Hooley and Comcare (Compensation)

Hooley and Comcare (Compensation) [2019] AATA 5176 (29 November 2019)
Division:GENERAL DIVISION
File Number(s): 2016/1439
Re:Andrew Hooley
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:29 November 2019
Place:Brisbane

The decision under review is affirmed.
..............................[SGD]..........................................
Senior Member Theodore Tavoularis
Catchwords
COMPENSATION – review of entitlement to medical expenses and incapacity payments - Applicant was an IT consultant employed by CSIRO – where Comcare accepted liability to pay compensation for injuries diagnosed as “adjustment disorder with disturbance of emotions” and aggravation of “obsessive-compulsive disorder” – whether Applicant continues to suffer from the effects of accepted conditions – whether injury(s) suffered during course of employment contributes to ongoing incapacity for work - decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Prain and Comcare (Compensation) [2016] AATA 459
Prain v Comcare (2017) FCR 143
Re Pettiford v Comcare (2014) 139 ALD 411
Szabo v Comcare (2012) 58 AAR 152
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Secondary Materials
Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
29 November 2019
Table of Contents
Introduction
Decision history
The Legislative Framework
Issues
Jurisdictional contest
Is the Tribunal’s jurisdiction confined?
Is the Decision in Hannaford relevant?
The Evidence of the Applicant – Summary of Evidence in Chief
The Evidence of the Applicant – Summary of Cross-Examination
The Evidence of Dr Jon-Paul Khoo – Summary of Evidence in Chief
The Evidence of Dr Jon-Paul Khoo – Summary of Cross-examination
The Evidence of Dr Axel Estensen – Summary of Evidence in Chief
The Evidence of Dr Axel Estensen – Summary of Cross-examination
The Evidence of Dr Christopher Slack - Summary
The Evidence of Dr Christopher Slack – Allocation of weight
The Evidence of Dr Aleksandra Isailovic – Summary of Evidence in Chief
Two preliminary matters
The Evidence of Dr Aleksandra Isailovic – Summary of Cross-examination
Two primary themes arising from the cross-examination
Other themes arising from the cross-examination
Conclusion
Decision
INTRODUCTION

Mr Andrew Hooley (the Applicant) is a 43 year old man who, on 27 February 2009, submitted a claim for Workers’ Compensation with Comcare (the Respondent) in respect of:
·Adjustment disorder (with anxiety and depression);
·Major depression;
·Deterioration of stabilised obsessive compulsive disorder.[1]
[1] Exhibit 11, s 37 T Documents, T 5, page 46.
The Applicant attributed his asserted conditions to being “…publicly belittled in front of colleagues and members of the general public. My professional competence was questioned. I was denied the opportunity to respond to the claims.”[2]
[2] Ibid, page 48.
On the date the claim was submitted, the Applicant was employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO). According to the claim form:
(i)the incident starting the chain of events leading to his injuries or illness arose from “poor behaviour by project manager (supervisor) inc public belittling, bullying, micro-management, unwarranted criticism.”[3];
(ii)the relevant action, exposure or event that caused his asserted injury or illness was that he “…was publically [sic] belittled in front of colleagues and members of the general public. My professional competence was questioned. I was denied the opportunity to respond to the claims.”[4];
(iii)the act or thing that actually injured him or made him ill was a “lack of intervention after the complaint about the supervisor’s behaviour was made. Accusations of misconduct (sexism and underperformance) made by unrelated employees. Failure to intervene and assess serious accusations of misconduct.”[5]; and
(iv)the Applicant was injured or otherwise noticed he was ill on 13 September 2007.[6]
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid, page 46.
Both parties were (with respect) very ably represented by Counsel in the hearing before me. In terms of documentary material received into evidence, 26 exhibits were tendered,[7] ranging from the parties’ respective Statements of Facts, Issues and Contentions, the mandatory Tribunal (or T) Documents, and an array of medical opinions and reports. The hearing received lay oral evidence from the Applicant and expert oral evidence from (1) Dr Jon-Paul Khoo (consultant psychiatrist); (2) Dr Axel Estensen (consultant psychiatrist); and (3) Dr Aleksandra Isailovic (consultant psychiatrist).
[7] See exhibit list attached to these Reasons and marked “Annexure A”.
DECISION HISTORY
The Respondent accepted liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on 8 September 2009.[8] The relevant decision-maker proceeded on the basis that (1) psychological conditions are determined with regard to the meaning of “disease” as defined in s 5B of the SRC Act, and (2) one of the two ultimately accepted conditions occurred in circumstances of aggravation as defined in s 4 of the SRC Act. That decision-maker found, on the balance of probabilities that the Applicant’s claimed condition was contributed to, in a significant degree, by his employment with the CSIRO.
[8] Exhibit 13, Statement of Reasons in Liability decision dated 8 September 2009.
The Respondent:
(i)accepted liability for adjustment reaction with disturbance of emotions; and
(ii)accepted liability for aggravation of obsessive-compulsive disorder (OCD);
(iii)identified the date of the injury as 11 September 2008, that being the date on which the Applicant first sought treatment for the conditions accepted by the Respondent.
On 6 August 2015, the Respondent issued a notice of intention notifying the Applicant that compensation may no longer be payable for the entitlements comprising (1) medical expenses and (2) incapacity pursuant to ss 16 and 19 of the SRC Act, respectively. Prior to finalising its notified position in a determination, the Respondent afforded the Applicant an opportunity to obtain and present further medical evidence to dissuade the Respondent from ceasing payment of compensation.
It transpired that respective medical reports were obtained by the Applicant from the consultant psychiatrist, Dr Christopher Slack on 8 September 2015 and by the Respondent from Dr Aleksandra Isailovic (consultant psychiatrist) on 10 November 2015. Following its further review of the totality of the medical evidence, the Respondent determined on 27 January 2016 that no liability existed to pay compensation in respect of medical expenses (s 16 of the SRC Act) or incapacity (s 19 of the SRC Act).
On 11 February 2016, the Applicant sought reconsideration of the Respondent’s determination dated 27 January 2016. On 11 March 2016, a delegate of the Respondent decided to affirm the determination.[9] In affirming the determination of 27 January 2016, the Respondent’s delegate said:
“Based on the medical evidence before me, I am not satisfied that you continue to suffer from the effects of the accepted condition adjustment reaction with disturbance of emotions and aggravation of obsessive-compulsive disorder. I consider that your current conditions are related to a combination of factors outside your employment, rather than the effects of your compensable injury in 2007. On this basis, I am not satisfied that your employment continues to significantly contribute to your compensable injury sustained 13 September 2007.
Therefore, it follows that compensation is not payable for the adjustment reaction with disturbance of emotions and aggravation of obsessive-compulsive disorder under sections 16 and 19 of the SRC Act.”[10]
[9] This reconsideration decision was made under s 62 of the SRC Act and is a “reviewable decision” as defined in s 60 of the SRC Act. Pursuant to s 64 of the SRC Act, the Tribunal has jurisdiction to review this reconsideration decision.
[10] Exhibit 11, s 37 T Documents, T36, page 303.
The instant application was filed with the Tribunal on 20 March 2016. The Respondent accepts (1) the Applicant continues to suffer psychological symptoms and (2) the compensable condition is properly characterised as an aggravation of major depressive disorder (MDD). Be that as it may, the Respondent interprets the evidence to say, on the balance of probabilities, the Applicant no longer suffers from the effects of the compensable conditions. The Respondent bases this evidentiary interpretation on a contention that the Applicant’s employment with the Commonwealth no longer contributes, to a significant degree, to his psychological symptoms. I agree with that evidentiary interpretation and resulting contention. My reasons follow.
THE LEGISLATIVE FRAMEWORK
Section 14 of the SRC Act is the progenitor of the terms and concepts necessary to be identified and addressed in determining this application. It is the section that imposes a liability on the Respondent to compensate an applicant in certain circumstances. It provides that: “…Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.” [My underlining].
Section 5A(1) of the SRC Act[11] defines the term “injury” to mean:
“(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.”
[My underlining]
[11] Note: s 4(1) of the SRC Act notes that ““injury” has the mening given by section 5A”.
In terms of the underlined words and phrases in the above quoted definition of an “injury”, s 5B(1) of the SRC Act[12] defines it as follows:
“(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.”
[My underlining]
[12] Note: s 4(1) of the SRC Act notes that ““disease” has the mening given by section 5B”.
“Reasonable administrative action”, although defined in s 5A(2) of the SRC Act, is not propounded by either party and is of no relevance in the instant application.
Section 4(1) of the SRC Act defines an “ailment” as: “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
With further reference to the definition of “disease”, s 5B(2) of the SRC Act provides as follows:
“ …in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.”
[My underlining]
Section 5B(3) of the SRC Act defines “significant degree” to mean “a degree that is substantially more than material.” Importantly for present purposes, it should be noted that the Parliament’s incorporation of s 5B into the SRC Act was intended to require a claimant to demonstrate a stronger connection between that claimant/employee’s employment and a disease which is asserted to result from that employment. Reference to the relevant Explanatory Memorandum introducing this amendment is instructive:
“…
Objectives
...
It was the original intention of the legislation [i.e. the SRC Act] to ensure that there is a close connection to employment as the cause, aggravator or contributor of a worker’s disease or injury, before eligibility for worker’s compensation can be established.
A further objective, through the exclusionary provisions, was to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for worker’s compensation.
Achieving these objectives would restore Parliament’s original intention regarding the operation of these provisions.
A. Definition of “disease”
Identification of options
The SRC Act has a weaker employment contribution test compared to most other Australian jurisdictions. In Victoria and Queensland, for example, employment must be “a significant contributing factor for a disease to be compensable”. In Western Australia, employment must be “a contributing factor and contribute to a significant degree”. In Tasmania and the Australian Capital Territory, employment must be “a substantial contributing factor”.
Court interpretations of the SRC Act’s employment contribution test have further weakened its application. Options 2, 3 and 4 below seek to ensure there is a close connection between the person’s employment and his or her contraction of a disease to be compensable under the Act.
…
Option 3 – Require a “significant contribution” by employment to the contraction of a disease
· The definition of disease would be amended to provide that employment must have contributed in a “significant degree” to the contraction or aggravation of the disease and provide further elaboration as to what is meant by “significant degree”
…
Impact Analysis
The following analysis focuses on the impact of the above regulatory options on major stakeholders covered by the SRC Act, namely, licensed self-insurers, the premium payers (the Australian and ACT Governments), and employees of both categories of employer.
…
Option 3 – Require “a significant contribution”
Cost to licensed self-insurers
onone readily identifiable
Benefits to licensed self-insurers
owould reduce the incidence of compensable claims compared to the present situation and provide scope for a reduction in workers’ compensation costs
Cost to employees
oeligibility for workers’ compensation for disease claims would be more restrictive than at present.
Benefits to employees
othere would still be eligibility for workers’ compensation where work has made a significant contribution to the contraction or aggravation of an employee’s disease
Cost to Government
onone readily identifiable
Benefits to Government
owould reduce the incidence of compensable claims compared to the present situation and provide scope for a reduction in workers’ compensation premiums
...
Recommended option
Requiring employment to make a “significant contribution” to the contraction of a disease for the disease to be compensable (Option 3), is the preferred option.
Amending the SRC Act in accordance with Option 3 would ensure an effective test of work-relatedness, providing eligibility only for work-related diseases consistent with the intention of the SRC Act and consistent with eligibility in most other State schemes while at the same time minimising scope for uncertainty and disputation.
This test is considered to provide a stronger causal connection between an employee’s employment and the contraction or aggravation of a disease than Option 2 and is consistent with the Productivity Commission’s recommendation in its Inquiry Report of a “significant contributing factor” as a minimum benchmark for defining work-related fatalities, injury and disease.[13]
...”
[My double-underlining; single underlining and emphasis in original]
[13] Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth)
This Tribunal has recognised and applied this requirement for a stronger connection between an employee’s employment and a claimed disease attributable to that employment:
“Since the decisions in Tzikas and Plumb the Act has been amended to require a stronger connection between an employee’s employment and a disease which it is claimed that employment gives rise to. Consideration of this question now requires an examination of the factors set out in s 5B(2).”[14]
[14] Prain and Comcare (Compensation) [2016] AATA 459, paragraph [65] per Deputy President Humphries.
The concept of “employment”, in terms of its use in s 5B of the SRC Act, is not defined anywhere in that legislation. With reference to historical authority, the Respondent submits that the concept of “employment” “…should be construed to mean the actual work (or duties or service) an employee is engaged to do (or required to perform) and what is reasonably incidental to that work.”[15]
[15] Exhibit 25, Respondent’s Written Submissions, page 6, paragraph [23].
I agree with that contention because it is consistent with more recent authority from this Tribunal, where the concept was given a narrow construction. The Tribunal authority to which I refer is Re Pettiford v Comcare (2014) 139 ALD 411. In Pettiford, the Tribunal had regard to more historical High Court authority,[16] where the High Court found that establishing a threshold for determining that “employment was a contributing factor” for an asserted injury involved identifying or demonstrating “some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed.” [My underlining].
[16] Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626.
Further, to demonstrate that “employment was a contributing factor”, it was necessary to be able to point to “some event or occurrence in the course of the [Applicant’s] employment or some characteristic of the work performed or the conditions in which it was performed.” In Pettiford, the Tribunal inferred from the abovementioned quoted passages from earlier High Court authority that the concept of “work” could not be regarded as a “neutral term”. As noted by the Respondent: “Rather, the emphasis was upon the actual work performed by the employee…”[17]
[17] Exhibit 25, Respondent’s Written Submissions, page 7, paragraph [24].
As will be noted from the following discussion and analysis of the medical evidence, certain factors that were either reported by the Applicant to his medical experts and/or identified by those experts in his symptomatology do not necessarily qualify as “employment” for the purposes of the determinative exercise required by s 5B(2) of the SRC Act. For example:
(i)the detection or presence of symptoms for which he was previously compensated during a course of rehabilitation will not meet the threshold of “employment”. Rehabilitation is not an incident or state of affairs to which the Applicant was exposed “in the performance of his duties,”;
(ii)whether or not his employer omitted, overlooked or failed to provide him with training opportunities cannot be regarded as “employment”. Any such shortfall on the part of the employer could not possibly comprise a component of the Applicant’s work duties, nor was it something reasonably incidental to those work duties; and
(iii)the fact that the Applicant had to traverse the uncertainties and exigencies of a claims or litigation process in his claim for compensation for injuries he asserted related to his employment could not possibly comprise “employment” for the purposes of s 5B of the SRC Act. This Tribunal has noted that:
“Reactions – or indeed overreactions – to events in the workplace, if they are properly regarded as sequelae of an applicant’s employment, are part and parcel of the original injury, but it is well established that anger and frustration towards a respondent in resolving a legal claim for that injury is not.”[18]
[18] Prain and Comcare (Compensation) [2016] AATA 459, at paragraphs [63]-[65].

Section 16 of the SRC Act provides for compensation in respect of medical expenses etc. as follows:
“ (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
Section 19 of the SRC Act provides that Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using a formula set out in s 19(2) of the SRC Act.
ISSUES
The issues for determination in this matter are:
(a)whether the Applicant continues to suffer from an ‘injury’ as defined in the SRC Act; and if so
(b)whether the Applicant has an ongoing need for treatment for the injury; and /or
(c)whether the Applicant has an ongoing incapacity for work.
While there is no formal onus of proof stipulated in the SRC Act, the weight of authority suggests the Respondent has the burden of establishing that the effects of the compensable condition have ceased.
The issue of whether the Applicant continues to suffer from the effects of his compensable condition can be addressed in one of two ways. First, the issue may be approached from the perspective of ss 16 and 19 of the SRC Act. Section 16 provides that “…Where an employee suffers an injury, Comcare is liable to pay…” Section 19 provides that the Respondent is liable to pay compensation to an employee who is incapacitated for work as the result of an injury. Both of these sections, to my mind, are intended to deal with applicants entering the arena of seeking compensation on an initial basis.
Second, the Applicant’s present claim is that his ongoing psychological condition(s) is a continuation of the accepted psychological condition(s). In those circumstances, there is Full Court authority for the proposition that the cease effects issue can be approached and resolved by reference to s 5B of the SRC Act. In Prain v Comcare (2017) FCR 143, the issue for determination was whether the Tribunal had fallen into error in determining the question of the Applicant’s present entitlement to compensation under ss 16 and 19 of the SRC Act by approaching the task by reference to s 5B. The Full Court endorsed the Tribunal’s approach in determining the issue via s 5B and found no error on the Tribunal’s part in that regard. The Full Court said:
“[89] The Tribunal concluded (at [71]) that Comcare was not liable for a compensable condition under s 14 of the SRC Act. It was therefore unnecessary for the Tribunal to consider s 19 (or s 16) which were the provisions under which Comcare determined that Mrs Prain had no entitlement to compensation…This is because s 14 creates a liability to pay compensation “in accordance with” the SRC Act, that is, a liability to pay the compensation for which provision is made in sections such as ss 16 and 19. As stated by the Full Court in Lees v Comcare [1999] FCA, 753…; 29 AAR 350 at [27]:
[Section] 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability “[s]ubject to” Part II of the Act. That is, it is a liability limited in its extent by other provisions of Part II of the Act (see, for example, s 17(2)). Secondly, the liability is a liability to pay compensation “in accordance with” the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act (see, for example, ss 17(3)(4) & (5), 19, 20, 24 and 25).”
The Respondent, validly to my mind, submits that the preferable test is that set out in s 5B, and that, on the basis that s 5B can resolve the cease effects question, it is unnecessary for the Tribunal to consider ss 16 and 19. I agree.
JURISDICTIONAL CONTEST
A jurisdictional contest emerged at the hearing about two things: first, whether the Tribunal’s decisional function in this review is confined to ss 16 and 19 of the SRC Act, and, second, whether it is necessary or appropriate to invoke the decision of the Full Court in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 (Hannaford).
Is the Tribunal’s jurisdiction confined?
With reference to the former issue, the Applicant’s position is that no such jurisdiction arises in the instant case. The Applicant contends, I think validly, that the asserted jurisdictional issue has no traction because the instant application is not a dispute relating to s 14 of the SRC Act. It is, rather, a “cease effects” determination relating to ss 16 and 19, where Comcare has previously made a determination under s 14 in favour of the Applicant at an earlier time.
The nub of the asserted jurisdictional point derives from the way the parties have interpreted the manner of application of the principle in Szabo v Comcare (2012) 58 AAR 152 (Szabo). Szabo is authority for the proposition that an Applicant’s advanced claim to the Tribunal must not be inconsistent with the actual claim advanced under s 54 of the SRC Act, even allowing for subsequent amendment and refinement of that claim. The Applicant contends that, as per Szabo, (1) the Tribunal’s jurisdiction depends on the scope of the Applicant’s claim and not on determinations Comcare may have made about it, and (2) the requirement that the “central elements” of the claim have been the subject of a reviewable decision under s 62 of the SRC Act.
The Applicant says the Tribunal’s jurisdiction is not adversely affected because the claim sought to be advanced in the instant application is “entirely consistent” with the original claim made under s 54 of the SRC Act. According to the Applicant:
“No jurisdictional issue is created by subsequent refinement of the claim, including variation of the diagnostic description of the compensable condition (as in this case), or even modification of the alleged cause of the conditions, provided that the relevant amplifications of the claim were adequately before the delegates in the determination/reviewable decision process (whether or not they actually considered them).”[19]
[19] Exhibit 24, Outline of Applicant’s Submissions, dated 5 December 2017, page 6, paragraph [4.8].
The Respondent contends that “subsequent refinement of the claim” has the real potential of causing the Tribunal to deal with matters beyond the compass of the claim and thus beyond the Tribunal’s jurisdictional ambit. In the final analysis, the issue has little or no traction because:
“The Respondent does not apprehend, and proceeds on the basis, that the Applicant does not seek that the Tribunal make findings beyond the scope of the claim, including with respect to the alleged causes of the compensable conditions.”[20]
[20] Exhibit 25, Respondent’s Closing Submissions, page 11, paragraph [37].
To the extent there is any “subsequent refinement of the claim” arising from the factors now asserted as being causative of the most recent manifestation of the Applicant’s symptoms comprising, for example, a lack of proper rehabilitation, professional development and career support, those factors are not “employment” within the meaning of s 5B of the SRC Act. This is perhaps the principal reason behind there being little or no traction in the asserted jurisdictional issue.
Is the decision in Hannaford relevant?
The issue arose at the conclusion of the Applicant’s oral evidence at the hearing. The Respondent submitted that the instant claim essentially derives from a series of events from 13 September 2007 to 26 November 2007.[21] The resulting complaint from the Respondent is that the Applicant’s evidence covered a series of events well beyond that period. This, says the Respondent, amounts to the Applicant purporting to undermine:
“…the state of affairs that form the basis of the finding in respect of liability. That state of affairs comprises a period of three months of events, and to the extent to which in this proceeding that finding is sought to be challenged, that is something that takes us by surprise.”[22]
[21] See Hearing Bundle, Tab 4, The liability decision: while the present hearing comprises a review of the decision made under ss 16 and 19 of the SRC Act and (2) not the liability decision itself, it is clear from the summary of relevant factors in that decision that liability has been determined on a transaction of events spanning 13 September 2007 to 26 November 2007.
[22] Transcript, Day 1, page 40, lines 9-12.
The Applicant says he does not seek to undermine the primary liability determination made on 8 September 2009. It is not contended on behalf of the Applicant that the original decision as to liability was indisputably wrong. It is, however, contended by the Applicant that (1) his work-related psychological condition should now properly be characterised as “aggravation of major depressive disorder and aggravation of obsessive-compulsive disorder” and (2) it is open to the Applicant to “refine” his claim and to seek a “…variation of the diagnostic description of the compensable condition, or even modification of the alleged cause of the conditions…”
I have misgivings about any contention purporting to re-characterise a previously claimed condition(s) and/or a purported variation or modification of the diagnostic effect of cause of that conditions(s), respectively. I am of the view that Hannaford does have potential application to the instant case. One of the issues falling for determination is whether the diagnostic description appearing in the primary liability determination – that of “adjustment reaction with disturbance of emotion” – is a proper characterisation of the compensable condition.
This determinative exercise is the type of function that attracts application of Hannaford. As outlined by Conti J in Hannaford:
“59. I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRA Act [sic] and in the events which happened
(i)to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision…under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and
(ii)to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act,… and
(iii)to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.”[23]
[23] Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253, at paragraph [59].
COMMON GROUND BETWEEN THE PARTIES
The Respondent has helpfully made certain concessions about the medical evidence that, to my mind, significantly narrow the scope of that evidence for the purposes of determining the instant application. The Respondent accepts:
·that the Applicant continues to suffer from psychological symptoms;
·that the medical evidence supports a finding that the Applicant’s compensable depressive condition is accurately described as an “aggravation of major depressive disorder” within the meaning of section 4(1) of the SRC Act.
Ultimately, the Respondent contends that the medical evidence should be construed on the basis that the Applicant no longer suffers from an “injury” for the purposes of section 5A[24] of the SRC Act and that as a consequence, there is no liability to compensate him for ongoing medical treatment pursuant to section 16 of the SRC Act nor for any incapacity for work pursuant to section 19 of the SRC Act.
[24] To be read with s 5B of the SRC Act.
The Respondent identifies certain uncontroversial aspects of the medical evidence in support of its abovementioned principle contention that the Applicant does not continue to suffer from an “injury” for the purposes of section 5A of the SRC Act. Succinctly stated, those uncontroversial components of the medical evidence comprise:
(a)there is no controversy between the parties that the Applicant suffered from pre-existing MDD and OCD;
(b)it is clear from the medical evidence that MDD and OCD are co-morbid conditions. Specifically, symptoms of one condition can contribute to the other and vice versa;
(c)there was no contest about the fact that MDD is a lifelong condition for the majority of sufferers and, further, the majority of sufferers do not have a single episode of MDD. The parties accept that the medical literature confirms that as the number of MDD episodes increase during a patient’s life, depressive episodes are less likely to be triggered by adverse life events. In terms of OCD, there seemed no contest between the parties that OCD is a relapsing and recurring disorder and that the symptoms experienced by a patient with OCD are prone to fluctuation and, significantly, there are moderate rates of remission in the majority of patients;
(d)in terms of the Applicant’s MDD symptoms, there seemed no contest between the parties that subsequent to the period containing the events giving rise to the compensable conditions (i.e. 13 September 2007 to 26 November 2007), the Applicant experienced an 18 month period of syndromal remission from the MDD condition;
(e)in terms of his OCD condition, there also seemed no contest between the parties that subsequent to the period containing the events resulting in the compensable conditions (i.e. 13 September 2007 to 26 November 2007), the Applicant experienced a seven month period of virtual remission of his OCD symptoms (i.e. between October 2011 and May 2012) such that the previously symptomatic obsessions and compulsions characteristic of the disorder did not affect his function;
(f)further, there was no contest between the parties that comorbidity between the applicant’s MDD and OCD conditions manifested in 2012 as follows:
ohis OCD symptoms mildly worsened in May 2012; and
ohe started to demonstrate symptoms of MDD in September 2012;
(g)each of the parties accepted that the Applicant had at all times provided a frank, honest and accurate account of his symptoms to Dr Jon-Paul Khoo, his treating psychiatrist who has a treatment history with Applicant dating back to 2005. Likewise, Dr Khoo’s extensive treatment notes running for the period from September 2005 until September 2016 were accepted by the parties to comprise a true and correct record of what was said to him by the Applicant in the course of the treatment which he (Dr Khoo) administered;
(h)both parties accepted that from at least September 2012, Dr Khoo’s notes contained little, if any reference to the Applicant’s “employment” at CSIRO. It is plain from Dr Khoo’s notes that most of the issues and circumstances being reported by the Applicant to Dr Khoo from September 2012 onwards refer to things outside of his employment with the CSIRO such as:
odifficulties the Applicant experienced at subsequent workplaces; and
ohaving to navigate his way through the Commonwealth compensation process and resulting litigation; and
ofinancial troubles resulting from the loss of reliable employment.
The resulting contention from the Respondent is that when one has regard to the aforementioned uncontroversial matters and has regard to those matters/items during the period since the Applicant left his employment with the CSIRO, the correct view to be taken from the totality of the evidence is that factors related to the Applicant’s “employment” (as that expression is used in section 5B of the SRC Act) “…were largely a spent force in the Applicant’s life.”[25]
[25] Exhibit 25, Respondent’s Written Submissions, page 14, paragraph [41.9].
To further quote the Respondent, the necessary and relevant employment factors that could ground a finding in favour of the Applicant had been “crowded out” as a result of factors that emerged post the Applicant’s employment with the CSIRO, such as, his abovementioned difficulties at subsequent workplaces, exposure to dealing with the Commonwealth compensation process and attendant litigation and financial stress.
According to the Respondent, the medical evidence demonstrates that the natural progression or evolution of the Applicant’s symptomatology has been and is such that it can no longer be said that his “employment” at the CSIRO continues, to a significant degree, to contribute to his ongoing symptomatology.
THE EVIDENCE OF THE APPLICANT – SUMMARY OF EVIDENCE IN CHIEF
The Applicant gave evidence of experiencing OCD symptoms from his early teenage years. While a formal diagnosis occurred in 2005, it was not the Applicant’s evidence that his OCD symptoms interfered with his daily functioning. He spoke of a short-lived episode of depression in his final couple of years at school but that he had nothing in the way of substantial symptoms referable to depression prior to 2005.
He joined the CSIRO in June 2002, aged 26 years. He did well in his allocated Information Technology (IT) role at the CSIRO and within a relatively short time became involved in the delivery of a major project in Canberra. There appears to be little in the way of OCD symptoms during his first three years with the CSIRO and there is no suggestion in his evidence that either OCD or any other psychological symptoms were interfering with his work performance.
The Applicant was frank and forthright when speaking of how OCD symptoms had manifested in his life involving the performance of rituals and a compulsion to otherwise make sure certain tasks were completed in a certain way. The Applicant nevertheless continued to do well at the CSIRO and it was clear that he enjoyed both his work and the collegiality and camaraderie of his work colleagues.
By 2005, the Applicant was beginning to experience difficulty in managing his OCD symptoms. There followed (in 2005) an initial referral to the consultant psychiatrist, Dr Jon-Paul Khoo. He said that at this time he was experiencing a depressed mood and that his symptoms for OCD appeared to intensify such that they were depleting his capacity to deal with them and that this, in turn, caused him to feel depressed. He sought Dr Khoo’s guidance and assistance in dealing with his OCD symptoms and the resulting melancholia.
Dr Khoo opined that the Applicant was suffering from a depressed mood and that symptoms of OCD were most likely present. The Applicant was medicated for those symptoms and his evidence was that he improved very quickly and that he returned to his very high work performance levels because he felt the medication “just took away a lot of that background noise”[26] arising from meeting the requirements of the compulsions that the OCD had caused him to feel.
[26] Transcript Day 1, page 19, lines 13-15.
The positivity resulting from the Applicant’s on-going consultations with Dr Khoo and the prescribed medication meant that the by the end of 2006, the Applicant was feeling very comfortable and performing very well in his IT role at the CSIRO. He was so content at the CSIRO that he could see himself working in that role (or a derivative role) with that organisation right up to his retirement. With the help of Dr Khoo, the Applicant developed and implemented self-administered techniques whereby he disciplined himself not to engage in OCD rituals because he knew the self-perpetuating effect upon his symptoms were he to do so. This state of affairs continued into the middle of 2007 at which time his work manager resigned.

His work manager was replaced by an individual called Ms Rosanna Knudson. After an initial positive period, he began to experience difficulties in dealing with her. It would appear Ms Knudson had a disposition tending towards micro-management causing her to challenge and question the Applicant about aspects of his role at the CSIRO about which he had not previously been questioned. It seems Ms Knudson sought to implement change in areas of the Applicant’s work responsibilities and duties that did not need changing. He sought to rationally discuss this with her but eventually accepted her directions and stipulations about those changes in his work pattern.
The Applicant’s concerns and apprehensions about Ms Knudson’s managerial style were exacerbated after his position started to be “devolved” into something other than what he had become accustomed to. For example, he found himself no longer included in meetings with vendors and contractors with whom he had previously dealt. He noticed that specific components of his work duties had been removed from his purview of responsibility and that other people were now doing those tasks. His evidence was that this “devolution” was both unjustified and unnecessary and that it adversely impacted upon him.
His further evidence was that Ms Knudson never satisfactorily explained to him why she was implementing the changes to his work pattern and regime. He felt she was punishing him because he initially challenged her about certain of the changes to his work role she either had or was purporting to implement. Throughout this period of agitation and forced adaptation, the Applicant’s anxiety levels increased. He felt Ms Knudson was undermining him at work. These concerns and challenges he was experiencing with her managerial style seemed to crystallize in September 2007 as a result of a particular – and indeed extraordinary – demand she made of him whereby she purported to compel him on a Sunday evening to attend a meeting in Sydney the following morning.
The difficulty with that request was that she knew the Applicant was on a pre-arranged visit to his family in northern New South Wales at a location some 600-700 kilometres away from Sydney. The Applicant understandably expressed some reluctance towards effectively dropping everything on a Sunday and undertaking the 600-700 kilometre journey back to Sydney. Her response was not helpful, especially with someone having a tendency towards anxiety such as the Applicant. According to the Applicant, her unreasonable demand that he attend this suddenly called meeting was that “…you’d better be there or else”.
Despite feeling both humiliated and quite anxious, he attempted to complete the journey but understandably abandoned the exercise when he realised that to do so in the emotional state he was in would not have been a safe undertaking. With the benefit of hindsight, his inclination was correct. This is because Ms Knudson’s extraordinary threat was, ultimately, both vacuous and hollow.
Ms Knudson maintained her forthright and domineering managerial style when managing the Applicant’s work duties and performance. This was evident from an incident that occurred in September 2007 at the Eastwood Football Club. Following a morning’s work, approximately seven or eight members of the Applicant’s work team, including Ms Knudson, went to the Eastwood Football Club for lunch.
During lunch, Ms Knudson adopted a posture of effectively “naming and shaming” the Applicant about certain aspects of his work performance and work activities, in front of his work colleagues and within earshot of other diners/patrons of the Football Club facility. He understandably asked her to refrain from discussing those sorts of issues in that sort of forum, but she nevertheless insisted on doing so via conduct that can only be regarded as aggressive and bullying towards the Applicant. He understandably felt belittled and undermined, but such was the effect of Ms Knudson’s conduct on the Applicant’s pre-existing symptomatology that he was actually admitted to hospital for four days following this incident.
It seems others formed similar negative impressions about Ms Knudson’s conduct at the Eastwood Football Club and she was caused to issue an apology to the Applicant. This was only a temporary reprieve because her micro-managing and bullying conduct promptly resumed. The conduct not only manifested in direct terms but in indirect terms as well. For example, rather than publicly berating him or issuing him with an unreasonably and extraordinary demand, Ms Knudson would often provide him with approval to do something or take a course of action (as part of his work duties) and then threaten to rescind that approval at the last moment. This caused the Applicant to feel very anxious and to also experience dread at the thought of going to his workplace. He felt helpless and did not know how to manage and control the psychological malaise he was experiencing.
As would reasonably be expected by someone in his position, the Applicant chose a work-related administrative path to try and resolve or ameliorate the adverse effects of Ms Knudson’s managerial style. He made an informal complaint to his superiors and sought redeployment to another area. Neither aspect of this administrative course (informal complaint or redeployment) yielded anything positive for the Applicant. On the contrary, things went from bad to worse. The Applicant was told he would be removed from the specific work project with which he had been involved for quite a time and he was effectively given an ultimatum to either withdraw his allegations and apologise to Ms Knudson, or otherwise take the matter to a formal grievance process.
He filed a formal grievance pursuant to which an independent investigation was commissioned. The independent investigation yielded a report which contained findings that (1) Ms Knudson had in fact made derogatory comments about the Applicant in the presence of others and (2) that she had micro-managed him.
Unfortunately for the Applicant, the findings of the independent report did not result in any change in the manner of the Applicant’s treatment in his workplace. He was denied the opportunity of returning to the meaningful work he previously enjoyed doing at the CSIRO. Any plain reading of this aspect of the Applicant’s story reveals he was effectively “cold shouldered” out of the organisation. This is effectively what occurred when, in February 2011, he departed the CSIRO with an involuntary redundancy.
From early 2008 until the end of his work period with the CSIRO in February 2011, the Applicant was given substantially less significant work to do and, in particular, after submitting his claim to Comcare in February 2009, the level of significance of his work duties declined even further. This prevailing state of affairs between early 2008 until February 2011 caused the Applicant to feel devastated about what he felt was the loss of any benefit and reputation he had built up in his field during his time with the CSIRO and to otherwise feel that all of that good work, toil, effort and achievement was effectively being thrown away.
It is apparent that the CSIRO was plainly not interested in the mutual implementation of any regime facilitating the Applicant’s return to work nor was it interested in any sort of professional development or rehabilitation. He was denied those professional development opportunities in circumstances where his other colleagues had received up to 20 days of such development and training. His involuntary redundancy in 2011 occurred contemporaneously with his duly expressed concerns that his rehabilitation had not been completed.
The Applicant did not remain idle or dilatory. As promptly as June 2011, he sought and obtained a position with the University of Queensland (UQ) as an IT Project Manager. He remained in this role until March 2014. He does not regard this phase of his employment life as a success. This is because his skills became stale and less current as a result of being forced to complete largely menial tasks during his last three years at the CSIRO from 2008 to 2011. The scope of his work duties at UQ significantly shrank in comparison to what he was doing at the CSIRO prior to the arrival of Ms Knudson. His role at UQ required him to work in areas that had by then become less familiar to him and that significantly taxed his capabilities such that he was experiencing difficulty in completing tasks that he would previously (i.e. pre-Ms Knudson at the CSIRO) have been able to do with little or no difficulty. It appears his role at UQ was progressively wound down. He was told by a supervisor that UQ had held concerns about his work performance for some time. Although there was much work still to be done at UQ, he was only offered short-term contracts. Another project manager, who replaced the Applicant, was hired by UQ very shortly after the Applicant completed his period of work in March 2014.
Once again, the Applicant did not remain idle or dilatory and promptly sought and obtained a similar sort of position, this time with Griffith University (Griffith). As was the case with his UQ employment, the Applicant’s work at Griffith comprised only a fraction of both the amount and complexity of the work he had been previously doing at the CSIRO before the arrival of Ms Knudson. As was the case with his UQ work, there was no difficulty with any individual staff member at Griffith. The Applicant found himself lacking the necessary levels of concentration, forensic capacity and general application to his work such that he could not fulfil his work duties at Griffith. He attributes this cumulative short fall in his capacity to complete his allocated work tasks at both UQ and Griffith to the adverse outcomes arising from his experience under the managerial purview of Ms Knudson at the CSIRO. He left his role at Griffith at the end of 2014 after only seven months.
The Applicant consulted with Dr Khoo about re-engaging in paid or unpaid employment. This ranged from part-time work in the IT field and a range of volunteer work, and some tutoring. He has found a level of solace in his chosen sport of taekwondo. He has had a virtual lifelong involvement with taekwondo and has reached a level whereby he can teach and instruct others in that martial art. Prior to the injury he sustained while working at the CSIRO under Ms Knudson’s managerial regime, he was teaching up to nine taekwondo classes a week. Post-injury, his capacity to teach taekwondo classes had reduced to approximately three classes per week. His present primary source of income is from the Commonwealth Department of Human Services by way of a Disability Support Pension.
THE EVIDENCE OF THE APPLICANT – SUMMARY OF CROSS-EXAMINATION
The Respondent seeks to impugn the Applicant’s evidence on the basis of the abovementioned jurisdictional point. In short compass, the Respondent says the Applicant cannot propound any causes of his compensable condition beyond the scope of the claim he has already filed, nor can he do so for the purpose of undermining existing findings already made in the liability decision. Further, the Respondent says the Applicant is precluded from propounding alternate causes of his compensable conditions such as, for example, a lack of proper rehabilitation, professional development, career support, because those factors are not “employment” within the meaning of section 5B of the SRC Act.
The Respondent further contends that key aspects of the Applicant’s evidence in chief squarely accord with the abovementioned uncontroversial and/or uncontested issues summarised at paragraph 42(a)-(h) of these Reasons. Examples include:
·the Applicant’s long history of experiencing symptoms of OCD and at least two earlier episodes of depression (i.e. pre-2005);
·his historical treatment/consultation history with Dr Khoo since 2005;
·his description of how his OCD symptoms manifested and how they continue to do so;
·his evidence that prior to the clinical intervention of Dr Khoo, the Applicant noticed a relationship between his OCD symptoms and a resulting onset of depressive symptoms.
·his evidence that even after commencing treatment with Dr Khoo, but prior to the claim period propounded as 13 September 2007 – 26 November 2007, he continued to experience feelings of dread of things potentially going wrong in his life, resulting in a constant vigilance akin to keeping the “wolf from the door”;
·his evidence that he had always been frank and forthright in reporting his symptoms to Dr Khoo and that, accordingly, Dr Khoo’s notes represented a true and correct account of what the Applicant told Dr Khoo.
The Applicant’s evidence was problematic because, on the one hand, he sought to attribute his work performance deficiencies at both UQ and Griffith to the adverse outcomes he experienced at the CSIRO (post-Ms Knudson’s arrival) and that those deficiencies had nothing to do with any difficulties he had with staff at either of these institutions. Yet, on the other hand, he accepted in cross-examination that while working at UQ he did tell Dr Khoo about difficulty he was having with a director at that workplace. This is what transpired at the hearing:
“MS LONGBOTTOM[27]: And you’ve always given Dr Khoo an honest and accurate account of your symptoms?
APPLICANT: I have.
MS LONGBOTTOM: And you’ve always told Dr Khoo about those things that were happening in your life that you felt affected your mental health at various times?
APPLICANT: I have, yes.
MS LONGBOTTOM: So, for example, in 2012 – I think it’s in November 2012, you saw Dr Khoo and this was during the time when you were working at the University of Queensland?
APPLICANT: Yes. What period in 2012?
MS LONGBOTTOM: It’s November 2012, 20 November 2012. And you told him at that time that you were dealing with a difficult director at work?
APPLICANT: What were the exact notes?
MS LONGBOTTOM: The notes say: “Dealing with difficult director at work.”
APPLICANT: Yes, that was part and parcel with the work, really.”[28]
[27] Counsel for the Respondent.
[28] Transcript, Day 1, 9 October 2017, page 36, lines 32-44, page 37, lines 1-9.
A further problematic feature of the Applicant’s evidence in chief is that he spoke of factors apparently arising from his previous employment with the CSIRO and that those factors were now propounded to be causative of his ongoing symptoms that affected his work at UQ and Griffith. Those factors comprised (1) that he was not given adequate training for the purposes of maintaining his skill set while at the CSIRO and (2) that he was not given adequate rehabilitation while at the CSIRO. This is what transpired at the hearing:
“MS LONGBOTTOM: Alright. You’ve also given evidence today, Mr Hooley, about the latter part of your experience working at the CSIRO?
APPLICANT: Certainly, yes.
MS LONGBOTTOM: Subsequent to the complaint, you’ve given evidence that you felt you were not given adequate training, in terms of maintaining your skill set?
APPLICANT: Yes, that’s correct.
MS LONGBOTTOM: And, you felt that you weren’t given adequate rehabilitation?
APPLICANT: Yes.
MS LONGBOTTOM: In terms of your work at UQ and subsequently at Griffith, it’d be correct to say, wouldn’t it, Mr Hooley, that that skill deficit, that professional skill deficit contributed to the difficulties you experienced at those workplaces?
APPLICANT: I would say the – yes.”[29]
[29] Ibid, page 38, lines 14-26.
The difficulty with this evidence is that neither of these factors amount to “employment” for the purposes of section 5B of the SRC Act. An asserted lack of rehabilitation will not constitute “employment” for the purposes of that section. This is because rehabilitation cannot be said to be an incident or state of affairs to which the employee is exposed “in the performance of his or her duties”.[30] Similarly, an employer’s omission to provide training opportunities does not constitute “employment” for the purposes of section 5B of the SRC Act. This is because any such omission does not comprise part of the actual work (or duties or service) an employee is engaged to do (or required to perform) nor is it something reasonably incidental to that work.[31]
[30] Re Pettiford and Comcare (2014) 139 ALD 411 at paragraphs [94] per Senior Member A.K. Britton.
[31] See Exhibit 25, Respondent’s Closing Written Submissions, page 7, paragraph [25.2].
It was contended on behalf of the Applicant that his evidence should be accepted because (1) “it was essentially unchallenged” and (2) his “cross-examination was very brief, and limited in scope”. I do not think either of these two factors characterise the Applicant’s evidence one way or the other. The scope of the Respondent’s cross examination of the Applicant was, to my mind, directly influenced by the extent to which significant portions of his evidence were not controversial between the parties. On the contrary, the Respondent’s cross-examination, to my mind, served to reinforce the inherent difficulties in the Applicant’s evidence relating to propounded causative factors not constituting “employment” for the purposes of section 5B of the SRC Act.
It was further contended on behalf of the Applicant that the Tribunal should draw some type of adverse inference about Ms Knudson not being called as a witness to rebut any of the Applicant’s accounts of the relevant events. Also in my view, her evidence is hardly necessary or probative in circumstances where (1) even on an objective non-expert analysis, her conduct can be construed as extraordinary and unacceptable; (2) an apology was forthcoming from Ms Knudson; (3) an independent report made adverse findings about her conduct towards the Applicant; and (4) the Respondent ultimately accepted liability for the circumstances of the Applicant’s injury for his time at the CSIRO post the introduction of Ms Knudson. Accordingly, the non-calling of Ms Knudson is of no moment at all, either with reference to how the Applicant’s evidence ought to be construed or more generally.
THE EVIDENCE OF DR JON-PAUL KHOO – SUMMARY OF EVIDENCE IN CHIEF
As mentioned earlier, Dr Khoo has been treating the Applicant since September 2005. His 13 reports appear in the material presently before the Tribunal. In addition, the totality of Dr Khoo’s extensive clinical notes running for the totality of the time the Applicant has been under his care are also before the Tribunal.[32] Dr Khoo gave lengthy oral evidence at the hearing.
[32] See Exhibit 18.
It cannot be denied that, of all of the psychiatric experts, Dr Khoo undoubtedly has the broadest and most longitudinal knowledge of the Applicant’s symptomatology. The Applicant has helpfully summarised[33] the essential “take away” points made by Dr Khoo in his most recent report of 21 July 2017:
[33] Exhibit 24, Applicant’s Closing Written Submissions, pages 15-17, paragraph [6.3].
(i)Dr Khoo describes the Applicant’s work-related conditions to be (1) aggravation of MDD and (2) aggravation of OCD;
(ii)those work-related conditions have resulted from episodic factors that occurred at the Applicant’s workplace at the CSIRO from the latter part of 2007 until the time of his involuntary redundancy from that organisation in February 2011. The Applicant continues to suffer the effects of both of those aggravated conditions and he has not recovered from them;
(iii)there are four psychiatrists who have reported to the Respondent about the nature of the Applicant’s disability and the extent to which it is referrable to his employment with the CSIRO. They are Drs Khoo, Estensen, Slack and Isailovic. Dr Isailovic’s views comprise the sole dissenting voice of the four doctors and that her views should be discounted because her use of relevant literature is not to be trusted and does not otherwise reflect the prevailing and most current scientific opinion about both conditions;
(iv)prior to the Applicant’s exposure to the work-related stressors at the CSIRO (i.e. in the pre-Ms Knudsen era), Dr Khoo opined that the Applicant’s MDD was in full sustained remission and that his OCD was residual. Post the introduction of Ms Knudsen into the Applicant’s work regime at the CSIRO, the Applicant has experienced respective persistent aggravations of both conditions. Dr Khoo identified fluctuations and recurrences of the Applicant’s symptoms. For example:
a.he experienced phases of mood disturbance in early 2008 and late 2008 deteriorating further in early 2009. This required an increase in his antidepressant therapy;
b.mid-2009 saw a stabilisation of his depressive symptoms but Dr Khoo thought he remained prone to episodic mood, anxiety and OCD disturbances;
c.the Applicant experienced significant depressive and anxious symptoms in 2010 but those symptoms did not reach the threshold of major depression;
d.for the remainder of his employment history (including non-CSIRO work), Dr Khoo opines that the Applicant has demonstrated ongoing depressive symptoms which have periodically met the diagnostic criteria for a major depressive episode;
e.Dr Khoo thought the Applicant’s symptomatology in relation to depression has never fully remitted.
(v)the present state of the Applicant’s major depressive disorder is one of greater severity, chronicity and prone to being more recurrent. It is consequently less responsive to treatment and more impactful on the totality of the Applicant’s functionality;
(vi)Dr Khoo takes issue with Dr Isailovic’s conclusion that the work-related component of the Applicant’s MDD ended after the period appearing in the original claim form filed by the Applicant (13 September 2007 to 26 November 2007). According to Dr Khoo, the Applicant’s symptomatology consequent upon work-related stressors arising from his time at the CSIRO cannot be “fenced off” by any date or defined period. To do so, says Dr Khoo, results in findings that are not indicative of the duration, extent and severity of the cumulative effect of the work-related causes and stressors. The correct approach, opines Dr Khoo, is that the cumulative impact of these factors over a substantial period of time have adversely affected the trajectory of his MDD. Dr Khoo says there is no other credible cause or explanation for the Applicant’s current MDD symptomatology;
(vii)Dr Khoo disagrees with Dr Isailovic’s opinion that the Applicant’s OCD is a progressive condition and that it primarily accounts for his asserted disability. The basis of Dr Khoo’s disagreement is that prior to the Applicant’s exposure to the work-related incidents at the CSIRO, his OCD had been largely episodic, not continuous, and certainly did not impair his social or occupational function. Subsequent to those work-related incidents, says Dr Khoo, the Applicant has experienced a worsening of his OCD symptoms and those symptoms have remained a continuous feature of his presenting symptomatology. This evolution of the Applicant’s OCD symptoms, says Dr Khoo, is consistent with a finding that the deterioration of the Applicant’s OCD condition is attributable to those work-related stressors and is thus inconsistent with Dr Isailovic’s view that the Applicant’s OCD is, and would always have been, in his case, a progressive condition;
(viii)Dr Khoo makes reference to certain epidemiological data which defines MDD as a relapsing and recurring or fluctuating condition that does not necessarily run parallel with constant syndromal depression. Dr Khoo says that in 30% of patients MDD remains chronic and persistent. However, for patients such as the Applicant, the symptoms fluctuate over the course of time. According to Dr Khoo, it cannot be said that because of the fluctuating nature of his MDD symptomatology, the Applicant is no longer suffering from the effects of the claimed work-related injury because any such finding would run contrary to the prevailing epidemiological data. Dr Isailovic’s view, according to Dr Khoo, is thus incorrect: it cannot be said that the Applicant’s presently asserted disability is solely or primarily attributable to a progressive decline in his mental health as a result of the relentless nature of his OCD symptoms.

It is propounded on behalf of the Applicant that Dr Khoo’s findings should be accepted and preferred to those of Dr Isailovic, due to: (1) the longitudinal nature of Dr Khoo’s treatment of the Applicant; (2) the support for Dr Khoo’s opinions to be found in the respective reports of Drs Estensen and Slack; and (3) because Dr Khoo’s opinions are “persuasive”.
THE EVIDENCE OF DR JON-PAUL KHOO – SUMMARY OF CROSS-EXAMINATION
The Respondent accepts Dr Khoo’s characterisation of the compensable condition as major depressive disorder (aggravation).[34] In terms of the Applicant’s ongoing impairment, Dr Khoo’s evidence in cross-examination can be summarised as follows:
[34] Exhibit 25, Respondent’s Closing Written Submissions, page 18, paragraph [49].
(a)he accepted that OCD and MDD are comorbid. That concession caused him to accept that comorbid MDD is negatively related to the remission of OCD symptoms;
(b)he accepted the chronic nature of OCD symptoms and that it is a disorder characterised by fluctuations in the intensity of its symptoms, and while it is generally accepted that most patients will experience only moderate rates of remission, high rates of recovery have been observed in certain patient populations;
(c)he accepted that MDD is experienced by the majority of sufferers as a lifelong condition and that the majority of those sufferers do not experience a single episode of MDD;
(d)he noted that although reference can be made to findings in epidemiological studies in relation to an individual patient, it is nevertheless very important to take a detailed history from the patient and to reach any conclusions by way of jointly considering both the findings in the epidemiological studies with a patient’s given history;
(e)he accepted that the Applicant experienced an 18 month period of syndromal remission for MDD between December 2010 and early 2012. This is a period that both post and pre-dates his involuntary redundancy from the CSIRO (in February 2011);
(f)he accepted that some eight months after he ceased working at the CSIRO, the Applicant experienced a seven month period (i.e. from October 2011 to May 2012) when his OCD was at “baseline levels” and, as such, did not affect the totality of the Applicant’s functionality;
(g)he accepted that the Applicant’s OCD became mildly worse after May 2012 but that this worsening occurred in the context of the Applicant feeling anxious about (1) an absence of rehabilitation and (2) having to go through the Comcare claims/litigation process. Further, Dr Khoo accepted that his clinical notes from May 2012 onwards reveal little or nothing about the Applicant attributing the adverse effects of his employment with the CSIRO between 13 September 2007 and 26 November 2007 as being causative of how he was then feeling. He accepted that, rather, his clinical notes revealed that the Applicant predominantly and exclusively attributed factors such as (1) an asserted absence of rehabilitation, and (2) the Comcare claims/litigation process. He accepted that, rather, these clinical notes revealed the Applicant predominantly and exclusively attributed his symptoms to factors such as (1) an asserted absence of rehabilitation, and (2) the Comcare claims/litigation process;
(h)he opined that from September 2012 the Applicant began developing a new episode of MDD:
“MS LONGBOTTOM: But this is the time where there is a new period of aggravation, so that is this time from about sort of after September 2012?
DR KHOO: Yes.
MS LONGBOTTOM: …that Mr Hooley is suffering from a new period of aggravation of his major depressive disorder?
DR KHOO: He’d (indistinct) been aggravated, so I don’t think it’s like a new aggravation. I would suggest that he’s starting to evolve another episode.
MS LONGBOTTOM: So it’s a period where he’s commencing to have a new episode of major depressive disorder?
DR KHOO: Well, that’s what it starts to look like from September 2012, which is I suspect until, you know, the following year. But he’s certainly deteriorating from about that time.
MS LONGBOTTOM: And that would be consistent with, Dr Khoo, I think your notes recorded, for example, on 18 February 2013 that you consider that Mr Hooley has reactive adjustment issues….
And you make a reference there to Mr Hooley suffering from adjustment reaction?
DR KHOO: Adjustment issues.
MS LONGBOTTOM: Yes?
DR KHOO: And it means that, you know, that those circumstances may be a reaction to the context. It may be that it’s the disorder but I did not feel that his major depression at that stage was necessarily the, what’s the word, the most likely of the diagnoses.
MS LONGBOTTOM: Yes, and the stressors that you – in terms of the context, the stressors that you reported in that entry included the tribunal response re AAT, so that is sort of litigation in relation to the workers’ compensation claim?
DR KHOO: Yes. Yes, I think that it (indistinct). The tribunal, that there’s a tribunal response with AAT, so I’d noted that. There was still no decision about the outcome and the current workload issues and not functioning very well were what I put as the circumstances.
MS LONGBOTTOM: But can I suggest to you, Dr Khoo, that the factors that were causing an exacerbation at that time included the Comcare process, that is the litigation surrounding the workers’ compensation claim?
DR KHOO: They may have been a contributing factor, sure. I don’t think anything that involves an adversarial process for an individual would go unexperienced. But, you know, is it the primary driver? I think there were other factors in terms of his not coping with his current workload that would have been equal to that.”[35]
[35] Transcript, Day 1, page 90, lines 11 – 46 and page 91, lines 1 – 7.
(i)in addition, Dr Khoo’s clinical notes make it clear the Applicant was experiencing new and contemporaneous stressors as affecting his life at that time (i.e. September – December 2012). For example the clinical notes of Dr Khoo for 20 November 2012 say:
“Busy – work demands –new project
-deadlines
-chaos
…
-legal demands of info exchange (AAT). Lost earnings issue (Comcare re rehab’n)
-not perm employment status
…
-dealings with difficult Director at work
…
-work stress – considered quitting [?] times due to pressure of work on 3 projects
-high load
-unclear work future uncertainty difficulty dealing with authority now.
-distress
...”[36]
[36] Exhibit 18, Clinical Notes of Dr Khoo, entry for 20/11/2012.
(j)the Respondent contends that Dr Khoo’s clinical notes should be regarded as the best available account of the issues/stressors relevant to the Applicant’s symptomatology at that time – that is, September – December 2012. I agree. This contention derives further force from the Applicant’s evidence when he spoke of always providing Dr Khoo with an honest and accurate account of his symptoms including things that were happening in his life that he felt were affecting his mental health. Yet there is little or nothing in the clinical notes of Dr Khoo from September 2012 onwards about any aspect of his former employment with the CSIRO as being causative of any adverse mental health symptoms he was experiencing at that time or thereafter. The Applicant does not say anything to Dr Khoo about factors from his employment period at the CSIRO still affecting his mental health such that those factors interfered with his then (and beyond then – i.e. September 2012) actual work or duties or service and/or anything reasonably incidental to that work, duties or service with UQ or Griffith, or anywhere else. There is nothing in the notes of Dr Khoo from September 2012 onwards giving rise to a finding that the factors of his employment with the CSIRO were, post-September 2012, causative of “some incident or state of affairs to which [the Applicant] was exposed in the performance of his duties and to which he would not otherwise have been exposed.”[37] It is therefore difficult to find that factors attributable to the Applicant’s period of employment with the CSIRO contributed, to a significant degree, to any occurrence or aggravation of his symptoms. I cannot see, and thus cannot find, how those CSIRO employment factors are causative of his post-September 2012 symptoms to the “significant degree” as defined by s 5B(3) of the SRC Act such that those CSIRO factors can be said to be responsible to “a degree that is substantially more than material”;
[37] Exhibit 25, Respondent’s Closing Written Submissions, page 7, paragraph [24]..
(k)thus, it cannot be said, when having regard to the totality of Dr Khoo’s evidence, that the Applicant’s ongoing symptomatology can be confined to issues of “employment”. Both the frankness and honesty of the Applicant’s instructions/information he gives to Dr Khoo and the detailed clinical notes of Dr Khoo lead toward a finding that there were clearly other non-employment factors contributing to the Applicant’s symptomatology. For example, at the hearing Dr Khoo said:
“MS LONGBOTTOM: But so it’s not just the 2007 incident, the views you expressed extend well beyond that, extend beyond the making of the workers’ compensation claim in 2009?
DR KHOO: Look, I think that the factors to do with his difficulties in the workplace continue, as we noted before, up to and even following his involuntary redundancy in 2011.
MS LONGBOTTOM: So it includes after 2009 the dissatisfactory rehabilitation process?
DR KHOO: Yes. Yes, I think if you look at my response to question 2 on that report, and again, I won’t read it to the tribunal, but my understanding of the totality of what I consider the work-related circumstances to have been.”[38]
[38] Transcript, Day 1, page 95, lines 44-46,and page 96, lines 1-7.
[My underlining]
(l)similarly, in his report of 3 August 2017, while Dr Khoo says his ongoing impairment is attributable to the CSIRO work-related circumstances from late 2007, he nevertheless adds that those factors were:
“…complicated by his employer’s failure to provide adequate rehabilitation and transitional support, and continues to this day in the form of aggravations to his MDD and OCD which are now not compatible with him working.”[39]
[39] Exhibit 8, Report of Dr John-Paul Khoo, dated 3 August 2017, page 8.
Perhaps most significantly, Dr Khoo went on to say that:
“MS LONGBOTTOM: But, Dr Khoo, when you’re talking about the failed rehabilitation process you talk, for example, about the failure post-2009 at the CSIRO workplace for Mr Hooley rather to develop new skills?
DR KHOO: The difficult aspect of the failed rehabilitation was later. It was in those later years where – I think that it was Mr Grey’s term, that when Mr Hooley was sidelined he was given unfulfilling work. Mr Hooley has, you know, tried to get project work, which was compatible with his skill, education and training and was not ever successful in that. In that phase, you know, the 2011 phase, it probably would have assisted him more than perhaps in the 2009 phase. Pretty much Mr Hooley and I negotiated a rehabilitation program for him which probably offset some of that potential disability but notwithstanding it was, you know, I would have understood that it was a responsibility of the organisation to assist him in that regard. But, you know, the failed rehabilitation side of things is the lion share of his disability, if that clarifies my response.
MS LONGBOTTOM: But, Dr Khoo, you would accept that the lower level duties that Mr Hooley was undertaking at that time commensurate with his functionality is a significantly contributing factor to his existing capacity?
DR KHOO: A small contributing factor. I don’t know how significant it would have been. I think it’s a minor contributing factor.
MS LONGBOTTOM: But, Dr Khoo, am I correct that you’ve not just said that you consider that the fact that after 2009 his skills were not maintained? …The fact that after 2009 his position at the CSIRO was one where his work skills were not maintained?
DR KHOO: M’mm.
MS LONGBOTTOM: That he was from that time sidelined from the CSIRO?
DR KHOO: Yes.
MS LONGBOTTOM: You would accept that those factors significantly contributed to his subsequent deterioration?
DR KHOO: I think the management decisions that led to those factors being in place did have a significant impact on his subsequent deterioration.”[40]
[My underlining]
[40]Transcript, Day 1, Page 101, lines 16-47 and page 102, lines 1-2.
Having regard to the totality of Dr Khoo’s evidence, I am of the view that the Applicant no longer suffers from the effects of his compensable condition. Dr Khoo’s evidence does not, to my mind, conclusively establish a sufficiently strong causal connection between the Applicant’s employment with the CSIRO and the aggravation of his underlying and pre-existing MDD and OCD conditions (i.e. the ailments or aggravation of such ailments - MDD and OCD - was not - or no longer is - contributed to, to a significant degree, by the Applicant’s employment with CSIRO). I repeat the stronger causal connection now required since the decision in Prain, where the Tribunal noted that:
“Since the decisions in Tzikas and Plumb the Act has been amended to require a stronger connection between an employee’s employment and a disease which it is claimed that employment gives rise to. Consideration of this question now requires an examination of the factors set out in s 5B(2).”[41]
[41] Prain and Comcare (Compensation) [2016] AATA 459, paragraph [65] per Deputy President Humphries.
As noted by the Respondent, the medical evidence, particularly that of Dr Khoo, demonstrates that “employment” was largely a “spent force in the Applicant’s life”. There seems little or no contest that after his involuntary redundancy from the CSIRO in February 2011 he did experience syndromal remission of both his MDD and OCD symptoms. The remission of both of those conditions occurred in circumstances where the Applicant was frankly and honestly telling Dr Khoo about non-“employment” stressors such as (a) dealing with the Comcare claims/litigation process, (b) a difficult director at work, (c) the overall pressure of work and (d) the absence of rehabilitation/retraining - as being the primary contributors to the state of his mental health at that time.
Dr Khoo was also clear that both OCD and MDD are lifelong and comorbid conditions. There is little or nothing in Dr Khoo’s evidence to dispel a finding that the natural progression of those conditions in this Applicant may very well have been a contributing factor to his ongoing symptomatology. In his report of 3 June 2015, Dr Khoo says:
“…I have also noted above that the overall longitudinal trajectory of his major depression has deteriorated considerably, when one compares his longitudinal course for 15 years pre-injury, to the eight or so years post-injury. There is a clear deterioration in the longitudinal course of his MDD, which I would consider an aggravation. There has been more depression, more severity of depression, less treatment response and an overall more aggressive depressive course subsequent to 2007.”[42]
[42] Exhibit 1, s 37 T Documents, T29, page 259.
In determining this proceeding, the Tribunal is strictly limited to making findings about the extent of any continuation of the Applicant’s accepted MDD and OCD conditions. Specifically, the aggravation of those conditions. As I understood it, the essence of the Applicant’s position is that the accepted aggravations of both conditions has continued because the ongoing effects resulting from his CSIRO employment have placed the Applicant on a trajectory such that the aggravated state of his accepted conditions has continued.
The difficulty for the Applicant in propounding that sort of case is aptly expressed by the Respondent:
“However, the requisite test is not answered by a simple application of a ‘but for’ test. And, while Dr Khoo in understanding the Applicant’s complex mental health in the course of treatment is not confined by principles of remoteness when considering causality, the law tells us that liability under the SRC Act is.”[43]
[My underlining]
[43] Exhibit 25, Respondent’s Closing Written Submissions, page 22, paragraph [55].
I therefore have difficulty in removing this remoteness from the causality now propounded by the Applicant. It is clear that he experienced a remission of his depressive condition after he left the CSIRO’s employment. He then declined into a further depressive episode and, as revealed in Dr Khoo’s clinical notes, the Applicant encountered difficulties in adapting to and settling into other jobs. The following transpired during Dr Khoo’s cross-examination:
“MS LONGBOTTOM: Sorry, Dr Khoo. Did you just say his workplace difficulties?
DR KHOO: Yes, that’s what he was discussing. Yes, in terms of meeting performance requirements and not being able to concentrate and getting in trouble and, you know, those sorts of difficulties I think were probably more distressing for him at that time than anything necessary pertaining to the legal process per se.
MS LONGBOTTOM: So that’s difficulties at his post-CSIRO place of employment?
DR KHOO: His difficulties negotiating the demand of his post-CSIRO and non-Commonwealth employment, those three periods of employment where he didn’t cope, that were difficult for him, as you might appreciate, on the basis that his performance was inadequate.
MS LONGBOTTOM: But again, Dr Khoo, you’d accept that the things he was reporting to you at that time in terms of his negative life circumstances did not include the 2007 CSIRO incident?
DR KHOO: Well, if we’re talking about his difficulties adapting to his current workplace and that the 2007 series of events that you describe and the things that followed in the wake of that because I’ve always asserted that this is an over period of time injury, that those things substantially and fundamentally affecting things like his capacity, his sense of achievement, his ability to do things. And, you know, this was being demonstrated in his poor work performance though I would, you know, consider that his poor work performance is, you know, attributable to the aggravation of his condition rather than due to anything that was occurring directly in the new workplace. His capacity had reduced. He went from being, you know, project managing things and, you know, receiving promotions and being able to do his role without reported difficulty at CSIRO and then, you know, in a fairly similar level role was simply not able to manage. And that may well be enough to provoke a depressive episode but we see that that does not relate to the demands or circumstances of the current job as much as it relates to a reduction in his inherent capacity to meet the demands of that job, which is therefore the original injury, in my view.”[44]
[44] Transcript, Day 1, page 94, lines 37-47 and page 95, lines 1-20.
Properly understood, Dr Khoo’s evidence points to the Applicant being unable to sustain a consistently good level of work performance during his post-CSIRO employment because of aggravating factors that arose at least at two of those jobs – at UQ and Griffith. Even though the Applicant had experienced an intervening period 18 months of sub-syndromal remission (in the case of his MDD), Dr Khoo still thought that episodes arising at UQ and Griffith nevertheless resulted in aggravation of the Applicant’s symptomatology affecting his capacity to properly discharge his work tasks. It is reasonable to find that Dr Khoo was of the opinion that these duly reported post-CSIRO episodes rendered the Applicant susceptible to an aggravation of his symptoms. One can take from Dr Khoo’s evidence the view that this susceptibility directly affected the Applicant’s capacity to adequately discharge his post-CSIRO work functions. Further, while the Applicant contends that his post-CSIRO work difficulties were attributable to inadequate training and re-skilling that he did not receive from the CSIRO, that contention goes nowhere because those issues of inadequate training or upskilling and/or rehabilitation do constitute “employment” for the present purposes.

Notably, Dr Slack was not called by either side to give oral evidence at the hearing. While the Applicant aptly summarises the evidence of Dr Slack in the written material, there is no contention propounded about weight attributable to that evidence.
The Respondent submits that little weight ought to be attributed to Dr Slack’s reports. He did not give oral evidence and thus his opinions were not able to be tested in cross-examination. Importantly, it does not appear that the findings of Dr Slack were informed by reference to the clinical notes of Dr Khoo and, to my mind, Dr Slack’s evidence is adversely affected for that reason in the same way as that of Dr Estensen. I agree with the submission of the Respondent about the allocation of little weight to Dr Slack’s reports.
THE EVIDENCE OF DR ALEKSANDRA ISAILOVIC – SUMMARY OF EVIDENCE IN CHIEF
Two preliminary matters
There are two preliminary matters to be addressed in relation to the evidence of Dr Isailovic. Both items are extraneous and of no moment to (1) an analysis of Dr Isailovic’s evidence, and (2) how her evidence impacts upon the determination of this application. Ultimately, both issues/items go nowhere. However, they were agitated and I feel compelled, if for no other reason, than for the sake of completeness, to address them.
The first item was raised by the Applicant. The Applicant says the following about the Respondent’s engagement of Dr Isailovic as an expert:
“6.14 Dr Isailovic is a specialist psychiatrist, who achieved her FRANZCP qualification in 2003. She was qualified by Comcare to assess Mr Hooley and produce a report, dated 24.9.12. It is quite unclear why Comcare found it necessary to seek an opinion from her when Dr Slack had already produced two reports on Mr Hooley in 2009 and 2010, and went on to produce another at Comcare’s request in 2014, given, of course, that no statutory decision maker would stoop to “doctor shopping” in search of an opinion unfavourable to a claimant.”[61]
[61] Exhibit 24, Applicant’s Closing Written Submissions, pages 21-22.
The Respondent replies with this:
“Before turning to the evidence given by Dr Isailovic, it is necessary to make mention of the submissions made by the Applicant as to the circumstances in which the Respondent came to request an opinion from her. The criticism implied by the Applicant’s submission is not relevant to and is an unhelpful distraction from, the matters to be determined by the Tribunal. Those matters are, in any event, refuted by the Respondent who at all relevant times has acted in accordance with its obligations as a statutory decision maker.”[62]
[62] Exhibit 25, Respondent’s Closing Written Submissions, page 29, paragraph [75].
There is nothing before me to indicate anything untoward, improper or inappropriate about the Respondent’s engagement of Dr Isailovic for the purposes of providing opinions in this matter. It is something the Respondent is perfectly entitled to do and I take nothing from the Applicant’s observation that the Respondent engaged Dr Isailovic in 2012 in circumstances where Dr Slack had provided respective reports in 2009 and 2010. Likewise, I take nothing from the reality that Dr Slack provided reports for the Respondent in 2009, 2010 and 2014, only to then be approached for a report by the Applicant in 2015. There is no property in a witness.
Second, Dr Isailovic sought to somehow taint or marginalise the evidence of either or both Dr Khoo and Dr Estensen due to some kind of “conflict of interest” issue. Dr Isailovic, in several of her reports, seemed to touch on the issue such that it give rise to some kind of controversy, but did not fully ventilate how the asserted controversy adversely impacted on the medical evidence of Dr Khoo and/or Dr Estensen. For example:
·in her Supplementary Medico-Legal Report of 7 March 2017, Dr Isailovic says:
“I am also concerned that this process is turning into a battleground between the treating and independent psychiatrist. I have no conflict of interest in this case. Treating psychiatrist is obliged to work with patient’s interpretation.”[63]
·in her further Supplementary Medico-Legal Report of 4 October 2017, Dr Isailovic says:
“The RANZP College Guidelines on Independent Medical Reporting (page 6, section 4) clearly state in Rule 4.1: “The RANZCP recognises that treating psychiatrists may be asked or be required to provide medico-legal reports. This includes treating psychiatrists working in rural and remote districts or in jurisdictions where statutory requirements demand such reports. That does not constitute an independent medical examination. In this circumstance, the psychiatrist must state his or her role as a past or present treating practitioner.
This is followed by Rule 4.2: “Treating psychiatrists may be able to exclude themselves from providing a medico-legal report as the academic literature supports a range of views on the management of any conflicts of interest (Taylor et al, 2012).”[64]
[Emphasis and underlining in original]
·in that same further Supplementary Medico-Legal Report of 4 October 2017, Dr Isailovic also says:
“Given that Dr Estensen spent more time arguing against RANZCP College Guidelines instead of arguing relationship between the condition and the event that occurred 10 years previously, I believe that he should report his own conflict of interest in this case.”[65]
[63] Exhibit 4, Supplementary Report of Dr Isailovic dated 7 March 2017, page 2.
[64] Exhibit 10, Supplementary Report of Dr Isailovic dated 4 October 2017, page 2.
[65] Ibid, page 20.
A deal of time was wasted during the hearing on this issue, but as I sought to point out to the parties, it went absolutely nowhere:
“SENIOR MEMBER: I’ve got no problem with the independence, the intelligence and the integrity of Dr Estensen. Likewise Dr Khoo. Likewise Dr Slack. Likewise Dr Isailovic. What I want to know about is how Dr Isailovic challenges the findings of Dr Khoo, and we can’t get that from her – well, I can’t get it – and what Mr Grey is left with, is asking her whether she’s saying one of three things. [First] Dr Khoo is expressing a view he doesn’t hold, ridiculous; secondly, that he’s genuinely tried to give an opinion based upon his extraordinarily detailed notes but has been incompetent in doing so, unlikely – we’ve heard the man for four hours yesterday – and; thirdly, that there’s some sort of cognitive bias because he’s treated this patient for 12 years. How can there be cognitive bias in circumstances where a doctor has a very long longitudinal history with a patient and gives an opinion? Is it asserted that that opinion is bias [sic] because the doctor’s got a history with the patient? Again, I think that’s insulting to Dr Khoo, who, in his own evidence, was prepared to yield and concede things contrary to his own findings, as possibilities, Ms Longbottom.
The reason Mr Grey’s gone, if I may respectfully suggest – please stop me if I’m wrong, Mr Grey – the reason Mr Grey’s gone down this path is he can’t get any medical analysis or explanation from Dr Isailovic about why the other doctors are not right, and we’re stuck in this place of, ‘He didn’t follow the rules’ and ‘His kid goes to school with that kid’ and all this sort – that’s nonsense.
MS LONGBOTTOM: With respect, Senior Member, we would say that Dr Isailavic’s [sic] reports don’t just address that issue. She expresses opinions…
SENIOR MEMBER: Of course.
MS LONGBOTTOM: …based upon what she thinks is the causal relationship…
SENIOR MEMBER: Yes.
MS LONGBOTTOM: What is this – based on her medical notes.
SENIOR MEMBER: And that’s what I want to hear about.”[66]
[66] Transcript, Day 2, page 150, lines 45-47 and page 151, lines 1-36.
Dr Isailovic has been engaged by the Respondent to provide six medico-legal reports. They are respectively dated 24 September 2012,[67] 8 May 2015,[68] 10 November 2015,[69] 7 March 2017,[70] 29 March 2017[71] and 4 October 2017.[72] She is of the view that the psychological symptoms presently suffered by the Applicant do not arise out of his employment with the Commonwealth. In her oral evidence, she said:
“MS LONGBOTTOM: Dr Isailovic, Mr Hooley is presently suffering from psychiatric conditions requiring medical treatment and causing him incapacity to work?
DR ISAILOVIC: Yes.
MS LONGBOTTOM: In your view, does that arise out of his Commonwealth employment?
DR ISAILOVIC: No. It’s my view it relates to the pre-existing combination of obsessive-compulsive disorder and major depressive disorder.
MS LONGBOTTOM: And you were asked by Mr Grey to make some assumptions about what was Commonwealth employment and I think what Mr Grey said – and he will correct me if I’m wrong about this – is you were asked to assume that were events commencing in 2007 and continuing until Mr Hooley separated from the CSIRO and all of the issues that Mr Hooley identified during that time. Acting on that assumption, does that change your opinion that the present conditions that Mr Hooley suffers that require medical treatment and cause him an incapacity to work arise out of his Commonwealth employment?
DR ISAILOVIC: No, because of the clear remissions after the separation from the CSIRO.”[73]
[67] Exhibit 11, s 37 T Documents, T14, pages 121-129.
[68] Ibid, T27, pages 234-250.
[69] Ibid, T33, pages 277-280.
[70] Exhibit 4.
[71] Exhibit 5.
[72] Exhibit 10.
[73] Transcript, Day 2, page 176, lines 1-10.
Likewise, in her report of 8 May 2015, Dr Isailovic said:
“4. Please list and describe the factors which are presently contributing Mr Hooley’s current condition(s), current need for treatment, and current capacity/incapacity to work.
I could not find any external factors that currently contribute to Mr Hooley’s current condition. It appears that the only factors that maintain his condition presently are endogenous, related to the nature of his illness. He has left his last workplace due to not coping with the demands of his work. That is a consequence of his condition rather than the cause. His lifestyle is quite restricted and uncomplicated. Moreover, he has a healthy personality structure, is not using illicit substances or alcohol, is compliant with treatment and is working hard on his recovery.”[74]
[74] Exhibit 11, T27, page 240.
According to Dr Isailovic, the Applicant’s susceptibility to recurrences of depression after his employment with CSIRO is due to the underlying nature of his MDD and OCD symptomatology and does not arise as a result of any “aggravation” of either or both of those conditions. As noted by Dr Isailovic, there are defined periods of stability in the Applicant’s symptomatology between when the aggravation is clinically observed and the onset of the next episode of depression:
“Specificity is another criterion that would indicate that the response is specific to bullying, but we also had an episode that was of equal severity and duration in 2005, which indicates that he developed very similar symptoms without bullying. At that time he also had exacerbation of OCD and had exacerbation of major depression. This also happened afterwards when he was working at Griffith University. So the symptoms are not really specific to this particular trigger. When I talk about the biological ingredient, that usually reflects a link between the severity of symptoms and exposure to the insult. According to these criteria, the worst symptoms and exacerbations should occur at the time when the exposure is at its worst (like in substance-induced psychosis – the worst symptoms are during intoxication and withdrawal and tend to improve with abstinence). That criterion requires that the more of the insult we have, the worse symptoms would occur. However, in Mr Hooley’s situation he continues to have worsening of his symptoms even though he was not exposed to the insult in the work with CSIRO since February 2011.
My final point is that while there is no literature that would support the notion that time limited adverse events could cause change of trajectory of depression, despite the lack of evidence, I have even considered that possibility, as it was repeatedly asserted by previous examiners. What this hypothesis is lacking is the explanation as to why the middle episode. The clinical notes clearly indicate that Mr Hooley had depressive episodes and OCD in 2005. It took a long time before he achieved sustained remission. He presented in September 2005 and more sustained improvement was reported in mid-December 2006. He was in remission for 11 months. The events related to the first episode were described as work-related stressors and accommodation issues. The episode following the bullying that occurred during his employment with CSIRO was of shorter duration and was followed by longer remission. Then he had suffered another episode in 2012, for which the reason is unclear, but I have noted the development of hypertension, diabetes and peptic ulcer. So, the question is why is the middle episode the one that changed the trajectory of depression? Why not the first episode or the last episode? It medically does not make sense. Meanwhile we have research data on the natural history of obsessive-compulsive disorder and significant comorbidity between obsessive-compulsive disorder and major depression as well as diabetes and depression. This is why I cannot change my opinion and I still believe that, while Mr Hooley is suffering from a significant disability, it is not a work-related disability.”[75]
[My underlining]
THE EVIDENCE OF DR ALEKSANDRA ISAILOVIC – SUMMARY OF CROSS-EXAMINATION
[75] Exhibit 7, Supplementary Medico-Legal Report of Dr Isailovic, dated 13 July 2017, page 4 of 5.
Two primary themes arising from the cross-examination
The Applicant contends that the above-quoted opinion of Dr Isailovic is not supported by the clinical evidence and that she is in a minority of one in holding that opinion.[76] The Applicant also has misgivings about certain of the academic papers sought to be relied on by Dr Isailovic upon which she has based some of her opinions. To my mind, two specific themes emerged from the cross-examination of Dr Isailovic. They were (1) the gap in the Applicant’s symptomatology and (2) Dr Isailovic’s use of epidemiological data in reaching her conclusions and opinions.
[76] That is, compared to the opinions of Drs Khoo, Estensen and Slack.
Dr Isailovic was questioned about her opinion that the Applicant was no longer suffering from the compensable condition because he was said to be sub-syndromal after leaving his employment at the CSIRO. The Applicant sought to counterpoint this evidence with that of Dr Khoo, who opined that simply because there are periods when a patient is sub-syndromal or in full or partial remission, it does not necessarily mean that the patient has recovered from the original and compensable condition.
The Applicant contends that Dr Isailovic’s opinion about the effect of the gap in the Applicant’s experience of symptoms is incorrect because conditions like MDD and OCD are prone to “waxing and waning”. The Applicant contends that Dr Isailovic’s evidence should be rejected because the other experts (particularly Drs Khoo and Estensen) make it clear that there are periods when a patient’s symptomatology is demonstrative of an increase in the severity of the symptoms and other periods when the symptoms are less severe. But this should not, says the Applicant, necessarily mean that there has been any break in the continuity of the condition that could lead to a conclusion that the patient has recovered.
The Applicant further contends that having regard to the opinions of Drs Khoo and Estensen, Dr Isailovic’s finding that simply because at some point in 2011 or 2012 the Applicant’s symptoms were at a sub-syndromal level and because of that, the Applicant had apparently recovered from his condition, is a finding that is not sustainable. According to the Applicant, the clear evidence of Dr Khoo is that the Applicant had not recovered from his condition during that period and that his symptomatology, while waxing and waning, remains present.
The second theme arising from Dr Isailovic’s evidence in cross-examination involved her use of epidemiological data in reaching her opinions and conclusions. The Applicant’s intention in pursuing this theme in cross-examination was to demonstrate that Dr Isailovic had inadvertently misused or misapplied certain epidemiological data in assessing the Applicant. Dr Isailovic was questioned about her use of such data and she seemed to agree with the proposition that the purpose behind using that sort of data is to try and demonstrate whether there are any associations between particular kinds of circumstances and particular kinds of conditions.
She seemed to agree with most, if not all, of the propositions put to her by Counsel for the Applicant in relation to the use of epidemiological data. Specifically, Dr Isailovic seemed to accept that such data cannot be used to trump a duly diagnosed clinical picture in a particular case and to replace it with a diagnosis derived from a statistical study about an asserted association between a particular condition and a particular set of circumstances.
Dr Isailovic seemed to eventually accept that the proper use of epidemiological data in clinical disputes is to endeavour to demonstrate or point to evidence that a particular set of circumstances will support a clinical outcome. In summary, Dr Isailovic seemed to accept that the proper use of epidemiological studies, particularly in circumstances where they refer to causative factors behind a condition is to support the presence of an association with particular events, not to deny it.[77]
[77] Exhibit 24, Applicant’s Closing Written Submissions, page 28, paragraph [6.29].
While a level of criticism may be directed towards Dr Isailovic for her method of utilising epidemiological data in reaching her findings, there seems no doubt that her views about certain fundamental propositions emerging from the scientific literature and that are relevant to the Applicant’s symptomatology are also shared by Drs Khoo and Estensen. For example, it is common ground between Drs Isailovic, Khoo and Estensen that OCD and MDD are comorbid, that OCD is a fluctuating condition with moderate rates of remission and that MDD is a lifelong condition for the majority of sufferers, and that such majority do not experience a single episode of MDD.
Other themes arising from the cross-examination
Dr Isailovic and Dr Khoo concur that the Applicant entered into a period of remission from his depressive episode and OCD upon his involuntary redundancy from the CSIRO in February 2011. This is one of the bases on which Dr Isailovic finds that “employment” (for the purposes of s 5B of the SRC Act) no longer contributes, to the necessary significant degree, to the psychological symptoms suffered by the Applicant. Significantly, Dr Isailovic had reference to and reliance upon the clinical notes of Dr Khoo in making this finding.
In addition to the two abovementioned primary themes, the Applicant also sought to propound some kind of difficulty in Dr Isailovic’s changed opinions between her report of 24 September 2012 and that of 8 May 2015. The Applicant was troubled by Dr Isailovic expressing the view that after the Applicant left the CSIRO, he was “entering remission” and that by the time of her examination report in 2012, she “considered him to be in remission”. I did not comprehend the importance of pursuing this with Dr Isailovic in circumstances where Dr Khoo expressed similar opinions about the Applicant at or around the time he (the Applicant) was leaving the CSIRO.
The Applicant also sought to suggest a deficiency in the history taken by Dr Isailovic at the time she initially examined and reported on the Applicant in September 2012. The asserted deficiency, says the Applicant, derives from there being nothing in the history taken by Dr Isailovic which related to any of the difficulties identified by the Applicant during his time of employment at UQ. The Respondent, validly to my mind, points out that Dr Isailovic was specifically referring to what she identified as the Applicant experiencing a “chronic intellectual challenge” he was experiencing at UQ. Specifically, Dr Isailovic said:
“I understand that Mr Hooley is experiencing chronic intellectual challenge and stricter deadlines and demands in his current position [with UQ] in comparison to his previous one. This may have an impact on his failure to achieve full remission, rather than as simply a consequence of the workplace bullying he experienced with CSIRO.”[78]
[78] Exhibit 11, s37 T Documents, T14, page 126.

The Respondent, also validly to my mind, contends that this “chronic intellectual challenge” is consistent with the Applicant’s own evidence about a lack of adequate training and upskilling being provided to him by the CSIRO, and that those deficiencies contributed to his reported difficulties at UQ. As stated earlier in these Reasons, issues such as a lack of adequate training and an employer’s failure to upskill are not “employment” for the purposes of s 5B of the SRC Act.
I therefore agree with the Respondent’s contention that the evidence of Dr Isailovic is largely consistent with and supportive of the uncontroversial aspects of the medical evidence particularised at paragraph [42] of these Reasons relating to the Applicant’s ongoing symptomatology referrable to his MDD and OCD.
CONCLUSION
I refer to the issues identified at paragraph [25] of these reasons and find as follows:
The issues for determination in this matter are:
Issue 1: Does the Applicant continue to suffer from the compensable conditions which are properly characterised as (1) major depressive disorder (aggravation) and (2) obsessive-compulsive disorder (aggravation), which conditions are said to constitute the ‘injury’ pursuant to ss 5A and 5B of the SRC Act? [79] Answer: No.
[79] And in turn, s 16 of the SRC Act.
I find on the evidence before me that:
(i)to the extent that the Applicant’s ongoing psychological symptomatology following the period of syndromal remission he experienced proximate to the time of his involuntary redundancy from the CSIRO, those symptoms and any diagnosis arising therefrom are properly characterised as a new and separate injury;
(ii)it is beyond the scope of the Tribunal’s jurisdiction deriving from this application to make a determination of liability regarding any such new and separate injury;
(iii)to the extent that the accepted compensable conditions continued after the period of syndromal remission and involuntary redundancy from CSIRO referred to in (a) above, I find that on the evidence before me, the Applicant’s “employment” (for the purposes of s 5B of the SRC Act) no longer contributes, to a significant degree, to his ongoing psychological symptomatology;
(iv)during the period following the Applicant’s involuntary redundancy from the CSIRO (February 2011), any asserted “employment” - related factors are now a spent force in the Applicant’s overall clinical presentation;
(v)that any asserted “employment” – related factors have now been “crowded out” or supplanted by non-compensable factors such as:
·         episodes/challenges at the Applicant’s new workplaces;
·         his having to deal with the Comcare claims/litigation process;
·         financial stringency arising from not being able to hold down long-term employment;
·         uncertainty about future employment prospects; and
·         the co-morbid nature of his MDD and OCD conditions.
Issue 2: If yes to Issue 1, does the Applicant have an ongoing need for treatment for the injury? Unnecessary to answer.
Issue 3: If yes to Issue 1, does the Applicant have an ongoing incapacity for work? Unnecessary to answer.
DECISION
In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), I affirm the reviewable decision dated 11 March 2016.[80]
[80] Affirming a determination made by a delegate of the Respondent on 27 January 2016.

I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.............................[SGD]...........................................
Associate
Dated: 29 November 2019

Date of hearing:   9 &10 October 2017, 14 June 2018

Counsel for Applicant:                    Mr Leo Grey
Solicitors for Applicant:                  Comm Comp Lawyers (until 28 November 2018)
Grieve Watson Kelly Lawyers
(from 28 November 2018)

Counsel for Respondent: Ms Erin Longbottom
Solicitors for the Respondent: Australian Government Solicitor
“ANNEXURE A”

EXHIBIT NO.	EXHIBIT
1	Applicant’s Statement of Facts, Issues and Contentions dated 10 April 2017
2	Respondent’s Statement of Facts, Issues and Contentions dated 29 May 2017
3	Report of Dr Estensen dated 17/10/2016, attaching briefing letter dated 4/8/16
4	Supplementary Report of Dr Isailovic dated 7/3/2017, attaching two articles: (a) “Psychological disability during the long-term course of unipolar major depressive disorder”; and (b) “CME Activity – sponsored by Physicians postgraduate press, inc”
5	Report of Dr Isailovic dated 29/3/2017
6	Report of Dr Estensen dated 13/4/2017, attaching briefing letter dated 4/8/16
7	Supplementary Report of Dr Isailovic dated 13/7/2017 with attachments
8	Report of Dr Khoo dated 3/8/2017, enclosing lengthy report of 21/7/2017 and briefing letter of 31/3/2017
9	Further Report of Dr Estensen dated 13/9/2017 and briefing letter of 16/5/2017
10	Supplementary Report of Dr Isailovic dated 4/10/2017
11	Primary Bundle of s 37 T Documents
12	Supplementary Bundle of s 37 T Documents
13	Statement of Reasons – Liability Decision – Dated 8/9/2009 (see Tab 17 in “Hearing Bundle”)
14	DSM-V Extracts (criteria for Major Depressive Disorder, Obsessive Compulsive Disorder and Adjustment Disorder) (See Tab 14 in “Hearing Bundle”)
15	Study – Marcks BA, Weisberg RB et al “Longitudinal course of obsessive-compulsive disorder.” (See tab 15 in “Hearing Bundle”)
16	Study – Stegenga BT, Kamphuis MH et al “The natural course and outcome of major depressive disorder in primary care” (See tab 16 in “Hearing Bundle”)
17	Intentionally left blank – no exhibit allocated to this exhibit number
18	Clinical Notes of Dr Khoo running from 26/9/2005 to 10/6/2016 – See Tab 18 in “Hearing Bundle”
19	Letter of instructions dated 22/2/2017 from AGS to Dr Isailovic
20	Letter of instructions dated 10/3/2017 from AGS to Dr Isailovic
21	Letter of instructions dated 25/5/2017 from AGS to Dr Isailovic
22	Chapter from Psychiatric Text: Authors: SA Rasmussen and JL Eisen – “The Course and Clinical Features of Obsessive Compulsive Disorder”
23	Letter dated 29/8/2012 from Comcare to Dr Isailovic
24	Applicant’s Closing Written Submissions dated 5/12/2017
25	Respondent’s Closing Written Submissions dated 5/2/2018
26	Applicant’s Closing Written Submissions in Reply dated 15/2/2018

[2019] AATA 5176

29 November 2019

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