitivity to criticism. I would think that ‘the meaning’ of the incident, the sense of failure, but more so the sense of being criticised for his actions whilst ‘in the line of duty’, struck a similar cord to his previous experience which was enough trigger for the development of his condition. In my opinion, I can understand and believe that he incident (more so the meaning of it) would be enough to have caused the illness currently suffered by Mr. Hennessy-Milne. It is clear to me that the work-related issues caused the condition, and also aggravated the condition as it was left untreated (not nipped in the bud and therefore allowed to progress and it was only when his behaviour had obviously and clearly deteriorated that he Principal acted on it, if the condition was treated early and support and reassurance was given immediately then this would not have escalated to this extent.)”
On 29 November 2005, a Comcare Claims Manager denied liability to pay compensation pursuant to s 14 of the Act. Detailed reasons were given, and the various medical reports outlined above were analysed as well as the reports of the Mr Butlin. The Comcare Delegate reached the following conclusion – Exhibit 1 T11 p. 82:
“There is no evidence before me to corroborate your claimed contention that you were subjected to fights and altercations during play ground duty regularly and approximately once every two to three days. In the absence of evidence demonstrating that the incidents or state of affairs reported by you actually occurred, I am not satisfied that your condition was contributed materially by your employment.”
The Applicant requested a reconsideration of the Determination.
Dr Lee reported on 15 December 2005, that the Applicant “seems to have made a dramatic improvement, both physically and mentally….He is also on Aropax and Sodium Valproate for his mood disturbance, and these seem to be keeping it under much better control.” – Exhibit 8 p. 86.
Dr Matias reported on 19 January 2006 that the Applicant was “going well…At present he is euthymic in mood, there are no current suicidal thoughts. He seems insightful about his problems with impulsivity and anger.” – Exhibit 8 p. 87
On 8 February 2006, Dr Matias wrote to Dr Donaghy stating that she was “happy to support his return to work for three days a week, full days, and will review it in a month’s time.” – Exhibit 8 p. 88
On that day the Applicant agreed to a graduated return to work program commencing on 13 February 2006 for three days per week. The duties to be performed were as a Teacher level one instructing in Maths and Science at Campbell High School. In the initial stages of the graduated return to work program, the Applicant was working as a support teacher under the supervision of a suitable senior teacher – Exhibit 8 pp. 90 – 92.

Dr Matias reported on 15 March 2006 that the Applicant was enjoying his return to work – Exhibit 8 p. 93.
On 9 March 2006, an Independent Review Officer revoked the decision of

29 November 2005 and found that the Applicant was entitled to compensation under s 14 of the Act for major depressive disorder, single episode and PTSD. The reasons given by the Independent Review Officer are set out below – Exhibit 1 T13 pp. 93 – 95:
“The medical evidence contained in the file indicates that the employee suffered a psychological injury. I am convinced, as was the primary determination Comcare Officer, that the employee did suffer a psychological condition. Each of the doctors who examined the employee has described the employee’s condition under a different name. I find that the employee suffered a ‘major depressive disorder, single episode and post traumatic stress disorder’…
The key question is therefore whether the employee’s employment with ACT Department of Education and Training materially contributed to the contraction of his condition…
I consider that the evidence in front of me provides support for the employee’s claim. The majority of medical evidence supports the employee’s claim that his condition was materially contributed to by events at work that actually happened…
Mr Hennessy-Milne did indeed have a previous history of depressive episode, but he recovered from this, completed a Graduate Diploma in Teaching and worked as a teacher. The employee’s last consultation with a Psychiatrist was in 2001. According to the doctors who examined Mr Hennessy-Milne, the episode under review is not due to a pre-existing condition. In their opinion, Mr Hennessey-Milne was predisposed and highly vulnerable to developing depressive and anxiety symptoms due to his previous episode of acute stress suffered whilst he was in the AFP (sic)…
I also note that the employee’s claim is not supported by Mr Ross Butler (sic), Principal of Gold Creek School. Mr Butler (sic) has indicated that the issues raised regarding the circumstances of the alleged injury were not substantiated as there is ‘insufficient evidence’. Mr Butlin reports, in his statement dated 18 August 20005 (sic), that school does not have any record of the particular incident involving the employee and that the incident reports of the time do not mention the employee.
I do agree, as pointed out by the initial determination Comcare Officer, that there are unclear aspects in the evidence corroborating the employee’s account of the workplace events that allegedly gave rise to the condition suffered…
The account of workplace events has not been supported by the employee’s supervisor, however I am satisfied that the events alleged to have led to the employee’s condition have indeed happened. The cause of the injury is identified in the various documents on file (explicitly or implicitly) as being anxiety, anger, stress, feelings of inadequacy due to violence between students in the playground and his inability to stop this behaviour.
The employee has been consistent with his story of precipitating factor for his depressive episode, i.e. the incident in the playground duty in Term 1 2005.
Despite the fact that the Principal has no records of the events, he acknowledges that ‘playground duty’ was one of the concerns raised by the employee during their meeting, which has internal and external consistency….
I am satisfied the employee has been exposed to some incident or state of affairs in the course of the performance of his duties that he would not otherwise be exposed to. The employee’s perception of events is different to that of the employer, however, having regard to previous case law, particularly that of Wiegand v Comcare, it matters not whether others think his perception is reasonable or unreasonable…
Based on the above, I have deemed the date of injury to be 26 May 2005 as this is the first date the employee sought medical treatment with regard to his condition.”

By April 2006, problems developed with the Applicant’s teaching position. An incident occurred with a student which created doubts in the Applicant’s mind about teaching, and as a result, the placement was discontinued – Exhibit 1 T23 p. 154. The Applicant gave the following testimony about his time at Campbell High School – Tr. 21 May 2018 p. 28:
“At Campbell High School I felt as if I wasn’t actually returning to work, but was under a performance supervision disciplinary action, and I still had the nerves and anxieties involving working with students, and playground issues. A child at Campbell High School recognised me because he was at Gold Creek the year before.”
The Applicant independently sought employment with the Department of Health and Ageing and was awarded a temporary A06 position for 6 months. On 14 June 2006, the Applicant was reported to be enjoying his new position, but two weeks later his employment was terminated due to budget cuts – Exhibit 1 T23 p. 155.
Dr Matias, in a report sent to Dr Donaghy dated 30 August 2006, noted that the Applicant presented as:
“…unkempt, physically unfit and unmotivated. I do not think that he is clinically depressed but he is presenting as an adjustment disorder because of the current situation he is finding himself in about Comcare and his failed attempt to move to NHMRC.” – Exhibit 8 p. 102
The Applicant was admitted to the Hyson Green inpatient unit from 13 to 29 September 2006, to establish whether he had significant side-effects from his psychiatric medications for his depressive episode. The Applicant was at that time being prescribed significant doses of a mood stabiliser. The Applicant complained of periods of confusion and possible delirium. Following this his medications were changed and by the end of 2006 no further episodes were observed – Exhibit 1 T16 p. 100.
In a Rehabilitation Progress Report dated 21 December 2006, Mr Harold Bilboe, Psychologist, observed that following the Applicant’s discharge from Hyson Green, contact had been “sporadic to say the least.” At that time the Applicant had not attended psychological counselling since September 2006 and Mr Bilboe opined that the Applicant was at risk of relapse. Despite this, the Applicant participated in part-time employment with Carbatec Pty Ltd from 20 November 2006, working 26.5 hours per week as a storeman (dispatch and receipts) – Exhibit 1 T17 pp. 101 – 102. The Applicant gave the following account of this position – Tr. 21 May 2018 p. 29:
“What happened at that job? --- I had some issues with one of my co-workers, and also with customers who would come in and make unrealistic demands of things, of the shop, or of me. My co-worker would make unrealistic demands.
Right, but would impact did it have on you?--- It made me very scared to go to work, and it also made me angry.”
The Applicant ceased working at Carbatec on 21 February 2007, as he felt unable to complete assigned tasks due to poor concentration – Exhibit 1 T18 p. 104.
The Applicant next underwent a neuropsychological and psychological assessment by

Dr Tania Lioulios who is a Neuropsychologist. Dr Lioulios is also a Doctor of Philosophy. In her report of 16 May 2007, she noted that the Applicant’s symptoms had recently worsened and he had episodes of memory loss, lack of concentration and other cognitive difficulties. Clinical presentation and symptoms indicated the possibility of epilepsy or a state of confusion but a CT scan disclosed no particular issues – Exhibit 1 T18 p. 104.
Dr Lioulios opined that the Applicant’s overall profile was consistent with major depressive disorder, single episode, with features of generalised and traumatic anxiety. Dr Lioulios also diagnosed alcohol abuse/dependence and that the Applicant had a borderline personality disorder – Exhibit 1 T18 p. 112.
In reaching these conclusions, Dr Lioulios made the following observations – Exhibit 1 T18 pp. 110 – 111:
“On the PAI Mr Hennessy-Milne describes a number of problematic personality traits. He appears to be quite emotionally labile, manifesting fairly rapid and extreme mood swings and, in particular, experiences episodes of poorly controlled anger. Associated with this liability is marked impulsivity; he is probably prone to behaviours likely to be self-harmful or self-destructive, such as those involving spending, sex, and/or substance abuse; he may also be at increased risk for self-mutilation or suicidal behaviour during times of affective turmoil…
His responses to the PAI suggest that he is an individual who is easily angered, has difficulty controlling the expression of his anger, and is perceived by others as having a hostile, angry temperament. When he loses control of his anger, he is at risk of responding with more extreme displays of anger, including damage to property and threats to assault others, especially if he is overwhelmed or in cognitive overload…
Mr Hennessy-Milne indicates that he is experiencing specific fears or anxiety surrounding some situations. The pattern of responses reveals is consistent with traumatic anxiety (sic). He has likely experienced a disturbing traumatic event in the past that continues to distress him and produce recurrent episodes of anxiety…
Mr Hennessy-Milne reports a number of symptoms consistent with significant depressive episode. He reports being plagued by thoughts of worthlessness, hopelessness, and personal failure. He admits openly to feelings of sadness, a loss of interest in normal activities, and a loss of a sense of pleasure in things that were previously enjoyed. However, there appear to be relatively few physiological signs of depression (possibly due to the success of his antidepressant medication). The symptom picture appears to be relatively free of changes in energy, appetite, weight and sleep patterns…
His pattern of responses suggests that his thought processes are marked by confusion, indecision, distractibility and difficulty concentrating. He may experience his thoughts as being somehow blocked or disrupted…
Mr Hennessy-Milne reports that his use of alcohol has had a negative impact on his life. Alcohol-related problems are likely, including difficulties in interpersonal relationships, difficulties on the job, and possible health complications.
Mr Hennessy-Milne reports that drug use may be the source of some problems in his life. These problems may include strained interpersonal relationships, vocational and/or legal problems, and use of drugs to manage stress.”
From 2005 onwards, the Applicant was being treated and assessed by a number of medical practitioners, including psychologists. One of those psychologists was Mr Mal Gibson, who first treated the Applicant on 2 March 2007 – Exhibit 8 p. 112.
Mr Gibson prepared a report dated 7 May 2007 on his progress with the Applicant – Exhibit 8 pp. 114 – 116. By that time, he had conducted nine sessions with the Applicant. Mr Gibson reported that since his initial session, the Applicant had experienced significant escalation in his depression and stress and, accordingly, it was too early for the Applicant to return to work.
Dr Matias opined, in a report dated 31 May 2007, that the Applicant’s low mood and increase in anger and frustration may, partly at least, have stemmed from impatience about lack of work, which, in turn was negatively impacting his self-esteem – Exhibit 8 p. 117.
On 5 September 2007, the Applicant commenced a work trial with the ACT Department of Justice and Community Services (JACS), initially three days per week and four hours per day, and then increasing to four days per week and four hours per day on 4 October 2017. This placement ceased on 31 January 2008 – Exhibit 1 T23 p. 156.
In this role the Applicant was doing statistical compilation work and he testified that he enjoyed his time with JACS – Tr. 21 May 2018 p. 30:
“What happened?---I had – I feel I was quite successful at it. I enjoyed doing the work. It was challenging. And I was hoping that it would move on to a more permanent and stable job.
What happened though?--- Once my tenure finished there I went back home without any further employment.
Were there any problems in that particular job? I think you were there about four months. Does that sound about right?--- Yes.
Were there any problems in the interactions with either co-workers or management or customers, if there were any customers? --- No, there wasn’t.
No problems?--- No.”
The Applicant’s positive account of his time with JACS and, in particular, his relationship with co-workers, is somewhat at odds with the observations of Dr Donaghy in a letter to

Dr Zoltan Zsadanyi which appears to have been prepared in June 2008. Dr Donaghy made the following observations – Exhibit 1 T19 p. 130:
“He began a work trial in 2007 in the Public Service and was working 20 hours per week. Chris felt he performed well in this position however there were some issues regarding his attitude and interactions with his co workers.”
The Applicant’s next work trial was in February 2008 with InTACT, the insourced provider of Information Technology and Communications Infrastructure services to the ACT Government. The work trial was unsuccessful. The Applicant complained that the work he was performing was not what he was told he would be doing and that it was low level and demeaning – Exhibit 1 T19 p. 130. The Applicant testified that his employer was “more interested in me placing adhesive labels on to manila folders.” – Tr. 21 May 2018 p. 31.
The Applicant testified that he was bored, that he had been employed under false pretences and was very disappointed – Tr. 21 May 2018 p. 31.
A contemporaneous Rehabilitation Progress Report noted that the Applicant complained that he was not getting enough work and that he had been underpaid and owed money by his employer. Further, the Applicant left work on 21 May 2008 and did not return that day or the next. When staff of Dysaran Consulting (Rehabilitation and Counselling) visited his home to check his well-being, he was found to be in a very agitated and angry state, showing signs of disorganised thought and making some irrational statements. The Applicant complained that the work he was given was not worthwhile and was a waste of his time. Further, he said his work was for nothing and he was not going to return to that workplace – Exhibit 1 T20 p. 134.
On 29 May 2008, InTACT was informed that the Applicant would not be returning to work. Dysaran Consulting contacted Mr Gibson who opined that the Applicant’s current situation could be explained by situational, rather than psychological, factors. Conversely, when

Dr Donaghy was contacted she disagreed with Mr Gibson’s analysis “as these same issues have been repeating themselves for a very long time and it is not situational.” – Exhibit 1 T20 p. 137.
The ACT Department of Education and Training referred the Applicant for psychiatric assessment by Dr Zsadanyi. The Applicant was assessed on 27 June 2008 and

Dr Zsadanyi’s report is dated 14 July 2008 – Exhibit 1 T21 pp. 140 – 146.
Dr Zsadanyi reached the following conclusion – Exhibit 1 T21 pp. 143 – 144:
“I agree with previous assessments that Mr Hennessey-Milne has in the past suffered from major depressive disorder, post traumatic stress disorder and anxiety disorder with panic attacks. It is reported that in the past he has used larger quantities of alcohol but this has not a relevant factor at present (sic).
In terms of his rehabilitation, depending on where he has been placed this has impacted on how he feels e.g. when he was working with the Justice and Community Services (JACS) he reported many positive thoughts and was able to apply many of the mindfulness techniques he had learnt to keep stress levels under control. However, when he is in a position where he does not feel challenged and perceives his jobs to be menial he becomes extremely frustrated and his self-criticism increases.
It is my impression that the longer this case has progressed, the harder it has become for Mr Hennessey-Milne to move forward because he feels he has lost control over his destiny.”
Dr Zsadanyi opined that the Applicant was not fit to return to work as a teacher, but could return to a public service job that was “stimulating”. In that regard, Dr Zsadanyi observed that the Applicant’s condition improved in situations where he is intellectually challenged and where he feels fulfilled. Finally, Dr Zsadanyi opined that the Applicant at that time did not display symptoms of major depressive disorder, generalised anxiety disorder or panic attacks – Exhibit 1 T21 p. 144.
The Applicant’s behaviour around this time was variable, with episodes of aggressive behaviour towards staff of government agencies – see Exhibit 1 T22 pp. 147 – 149. At a meeting with Dr Donaghy and his Rehabilitation Consultant on 18 August 2008, the Applicant is reported to have said that he had no intention of seeking a job as it was the responsibility of the Department of Education and Training to find him one. Further, he is reported to have also said, that even if he were able to “find a job he would not resign from the Department of Education as he intended to make things as difficult and unpleasant for them as possible due to the treatment he has received from them in the past.” – Exhibit 1 T27 pp. 176 – 177.
On 3 September 2008, the Applicant made a claim for permanent impairment – Exhibit

1 T24 pp. 159 – 160. Part C of the claim (Doctor to Complete) was signed by Dr William Knox, Consultant Psychiatrist. In a report of the same date, Dr Knox gave the following prognosis – Exhibit 1 T26 p. 175:
“I believe Mr Hennessy is likely to have a partial Permanent Impairment in respect of his work and social activities in the longer term…while I believe he is fit to move on to further training and employment, he would cope poorly with work circumstances involving interpersonal stress. Given Mr Hennessy’s experience with the ACT Department of Education, I do not believe that he can usefully return to work in this, or like, environments. Neither would Mr Hennessy be able to return to police work. I believe Mr Hennessy will do best with hands-on work that engages his curiosity, and gives him a sense of fulfilment and achievement. He envisages training as a pilot, and I would not rule out him succeeding with this endeavour. Mr Hennessy, having successfully completed studies for a Bachelor of Science and then later teaching training, indicates his sufficient intelligence to cope with quite challenging training and work. His interpersonal impairments, and some other vulnerabilities in his personality, render him interpersonally sensitive, and prone to fear and reactive anger.
I believe it would be useful for Mr Hennessy to leave the current impasse in respect of relatively unsatisfactory work trials so that he could be free to find appropriate retraining and work. The longer he remains in the revolving door of low-grade work placements the longer he will remain impaired and at risk of more serious impairment.”
In reaching this prognosis, Dr Knox made observations about the Applicant’s then treating complaints, some of which are set out below – Exhibit 1 T26 pp. 170 , 172 - 173:
“Mr Hennessey describes a range of symptoms which reflect, in my opinion, an ongoing Anxiety condition, and partial chronic Posttraumatic Stress Disorder, along with certain personality traits, notably avoidance and mistrust, likely present before workplace difficulties in recent years, although significantly aggravated by the workplace difficulties…
Mr Hennessy told me that the chief focus of his treatment with Mr Gibson is his anxiety, social avoidance, and fear of angry response to perceived threat (sic). Treatment is by way of Cognitive Behaviour Therapy, utilising ‘Mindfulness’.

Mr Hennessy says he is less prone to catastrophise his perception of environmental threat, and he is better able to soothe his aroused feelings.
Likely contributed to by his medication, and the passage of time, along with removal from the threatening environment of the Gold Creek School, Mr Hennessy no longer manifests evidence of any significant degree of Depressive Disorder. He is however significantly impaired by the conditions noted above…
Mr Hennessy was exposed to violence and death in Coonamble and while I do not hold the opinion that Posttraumatic Stress Disorder is the uppermost of his problems, I believe he has come to suffer from features of such a syndrome arising out of his police work, and this was aggravated by his experiences, seeing the violence in the school environment, more recently…
Mr Hennessy has experienced episodes of Panic Attacks in the past, but no longer manifests such a condition.
There is not an enduring Anxiety Disorder which meets the standard DSM-IV diagnostic criteria (aside from partial PTSD), although there are a number of features of Generalised Anxiety Disorder. Some of his anxiety results from his PTSD, as noted earlier. ThusI offer the diagnosis of Anxiety Disorder – Not Otherwise Specified.
In respect of the Posttraumatic Stress Disorder although Mr Hennessy no longer ruminates, or has flashbacks about past violent incidents, he continues to be socially avoidant. He is however able to engage in activities and enjoy himself with his wife and an immediate friend. He remains irritable and is readily roused to anger. His concentration is impaired. He is generally hypervigilant, although does not regularly startle. There is thus an incomplete picture of PTSD at this time…
As noted earlier here are a number of features of personality dysfunction in this man, although not to the point that I would specifically diagnose any Personality Disorder. Nonetheless his pre-morbid personality does predispose him to the pattern of psychiatric impairment that he presents. Under stress the personality traits made note of have ben amplified or activated.
Mr Hennessy no longer suffers from Major Depressive Disorder, although with regular use of his antidepressant medication a depressive disorder might return. The medication also likely partially treats his Anxiety.”
This generally positive report was echoed in a report of 2 October 2008 prepared, at the request of Comcare, by Mr Gibson. Mr Gibson reported that the Applicant had achieved many positive steps towards his rehabilitation and had shown the ability to take steps towards addressing depression, anxiety and other PTSD symptoms. The Applicant had “enthusiastically embraced” the principles of mindfulness-based stress resolution and had attended every session with Mr Gibson since March 2007. Importantly, Mr Gibson reported that when the Applicant was engaged in the JACS work trial in 2007, his depression, anxiety and stress scores dropped to normal levels – Exhibit 1 T28 pp. 180 – 181.
Mr Gibson reported the following depression, anxiety and stress scores as at

19 September 2008 – Exhibit 1 T28 p. 182:
“His DASS scores at 19 September 2008 were Depression = 2; Anxiety = 2; Stress = 1, all in the normal range. His score on the PTSD Checklist Civilian version was 28 out of 85, below the cutoff point of 50 for PTSD to be indicated. We talked about his low current depression score, and he attributed this to applying the cognitive-behavioural and mindfulness techniques, in particular by not globalising setbacks (such as being rejected for a bank loan) into other parts of his life, as was his previous tendency when in a major depressive episode.”
Mr Gibson referred to a possible work placement in the Australian Bureau of Statistics (ABS) which promised intellectually stimulating work – Exhibit 1 T28 p. 184.
Dr Matias also reported positively on 3 October 2008. She opined that the Applicant’s symptoms of depression were significantly controlled by the treatment he was receiving and his PTSD symptoms had also considerably lessened. Nonetheless, she was of the view that the Applicant had ongoing Adjustment Disorder with regard to the rehabilitation, return to work process. Further, the Applicant’s frustration about not being given appropriate work exacerbated this condition – Exhibit 1 T29 p. 186.

The Applicant commenced work with ABS on 13 October 2008. He had been certified fit for work 4 days per week, 6 hours per day – Exhibit 1 T33 p. 202. His duties included “looking at how the ABS website….was used in relation to job statistics, employment statistics… I was analysing the effectiveness of the ABS website” – Tr. 21 May 2008 p. 32. The Applicant informed Dr Rajeev Kumar, Neuropsychiatrist, on 1 December 2008 that he was going “really well” at ABS – Exhibit 1 T31 p. 189. This was confirmed in a Rehabilitation Progress Report of 11 December 2008, where the relevant ABS officer informed the Applicant’s Rehabilitation Case Manager that “Mr Hennessy-Milne is performing well above any expectations and is finding the work he is submitting to be of an exceptional standard and highly valued.” – Exhibit 1 T33 p. 202. In fact ABS was so pleased with the Applicant’s work that a request was made for the work trial period to be extended until the end of February 2009.
During this period (13 November 2008) the Applicant was assessed by Dr Robert Lewin, Consultant Psychiatrist. Dr Lewin, while noting that the Applicant had a number of “residual symptoms”, opined that he was not suffering from a diagnosed psychiatric condition.

Dr Lewin made the following observations – Exhibit 1 T32 pp. 199 – 201:
“I noted the diagnosis of Post Traumatic Stress Disorder and the diagnosis of Major Depression. By the time I came to examine Mr Hennessy-Milne I was not able to make either of those diagnoses. Mr Hennessy-Milne had a number of residual symptoms but these were not sufficient to diagnose any psychiatric condition. Mr Hennessey-Milne’s complaints of daily somnolence and a change in his appetite are symptoms which are explained on the basis of his medication…
When considering the history of difficulty in the police service and difficulty in his role as a teacher, I note that there are a number of suggestions that there is an underlying personality vulnerability. That conclusion is consistent with

Mr Hennessey-Milne’s responses to perceived confrontation. He spoke of ‘arcing up’ and I observed that he became very angry. This is also consistent with a number of reports in the documents. There appears to be an underlying pattern of personality vulnerability…
There is no indication for psychiatric treatment on an ongoing basis at the present time. A review regarding the medication he is currently taking will be required. The medication regime should be rationalized, in my opinion. It would be appropriate for Mr Hennessey-Milne to see the psychiatrist once or twice more and for the medication to be withdrawn within that context. In my opinion no further treatment is required for any compensable matter.”
After receiving this report Comcare made a determination rejecting the Applicant’s claim for permanent impairment – Exhibit 1 T34 pp. 206 – 207.
In a supplementary report dated 5 January 2009, Dr Lewin opined that “angry sentiment is part of the normal range of human experience and does not constitute a medical condition or a psychiatric illness”. Dr Lewin also observed: “There is no known psychological or psychiatric treatment for personality vulnerability. No such treatment is required.” Finally, Dr Lewin opined that he “did not diagnose any psychiatric condition related to Mr Hennessy-Milne’s employment.” – Exhibit 1 T35 pp. 208 – 209.
The then legal representatives for the Applicant sought a supplemental report from

Dr Knox, dealing with the findings of Dr Lewin. In his report of 4 February 2009, Dr Knox disagreed with Dr Lewin on three grounds. First, he opined that some teachers deal with schoolyard violence more competently than others and that while the experiences the Applicant had at Gold Creek School may be common, it did not mean that they were not injurious to him. Second, while Dr Lewin was of the view that some symptoms of the Applicant were the result of his medication, Dr Knox observed that the Applicant’s symptoms extended far beyond the times he was treated with psychotropic or other medication. Third, Dr Knox agreed that the Applicant had personality vulnerabilities, but held the view that the better diagnosis was Anxiety Disorder – Not Otherwise Specified in addition to residual post-traumatic symptoms. Dr Knox concluded that the Applicant had a significant symptomatology and psychiatric illness – Exhibit 1 T37 pp. 213 – 215.
On 30 January 2009, an unfortunate incident occurred. The Applicant met with a Shared Services employee and a contracted employee of the Department of Education and Training (the rehabilitation providers) at a cafe to discuss future work placements (the café incident). Although there are some inconsistencies in what occurred, it is not disputed that the Applicant became very angry, demanded that he be provided with a permanent full time position and if that if this did not occur he said words to the effect that he would have to start shooting people and that the two rehabilitation providers would be at the top of the Applicant’s target list – Exhibit 1 T39 p. 223; Exhibit 9 pp. 53 – 56.
The rehabilitation providers formally wrote to the Applicant on 12 February 2009, informing him that allegations of misconduct relating to threatening behaviour and inappropriate comments had been received and were being investigated. The Applicant was also informed that if the allegations were proven, it could result in disciplinary action and possible termination of employment – Exhibit 9 p. 57.
In addition, an Interim Personal Protection (Workplace) Order was issued by the ACT Magistrates Court on 17 February 2009, which restrained the Applicant from being within 100 metres of the Shared Services premises – Exhibit 9 pp. 62 – 63.
On 5 March 2010, the Applicant emailed the then Chief Minister of the ACT seeking a meeting and outlining his strained relationship with the rehabilitation providers. Of concern the “Subject” of the email was “I am intending to commit suicide” – Exhibit 9 p. 67. As a result the Applicant was visited by members of the ACT Health Crisis Assessment and Treatment Team (CATT). Members of CATT spoke to the Applicant on a number of occasions. The Applicant mentioned thoughts of both suicide and homicide and he stated that he had a list of three people he had homicidal ideations about – Exhibit 9 pp. 67 – 73.
By letter dated 13 April 2010, the rehabilitation providers terminated the Applicant’s employment with an effect date from close of business that day – Exhibit 9 pp. 74 – 75.
The Applicant has not been employed since the cessation of his work trial with ABS. The only vocational activity the Applicant has engaged in was volunteer work with a friend in a shop working with tools and machine parts. This endeavour continued from April to November 2009, but concluded when there was a personality clash with another staff member – Exhibit 1 T65 p. 300.
On 13 March 2009, Dr Matias, having only recently returned to duties from maternity leave, provided a comprehensive report to Comcare. Dr Matias strongly disagreed with the diagnosis of Dr Lewin and discounted the good DASS score that the Applicant achieved from Mr Gibson which is outlined above. Dr Matias observed that DASS scores indicate that symptoms may fluctuate depending on the current situation. It was erroneous, Dr Matias argued, to conclude, that just because a good DASS score was obtained by the Applicant, that it translated to an “absence” of illness. She also contended that psychological illnesses may remit and recur at any given time or situation – Exhibit 1 T42 p. 229.
Dr Matias then summarised the reports of Drs Zsandanyi, Donaghy, Lioulios, Saboisky and Kumar and concluded – Exhibit 1 T42 p. 231:
“At this point of time, I believe that Mr Hennessey-Milne’s current condition is still active but controlled with ongoing treatment. His rehabilitation has been a source of stress for Mr Hennessey-Milne and although he continues to have willingness to work, the stress of his rehabilitation process has caused recurrence of his issues of anger and impulsivity. I agree with Dr Zsandanyi’s report that the longer the rehabilitation process and placement takes place, the poor the prognosis (sic), which is the reason why I am coming to the conclusion that it is unlikely that

Mr Hennessey-Milne will be successfully placed in the work situation. He has had several failed placement[s]… in his rehabilitation and the rehabilitation process is now causing significant stress.
I do not agree with the reasoning that his condition is resolved…
Prognostically placement and full rehabilitation is poor.”
Dr Donaghy also wrote to Comcare. In her report of 1 April 2009, Dr Donaghy while opining that the Applicant still suffered from Depression and PTSD, discounted the impact that Prednisone may have had on the Applicant’s psychiatric condition, noting that he had not been prescribed it for three years. Importantly, though, Dr Donaghy agreed that the Applicant has a degree of personality vulnerability and this was negatively impacting on his ability to be rehabilitated and find suitable employment. Finally, Dr Donaghy agreed with Dr Lewin that the Applicant should only receive short term psychological therapy – Exhibit 1 T43 p. 232.
After considering the above reports of Drs Matias and Donaghy, Comcare determined to accept liability up to and including 30 December 2009 for consultations with the Applicant’s treating GP, physiatrist and psychologist as well as related pharmaceuticals – Exhibit 1 T44 pp. 233 – 235. If compensation was claimed beyond that time period, supporting medical evidence was required.
EVENTS AND MEDICAL TREATMENT 2010 - 2016
Dr Matias subsequently certified that the Applicant was unfit to work as a result of the symptoms he was then experiencing – Exhibit 1 T46 pp. 237 – 239; T47 pp. 240 – 242; T48 pp. 243 – 245; T55 pp. 264 – 266; T61 pp. 283 – 285; T66 pp. 303 – 305. The final certificate of Dr Matias covered the period 9 February 2015 until 9 February 2016.
At the request of Comcare, Dr Matias also provided a detailed report dated 24 August 2012 as did Mr Gibson with his report dated 7 September 2012.
Dr Matias provided a very pessimistic report, the key elements of which are outlined below – Exhibit 1 T49 pp. 248 – 249:
“I believe his anger and impulsivity have been exacerbated by the work-related injury and the sense of distrust of people and their intentions. His experience during rehabilitation has been far from optimal and has only consolidated his sense of victimisation and feelings for revenge and vindication.
For that, I believe that the resolution of his injury has not been achieved.
Because of this I believe the prognosis is poor…
As in my original assessment, he still continues to exhibit problems with anger and irritability.
His mood has stabilised…
I believe that symptoms from the injury in 2005 have not been fully resolved, although some of the symptoms have improved…
The main issues which prevent him from rehabilitation are the sense of anger, irritability and feelings of victimisation and being unsupported by the whole system.
Because of this and a general lack of trust and a tendency to catastrophise, I do not think he is a candidate for rehabilitation.
I believe that any situation that triggers reminders of that sense of being unsupported or let down, Mr Hennessy-Milne will connect to his experiences while working for the Department of Education, which has also reinforced is (sic) sense of betrayal when he was at the NSW Police.
His reaction to that situation can be potentially explosive, unpredictable and catastrophic. Therefore he could then pose a risk to himself and to others.
Therefore I do not think he is fit to engage in a return to work due to this sense of unpredictability and his explosive anger.”
Comcare made favourable compensation determinations extending the periods for payment of specified medical treatment and related pharmaceuticals on 2 July 2013 (Exhibit 1 T52 pp. 256 – 257), 29 July 2014 (Exhibit 1 T58 pp. 274 – 275), 16 December 2014 (Exhibit 1 T60 pp. 281 – 282) and 25 February 2015 (Exhibit 1 T63 pp. 288 – 289).
At the request of Comcare, the Applicant was assessed on 5 May 2016 by Dr Shiva Gunapu, Consultant Psychiatrist. Dr Gunapu concluded that the Applicant was suffering from adjustment problems but not PTSD – Exhibit 1 T71 p. 346. In the course of his report, the following key observations were made – Exhibit 1 T71 pp. 342, 343, 345:
“The presenting complaints were more in the form of mood symptoms, episodic anger, and frustration, impulsivity. Also, there is self-report of nightmares. There are no other posttraumatic symptoms. There is one episode of expressing strong suicidal ideas in 2005 and expressing homicidal ideas in 2009. He had significant mood symptoms in an episodic manner and does not seem to have long-lasting mood symptoms…
There was no major problem with his fatigue. He did report a lifestyle which was monotonous. He stated he sleeps for six to seven hours and reported some sleep problems in the form of snoring and also sleep movement and occasional vivid dreams about ‘ACT Government people’ and it is not specific to the schoolyard incidents but generally about ACT Government.
The dreams appear to be uncharacteristic of a posttraumatic stress disorder. Mood he described as being normal to becoming angry. There were no pervasive, persistent mood changes. He described his daily routines as ‘wake up whenever I wish’, usually gives his wife a lift to work, spends most of his time at home…
Initially, he seemed not to want to communicate and appeared anxious. He wrote down his complaints on a piece of paper and read them from the piece of paper. He expressed his frustrations about the ACT Government and their investigation. He justified the threats he had given to rehabilitation officer (sic). He felt that he was pushed to the limits. Furthermore, his mood appeared euthymic. Affect was anxious in small parts of the interview but mostly euthymic. Perceptions were normal. Judgement was fair. Rapport was good. There were no cognitive difficulties noted. There were no manifest features of panic symptoms or any other posttraumatic symptoms…
An email from Kaye Frankcom, 22 October 2013, which stated that he had 213 sessions of psychology since 2006. It is mentioned that he has a number of non-compensable constitutional vulnerabilities which are contributing to situation (sic) including possible personality disorder in his upbringing and former employment with New South Wales Police. In my opinion, the psychotherapy may not be targeting a compensable issue…”
Dr Gunapu was asked a series of questions. In response to a Question about what condition the Applicant currently suffers from, he answered as follows – Exhibit 1 T71 p. 346:
“An Adjustment Disorder with anxiety following the experiences as a school teacher. The origins can be related to the perception of lack of support from school management and frustration about schoolyard fights. There was no PTSD. There was anger, dysphoria, suicidal ideas at the start and poor frustration tolerance.”
In response to a Question about the prognosis for the Applicant’s condition, Dr Gunapu answered – Exhibit 1 T71 p. 346:
“The prognosis is good for an adjustment disorder. The stint in Police and exposure to school yard experiences are no longer operational in explaining his current level of symptoms.
So the prognosis may be affected by his poor perception of ACT government and rehabilitation providers. His personality style and coping mean he solves problems with either (sic) through anger outbursts or by withdrawal. The middle path of conflict resolution is still lacking.
Due to the above factors, the prognosis drops from a good level to a modest level...”
Dr Gunapu opined that the Applicant’s condition was initially related to his position as a school teacher, “but now the symptoms are not related to this so far down the natural course of adjustment disorder.” – Exhibit 1 T71 p. 347.
Dr Gunapu was asked if the Applicant’s condition was related to his employment, the degree and extent to which his employment contributed to his conditions. His answer was as follows – Exhibit 1 T71 p. 347:
“The school yard may have contributed significantly and interacted with his coping style. Initially, the condition was related to his position as a school teacher, but now the symptoms are not related to this so far down the natural course of adjustment disorder.
Other factors: The frustration and anxiety is more in keeping with industrial, personality, coping and rehabilitations disputes.”
A copy of this report was forwarded to Mr Gibson by the Comcare Delegate for his comment. Mr Gibson replied on 8 July 2016 – Exhibit 1 T73 pp. 353 – 358.
Mr Gibson was critical of the short time allocated by Dr Gunapu for the interview he had with the Applicant opining that it “simply did not allow for the full salient facts and history of a complex presentation to be gathered.” Further, Mr Gibson claimed that Dr Gunapu’s report had a number of significant errors and omissions – Exhibit 1 T73 p. 353.
Mr Gibson re-iterated that he had assessed the presence of PTSD symptoms in the Applicant in August 2012, February 2014, May 2014, December 2014, June 2015 and December 2015. On each of those occasions the Applicant reported high levels of re-experiencing stressful experiences and hypervigilance/hyperarousal, consistent with a diagnosis of PTSD. The Applicant has reported experiencing many repeated, disturbing memories, thoughts and images of the traumatic incident, disturbing dreams of the incident and feeling extremely upset when reminded of the incident. In addition the Applicant has been irritable with irritable outbursts, had sleeping problems and difficulties concentrating while being super-alert, watchful and on guard. All of these, Mr Gibson stated, are consistent with PTSD symptoms – Exhibit 1 T73 p. 353
Mr Gibson claimed that Dr Gunapu had made incorrect assumptions about the Applicant’s relations with, and perception of, his rehabilitation officers, the quantum of alcohol he consumes and that psychotherapy may not be targeting a compensable issue – Exhibit 1 T73 pp. 355 – 356.
Mr Gibson concluded his report as follows – Exhibit 1 T73 p. 358:
“Overall, it is readily apparent that Mr Hennessy-Milne is currently a long way from being considered ready to undertake paid employment. However, he is prepared to undertake a rehabilitation/graduated RTW program, and has been doing so very willingly this year. I would trust that it is perfectly apparent from the material presented above, that he will require on-going psychological support for this to be successfully achieved. While his PTSD symptoms are not triggered in situations where he does not feel threatened, they will trigger as a defence mechanism if any stress, perceived criticism, conflict or other difficulties arise in a workplace. There will need to be careful preparatory work to help him cope with this, including psychological work on addressing all the significant barriers Mr Hennessey-Milne faces to successfully re-entering the paid workforce. There will need to be successful completion of at least one volunteer trial, before the possibility of a paid work trial can even begin to be considered.
Most unfortunately, Dr Gunapu failed to include any of these important, salient facts in his report.”
(Emphasis in original)
2016 COMCARE DETERMINATIONS
On 30 August 2016, a Comcare Delegate determined that the Applicant was no longer suffering the effects of the compensable condition, and, accordingly, he had no present entitlement to compensation for medical expenses pursuant to s 16 or incapacity payments pursuant to s 19. In reaching this conclusion, the Delegate relied on the opinion of Dr Gunapu outlined above, noting he is a specialist in the diagnosis and treatment of psychological conditions – Exhibit 1 T77 pp. 366 – 367.
The Comcare Delegate wrote to Dr Matias on 1 June 2016, enclosing a copy of

Dr Gunapu’s report and informed her that if she wished to provide any comments to do so by 15 June 2016. In any event Dr Matias did not reply until 29 August 2016, by which time she had been informed by Mr Gibson that Comcare had determined to terminate compensation payments. Dr Matias reacted angrily to this development and made the following observations – Exhibit 1 T76 pp. 364 – 365:
“I would like to put to your attention that psychiatrists can have different opinions and psychiatric diagnoses depending on the particular assessment which will only last for an hour.
It needs to be taken into account issues of time elapsed since the incident, treatments undergone and the change with time of the symptoms of the condition.
Although Dr. Gunapu did not think Mr Hennessy-Milne had PTSD, he however indicated he had a Psychiatric condition – namely An Adjustment disorder which he relates to his experience as a school teacher.
We can continue to debate about the diagnoses but the issue is whether the condition is work related or not.
Your independent psychiatrist Dr Zoltan Zsadanyi in 2008 agreed he suffered from a diagnosis of PTSD.
I support the diagnosis of PTSD, what makes you decide that previous psychiatric opinions no longer stand valid is a mystery to me…
As I said, in psychiatry the main is not about the discrepancies of diagnostic opinions, with one case we can have many diagnosis and differential diagnosis.
In this case Dr. Gunapu felt Mr. Hennessy-Milne suffered form an Adjustment disorder which was work related. Considering the time and duration that has elapsed, his symptoms have decreased. My initial assessment of Mr. Hennessy-Milne indicated a much more acutely disturbed patient which was in June 7, 2005. Symptoms of PTSD were more acute. Did Dr. Gunapu have that assessment report?...
I feel that the main issue is missed here, which is the injured worker is ready and agreeable to a rehabilitation process. Your decision to cease all entitlements will only cause more problems and will only cause Comcare further legal costs and only cause further issues in his rehabilitation. I would ask you to reconsider your determination.”

Dr Gunapu also referred to fluctuations in the Applicant’s condition, and testified – Tr. 23 May 2018 pp. 276 – 277:
“I start with the assumption that here is a man with borderline narcissistic traits, in a situation involving potentially losing his teaching role, challenged by management, coming depressed, being put on medications, and actually recovering, being cleared for work I think sometime in 2006, and doing work stints in 2007 which he described as ‘blinding success’, seeing Dr Zsadanyi in 2008 where he clearly says that he’s doing well and his DASS scores are really good, he’s keen to go back.
He’s considering a career as a commercial pilot, which is a very, very high cognitive, high skill, very sort of respectable for him and another profession he wanted to sort of pursue, to me, to that extent it looks expected, but I think beyond that, once that doesn’t materialise, for some reasons, the control – he loses control over that plan he has of, again, perhaps using the word ‘reinventing’ and restarting again, once that goes out of his control, I think beyond that point things have deteriorated. You can look at history of homicidal threats, the AVOs, his alternating between withdrawal and anger, angry letters, losing his cool at various points in time. I think beyond that point, to me it looks like an unexpected, and if you really look back on it and try to explain this, why would that be?
Why would that – a man who was on the verge of potentially looking at the letter from Dr Matias like she’s thinking everything is going well, why did he sort of completely go backwards? I think its personality. That’s the explanation. That’s the difference, if you compare it to another, say, a general community member who didn’t have that personality diagnosis, to me that is what makes it unexpected, and prolonged, and even perhaps distressing for him given what happened. When I saw him 2016, my commentary was about that, that yes, this man’s still got adjustment disorder, but not – certainly not from all the things that happened back then.”
It is also important, in this context, to refer to the evidence given by Dr Matias. She was asked by Mr Grey whether in the 2005 to 2018 period there was any time when she thought that her original diagnosis was no longer operative. The following exchange ensued – Tr. 22 May 2018 pp. 128 – 129:
“Yes, on some occasions when it was the issue of the depression and a motivation was much more prominent, and then some occasions the issue of anger was more prominent, so it does fluctuate over time.
Right, and is that a characteristic of these kinds of conditions, that they are not like a flat line, they are a jagged sore-tooth line as people go up and down with aspects of their conditions being more prominent at different times?---Yes. People are not static.
When you look at the longitudinal history, do you hold to the view that the diagnosis you made in 2005 is still relevant?---Right now with the treatment, the symptoms have definitely been alleviated over the course of time with treatment.
Right, but in terms of the symptoms that were caused in 2005 that you diagnosed, do they still have a connection with the events in 2005 that you thought were causative at that time?---Yes….”
Apart from Dr Matias and Mr Gibson, the only other medical professional who had the advantage of observing the Applicant over a long period of time is Dr Knox. Dr Knox first saw the Applicant in 2008, and subsequently prepared reports in 2017 and 2018 and gave extensive concurrent evidence, portions of which have been quoted above.
In his 14 March 2017 report, Dr Knox opined – Exhibit 21 pp. 5 – 6:
“Mr Hennessey-Milne still presents the same pattern of psychiatric disorder as when I first saw him in 2008. There is a complex mix of causes and symptoms. I have referred to his earlier police work and the Gold Creek School incidents. Aside from directly physically traumatic matters Mr Hennessey-Milne has had many disappointing experiences with bureaucracy undermining his trust for employers…
I am of the opinion that whatever the precise diagnosis that can be made regarding the nature of the original Comcare accepted conditions, this man continues to have such a psychiatric disorder.”
The Tribunal has also, having carefully considered all of the written and oral evidence given, reached the same conclusion, namely, regardless of the label that can be placed on the Applicant’s mental ailment, he continues to suffer from the same psychiatric disorder that afflicted him in 2005.
Is the condition still being materially contributed to by his employment at Gold Creek School?
Ms Wright submitted (CCS para 176) that any compensable condition the Tribunal finds the Applicant suffered in 2005, ceased causing incapacity for work or impairment by the time of the reviewable decision and/or supervening non-compensable events. Such events overshadowed any initial employment contribution, so that by 2016 his previous employment no longer contributed, to a material degree, to any ailment then suffered by the Applicant. The supervening events included:
(a)2006: loss of NHMRC position, admission to Hyson Green and the Applicant’s new career plan to become a public servant;
(b)2009: the café incident and AVO related to rehabilitation;
(c)2010: termination of the Applicant’s employment; and
(d)2016: Comcare’s cease effects decision.
Ms Wright drew the Tribunal’s attention to the Full Federal Court decision of Prain v Comcare [2017] FCAFC 143; 256 FCR 65.
Mrs Prain was an experienced nurse who had held senior positions in the public hospital system. In early 2011, she took up a senior clerical position at the Canberra Hospital, but ceased work on 19 April 2011 and has not worked since. Within weeks of her appointment she encountered animosity and criticism from her supervisor and other staff of the Hospital. These developments distressed Mrs Prain and her pre-existing condition of fibromyalgia “flared up”. Comcare initially accepted her claim for adjustment reaction. Subsequently, Comcare determined that from 16 July 2015 Mrs Prain had no entitlement for compensation for her adjustment reaction as her employment was no longer a significant contributor to her adjustment disorder.
The Tribunal agreed with Comcare’s submission that unfortunate events in Mrs Prain’s life had “crowded out” what occurred at the Canberra Hospital as the major contributors to her ongoing mental ill-health. In reaching this conclusion, the Tribunal made adverse findings of credit about the Applicant’s evidence, however, the Tribunal also had regard to other matters. Kenny, Tracey and Bromberg JJ made the following observations (at [82]):
“There was no error in the Tribunal taking into account the duration of Mrs Prain’s employment at the Canberra Hospital or her predisposition to the ailment, since this was expressly permitted by that provision [(i.e. s 5B(2))]. Nor do we discern any relevant error in the Tribunal’s conclusion (at [66]) that ‘the effect of the relevant factors in s 5B(2) must be to diminish to some degree the weight attached in this case to the Canberra Hospital issues vis-à-vis other issues contributing to her mental disorder’. This conclusion was open to the Tribunal, having regard to s 5B(2) and the evidence before it.”
Their Honours then made the following observations (at [87]):
“Further, reading the Tribunal’s reasons as a whole, we are not persuaded that the Tribunal failed to address the test in s 5B(1) of the SRC Act. Its appraisals of the evidence and relevant determinations show that it understood and applied itself to the statutory question to which s 5B(1) gave rise, namely, whether Mrs Prain’s ailment was contributed to, to a significant degree, by her employment at the Canberra Hospital. The Tribunal specifically acknowledged (at [60]) that, notwithstanding its doubts about some of her evidence, Mrs Prain was ‘entitled to succeed if the compensable factors have nonetheless contributed to that injury to a significant degree’. Whilst the reference to ‘compensable factors’ (as was its reference to ‘novus actus interveniens’ in [70]) were inapt, reading the Tribunal’s reasons as a whole, it is clear that the Tribunal had in mind the contribution made by Mrs Prain’s employment at the Canberra Hospital to her condition after July 2015 and that its reference to ‘factors’ was to this issue and to the factors listed in s 5B(2) that might, in the Tribunal’s direction, be considered in determining the question to which s 5B(1) gave rise and to which the Tribunal directed its attention at [65] and following. The Tribunal’s statement (at[68]) that ‘it seems improbable that one particular stressor – the week-long conflict at the hospital four years previously – should still amount to a significant factor in her ongoing condition’ should be understood as the application of that test. It is in this context that one must understand and read the Tribunal’s further statements (at [70]) that ‘factors which the medical records suggest were agitating Mrs Prain after April 2011’ had ‘the effect of pushing the employment factor further and further into the background’. Taking the evidence as a whole, it is plain enough that the Tribunal’s determination (at [70]) that Mrs Prain’s employment at the Canberra Hospital had ceased to be ‘a significant contributor to Mrs Prain’s adjustment disorder by July 2015’ was reached after considering the case Mrs Prain sought to make and correctly addressing the question to which s 5B gave rise. The Tribunal’s reasoning at this point is also consistent with its appreciation that, under s 5B(3), ‘significant degree’ meant ‘substantially more than material’. Accordingly, we consider that ground 3 is not made out.”
Ms Wright was correct in highlighting the importance of this decision as there are more than passing similarities in the factual matrix presented in that case to the material before the Tribunal in this matter. Of course, there is one significant point of departure, and that is that the test to be applied in this matter is material rather than significant contribution.
When Dr Matias gave evidence she was asked a series of pertinent questions by Mr Grey which are set out below – Tr. 22 May 2018 p. 129:
“Right. So, over the years, have other factors also contributed?---Over the years?
Yes, over the years. For example, have new factors come in that have contributed to his presentation on the histories he has given you when you have seen him?---Mostly in relation to his work and return to work, yes.
I mean, one of the terms that’s used in cases like this where it is said that the person no longer suffers from the condition that was originally diagnosed is that subsequent events have clouded out the significance of the original history that led to that first diagnosis. In this case, what do you say about that on your longitudinal history?---In my longitudinal history, I do think that there are remnants of the 2005 episode that continues to be present in his presentation. However, in the course of time and with treatment, and he has been under treatment for a long time, I believe his condition has improved over those years, enough to be, you know, ready for a return to work until Comcare (indistinct) support.
Okay, Excuse me a second. So, in terms of then, what you describe as the remnants of the condition, what role do they play in his current presentation?---He still has some, kind of anger issues. He still has irritability, a fair bit of amotivation, and also, I have seen some bitterness about what’s happened to him in the past which continues – he still feels he was let down which has resulted in (indistinct).”
Dr Matias was cross-examined by Ms Wright and the following exchange occurred – Tr. 22 May 2018 pp. 148 - 149:
“Well, Doctor, I don’t need you to think about what the legal questions are, so what I am asking you, my question was do you think there’s significant or most significant condition symptom factors the applicant is suffering from now. What do you think they are?---At the moment is the issue with – the issue with AAT at the moment and with Comcare.
So he had a significant reaction to Comcare – Comcare’s decision in ---?--- Right now – you’re asking right now is this process is affecting him right now.
And what is now the contribution from the three week period from 15 March 2005 to 8 April 2005 to his current status?--- At the moment?
Yes, at the moment?---At the moment it’s minimal at the moment because he’s now more concerned about the processes that he’s undergoing at the moment and that’s the foremost in his mind.
And Doctor, wouldn’t you agree there have been other events that have also been quite significant to the applicant – so I was going to take – there’s a couple of other reports I’ve got from 2007 and 8 which again reflect I think that you weren’t reporting on a diagnosis of PTSD at that time or significant symptomatology and in fact I’ll read you from your report. Do you remember that Dr Donaghy wrote to you on 21 July 2008 and she was doubting whether the diagnosis was correct and actually was it personality issues and she asked for your opinion on that. Do you remember that, Doctor?---No…
So your report of 31 July 2008 says ‘I do not think that there is any recurrence of his symptomatology of either depression or PTSD’. So Doctor I take it from that that he was recovered for the most part on 31 July 2008 when you wrote that?---He would be, yes.
Yes, thank you Doctor. And then he had other events, the event in the ADF (sic) café, do you remember on 30 January 2009 – quite a significant event?---Yes.
And the rehabilitation?---Yes.
And is it possible Doctor, that there was a new adjustment reaction or a new episode of depression or something arising out of that event?---There could be an adjustment reaction, yes.
And what about also when his employment was terminated on 13 April 2010 do you recall there were those threats to the chief minister and the CAT team visiting his house?---Yes.”
Dr Matias wrote to Comcare on 3 October 2008. At that time she had been treating the Applicant for more than three years and had examined him three times during the course of 2008. Dr Matias wrote that the Applicant’s symptoms of depression were “significantly controlled” by the treatment he was receiving and that the “pervasive symptoms of depression” were no longer present. However, Dr Matias opined that he had an ongoing adjustment disorder “with regards to the rehabilitation/RTW process. His Adjustment Disorder is a result of the difficulties encountered in procuring a permanent, sustainable and challenging position.” – Exhibit 1 T29 p. 186.
In July 2008, Dr Zsadanyi opined that the Applicant was no longer displaying active symptoms of depression and he appeared “to be in a remission.” He also opined that the Applicant was no longer suffering from generalised anxiety disorder with panic attacks. Importantly, Dr Zsadanyi made these observations – Exhibit 1 T21 p. 144:
“In my opinion Mr Hennessey-Milne has shown improvement when he is in a situation where he is intellectually challenged, where he feels useful and feels fulfilled e.g. the role in JACS. Impulsivity, frustration, perfectionistic thinking are all factors in his personality makeup which could be hindering his recovery.”
It will be noted that Dr Matias refers to “remnants” of the 2005 Gold Creek School incident continuing to be present in the Applicant’s presentation. When cross-examined by

Ms Wright, Dr Matias agreed that the other incidents that had occurred since 2005 had negatively impacted on his mental health.
Whilst the Tribunal agrees that the Applicant’s mental health has waxed and waned over time, the evidence presented does not support the proposition that the 2005 Gold Creek School incident continues to contribute, to a material degree, to the mental ailment(s) he suffers.
The Tribunal was extremely impressed by the evidence given by Dr Gunapu. He presented as an objective and measured witness and the evidence given was precise, well-articulated and not coloured by emotion.
As noted above, Dr Gunapu opined that the Applicant may still be suffering from a chronic adjustment disorder, but the genesis of such a condition is no longer founded in the events of Gold Creek School (Tr. 23 May 2018 p. 277). When questioned about the Applicant’s apparent cycles of recovery and regression, Dr Gunapu made reference to the impact of the rehabilitation process – Tr. 23 May 2018 p. 278:
“…if he became one (ie. a commercial pilot) and he got rid of all these people who were controlling his life, the rehabilitation providers, the Comcare, the doctors, and she shed all that and went into normal life, so to speak, or usual life without all this medial and rehab and Comcare, I think he would have been okay until he had another interpersonal challenge.”
When asked why the Applicant did not recover after the traumatic events of 2009 and 2010, Dr Gunapu testified that it was because he was in “the compensation system”.
Dr Knox agreed that the rehabilitation system was “an inevitable stressor”- Tr. 23 May 2018 p. 279.
Dr Gunapu later summed up his diagnosis of the Applicant as follows: Tr. 23 May 2018 p. 290:
“…there is a personality element, a strong personality element, there is a problem – there is a problem at school and then he recovers and there’s a problem with the rehabilitation, job search, interactions with people, doctors, rehabilitation providers and other colleagues subsequently. And that, to me, is the crux, therefore my second diagnosis is an adjustment disorder, chronic adjustment disorder, and related to his experiences of what happened after 2007, 2008 there is a clear break. There is a remission, there is certification from doctors saying he’s improved. He’s been clear for high level cognitive jobs. In my view, what followed after that, the rehab, the Comcare experience, the perception of this particular rehab officer…he threatened that person, the AVO and then this lack of rehab for years there and then suddenly there’s a lot of attention back and he’s sent to all the IMEs…So in conclusion, I think borderline personality and narcissistic personality trait, Cluster B, is my main diagnosis. Chronic adjustment is secondary to the rehab experience, the Comcare experience, the interpersonal difficulties…If I were to treat this man what would I treat first? I’d treat his personality…”
Dr Knox disagreed with Dr Gunapu and testified that it was his opinion that the events of 2005 had not “disappeared off the agenda. I don’t think its gone away to be replaced by these other things”. Despite that, Dr Knox went on to opine that the earlier events in the Applicant’s life were not “the most important” factors playing into how he is now, but remained “material” and had not “gone away”.
The key issue before the Tribunal is not whether the events of 2005 have “gone away” but, if they continue to have an impact on the mental well-being of the Applicant, whether they meet the material contribution test.
The preponderance of evidence supports the proposition that factors unrelated to the Applicant’s former employment at Gold Creek School had the effect of pushing any employment-related factors further and further into the background, such that they have ceased to be a material contributor to the mental ailment(s) currently afflicting the Applicant.
The Tribunal is satisfied that the evidence given, and conclusions reached, by Dr Gunapu are to be preferred to those opined by Dr Knox. This is not a criticism of Dr Knox by any means. Dr Knox gave measured evidence, even though it was clear that he had an emotional attachment to the Applicant’s case. The evidence of Dr Gunapu is preferred, overall, because his conclusions comport with an objective reading and understanding of the evidence presented.
The Tribunal accepts that the primary cause of the Applicant’s ongoing misfortunes are constitutional personality and mood related issues, which have negatively impacted on his interpersonal relations and have been the primary cause of ongoing employment problems starting, at least, with the New South Wales Police Force, continuing with his problems at Gold Creek School and persisting throughout his many attempts at gaining employment in the years following 2005.

Dr Gunapu agreed that a diagnosis of a chronic adjustment disorder was open on the evidence, and the Tribunal agrees that this “label” is appropriate. However, the Tribunal further agrees with Dr Gunapu’s diagnosis that the Applicant’s chronic adjustment disorder is secondary to, and causally linked with, his underlying personality disorder.
The events of 2005 were, no doubt, troubling for the Applicant, however there is ostensibly some force in Dr Saboisky’s observation in 2005, in that he found “it difficult to believe that problems related to disciplining teenagers in the playground could have caused the type of illness that he had” – Exhibit 1 T7 p. 64.
This observation of Dr Saboisky is reinforced when it is recalled that the Applicant was given riot training by the New South Wales Police Force in 2000. Objectively, a large man such as the Applicant who had been specifically trained to deal with violent situations would not have found a schoolyard brawl to be the defining moment in his life.
However, that conclusion is predicated on an assumption that the Applicant did not have any underlying personality or emotional issues. Dr Gunapu has provided to the Tribunal a nuanced framework for considering the Applicant’s mental state in 2005 and subsequently.
Much of the Applicant’s problems since 2005 have revolved around incidents connected with the rehabilitation process he was required to undertake. As a general rule, incidents flowing from the rehabilitation and compensation process are not to be regarded as employment-related in assessing ongoing liability: see Pettiford and Comcare (2014) 139 ALD 411 and Pedersen and Comcare [2016] AATA 449.
It is also tolerably clear from the evidence that the events of 2005 were, in the mind of the Applicant, extremely significant. Dr Knox described them as “significant blips on the earthquake register machine” and were factors “that have played into how he is now”. Tr. 23 May 2018 p. 291.
A tribunal of fact presented more than a decade after the event with voluminous, complex and sometimes conflicting medical evidence, can only analyse that evidence and reach a conclusion on the balance, albeit in the context of the Act, which is to be given a beneficial interpretation – Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at [335].
In this matter, the evidence leads, on the balance, to the conclusion that the Applicant was a person with underlying personality issues. Those issues led to problems whilst serving in the New South Wales Police Force and then to a series of events at Gold Creek School which resulted in the Applicant ceasing employment at that School. Subsequently, his mental health waxed and waned, but his underlying personality and mood conditions led to ongoing adjustment disorders. The traumas experienced after 2005 were not the result of the school incidents but a continuation of the Applicant’s underlying personality issues interacting and adversely impacting on the requirements of the rehabilitation and compensation process. Insofar as there were additional emotional pressures placed on the Applicant because of the rehabilitation and compensation process, those pressures were not related to the events of 2005.
The events of 2005, viewed objectively, were relatively mild, nonetheless seem to have been the starting point for a series of mental health problems suffered by the Applicant. So, evaluating this matter from the perspective of the Applicant, it seems clear that he was traumatised by the events at Gold Creek School. It is not appropriate to evaluate the extent of his trauma from the perspective of a normal and mentally healthy person. It must be viewed from the perspective of the Applicant, in the context of having some pre-existing problems and susceptibilities.
The Applicant suffered a mental health “injury” as a result of the events of 2005, but over time that “injury” has been gradually overtaken by subsequent events. It would be, with respect to the conflicting medical experts, almost impossible for a tribunal of fact to pinpoint the exact time when the events of 2005 no longer contributed to a “material” degree to the Applicant’s mental health. However, it can be said with confidence that by the time of the reviewable decision, that degree of materiality no longer existed.
The Tribunal, then, makes the following findings:
(a)the Applicant was, by the conclusion of his employment with the New South Wales Police Force, suffering from a mental disease;
(b)the preferable diagnosis of that disease is that given by Dr McKendry, namely acute anxiety neurosis;
(c)the Applicant suffered a disease in 2005 that was materially contributed to by his employment;
(d)the compensable disease was not suffered by the Applicant as a result of any reasonable disciplinary action;
(e)the compensable disease was not an adjustment reaction which fully resolved within 12 months of April 2005;
(f)the Applicant did not make a wilful and false representation pursuant to s 7(7) of the Act; and
(g)the compensable disease ceased being materially contributed to by employment factors by the time of the reviewable decision.
DECISION
The decision under review is affirmed.

I certify that the preceding 340 (three hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

........................................................................
Associate
Dated: 28 November 2018

Date(s) of hearing: 21 - 23 May 2018

Date final submissions received: 17 August 2018

Counsel for the Applicant: Mr Leo Grey

Solicitors for the Applicant: Gabbedy Milson Lee

Counsel for the Respondent: Ms Sarah Wright

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	21 - 23 May 2018
Date final submissions received:	17 August 2018
Counsel for the Applicant:	Mr Leo Grey
Solicitors for the Applicant:	Gabbedy Milson Lee
Counsel for the Respondent:	Ms Sarah Wright
Solicitors for the Respondent:	Australian Government Solicitor