Hurley and Australian Capital Territory (Compensation)

[2019] AATA 2450

Hurley and Australian Capital Territory (Compensation) [2019] AATA 2450 (8 August 2019)

Division:GENERAL DIVISION

File Number(s):    2016/3093

Re:Jennifer Hurley

APPLICANT

AndAustralian Capital Territory

RESPONDENT

DECISION

Tribunal:Deputy President John Sosso           

Date:8 August 2019

Place:Canberra

The Tribunal:

(a)sets aside the decision under review and in substitution decides that the ACT is liable to pay compensation to the Applicant pursuant to section 14 of the Act in respect of an aggravation of her pre-existing PTSD and major depression with the date of injury as 2010;

(b)remits the matter to the ACT to give effect to the decision in accordance with the reasons outlined in this decision; and

(c)orders that the ACT pay the Applicant’s costs of this application pursuant to section 67 of the Act as agreed, or taxed.

............................................................

Deputy President John Sosso

Catchwords

COMPENSATION – ailment – major depression – whether claimed condition significantly contributed to, to a significant degree, by the Applicant’s employment – presence of employment and non-employment factors – whether Respondent exposed to unacceptable degree of prejudice in relation to how the Applicant’s claim was particularised and the delay involved – requirements of s 53 of the Act considered – requirements of s 53 of the Act are met – decision under review set aside and substituted

PRACTICE AND PROCEDURE – nature of the Tribunal’s practice in workers’ compensation matters – scope of inquisitorial nature – whether Respondent was “surprised” or “ambushed” at the Hearing

Legislation

Safety, Rehabilitation and Compensation Act 1988

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007

Work Safety Act 2008 (ACT)

Work Health and Safety Act 2011 (ACT)

Cases

Abrahams v Comcare (2006) 93 ALD 147

Australian Postal Corporation v Bessey (2001) 32 AAR 508

Australian Postal Commission v Hayes (1989) 23 FCR 320

Canute v Comcare (2006) 226 CLR 535

Re Carson and Telstra Corporation (2001) 33 AAR 351

Casarotto v Australian Postal Commission (1989) 17 ALD 321

Comcare v Luck (1999) 29 AAR 403

Comcare v Maganga [2008] FCA 285

Comcare v Muir [2016] FCA 346

Commonwealth v Smith (1989) 18 ALD 224

Farrell v Comcare [2015] FCA 1337

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28

Frosch v Comcare [2004] FCA 1642

Havnen and Comcare [2010] AATA 535

Kelson v Forward (1995) 60 FCR 39

Kennedy v Comcare [2014] FCA 82

Lees v Comcare [1999] FCA 753; 56 ALD 84

Mellor v Australian Postal Corporation [2009] FCA 504; 108 ALD 159

Mifsud and Comcare (1994) 33 ALD 376

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468

Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537

Pacific Manning Company Pty Ltd v Barton [2003] FCA 498

Prain v Comcare [2017] FCAFC 143

Renouf and Comcare [2004] AATA 525

Re Deveson and Comcare (1999) 53 ALD 794

Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136

Scutts and Department of Defence [1998] AATA 527

Szabo v Comcare [2012] FCAFC 129

Wiegand v Comcare [2002] FCA 1464

REASONS FOR DECISION

Deputy President John Sosso

8 August 2019

INTRODUCTION

1. Ms Jennifer Hurley (the Applicant) lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) on 12 October 2015 – Exhibit 1 T20 pp. 349 – 354. The condition the Applicant claimed for was described as a “psychologal [sic] injury: exacerbation of an exisiting [sic] illness” – Exhibit 1 T20 p. 351. Further, the Applicant stated that the claim was about “a series of events starting in June 2006” and that she first noticed the symptoms/injury at approximately 4pm on 22 June 2006 – Exhibit 1 T20 p. 351.

2. During this matter up to and including the Hearing, and the provision of post-hearing submissions, Comcare was the Respondent. However, as from 1 March 2019 the Australian Capital Territory (ACT) became a self-insurance licence holder under the provisions of Part VIII of the Act. Accordingly, from that date the ACT became the Respondent in this matter. For ease of reference in most instances when Comcare is referred to herein, this can also be taken as a reference to the ACT.

3. The Applicant was born in 1954 and at the time of the Hearing was aged 64 years.

4. Over a long period of time the Applicant obtained various degrees and diplomas from tertiary institutions. Those degrees and diplomas were focused on education, and in 2002 – 2003 the Applicant was awarded a Masters Degree in English as a Second Language – Exhibit 3 para 4.

5. Likewise, commencing in 1980, the Applicant has an extensive history working in the field of education – Exhibit 2 ST45 p. 210.

6. Between 1994 and 1998 the Applicant and her husband worked with Australian Volunteers Abroad in Indonesia on poverty alleviation projects. The Applicant’s time in Indonesia was traumatic, and she stated that she “was rather changed by that experience” – Exhibit 2 ST45 p. 210. In 1995 the Applicant and her husband were detained, repeatedly threatened with violence and shortly thereafter she was robbed at knifepoint, her clothes were cut with a knife and a policeman fatally shot one of her assailants in front of her – Applicant’s Statement of Facts, Issues and Contentions (ASFIC) para 5, Exhibit 1 T6 pp. 14 – 15, Exhibit 1 T19.20 p. 169, Exhibit 3 para 2.

7. Unfortunately, after the Applicant returned to Australia from Indonesia her husband committed suicide and she was engaged in protracted (seven years) legal proceedings to access her deceased husband’s superannuation entitlements – ASFIC para 6, Exhibit 1 T6 p. 15.

8. From approximately 1983 the Applicant worked as a Special Education Teacher, initially with the New South Wales Department of Education. During the course of 1999 circumstances arose whereby she found herself without a teaching position and without a promise that one would be found in the immediate future. Accordingly, in March 1999 at the invitation of the ACT Department of Education, she commenced duties in a temporary teaching position at Weston Primary School. Subsequently the Applicant took up teaching positions at the Yarralumla Primary School and the Monash Primary School – Exhibit 2 ST 5 pp. 36 - 37.

9. In 2000 the Applicant submitted a workers’ compensation claim in relation to work related stress in her role as a teacher at Monash Primary School. The claimed condition was major depression – Exhibit 2 ST1 pp. 1 – 8. The Applicant provided the following description of her claimed condition – Exhibit 2 ST1 p. 3:

   “The injury arose over a period of time since the beginning of the 2000 school year.

   The lack of support, failure to apply OH+S requirements and a general failure to provide a safe place and system of work resulted in a deterioration of my work environment resulting in major depression diagnosed.”

10. The Applicant cited a lack of support and supervision as key factors leading to the deterioration in the work environment – Exhibit 2 ST1 p. 4.

11. In a lengthy statement of 9 February 2001, the then Principal of Monash Primary School, Mr Owen Savage, comprehensively refuted the claim that the Applicant was not given adequate support – Exhibit 2 ST3 13 – 29. Mr Savage catalogued a number of incidents involving various teachers where it was stated that the Applicant “wasn’t able to communicate in a professional manner”, “appeared to be threatening or didactic in talking about issues associated with her class”, how statements were misconstrued and finally reacting with “a tirade of words” – Exhibit 2 ST3 p. 24.

12. At the request of the Applicant’s then legal representatives, the Applicant was examined and assessed by Dr John Saboisky, Psychiatrist. In his report of 22 February 2001, Dr Saboisky made the following observations – Exhibit 2 ST4 pp. 33 – 34:

    “Ms Hurley clearly came into the ACT Education System with a lot of unresolved emotional baggage. She clearly felt the need for psychological counselling and on arrival here began regularly seeing a psychologist at the City Health Centre.

    She not only had to deal with her husband’s suicide in August 1998 but also a profound estrangement from her family of origin and difficulties finding appropriate employment in Sydney prior to coming to Canberra. While she has great knowledge and special interest in the treatment of autistic children there were difficulties finding a suitable placement given her physical needs following a neck operation. She quite clearly has a degree of sensitivity about not only her own needs for adequate support and understanding but also the needs of her often neglected students… It is difficult to know so many years down the track whether her depression was becoming increasingly obvious to her school principal and this led to a perception of her incompetence as a teacher or whether the school environment was particularly toxic and caused a depressive disorder.”

13. Dr Sabiosky diagnosed the Applicant as suffering from an Adjustment Disorder with depressed mood (Exhibit 2 ST4 p. 35) but further opined – Exhibit 2 ST4 p. 34:

    “I believe that her injuries and disabilities were primarily caused by the death of her husband by suicide. In turn it led to emotional isolation and grief and difficulties being able to satisfactorily settle in employment both in Sydney and in Canberra.”

14. On 21 June 2001 Comcare denied liability on the basis that the claimed injury was not contributed to, to a material degree, by the Applicant’s employment – Exhibit 2 ST6 pp. 41 - 47. This decision was subsequently affirmed on reconsideration – Exhibit 2 ST8 pp. 50 – 56.

15. From 1999 the Applicant was treated by Dr Melvyn Bennett, Psychiatrist, who, in a report dated 3 August 2002, made the following observations – Exhibit 2 ST10 pp. 59, 60, 62, 63:

    “Clinically, Mrs Hurley has several overlapping conditions, all of which developed in the same causal matrix. After her Indonesian service/period of 1996-7 she had a Post Traumatic Stress Disorder with depressive and anxiety components… By the time I first saw her in September 1999 she had a well developed Major Depression, largely but not fully due to the suicide of her husband and its sequelae (Pathological Bereavement) associated with Panic Disorder and Generalised Anxiety Disorder…

    My contact with her was at that time in late 1999 and, for a number of reasons, of which cost was one, she ceased treatment with me and I did not see her again until early 2001. Such medication trials we used had been failures in improving her state but she was working…

    On consideration of all the data… it is my considered opinion that that work period and role contributed materially and significantly to the deterioration of Mrs Hurley’s state so that she is not now able to handle Special Education and is training in the easier ESL teaching role. She was a ‘vocational’ teacher who was committed to Special Ed and for her to give that up is itself a reverse and another loss/failure/source of lowered self-esteem. These per se are negative in their clinical effects and weaken her for the future…

    Clinically her prognosis is poor.  Her conditions are chronic, her response to medication and counselling partial/disappointing, her social situation (e.g. finance) poor, her morale very poor: she fights a large degree of ‘learned helplessness’ and rejection, she is middle-aged without her own family nor her family of origin. She lives in relative isolation.”

16. Following an application for review lodged with the Tribunal, Comcare agreed to pay compensation for a closed period for an “aggravation of adjustment disorder”, and this agreement was reflected in a consent determination issued by Senior Member Sassella on 6 May 2003 – Exhibit 2 ST14 pp. 99 – 100.

17. The Applicant was engaged on 9 October 2002 as a causal teacher at the Canberra Institute of Technology (CIT) – Exhibit 1 T19.1 p. 63. In January 2005 the Applicant was appointed to a permanent part-time position in the Faculty of Communication and Community Services Adult Migrant English Program at the Reid Campus of CIT – Exhibit 1 T19.1 p. 63.

18. The Applicant prepared a comprehensive chronology of the claimed bullying, mobbing and harassment she experienced whilst employed at the CIT, which is found at Exhibit 1 T19.1 pp. 63 – 78.

19. As previously noted, since 2006 the Applicant had a number of incidents with her work colleagues. In a statement dated 8 August 2012, the Applicant described the first incident as follows – Exhibit 1 T11.1 p. 38:

    4.“My issues began around 2006 when I was appointed to work with a co-teacher, [MS], who had recently returned to work in the classroom after a long break. She made a lot of demands of me over the semester. At the end of the semester, we were to prepare the assessment packs, which are a significant and important part of each semester. She wanted to leave the completion of this to me but I requested that she contribute. Instead she shouted and screamed at me to the extent that I subsequently experienced a panic attack, which was witnessed by others who were supportive of me at the time.”

20. The Applicant subsequently took sick leave and advised her manager “JC” of the difficulties she was experiencing with “MS” and told her that she was suffering from an unrelated PTSD – Exhibit 1 T11.1 p. 38 para 5.

21. Over time the Applicant’s relationship with JC deteriorated and the Applicant claimed that JC would speak to her “like I was a dog”, fly into screaming rages, threaten to remove her from classes and other duties that she enjoyed as well as allocating large workloads and other tasks – Exhibit 1 T11.1 p. 39 para 7.

22. In 2008 the Applicant complained of JC’s behaviour to the People Support area of CIT, and subsequently the Applicant was removed from her duties with the Vocational Pathways Course and placed on cleaning duties – Exhibit 1 T11.1 p. 40 para 13. The Applicant regarded this as a punishment for complaining about JC’s behaviour – ASFIC para 10.

23. The Applicant’s work situation continued to deteriorate, and in 2009 the Applicant made a bullying complaint and had time off work due to her anxiety – ASFIC para 12. The following year the Applicant became aware that six staff members had lodged informal complaints about her and meetings had been convened to deal with these complaints – ASFIC para 13.

24. The evidence reveals that in April 2010 six staff from the Adult Migrant English Program (AMEP) at Reid Campus lodged informal complaints with the Centre Director of the CIT Vocational College regarding the Applicant’s behaviour in the workplace – Exhibit 1 T19.4 pp. 87 – 91.

25. This was followed in June 2010 by a formal complaint lodged by “RW” who, in a later statement, claimed that she and other staff were suffering from stress symptoms including interrupted sleep, nightmares, cold sweats, fear of being in close proximity to the Applicant, heightened anxiety and crying – Exhibit 1 T11.2 pp. 45 - 53. In her formal complaint, RW made the following allegations concerning the Applicant – Exhibit 2 ST20 pp. 21 – 22:

    “It appears that Jennifer has little awareness that her behaviours… are unprofessional, and little or no sense of responsibility for the stress that she is causing to a large number of staff members.

    Most of us find our bad habits hard to correct. However Jennifer’s lack of awareness makes me wonder whether she may be incapable of change if the behaviours are part of a more deep seated problem…

    The behaviours through which Jennifer may be indicating her inability to cope with work at the CIT include:

    oInterpretations of reality which are different from those of any reasonable person

    oLies which she appears to believe at the time of saying them

    oAn obsession with a piece of machinery which has been found to be OH&S compliant

    oAn inability to manage workloads without getting stressed and in fact an insistence on overloading herself with more work

    oAn inability to take responsibility for her own behaviour resulting in constant blaming of others…

    Meanwhile many teachers are experiencing high levels of stress which are the result of an anxiety that we do not have the medical skills needed to cope with Jennifer’s complex behaviour. The level of stress we are experiencing constitutes an OH&S issue.”

26. In June 2010 the Applicant was informed that she was being transferred from her current position and placed in another section, despite having a medical certificate advising that it was in her interests to remain there – Exhibit 1 T11.1 p. 41 para 16. Subsequently the Applicant was suspended from duty commencing at the start of Term 3, 12 July 2010 – Exhibit 1 T11.1 p. 41 para 16, Exhibit 1 T19.17 p. 162.

27. During this period the Applicant continued to be treated by Dr Bennett. In a report dated 7 June 2010, he opined that she did not have “a formal mental illness” but had PTSD and made these observations about the effect of workplace issues on her mental state – Exhibit 1 T19.15 p. 148:

    “She doesn’t have a formal mental illness but has Post Traumatic Stress Disorder…

    The work issues at CIT are not new and clearly have the complexities of an organisation in change. However, she enjoys the majority of staff and looks forward to contact with them. She ‘loves’ her classes and gets positive feedback from the students. The job is a stabilising factor and she seems creative and resourceful in that role. An important issue is that her travel time to work there by public transport is reasonable: she is unable to drive owing to a back condition.”

28. At the request of CIT, the Applicant was assessed by Dr Graham George, Psychiatrist. In his report of 13 July 2010 Dr George outlined the Applicant’s family history, including the death of a teenage sister, her estrangement from her siblings, the traumatic experiences that occurred in Indonesia and the suicide of her husband – Exhibit 1 T19.20 pp. 169 - 170. Dr George reported the following information provided by the Applicant – Exhibit 1 T19.20 p. 168:

    “Ms. Hurley readily admitted that if she had not been suspended on 01/07/10, she would be quite happy to have continued in her job. She thought that she was coping. She said that she had ‘a lot of support from other colleagues’. She also said, ‘I’ve had good feedback from students’ related to her teaching abilities in recent times. She did not believe that there was anything wrong with her teaching ability. She was happy working in her previous area.”

29. Dr George diagnosed the Applicant as suffering from an Adjustment Disorder with anxious and depressed mood, and summarised his findings as follows – Exhibit 1 T19.20 p. 171:

    “Ms. Jennifer Hurley is a 56 year old woman who presents for psychiatric assessment in the context of being suspended from work on July 1 2010. She indicated that if she had not been suspended, she would probably still be doing her normal work. She does not present with pervasive symptoms of depression that would prevent her from working, although she could be described as suffering an adjustment disorder over time in relation to industrial issues. Whether or not the industrial issues have been causative of her current symptoms is difficult to assess but undoubtedly, she has had difficulties in interpersonal relationships and whether this relates to personality variables on her part or on the part of others is difficult to assess. However, she could be diagnosed with an adjustment disorder at present.”

30. The Applicant was also assessed by Dr Bruce Lean, Psychiatrist. In his report of 3 September 2011, Dr Lean made the following observations – Exhibit 1 T6 p. 16:

    “It is important to note that Jennifer has had three major grief episodes in her life, possibly four if her stint in Indonesia is considered. In Indonesia the incidents she was involved in would have constituted antecedents for PTSD and there is some evidence to consider that diagnosis…

    Her last incidence of grief, the death of her husband, continues to play out very significantly in her life. She will require intense management of her mood state with evidence based treatment to try and reverse her symptomatology.”

1. The Applicant made counter allegations against the complainants, some of which became the subject of a Workcover investigation – Exhibit 1 T19.41 p. 215.

2. The Applicant determined to remove herself from the stressful work environment and took long service leave during which time she travelled to India, and returned to Australia in March 2011 – ASFIC para 15.

3. In February 2011 CIT engaged Mr Peter Grills of Quality Management Solutions (QMS) to investigate the claims and counter claims under the CIT Complaints Policy and to determine an appropriate means of improving workplace relationships between all parties – Exhibit 1 T19.41 p. 215.

4. The Applicant was interviewed by a Mr Grills and she provided him with the names of 12 people who could assist the investigation. The Applicant states that she learnt that only one of these persons was interviewed, that her complaints were not investigated and only the complaints of RW and her suggested witnesses were investigated/interviewed. Following the finalisation of Mr Grills’ report, the Applicant was formally counselled by three male staff members of the CIT. The Applicant was initally not allowed to view the report and was only able to view it following an FOI request – ASFIC para 17, Exhibit 1 T11.1 pp. 42 – 43 para 21.

5. It was later explained that Mr Grills only interviewed one of the staff members nominated by the Applicant “as it was accepted that you had good working relationships with some of your colleagues” – Exhibit 1 T19.41 p. 215.

6. Mr Grills found that the working relationship between the Applicant and a number of staff members had broken down. There were stated to be a number of reasons for this situation. Mr Grills opined that the Applicant had a strong personality and on occasion behaved inappropriately in that some other staff found her behaviour to be upsetting or offensive. Further, Mr Grills opined that the Applicant misunderstood the nature of her role as an OH&S representative. Conversely, Mr Grills found that the situation was not helped by reluctance on the part of other complainants to stand behind the concerns they raised. Further, he found that some staff had a judgemental attitude towards the Applicant as they did not appreciate her personal circumstances, particularly her diagnosis of PTSD – Exhibit 1 T19.41 p. 216.

7. According to the Applicant the workplace situation remained tense and MS “continued to have screaming fits if things didn’t go her way until her retirement in December 2011. My attempts to raise this and other issues…came to nothing. Following my attempts to raise issues in this way [RW] made yet another complaint about me.” – Exhibit 1 T11.1 p. 43 para 25.

8. It is clear that CIT did not have a good history of competently and fairly investigating allegations of bullying and harassment. So much was found by Worksafe ACT who carried out an investigation in 2012 into CIT’s compliance with its duties under the Work Safety Act 2008 (ACT) and the Work Health and Safety Act 2011 (ACT) into allegations of bullying – Exhibit 1 T19.43 pp. 220 – 241. The investigation focused on complaints of bullying and harassment from seven current and former members of staff of the CIT and from three centres with the CIT. One of the matters considered were the claims and counter-claims involving the Applicant.

9. The author of the report, Mr Mark McCabe, Senior Director WorkSafe ACT, was highly critical of CIT’s approach to dealing with bullying claims. Mr McCabe made the following observations – Exhibit 1 T19.43 p. 222:

   “Given that the complaints which had been made were clearly of a serious nature and involved allegations about senior managers, the WorkSafe ACT investigation found that the CIT’s consideration of the complaints by its internal People Support area was inadequate and insufficiently independent to satisfy the requirement that the CIT take all reasonably practicable steps to identify and manage health and safety risks to the CIT’s workers.”

10. WorkSafe ACT found that the CIT failed to meet it duties under s 21 of the Work Safe Act 2008 and under the Work Health and Safety Act 2011 to take all reasonably practicable steps to ensure the health and safety of its workers by managing risk – Exhibit 1 T19.43 p. 224.

11. Further to that finding, WorkSafe ACT concluded that the CIT findings that a majority of the bullying and harassment complaints were not substantiated could not be relied upon. This was the case because of the flawed processes used to reach those conclusions. Moreover, WorkSafe ACT warned that there may be ongoing risks to the health and safety of workers at the CIT because of these flawed processes – Exhibit 1 T19.43 p. 223.

12. During 2011 and 2012 complaints of bullying and harassment were made to the ACT Commissioner for Public Administration by current and former staff of the CIT. While some complaints were up to two decades old, the majority related to the period 2007 – 2012. Following the handing down of the WorkSafe ACT report and in consultation with the ACT Chief Minister, the Minister for Education and Training and the Commissioner for Public Administration, the CEO of the CIT invited the Commissioner for Public Administration to review allegations of workplace bullying and other misconduct at the CIT.

13. In September 2013 the Commissioner for Public Administration handed down a 53 page report entitled “Colleagues, Not Cases – Managing People and Resolving Workplace Issues” – Exhibit 1 T19.52 pp. 275 – 327. The thrust of the report is encapsulated in the following quotation – Exhibit 1 T19.2 p. 280:

    “The picture that has emerged from this review is not as bleak as some public commentary about CIT would suggest. CIT is not characterised by a culture of entrenched and systemic bullying. There have been a number of areas of concern in relation to a small number of individuals and areas within CIT. A smaller number of such matters remain under investigation. Those concerns, however, should not be allowed to taint the whole organisation. CIT staff members, almost without exception, are professional, behave properly, and are dedicated to the advancement of their students and to the success of the Institute.”

14. On 9 September 2013 Mr Andrew Kefford, Commissioner for Public Administration, wrote to the Applicant. He pointed out that the legal responsibility for investigating matters relating to workplace behaviour lay with the CEO of CIT. The CEO of CIT, in turn, undertook an extensive analysis of the Commissioner’s report and Mr Kefford was informed in June 2013 of the outcomes of that review. Mr Kefford then informed the Applicant – Exhibit 1 T19.51 pp. 273 - 274:

    “Under the relevant Terms of Reference, the Chief Executive CIT has now considered the information you have provided in relation to your complaint about the inappropriate behaviour of a number of CIT teachers as well as an investigative process conducted by CIT regarding complaints made about you.

    It has been determined by CIT that the manner in which the allegations against you were managed, in particular the formulation of the Terms of Reference for an independent investigation will be externally reviewed. The Chief Executive, CIT will inform me of the outcome of this process in due course…

    I acknowledge the courage you have displayed in coming forward and allowing us to consider the material you have provided. I am sorry that your experience as an employee of the ACT Government, and CIT in particular, was not as one would hope for it to be. The experiences you and your colleagues have described provide a significant opportunity for lessons to be drawn that can be used to inform the ongoing implementation of the ACT Public Service Code of Conduct and the Respect, Equity and Diversity Framework across all ACT Government agencies.”

15. In 2014 the Applicant was transferred from the Reid Campus to the Bruce Campus and she found that the alleged bullying behaviours towards her abated – ASFIC para 24.

16. In December 2014 Dr Lean was asked to provide a statement in support of her fitness to return to work. In his brief statement, Dr Lean made the following observations – Exhibit 1 T17 p. 60:

    “Jennifer has been a patient of mine since 29 August 2011.

    During this time Jennifer has remained psychiatrically stable with very little absences from work.

    Jennifer is continuing with treatment and I expect her to remain stable.

    Jennifer is therefore not impaired by her psychiatric illness and is competent and capable to undertake any role at her level.”

17. Despite this seemingly very positive assessment of the Applicant’s mental state, in the covering facsimile transmission note Dr Lean wrote to the referring GP (Dr Joo-Inn Chew) he made the following somewhat different observation – Exhibit 1 T16 p. 59:

    “Her struggle with MDD and PTSD persists – exacerbated by work-related stress, which may now subside.”

18. The evidence also discloses that the Applicant was continuing to have problems with her fellow teachers and some of her students. In January 2015 a formal complaint was made by a fellow teacher about alleged misconduct of the Applicant which involved, inter alia, claims of inappropriate and demeaning choice of activities for adult learning and disrespectful behaviour towards some students – Exhibit 2 ST45 pp. 152 – 153. These allegations were investigated and teachers and a student were interviewed – Exhibit 2 ST45 pp. 165 – 169. The Investigator found that the allegations against Ms Hurley were not substantiated – Exhibit 2 ST45 pp. 169 – 170.

19. Accordingly, the evidence suggests that there were ongoing tensions and recriminations throughout this time, and that the workplace environment would have been less than ideal for all involved. This is reflected in the reports of the Applicant’s treating psychiatrist, Dr Lean. In a short note to Dr Janelle Hamilton of 14 September 2015, Dr Lean observed – Exhibit 1 T18 p. 61:

    “Jennifer returned 11/09/15.

    Her recent exacerbation of Depressive Symptoms has continued.

    She has found coping generally and at work difficult.

    Jennifer agreed to increase Cymbalta initially to 180 mg o nocte.

    She may check in with you for a medical certificate if next week at work proves difficult.”

20. On 12 October 2015 the Applicant lodged a Workers’ Compensation Claim Form in which, as previously noted, she claimed to be suffering from a work-related psychological injury, namely the exacerbation of an existing illness which had its genesis in a series of events starting in June 2006 – Exhibit 1 T20 p. 351.

21. Dr Lean provided a detailed report of 6 November 2015 to the relevant Comcare Delegate regarding this treatment of the Applicant – Exhibit 1 T21 pp. 355 – 363.

22. Dr Lean diagnosed the Applicant as then suffering from Major Depressive Disorder and Complex Post Traumatic Stress Disorder and opined that the claimed condition was an aggravation of a pre-existing condition – Exhibit 1 T21 pp. 358 – 359:

    “The claimed condition is an aggravation of a pre-existing condition. The nature of the episodic work place harassment, bullying and victimization caused Ms Hurley particular stress leading to Anxious Depressive State – a combination of Major Depressive Disorder and Complex PTSD.”

23. Dr Lean referred to CIT as “a very aversive workplace” and observed that the Applicant “relates most of her recent symptoms of Depression and Anxiety to her ongoing difficulties in her workplace at CIT.” In that regard Dr Lean noted that the Applicant had experienced “a number of setbacks” that had contributed to her ongoing illness and which had “denied her recovery” – Exhibit 1 T21 pp. 355 – 356.

24. Throughout Dr Lean’s report there is a constant theme that the unhappy and stressful workplace environment had worsened the Applicant’s underlying mental condition. – Exhibit 1 T21 p. 358:

    “Psychiatrically, over time the stressful work place has definitely reduced the efficacy of Ms Hurley’s treatment for MDD and PTSD – she has fared better this year until recently. Protracted psychiatric symptoms have had an adverse effect on her long term emotional and physical wellbeing.”

25. Dr Lean opined that the Applicant’s symptoms would not have been present in any event, and observed – Exhibit 1 T21 p. 360:

    “They have returned due to work place victimization - both to her individually and, to an extent, the culture of victimization recognised as being very prevalent in CIT…

    Ms Hurley’s symptoms do not represent a natural progressions [sic] to her background illness – MDD and Complex PTSD.”

26. Comcare informed CIT of the Applicant’s claim and provided an opportunity for CIT to provide employer statements of facts in response. By letter dated 11 November 2015, Ms Elizabeth Bennett, Workplace Support Coordinator, CIT, responded to Comcare and contended that the Applicant’s compensation claim be excluded and denied. Reference was made to s 53 of the Act, namely that a claim must be lodged as soon as practicable.  Ms Bennett contended as follows – Exhibit 1 T22p. 392:

    “Ms Hurley claims her date of psychological injury or exacerbation of an existing injury was 22 June 2006 and yet her claim for compensation was not lodged until October 2015 – i.e., some nine (9) years after her claimed date of injury. CIT submits that this nine (9) year time difference does not comply with the Section 53 condition of being lodged ‘as soon as practicable’ and that Ms Hurley’s claim should therefore be excluded and denied.”

27. Ms Bennett also attached three statements from staff of CIT which largely dealt with the complaints about the Applicant’s behaviour whilst she was employed at CIT – Exhibit 1 T22.1 pp. 394 – 400.

28. Comcare sought a report from the Applicant’s treating GP, Dr Janelle Hamilton, who was asked a series of questions. In her report of 16 November 2015, Dr Hamilton made the following observations – Exhibit 1 T23 p. 402:

    “Ms Hurley suffers from major depression and PTSD, exacerbated by workplace stress…          

    5. In my opinion, confirmed by Dr Lean’s letters, and stated above, Ms Hurley’s underlying condition has been exacerbated by prolonged and persistent workplace harassment.

    6. It is highly unlikely that Ms Hurley’s depression would have been as severe or persistent if she had not been subjected to ongoing workplace harassment. Ms Hurley would be regarded as having a ‘worsening of the diagnostic indicators’ ie more severe and persistent major depression and symptoms and signs of PTSD due to the workplace harassment.”

29. At Comcare’s request, the Applicant was examined and assessed by Dr Catherine Oelrichs, Psychiatrist, on 25 November 2015 and a very comprehensive written report dated 8 December 2015 was provided to Comcare – Exhibit 1 T27 pp. 440 – 451.

30. After outlining the Applicant’s history, Dr Oelrichs reported that there had been a marked deterioration in the Applicant’s mood between July 2015 and September 2015. The Applicant informed Dr Oelrichs that this had been triggered by another workplace complaint, and although it had been resolved “there had been ongoing problems as the person who had made the complaint was talking with her colleagues about it. At the time she had developed suicidal thoughts” but “she has improved over time since then. She stated that she gets some pleasure and enjoyment out of working ‘at the coal face’” – Exhibit 1 T27 p. 443.

31. Dr Oelrichs noted that the Applicant reported an extensive treatment history since 1999 for depressive illness and PTSD – Exhibit 1 T27 p. 444. Subsequently Dr Oelrichs provided this summation of the Applicant’s mental state – Exhibit 1 T27 p. 446:

    “Ms Hurley is a 61-year-old. She is employed by the Canberra Institute of Technology on a full-time basis. She presented with an extensive psychiatric history, which is consistent with Ms Hurley suffering from major depressive disorder and complex posttraumatic stress disorder. This has been present since at least 1996 following a reported aggravated assault and robbery at knifepoint in 1996 and being witnessed to the offender being shot in front of her. She had other significant stresses surrounding the death of her husband by suicide in 1998 and a protracted case for access to her husband’s superannuation.

    Ms Hurley has had likely exacerbations of her clinical condition over a period of time and is particularly from her reports vulnerable to stresses in which she has felt under question or in which she has felt accused of some complaint and during these times Ms Hurley does present with a history of having had a deterioration in her mental health.”

32. Dr Oelrichs diagnosed her condition as “PTSD-chronic and comorbid Major depressive disorder-chronic” – Exhibit 1 T27 p. 448. In response to a Question as to when the Applicant first suffered the symptoms of these conditions, Dr Oelrichs opined as follows – Exhibit 1 T27 p. 448:

    “Ms Hurley is likely to have suffered from clinical symptoms of this condition from her history and from treating psychiatrist’s documentation in and around 1999 and her condition has been present and fluctuated over time. Her condition has at times become more severe. Her most recent relapse from her reports is in mid 2015 when she had an increasing depression. Ms Hurley has ongoing clinical signs and symptoms and chronology of development which supports and is consistent with posttraumatic stress disorder and major depressive disorder.”

33. Dr Oelrichs was also asked if the Applicant’s then current medical condition constituted an aggravation acceleration or recurrence of a pre-existing or underlying condition. Her response was as follows – Exhibit 1 T27 p. 449:

    “Ms Hurley’s current medical condition is presenting as an ongoing medical condition. At times Ms Hurley will have an aggravation of her condition in response to stressors. At this point Ms Hurley’s condition has had an increase in her medication and her condition is reasonably stabilised. The aggravation from Ms Hurley’s reports has been more apparent and on reviewing psychiatrist’s reports in and around 2010/2011 and at this time Ms Hurley had been having experiences within her workplace which had caused her significant distress and this is she reported in relation to dealing with a workplace where there had been a number of complaints and staff issues over a period of time.

    At this point Ms Hurley’s medical condition is reasonably stabilised however she still has some ongoing residual symptoms of her condition, which is not completely in remission.”

34. In addition, Dr Oelrichs opined that the Applicant had experienced a worsening of diagnostic indicators over time which manifested in the Applicant suffering from a worsening of her experience of the symptoms of her condition with successive workplace stresses. Finally, Dr Oelrichs did not believe that the Applicant’s symptoms would have been present in any event, and then opined – Exhibit 1 T27 p. 449:

    “The nature of her condition is such that increasing stresses can cause a deterioration in symptoms.”

35. On 18 December 2015 Comcare denied liability for the Applicant’s claim – Exhibit 1 T29 pp. 454 – 456. The primary reason advanced for rejecting liability was that the Applicant had not provided notice of her injury as soon as practicable as required by s 53 of the Act. The Comcare Delegate made the following observations – Exhibit 1 T29 p. 455:

    “In your case, we note that there was a considerable delay between the time you first noticed your claimed injury on 22 June 2006 and the lodging of your compensation claim form dated 12 October 2015…

    Due to the delay between the first time you noticed your claimed condition and the lodging of your claim for compensation we were unable to gather significant and key information from your specialists and from your employer.”

36. The Comcare Delegate was also not satisfied that the Applicant sustained an aggravation of her pre-existing psychological injury on the claimed date of injury. After referring to the reports of Drs Hamilton, Lean and Oelrichs, the Comcare Delegate said – Exhibit 1 T29. 456:

    “The medical evidence pertains that your symptoms have fluctuated according to stresses over time. Based on the evidence provided we are satisfied you experienced symptoms of your pre-existing condition on 22 June 2006. However, we do not consider that that the experience of your symptoms provides substantial evidence that your workplace has actually caused a clinical aggravation of that condition. There is no evidence before us to support that your underlying condition has been worsened or accelerated.”

1. The Applicant’s then legal representatives requested a reconsideration of the Determination – Exhibit 1 T30 pp. 457 – 460.

2. On 8 April 2016 the Comcare Review Officer affirmed the Determination – Exhibit 1 T31 pp. 463 – 467. In reaching this decision the Review Officer first out set out in summary form the medical evidence discussed above and noted that a diagnosis of major depressive disorder and PTSD had been consistently made by the Applicant’s treating medical practitioners. The Review Officer accepted that diagnosis – Exhibit 1 T31 p. 465.

3. The Review Officer referred to the definition of “Aggravation” in s 4 and to the Federal Court decision of Casarotto v Australian Postal Commission (1989) 17 ALD 321 and then said – Exhibit 1 T31 p. 466:

   “In your Chronology of Events, you have referred to employment related incidents that occurred from 22 June 2006 up to and including August 2015. As a Review Officer, I can only consider if the events which led to the development of your condition, or aggravated it. I note your claimed date of injury is 22 June 2006.

   In reviewing the medical evidence on your claim file, it is noted that you have been under the care of a psychiatrist since 1999 for non-employment related issues and your condition appears to have fluctuated in its severity since that time. This is supported by the evidence, including the evidence of Dr Oelrichs.

   Furthermore, it is noted there is no contemporaneous medical evidence to support that your condition was aggravated by your employment on 22 June 2006. Dr Hamilton has stated that you saw Dr Kraus on 22 June 2006 and requested to 2 days off due to workplace harassment. However, there is no evidence before me to support that your underlying psychiatric condition was made worse or accelerated by the employment incident which occurred on 22 June 2006. I am not satisfied, having regard to the available evidence that your employment materially contributed to an aggravation of your underlying psychiatric condition on 22 June 2006. Therefore, I am affirming the determination dated 18 December 2015.”

4. The Review Officer also referred to s 53, but did not address it as the Applicant’s claim was denied on the above basis – Exhibit 1 T31 p. 466.

5. The Tribunal has also been presented with a medical report dated 6 February 2017 prepared by Dr William Knox, Psychiatrist – Exhibit 6.

6. Dr Knox diagnosed the Applicant as suffering, particularly since 2010, from Adjustment Disorder with Mixed Anxiety and Depressed Mood. In Dr Knox’s opinion, sometimes the depression likely amounted to a Major Depressive Disorder. The treatment the Applicant received was likely, in Dr Knox’s opinion, to have masked the severity of the Applicant’s poor mental health – Exhibit 6 p. 5.

   THE HEARING

7. This matter was heard in Canberra between 28 – 30 November 2018. The Applicant was represented by Mr L Grey of Counsel instructed by Mr N Gabbedy of Gabbedy Milson Lee Lawyers. Comcare was represented by Ms S Wright of Counsel instructed by Mr A Schofield of Comcare.

8. The Applicant appeared in person on 28 November 2019, gave evidence and was cross-examined by Ms Wright. On 29 November 2018 evidence was received in the morning from Drs Hamilton and Lean and in the afternoon concurrent evidence was received from Drs Oelrichs and Knox.

9. During the morning of 30 November 2018 both Counsel addressed the Tribunal on legal issues and the Applicant was recalled to provide further evidence.

10. Leave was given to Counsel to prepare written submissions and Directions made on 30 November 2018. The Tribunal received the Applicant’s Written Submissions (AWS) dated 15 January 2019, Comcare’s Closing Submissions (CCS) dated 15 January 2019, the Applicant’s Written Submissions in Reply (AWSR) dated 22 January 2019 and the Respondent’s Submissions in Reply (RSR) dated 22 January 2019.

    LEGAL PRINCIPLES

11. Section 14 “is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned.” - Lees v Comcare [1999] FCA 753; 56 ALD 84 (Lees) at [27]. It creates a liability for Comcare to pay compensation for injuries suffered by employees resulting in death, incapacity for work or impairment. As the Full Court in Lees highlighted, liability is qualified in two ways:

    (a)liability is subject to the other provisions in Part II of the Act; and

    (b)the liability is “in accordance with the Act”, namely “to pay compensation for which the statute provides, as required by the Act: see, for example, ss 17(3), (4), (5), 19, 2, 24 and 25” – Lees at [27].

12. In order for liability to accepted pursuant to s 14, the following findings are required:

    (a)appropriate notice of injury has been given;

    (b)a claim for compensation, in accordance with the Act, has been made;

    (c)the claimant was an employee at the relevant time;

    (d)the employee suffered an injury; and

    (e)the injury resulted in death, incapacity for work or impairment;

    see Lees at [35].

13. There is a distinction between a decision to revoke a s 14 determination and one terminating liability because the condition no longer attracts payments for medical expenses or for incapacity. The former is relatively rare as it involves revisiting one or more of the five matters highlighted in Lees – see Renouf and Comcare [2004] AATA 525 at [76], Re Carson and Telstra Corporation (2001) 33 AAR 351 at 358 - 359. It is much more likely that a cessation of liability will involve reconsidering matters under ss 16 and 19 of the Act.

14. Before focusing on the nature of the compensable “injury” it is important to note that in those matters where Comcare has initially accepted liability to pay compensation under s 14, in order for compensation to continue to be paid, there must be continuing incapacity or impairment – see Mifsud and Comcare (1994) 33 ALD 376.

15. The term “injury” is defined by s 5A 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, an 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.”

16. It will be seen that the definition of “injury” comprises two main subsets, namely “disease” and “injury (other than a disease)” each of which comprises separate but related bases of liability. The third basis of liability is an aggravation of a physical or mental injury (other than a disease).

17. As the High Court explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at 481, the first task of the tribunal of fact is to determine if the employee is suffering a disease. However, it is important to note, that “disease” and “injury (other than a disease)” are not mutually exclusive categories – Prain v Comcare [2017] FCAFC 143 at [72] (Prain). Kenny, Tracey and Bromberg JJ in Prain made the following observation (at [74]):

    “We do not think that it was impermissible for the Tribunal to note that the authorities ‘tended to place mental illness in the statutory category of disease’. We would not read the Tribunal’s statements in [20] of its reasons as requiring the conclusion that mental illness must be categorised as a disease and, for that reason, could not also be classed as an ‘injury (other than a disease)’. Once again the Tribunal’s reasons assumed, correctly, that whether or not a mental illness is to be categorised as a ‘disease’ or, alternatively, an ‘injury (other than a disease)’ will depend on the nature and incidents of the physiological change.”

18. “Disease” is defined by s 5B of the Act to mean:

    “(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.”

19. The term “ailment” is defined by s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

20. “Aggravation” includes acceleration or recurrence – s 4(1). Reference can also be made to the following observations of Windeyer J in Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537 at 593:

    “’Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increase in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Broom Co. Pty Ltd v Semlitch…”

21. The Act also contains a deeming provision for a disease or the aggravation of a disease. Subsection 7(4) provides that an employee shall be taken to have sustained an injury, being a disease or an aggravation of a disease, on the day when:

    (a)  the employee first sought medical treatment for the disease, or aggravation; or

    (b)  the disease first resulted in incapacity for work, or impairment of the employee.

22. It is also important to note that the test of employment contribution for a disease (or aggravation thereof) is dependent on timing of on the onset of the compensable “injury”. The Act was amended in 2007 replacing the “material degree” test with the “significant degree” test – Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (the Amendment Act).

23. Item 41 in Schedule 1 of the Amendment Act provides as follows:

    “41 Application of amendment to the definition of disease (section 5B)

    (1)  The definition of disease in the Safety, Rehabilitation and Compensation Act 1988, as amended by this Schedule, applies in relation to:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment:

    that the employee suffers on or after the day after this Act receives the Royal Assent.

    (2)  For the purposes of subitem (1), an employee suffers an ailment or aggravation on the day determined under subsection 7(4) of the Safety, Rehabilitation and Compensation Act 1988”

    (bold in the original)

24. In this matter the relevant period of the Applicant’s employment was between June 2006 until November 2015 and thus comes within both of the statutory workplace contribution tests. However, as Mr Grey conceded (AWSR para 2.4) it was never submitted that the Applicant’s “ultimate date of injury” was before 13 April 2007, and, accordingly the significant contribution test applies.  The Tribunal has therefore proceeded on the basis that the significant contribution test applies in this matter.  

25. It is also the case that when considering liability to pay compensation, an employer and its insurer is required to take an employee as it finds him or her. As von Doussa J observed in Commonwealth v Smith (1989) 18 ALD 224 at 226:

    “Incapacity due to disabling psychological symptoms precipitated by minor physical injury to a person already suffering a neurotic temperament is a well-recognised and unfortunately common phenomenon. If the precipitating injury occurs in compensable circumstances, the incapacity caused by the psychological symptoms is compensable even though the physical effects of the injury may resolve quickly. In such a case the injury is an element which only completes the tale of circumstances which constitutes the cause of the incapacity in the non-legal sense, but in the legal sense it is itself the cause of the incapacity which ‘results’ from it: see Ward v Corrimal-Baalgownie Collieries Pty Ltd (1938) 61 CLR 120 at 130. The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all the predispositions and susceptibilities, whatever they may be: see Mason JA, as he then was in Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29 at 44 whose judgment was upheld by the High Court: (1973) 47 ALJR 236….”

26. As previously noted, s 53 provides that the Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority. This requirement is supplemented by the further requirement in s 54 for a claim to be made by or on behalf of an employee, in accordance with the form approved by Comcare, and, as a general rule, accompanied by a certificate from a legally qualified medical practitioner.

27. Importantly, s 53(1) requires that notice of the claimed injury must be made as soon as practicable after the employee becomes aware of the injury.

28. These provisions were explained by the Full Court in Lees as follows:

    “[30] It is clear that Part V of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form. The claim for compensation envisaged by s 54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections, of the Act. The form approved by Comcare as required by s 54(2)(a) reflects the generic nature of a claim under the section. It is headed ‘Claim for Rehabilitation and Compensation’. It requires the provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.

    [31] The claim, and the claim form, envisaged by s 54 of the Act reflects the practical reality that a claim for compensation is likely to be made relatively soon after the suffering of an injury, particularly if incapacity for work or significant medical expenses result from the injury. At the time that this initial claim is made it may be quite impossible for the employee to provide details of, for example, the fact or extent of any permanent impairment. For the reasons expressed below, the determination which is made on a claim, as required by s 54 of the Act, will ordinarily be a determination under s 14 of the Act.”

29. Subsection 54(1) provides that compensation is not payable unless a claim for compensation is made. Further, the determining authority must consider and determine each claim for compensation – s 61(1A). It flows from these provisions that it is the claim that provides the foundation and basis for an assessment as to whether compensation is payable. The scope of Comcare’s assessment in this matter, accordingly, was determined by the claim made by the Applicant.

30. Comcare submitted (Comcare’s Outline of Submissions on the Scope of the Hearing para 14), and the Tribunal accepts, that there is no jurisdiction to consider whether s 14 liability exists for a different condition that is not reasonably encapsulated in the claim form. Comcare drew the Tribunal’s attention to Comcare v Lofts (2013) 217 FCR 220 where the Federal Court held that the Tribunal did not have jurisdiction to make a decision in respect of a claim for medical expenses which was not “expressly or impliedly” the subject of a claim resolved by a reviewable decision.

31. However, it would be an error to confuse the “label” or “diagnosis” placed on a condition in a claim form with the symptoms the subject of the claim. As Madgwick J pointed out in Abrahams v Comcare (2006) 93 ALD 147 at 153/[21]: “[n]othing is more common than that medical diagnoses change and evolve, or are or become various.”

32. As will be discussed later, the Applicant in her claim characterised with some clarity the symptoms/injury she was claiming as well as the period of time during which those symptoms/injuries manifested themselves.

33. It is for the Tribunal to assess the true scope of a claim and to conduct a review on that basis – Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136.

34. There have been a number of Federal Court decisions each of which has involved resolution of the question of the formulation in the claim of the contended compensable injury and the subsequent jurisdiction of the Tribunal when exercising its review powers. Reference can be made to the following observations of Flick J in Comcare v Muir [2016] FCA 346 at [13]:

    “Not surprisingly, some flexibility in the formulation of a claim has been permitted. Frequently, many claims for compensation have been drafted by claimants without the benefit of legal assistance, and in many cases a medical condition may change and evolve over time.”`

35. His Honour also made the following observations in Farrell v Comcare [2015] FCA 1337 at ([31]):

    “Counsel for Comcare quite properly accepted that a claim seeking compensation obviously need not be expressed with the same degree of particularity or formality of a pleading of a statement of claim in a superior court.”

36. Part VI of the Act sets out a three tiered decision-making process: determination (s 61), reconsideration of determinations (s 62) and review by the Tribunal (s 64). The “reviewable decision” before the Tribunal is that decision made under s 62 – s 60(1). The Tribunal’s review powers are limited to the matters determined by the reviewable decision, or, if there is an omission in that decision, then the matters properly before the decision-maker who made the reviewable decision. The Tribunal has no powers of review that may be exercised “at large” – see, for example, Szabo v Comcare [2012] FCAFC 129.

37. The scope of the Tribunal’s review jurisdiction was explained in Lees as follows:

    “[39] In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers ‘[f]or the purposes of reviewing’ the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”

38. The Full Court in Lees had before it two appeals which raised the same issue, namely whether the Tribunal could review other issues relating to a compensation claim that had not been the subject of reconsideration by Comcare under s 62.

39. The Full Court held that the Tribunal only had jurisdiction under s 64 for decisions which have been reconsidered under s 62. In so finding, the Full Court said:

    “[50] The only issues under s 24 of the Act which required determination in Ms Lees’ case were the issues of whether she had a permanent impairment and, if she did, the amount of compensation payable under the section in respect of that impairment. Neither of these issues had been determined at the first tier decision-making stage. Necessarily, in the circumstances, there had been no reconsideration under s 62 of the Act of a determination on these issues. Consequently there was no reviewable decision touching on these issues to found an application to the AAT under s 64 of the Act.”

    CONSIDERATION

    Introduction

1. The Hearing of this matter lasted for three days, and, in addition, the Tribunal has received detailed written submissions from the legal representatives of the parties.

2. Much of the Hearing and the written submissions have focused on procedural issues rather than the substance of the Applicant’s claim. Nonetheless, as the issues raised concern threshold matters that go to the jurisdiction of the Tribunal they necessarily must be addressed before the Tribunal proceeds further.

   Denial of Procedural Fairness

3. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate – s 33(1)(c) Administrative Appeals Tribunal Act 1975.

4. However, even though the Tribunal is not bound by the rules of evidence and is given much leeway in determining the procedure to be adopted in reviewing a decision, it is bound to accord the parties natural justice. Central to this principle is that both parties must be given a reasonable opportunity to present their case. That right necessarily includes the ability to test the other party’s evidence in a logical and informed manner – see Australian Postal Commission v Hayes (1989) 23 FCR 320 at 326 – 327 and Comcare v Maganga [2008] FCA 285 at [26]. There may be circumstances where one party is, for example, “surprised” or “ambushed” at a Hearing. In such a case, where the Tribunal allows the proceedings to be conducted so that the aggrieved party is placed at a disadvantage, the aggrieved party has not been accorded procedural fairness – see Kelson v Forward (1995) 60 FCR 39.

5. Comcare contends that it has been denied a fair and reasonable opportunity to present its case because the Applicant declined to provide essential details of her claim prior to Hearing and then propounded a variety of different dates for the claimed injury: 2015, then 2013 and finally 2010 – CCS para 1.

6. Quite correctly, Comcare submits that the concept of “injury” under the Act is central, and the importance of fixing a date of injury in respect of diseases (even those of gradual onset or development) is underscored by the High Court in Canute v Comcare (2006) 226 CLR 535 and in Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28. Furthermore, the scheme of the Act was held by the High Court in Canute to proceed from the occurrence of an “injury” in the defined sense, that is, it is the occurrence of an injury which both actuates and defines the scope of liability – CCS para 3.

7. The Tribunal agrees with Comcare’s submission that it is not unreasonable to expect that an employee will identify an alleged injury with clarity, and, in particular, the date of the injury. As Comcare submitted, clarity is particularly necessary as psychiatric injuries may develop over time and involve various reactions and responses on the part of an employee, ranging from emotions such as annoyance and disappointment on one end of the spectrum to clinically significant psychiatric conditions at the other end – CCS para 4.

8. The Tribunal’s attention was directed to the Federal Court decision of Kennedy v Comcare [2014] FCA 82 (Kennedy). Ms Kennedy worked as a customer service adviser in a Centrelink call centre and claimed for mental injury, hearing loss, alopecia, dental trauma and migraines. These injuries were said to have resulted from workplace harassment and bullying during her employment between 2005 and 2010. It was not disputed that Ms Kennedy was suffering from a psychiatric disorder and that her disorder was a disease. Ms Kennedy’s claim was made with respect to injuries which Comcare deemed to have occurred on 12 July 2007 and 3 May 2010.

9. Perhaps surprisingly, having regard to what the Full Court decided in both Lees and Szabo, the issue in this case was whether the Tribunal fell into error for failing to deal with an alleged injury in 2009 which was somewhat obscurely raised during the proceedings, even though that injury was not dealt with in either the initial determination or upon reconsideration.

10. As her Honour Katzmann J pointed out in Kennedy, the first reference to the submission was in the Applicant’s outline of submissions which were handed to the Tribunal at the beginning of the closing addresses. Further, as her Honour highlighted (at [34]), the reference “was rather oblique”. The closing submissions in fact did state that there was an injury in 2009, but merely contained an inference that there was a recurrence of the symptoms of the 2007 injury. As her Honour observed (at [35]):

    “There is only a hint that those symptoms were attributable to anything that occurred at work in 2009.”

11. Counsel for Ms Kennedy made, with due respect, vague submissions about the 2009 injury (reference was made to “an exacerbation of the condition in that window”) and, as her Honour correctly observed (at [36]), it was ironic that the Counsel for Comcare “crystallised” what the Counsel for Ms Kennedy was attempting to submit. Katzmann J then held (at [37]/[39]):

    “I therefore accept that a submission was made to the tribunal that Ms Kennedy had suffered an injury in the latter part of 2009 for which she should have been compensated and which the tribunal did not address. I also accept the submission made on Ms Kennedy’s behalf that the reason for the tribunal’s omission was not inadvertence, but a misapprehension on the tribunal’s part about what was being put to it…

    Although I have some concerns about the vigour with which the submission was put, and on the (admittedly incomplete) material included in the appeal books it may be doubted whether there is medical evidence to support it, I accept that the submission was seriously advanced, that it was worthy of serious consideration and that, in effect, it was overlooked.”

12. The question of whether there was an error of law, however, turned on the extent of the Tribunal’s jurisdiction. Understandably, Comcare submitted that the reviewable decision did not refer to an injury in 2009 and neither did the request for reconsideration. Accordingly, it was submitted that the Tribunal had no jurisdiction to entertain the submission (at [40]).

13. Her Honour then referred to, and quoted extracts from, the Full Court decisions of Lee and Szabo, and then made the following observations (at [45]):

    “In the case of psychiatric injury, however, it is not always easy to discern the nature of a claim. Neither the original decision-maker nor the review officer referred to a claim for compensation for injury in 2009. But the tribunal’s jurisdiction does not depend on how Comcare characterises the claim. To the contrary, ‘the tribunal must assess for itself the true scope of the claim’ and conduct the review on that basis: Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136; [2011] AAT 802 (‘Durham’) (Jagot J, sitting as a presidential member of the tribunal) at [51]. The question whether the tribunal lacked jurisdiction to deal with the submission depends on the scope of the applicant’s claim for compensation: Durham at [53].”

14. Ms Kennedy stated in her claim that she first noticed that she was ill in August 2005, but there was no reference to anything occurring in 2007, 2009 or 2010. However, in a lengthy statement made in support of her claim reference was made to workplace events in 2009. In that statement she referred to the erratic behaviour and comments of a work colleague that made her “more uncomfortable and on edge” – at [47].

15. Her Honour then made these observations (at [48]):

    “I accept that a claim of feeling uncomfortable or on edge, without more, would be insufficient to establish that there was an injury. But that complaint must be read in context. It strikes me that in these passages Ms Kennedy is complaining that Ms Oostendorp’s treatment of her in 2009 made her worse – that it caused or exacerbated a pre-existing psychiatric disorder (a disorder that had apparently settled down after the 2007 events) and caused her to suffer more frequent headaches, even migraines. This was a discrete allegation separate from the allegations relating to the effect of the home visit and the meeting in April 2010.”

16. It is not necessary to go further: her Honour found that, by reference to the scattered and opaque mentions of various incidents, that the review officer failed to make a determination about the allegations concerning the 2009 incident. Consequently, her Honour found that the preconditions to the exercise of the Tribunal’s jurisdiction to consider the submissions regarding the 2009 incidents had been made out, and that the Tribunal had erred in law by neglecting to do so (at [60]).

17. It is not clear from this decision whether her Honour has combined in her reasoning concepts of workplace incidents and the onset of a compensable injury. Allegations of being uncomfortable and the on the edge because of unsatisfactory workplace behaviour is clearly a serious matter, but the task for a decision-maker is not to equate emotional hurt with the legal concept of injury as mandated by the Act and then proceed on a possibly unwarranted path of inquiry.

18. Comcare submitted (CCS at para 6) that Kennedy should be treated with caution. However, it is not for the Tribunal to pick and choose which Federal Court authorities it wishes to follow. Further, Kennedy has been cited in other Federal Court decisions with apparent approval – see, for example, Comcare v Muir [2016] FCA 346 at [16]. I read from Kennedy that, opaque as it may have been, there was material before the reconsideration officer and also before the Tribunal that suggested that a 2009 date of injury was being propounded. Her Honour quite correctly highlighted the vagaries and difficulties inherent with psychiatric injuries (at [45]). Mental diseases are often difficult to diagnose and treat. Legitimate debate between treating specialists often occurs as to whether a patient is simply experiencing symptoms of an underlying condition, or is suffering (in terms of the Act) an aggravation of the underlying condition.

19. In both Kennedy and this matter, the applicants have been suffering from a mental illness over a long period of time. Pinpointing at what time or times the workplace incidents may have resulted in an aggravation of the underlying condition is a difficult and contentious matter. In these circumstances, as I read Kennedy, what her Honour held is that a liberal approach is to be preferred when assessing the evidence and the Tribunal is not bound by how Comcare characterises the claim (at [45]). Rather, the Tribunal is required to assess for itself the true scope of the claim and then make an informed judgment as to whether the law, as expounded by the Full Court in Lees, has been met.

20. In this matter the Applicant stated in her claim form that: “This claim is about a series of events starting in June 2006”. Further, she stated that she first noticed her symptoms/injury at 4 pm on 22 June 2006. Finally, the Applicant was explicit in stating that her claim was for a “psychologal [sic] injury: exacerbation of an exisiting [sic] illness” – Exhibit 1 T20 p. 351.

21. Comcare was placed on notice from the outset that the Applicant was contending that from 2006 she experienced a series of workplace events that exacerbated an existing mental illness. I do not read the claim form as necessarily contending that the Applicant was “injured” on 22 June 2006, rather that was the starting point of her experiencing symptoms.

22. Emails admitted into evidence disclose that as early as 29 November 2016 Comcare queried the legal representatives of the Applicant about the nature of the claim. In the first email of 29 November 2016 Comcare asked the following question – Exhibit 4:

    “Can you please advise whether your client’s claim is a claim for one injury or multiple injuries? Please give the date and circumstances of any such injury asserted. At the moment it is unclear to us what she is claiming in that regard.”

23. On the same day the legal representative of the Applicant responded as follows:

    “I can’t yet give you that level of specificity.

    I will need a medical report before I can say whether we are looking at one injury that is relapsing/remitting, or a series of aggravations.

    What I can say is that we are looking at multiple dates of incapacity as a result of illness.”

24. On 15 March 2017 the legal representative of the Applicant formally wrote to Comcare and provided the following information – Exhibit 4:

    “I think it is clear both from the material contained in the T Documents and from Dr Knox’s recent report that Mrs Hurley has been subjected to a continual period of harassment and bullying in the course of her employment that spans a period of years. As such there is not a particular event that can be identified as the sole or substantial cause of her condition.

    The best it can be put is that:

    1.The bullying commenced in or about 2006 and continued to 2010 and after.

    2.The period around 2010 was a period of significant bullying and harassment, however, there was bullying and harassment pre and post-dated that period;

    3.By 2010 Mrs Hurley was suffering from a work related condition which arose out of bullying and harassment she was experiencing at work.

    4.As a result of that condition Mrs Hurley has required time off work and her need for medical treatment increased above the base level that she required for her non work related psychiatric injury.

    This is a ‘nature and conditions’ type case where the behaviour causing and aggravating the injury has continued over an extended period of time.”

25. Mr Grey (AWSR para 2.6) also drew the Tribunal’s attention to paragraph 3 of the Applicant’s SFIC of 21 November 2017 wherein her case was said to be as follows:

    “From approximately June 2006 and in particular from 2010 onwards, the Applicant has been subjected to incidents of bullying and harassment in the workplace. These incidents have from time to time aggravated the underlying condition suffered by the Applicant and/or caused a new condition to occur in conjunction with the Applicant’s underlying condition.”

26. As is clear from the material quote above, the Applicant’s case was tolerably clear from the outset. Nonetheless, the Tribunal agrees with Comcare that greater precision was desirable and the lack of precision about date or dates of injury, and the nature of the injury, persisted up to and including the first day of the Hearing.

27. The Tribunal can understand the frustration that Comcare experienced, however a fair reading of what transpired does not support a proposition that Comcare was precluded from presenting its case or was “surprised” during the Hearing such that it was not able to deal with the Applicant’s case. It was unfortunate, and Mr Grey takes responsibility (AWSR para 2.7), that there was confusion on the first day of the Hearing as to what exactly the Applicant was submitting so far the date(s) of injury. However, any temporary confusion was resolved by the end of the Hearing and both sides were able to present their case.

28. One strand of Mr Grey’s submissions, however, requires some comment. Mr Grey made the following submission – AWSR para 2.3:

    “As noted in Ms Hurley’s primary submissions, there is also a fundamental misunderstanding of the Tribunal process involved in Comcare’s complaints, and the role of the parties within it. The task of the Tribunal is not to adjudicate between opposing positions of the parties, essentially fixed in concrete before the commencement of the hearing. A Tribunal hearing is not a ‘zero-sum’ adversarial contest, where only the opposing contentions are weighed, and one or the other found wanting, resulting in victory for the opposing party. Each party is under a duty to assist the Tribunal to reach the correct or preferable decision, not to give primacy to defending its own pre-formed views on every issue. No party is required to have a hard and fast position on any issue at the beginning of the hearing, although the nature of the issues may well require crystallization of each party’s position on critical issues at the stage of final submissions.”

29. Mr Grey paints an interesting and somewhat idealistic view of the Tribunal inquiry process. The reality is that the Tribunal relies, consistently with its statutory obligations in providing a mechanism of merits review, on the parties to have formulated with precision and clarity the essentials of their case by the commencement of a Hearing, and, where appropriate, to have articulated that case to the Tribunal and the other side by means of pre-hearing written submissions. A Tribunal Hearing is not the legal equivalent of a University tutorial where the lecturer and students engage in a process of debate using the Socratic method to arrive at the correct or preferable answer to the issue at hand. The Tribunal process is inquisitorial and not adversarial, but, to all intents and purposes, the inquiry is driven by opposing sides each advancing to the best of their ability their case. However, even if the process was as bipartisan as Mr Grey submits, then the opposing sides must each have started the Hearing with an understanding of their case and with the ability to articulate clearly and precisely that case to the Tribunal and to the other side. If it were otherwise then potential injustice would be caused and valuable time wasted. It is essential that the fundamentals of a party’s case is known by the other side in advance of a Hearing in order that witnesses can be called, evidence collated and inquiries made.

30. Having regard to the above, the Tribunal does not agree that Comcare was denied a fair and reasonable opportunity to present its case. The evidence discloses that the Applicant did outline the fundamentals of her claim prior to the Hearing and from the lodgement of her claim it was tolerably clear what the ambit of that claim was. The Applicant has been consistent in submitting that she was the subject of workplace harassment and bullying over a specified period of time and that during that time her mental health suffered. Further, the material discloses that the first symptoms of that decline in her mental health were evident in 2006, and that from 2010 the Applicant claims she was suffering from a work-related condition. In short, there is a degree of clarity and consistency in the material which should have enabled Comcare to present its case.

31. I do, however, agree with Comcare that more could have, and should have, been done by the legal representatives of the Applicant in terms of making clear what the contended dates of injury were, and whether it was a fresh injury claimed or an aggravation of an existing and underlying condition(s). This omission however did not have the effect of denying Comcare a fair and reasonable opportunity to present its case.

    Notice

32. Ms Wright submitted that if the Applicant did suffer an injury in 2010 (which Comcare denies) she consciously did not submit a workers’ compensation claim even though she thought she had an injury and had been in discussions with her then legal representatives as well as Union representatives – CCS para 10. The Applicant was closely cross-examined by Ms Wright on the first day of the Hearing, and set out below are key aspects of that cross-examination – Transcript (Tr.) 28.11.2018 pp.88 – 91:

    “If you suffered an injury in 2006 on this occasion, why didn’t you put in a claim form in 2006?---You mean at CIT?

    Yes?---Because I hoped that was a one-off and things would get better. Also my manager was dismissive, that was a bit confusing.

    And so nothing really significant happened, then, until 2015 to trigger you to put in the claim?---I started working on it with people from the union.

    In 2015?---No, before that.

    […]

    There were no – sorry, when did you start talking to the union then? You think it might have been in 2014?---No, they came to a series of meetings in 2010 when I was suspended from duty and harassed in other ways.

    But you didn’t put in a compensation form in 2014, did you?---No

    Or 2010?---No.

    2013?---No.

    So none of those times you wanted to make a claim for workers’ compensation for a workplace injury?---I did, but as you can see, it’s complex and went on a long time.

    You did think at those times that you had a workplace injury?---Yes, but I was working with the union to submit that.

    When did you think that you should submit a claim if you’d gotten around to doing the paperwork?---I started work on it with a legal firm in 2012, but the person that was assisting me left the practice and I actually wasn’t able to meet any further payments than some letters they wrote for me.

    I see, so from 2012 you were going to submit a workers’ comp claim. Can you tell me what that claim would have covered?---Well, I can’t exactly remember, but the union’s line was always to put the first date you felt that you were – took sick leave, which was June 2006.

    […]

    So the union was involved then?---Yes.

    Did they tell you that you were required to give notice to Comcare if you want to put in for a workplace injury?---No.

    They never told you that?---No.

    You thought you had a workplace injury and you knew what forms you had to fill in, and you could obtain those forms from work, couldn’t you?---Probably, but I believed that the Commissioner for Public Administration would affect changed [sic] at CIT that would make it.

    […]

    I will just ask the question again. You made a conscious decision in 2012, despite thinking that you had a workplace injury, to not put in a workers’ compensation claim form. Is that correct?---Not a conscious decision. I made a conscious decision to follow this other path, believing it would be efficacious.

    […]

    Did you think again in 2013 about putting in a claim form, or was it later than that?---Well, it took most of 2013 for the Commissioner for Public Administration’s report and recommendations to be implemented.

    What is the answer to the question? Did you think about putting in a claim form in 2013, a workers’ compensation claim form? Or was it later than 2013?---I think we’d already started work on this – what did I call it? On this chronology some time in 2013.

    Who is we?---Union and I.

    Which union?---Australian Education Union.

    You had started work on a chronology for a workers’ compensation claim, or for industrial disputes?---I don’t know why we started it. I think it was for Comcare. We felt we had to have something to put before some lawyers.

    But you had already spoken to lawyers in 2012 about a workers compensation claim, hadn’t you?---That’s right.

    You were actively thinking again in 2013 about a claim, but you didn’t make one?---That’s right.

    It was practicable to make one, though. You could have indeed filled in the form and submitted it in 2013?---I could have, yes.”

1. The second Question asked of the Doctors was as follows: “During the period from about June 2006 to about October 2015, was the Applicant’s pre-existing psychological ailment aggravated? Or alternatively, did a fresh condition arise?”

2. Dr Knox was of the opinion that it was a fresh condition. He opined that there was “a new chapter of PTSD based on more recent stressors, and not the old PTSD being stirred up again” Tr. 29.11.2018 p. 166. Dr Knox provided the following fulsome explanation – Tr. 29.11.2018 p. 165:

   “I view it as largely a fresh condition, but on the background of previous trauma. That somebody who has been threatened, felt their life at risk, indeed been depressed and stressed, doesn’t react to other stressor events as well as a person that has a more stable foundation for their life experiences. I think there is a fresh condition, but I believe that the significant earlier events in this woman’s life certainly would have contributed to a significant amount to making her more vulnerable to those things, even though by and large she wasn’t having her PTSD itself reactivated, for example, having nightmare or reliving or being cut off for life because of the traumatic earlier experiences. She was leading a really quite capable life with her work in particular. But then in light of the events that she has described, she felt very threatened by those. And I say that yes, they are threatening events, which is something in common with earlier threatening events, but they are of a different nature. And I think that….providing she was in a supportive environment and healing and growing through those things without major stressors, she would have been most unlikely to have regressed again. But as it was, she described a significant ongoing pattern of bullying behaviour, which I think caused fundamentally a fresh psychiatric illness in my opinion.”

3. Dr Oelrichs in contrast opined that it was an aggravation of the original condition and observed that to dissociate the work events from her previous illness was “a little artificial” – Tr. 29.11.2018 p. 166. Her initial response to the Question was as follows – Tr. 29.11.2018 p. 165:

   “Ms Hurley has an extensive psychiatric history, suffering from major depression and complex post-traumatic stress disorder. I don’t think these can be discounted in the setting of her response to stress. I think the factors that she had highlighted with me, that he[r] particular response to people who are bullying her, who would make sudden loud noises, people being in her space, she talked to me, and these factors have led to symptoms I thought were consistent with aggravation of her underlying condition in that she had a resurgence of some nightmares. She was presenting with some symptoms a startle response. I mean, I think it is minimising symptoms saying it’s an adjustment disorder, and it is more likely to be that these symptoms are a reminder of past traumatic events and this has led to her decline, and where she perceived she may be under threat.”

4. The next Question asked of the Doctors was whether the aggravation or fresh condition resulted in incapacity for work or impairment whether permanent or otherwise.

5. Dr Oelrichs was adamant that the Applicant did not suffer any incapacity for work from her psychiatric condition. Whilst the Applicant took a few days off work, she attended work regularly with the exception of an extended trip to India. Dr Oelrichs observed – Tr. 29.11.2018 p. 175:

   “I don’t think she could have been terribly unwell if she travelled to India by herself.”

6. Dr Knox observed that the Applicant generally manages as well as she can, and while she had experienced distress it had not resulted in any serious disruption to her work, Nonetheless he opined that there was an incapacity for work in the 2010 and 2011 period – Tr. 29.11.2018 pp. 174, 176.

7. Both Doctors were then asked a follow-up question whether the Applicant had suffered a diminution in her psychological function which would amount to an “impairment” which would not have been present in the absence of the events in the workplace with the consequent aggravation/fresh condition – Tr. 29.11.2018 p. 177.

8. Dr Knox was clearly of the view that there had been an impairment, he testified as follows – Tr. 29.11.2018 p. 177:

   “…she described to me being impaired…she didn’t use that word but described to me as being…anxious, confused, depressed, tired, overeating, suicidal…so I believe throughout that whole period she was anxious and depressed and even though she got better and she was managing at work, I think there has been continuing impairment of some degree…So I think that it is clear from the history I’ve got that there has certainly been impairment beyond the question of her ability to work.”

9. Dr Oelrichs also agreed that there had been an impairment, or at least periods of impairment, but “it was temporary and is not something that was permanent” – Tr. 29.11.2018 p. 177. When asked how long the “temporary” impairment persisted, Dr Oelrichs gave this answer – Tr. 29.11.2018 pp. 177 – 178:

   “I mean when I saw here [sic] there was no indication that there was any impairment relating to events between 2010 and 2011 and I saw her at the end of 2015. I thought that any impairment that she had at the time I saw her was related to her pre-existing underlying condition. That she had gone through difficult periods at that time and she may have had some time off work but this had resolved. She had been able to return to work and as has already been pointed out, she was quite positive about working and she pushed herself to do this which is a good thing.”

10. In response to a question from Mr Grey, Dr Oelrichs stated that she could not comment on the Applicant’s loss of function and was guided by whether the Applicant felt well enough to go to work and persist at work. The following exchange then occurred – Tr. 29.11.2018 p. 178:

    “MR GREY: So you have based your answers on that have you? Whether she could get to work or not rather than whether she could function at a level that she would have been able to function as if these events had not occurred?

    DR OELRICHS: Yes, and that is a very subjective thing. I mean, whether she was functioning or not. She may have thought she was functioning and she may very well have been but I can’t really – it would be completely hypothetical to comment on it.”

11. The concurrent evidence continued for some time after this exchange, however, for the purposes of this issue the above extracts provide guidance to the Tribunal.

12. Turning now to the question whether the Applicant has suffered an aggravation/fresh injury or is simply experiencing a continuation of her underlying symptoms, the preponderance of psychiatric opinion is that the Applicant was at time she commenced working at CIT, and still is, suffering from a mental ailment or mental ailments, that have their origins in events of two decades ago.

13. Dr Knox holds to the view expressed in both his report of 6 February 2017 (Exhibit 6) and his testimony that although the Applicant was correctly diagnosed with PTSD and major depressive order after the death of her husband “by the time of her commencing full-time employment with CIT in 2006 she was in broadly satisfactory mental health, and not deeply troubled by the earlier stressor events” – Exhibit 6 p. 2.

14. Dr Knox seemingly bases this diagnosis on the self-reporting of the Applicant. Certainly, a perusal of the medical reports does not paint such a positive picture of the Applicant’s mental health at that time.

15. The Applicant’s then treating psychiatrist, Dr Bennett, observed in a report dated 3 August 2002, that by the conclusion of her Indonesian work she was suffering from PTSD with depressive and anxiety components and after the suicide of her husband she had well developed Major Depression – Exhibit 2 ST10 p. 59. Her mental health at the time of this report was said to be as follows – Exhibit 2 ST10 pp. 61, 63:

    “At present she is impaired by all the above conditions and is able to cope only part-time and with relatively ‘mindless’, emotionally undemanding pleasant enough work (part-time in a newsagency), casual teaching of English as a second language and studying this teaching specialty through University…

    Clinically her prognosis is poor. Her conditions are chronic, her response to medication and counselling partial/disappointing….”

16. It should be noted that the Applicant was examined and assessed by Dr Saboisky, Psychiatrist, in February 2001, and he opined in a report dated 22 February 2001, that the Applicant was then suffering from an Adjustment Disorder with depressed mood – Exhibit 2 ST4 p. 35.

17. In a letter of 23 July 2006 Dr Bennett wrote to the Chief Pharmacist of the ACT Department of Health seeking authorisation for the prescription of Ritalin, he opined that the Applicant was then suffering from Major Depression, Generalised Anxiety Disorder and Panic Disorder secondary to Pathological Grief.  In this correspondence, Dr Bennett opined that the Applicant was still suffering from substantial depression and she had “broke down” – Exhibit 1 T3 pp. 10 – 11.

18. Dr Knox’s diagnosis of the Applicant being in broadly satisfactory mental health in 2006 is at odds with the contemporaneous reports of Dr Bennett. Even if treating psychiatrists may, at times, prepare medical reports in compensation matters that assist their clients, the letter Dr Bennett wrote to the Chief Pharmacist was directed to an independent and senior medical figure in circumstances divorced from the claim process. The Tribunal has no reason to doubt either the sincerity or competence of Dr Bennett. Further, as previously noted, when he wrote the 2006 letter he had been treating the Applicant for seven years, and so was in a unique position to form a professional and independent view on her state of mental health over a long period.

19. A reading then, of the psychiatric diagnoses in the 1999 – 2006 period by the Applicant’s treating psychiatrist, leaves the reader in no doubt that the Applicant was then suffering from a range of mental ailments and was emotionally fragile.

20. The question then to be answered is whether the Applicant suffered an aggravation(s) of her underlying mental health condition or whether she experienced a transitory increase in symptoms.

21. Ms Wright submits (CCS para 16) that the evidence regarding any 2010 aggravation is minimal and is, at most, evidence of aggravation in lay terms, meaning simply any negative impact on the Applicant’s underlying conditions. Further Ms Wright submitted that there was no persuasive and clear evidence of any 2010 permanent underlying change. Both Drs Knox and Oelrichs considered the Applicant’s ability to travel alone to India for a significant period in 2010 and 2011 to be evidence that she was not significantly suffering even from her usual chronic underlying conditions.

22. The Tribunal is unable to agree with Ms Wright’s submission that there was no persuasive and clear evidence of the Applicant’s condition being aggravated in its technical and legal sense.

23. The Applicant’s treating GP, Dr Hamilton, gave very clear testimony that in her professional opinion the Applicant had suffered an aggravation of her condition in the period post 2006. During cross-examination Dr Hamilton testified that something was happening in the workplace that was “making her worse”. She subsequently testified that the Applicant’s pre-existing condition was made “worse” – Tr. 29.11.2018 p. 123.

24. The Applicant’s treating psychiatrist, Dr Lean, was of a similar opinion. In his report of 6 November 2015 in response to a Question whether in his opinion the claimed condition was an aggravation of a pre-existing or underlying condition, Dr Lean opined – Exhibit 1 T21 p. 359:

    “The claimed condition is an aggravation of a pre-existing condition. The nature of the episodic work place harassment, bullying and victimization caused Ms Hurley particular distress leading to an Anxious Depressed State – a combination of Major Depressive Disorder and Complex PTSD.”

25. Further in response to Questions concerning the nature of the aggravation, Dr Lean opined – Exhibit 1 T21 pp. 359 – 360:

    (a)the Applicant’s diagnostic indicators had worsened, and while they tended to fluctuate over time, they have never returned to the level of recovery;

    (b)the Applicant’s experience of the symptoms had been worse as a result of the exacerbation of her condition;

    (c)the Applicant’s conditions would not have been present in any event, and they have returned due to alleged workplace victimisation; and

    (d)the Applicant’s symptoms did not represent a natural progression of her background illness – MDD and Complex PTSD.

26. This diagnosis is not inconsistent with that given by Dr Oelrichs in both her report of 8 December 2015 and her testimony on 29 November 2018.

27. First, in her report Dr Oelrichs opined – Exhibit 1 T27 p. 446:

    “Ms Hurley has had likely exacerbations of her clinical condition over a period of time and is particularly from her reports vulnerable to stresses in which she has felt under question or in which she has felt accused of some complaint and during these times Ms Hurley does present a history of having had a deterioration in her mental health.”

28. While observing that the Applicant’s mental health condition had “fluctuated over time” it had at times become “more severe”. Dr Oelrichs opined that the Applicant’s condition “will have an aggravation…in response to stressors”. Further, Dr Oelrichs opined that there “has been a worsening of diagnostic indicators over time” and “there had been a worsening of her experiences more recently in mid 2015 in relation to a workplace complaint and there has been likely a worsening of her experience of the symptoms over a period of time in relation to reported workplace stresses”. Dr Oelrichs did not believe that the Applicant’s symptoms would have been present in any event, and increasing stresses can cause deterioration in her symptoms – Exhibit 1 T27 p. 449.

29. As previously set out at some length, Dr Oelrichs gave clear and unqualified testimony that in her opinion the Applicant has suffered an aggravation of her underlying mental health condition – see Tr. 29.11.2018 pp. 165 – 166.

30. Subsequently, Dr Oelrichs testified that the Applicant suffered periods of impairment, but that the impairment was temporary and not permanent. This was, in fact, consistent with the testimony of Dr Knox and that of Dr Lean, in that all Doctors reported that the Applicant’s mental health fluctuated over time. The evidence does not disclose that she was in a permanent low ebb, but would go through periods of semi-recovery and then, when confronted by stressors, would relapse.

31. Dr Knox testified that during most of the Applicant’s time at CIT she “was anxious and depressed and even though she got better and she was managing at work, I think there has been continuing impairment of some degree” – Tr. 29.11.2018 p. 177.

32. It is important in compensation matters to assess the evidence of a medical expert on its own terms. Ms Wright was correct in highlighting that the term “aggravation” or, indeed, “acceleration” can have different meanings. The fact that a doctor testifies that in his or her learned opinion a person has suffered an aggravation of their underlying condition is not determinative of the issue of whether an “aggravation” for the purposes of the Act has occurred.

33. A decision-maker needs to assess the totality of the evidence and ignore the nomenclature of witnesses to ascertain if the legal test of aggravation is met.

34. In this case the fact that Dr Oelrichs testified that in her opinion the Applicant has suffered an aggravation of her condition did not then default to a conclusion that an aggravation for the purposes of the Act had been established.

35. There is a long line of authority that the worsening of the symptoms of an “injury” can be sufficient to found liability under s 14 even without any change in the underlying pathology. In short, there is no requirement in establishing an “aggravation” to find that the underlying disease is made worse, all that need be established is that the experience of the disease by the claimant has increased or intensified – see Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. As Kitto J observed (at 634):

    “where an untoward occurrence in a worker’s employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder.”

36. This principle was more recently explained by Bennett J in Mellor v Australian Postal Corporation [2009] FCA 504; 108 ALD 159 (Mellor) as follows ([24] – [25]/165):

    “…it does not follow in every case that a worker with a pre-existing injury who carries out work and, as a result, suffers pain, will have suffered an aggravation of his or her injury but pain brought about by work activity may constitute aggravation of a pre-existing injury even though no pathological change takes place. Put another way, an injury may be aggravated if the experience of the injury is increased or intensified.

    The fact that symptoms abate on each occasion that the worker ceases work does not preclude compensation when enhanced susceptibility to the onset of symptoms has been caused by the work. In these circumstances, the enhanced susceptibility constitutes an aggravation of the disease…”

37. With that explanation of what constitutes an aggravation for the purposes of the Act, the evidence before the Tribunal establishes that the Applicant has suffered an aggravation of her underlying mental health condition. Whilst her condition has fluctuated over time, and there have been instances where she has substantially recovered, there has been, to quote Dr Oelrichs, “a worsening of diagnostic indicators over periods of time” – Exhibit 1 T27 p. 449. Further, Dr Oelrichs opined that the Applicant’s symptoms would not necessarily have been present in any event – Exhibit 1 T27 p. 449.

38. However, the Tribunal is buttressed in this conclusion by the diagnosis of the Applicant’s longstanding psychiatrist, Dr Lean.  In his report of 6 November 2015, Dr Lean opined that the Applicant’s diagnostic indicators had worsened and had never returned to the level of recovery, and that her decline was not the natural progression of her underlying condition but were due, in his opinion, to workplace victimisation – Exhibit 1 T21 pp. 359 – 360.

39. Dr Knox, whilst not preferring an aggravation diagnosis, was clearly of the opinion that workplace stressors had caused the Applicant a mental injury. In his report of 6 February 2017, Dr Knox opined – Exhibit 6 p. 4:

    “My clinical impression in talking with Ms Hurley is that while there had likely been some aggravation of her underlying Major Depressive Disorder, and Posttraumatic Stress Disorder by the CIT experiences, by and large she was manifesting what I would diagnose as fresh onset moderate severity Adjustment Disorder with Mixed Anxiety and Depressed Mood, the type of condition one would expect when an individual is subjected to the chronic bullying and disparagement that she reports occurred at the Reid CIT.

    From the history given to me it is my conclusion that your client had significantly continued with severe psychiatric impairment and distress arising out of the earlier events in her life before the CIT vicissitudes. Nonetheless there was likely some aggravation of these pre-existing conditions.”

40. The Tribunal agrees with the submission of Mr Grey (AWS para 5.19) that the Applicant’s pre-existing psychological condition was exacerbated whilst employed at CIT giving rise to an increase in her symptomatology and an increased degree of impairment, and exemplified by an ongoing need for regular psychiatric treatment and medication that would have been unlikely, had the events in the workplace not occurred.

41. Consequently, the preponderance of medical evidence supports a finding that the Applicant suffered an aggravation of her underlying mental health condition in 2010, and that evidence also suggested that she suffered further aggravations in following years. As Mr Grey submitted (AWS para 5.20) it is not necessary for the Tribunal in these proceedings to go further and make findings as to the length, duration or severity of the aggravation(s).

    Employment Contribution

1. Ms Wright submitted on behalf of Comcare (CCS para 20) that any increase in the Applicant’s symptoms (which was denied) after 2010 was temporary and not significantly contributed to by her employment.

2. Ms Wright also highlighted the Applicant’s pre-existing medical condition, the effect of tuberculosis on her ability to continue teaching as well as other matters including a more recent accident when she was thrown from a bus and suffered serious injuries including a fractured skull – see CCS para 17.

3. The Tribunal’s attention was also drawn to the fact that the Applicant has, ostensibly, had a history of workplace problems, and that the current compensation claim is not the first that she has lodged – CCS para 18.

4. In addition, Ms Wright referred to her cross-examination of the Applicant on the final Hearing day, and discrepancies between the testimony on that day and the accounts she had given to Doctors Lean and Knox about her employment situation whilst she was holidaying in India – CCS para 21. It was submitted that the Applicant had given a distorted picture to events to her treating doctors as well as Dr Knox, which in turn had resulted in possibly inaccurate diagnoses – see CCS para 23 – 30.

5. The interpretation of the evidence advanced by Ms Wright was strenuously opposed by Mr Grey in the Applicant’s Written Submissions in Reply – see paras 4.1 – 4.7.

6. Before turning to the substantial issue it is perhaps appropriate to deal with a key matter in these proceedings, namely the view the Tribunal formed of the truthfulness of the Applicant’s testimony and whether the Tribunal formed the view that she was a witness of credit.

7. First, it is the case that there are some discrepancies between the Applicant’s version of events as given to her treating doctors (and Dr Knox) and the objective reality of what was occurring. Ms Wright very skilfully exposed some of those differences, and then proceeded, not surprisingly, to make submissions about the weight that could be placed on the medical evidence if it was based on misconceived self-reporting by the Applicant.

8. As Mr Grey quite appropriately submitted (AWSR para 4.3), this line of argument is only helpful if the Tribunal formed the view that the Applicant was a liar and was deliberately misreporting matters to her treating doctors with the aim of achieving an illegitimate advantage.

9. The Applicant gave evidence for much of the first day of the Hearing – Tr. 28.11.2018 pp. 33 – 93. She was also cross-examined by Ms Wright on the third day of the Hearing Tr 30.11.2018 pp. 217 – 230.

10. The Tribunal was, then, able to observe the Applicant over an extended period of time. The Applicant gave measured and relevant testimony both during Evidence in Chief and during cross-examination. The Tribunal did not observe her to be an evasive or combative witness or one prone to exaggeration. In short, the Tribunal observed her to be a person who attempted to answer the Questions posed and did not present as a witness who was trying to evade the truth or “gild the lily”.

11. The Tribunal, therefore, formed a positive view of the evidence given by the Applicant. Clearly there were some issues about remembering events some years ago, and like most people, the Applicant viewed the events the subject of this matter, through her own prism. However, she appeared to be a truthful witness, albeit a person who obviously has some underlying psychological issues.

12. It has also been long recognised, especially in those matters involving psychiatric disorders and mental injuries, that if a claimant’s perspective of events is honesty held and based on an actual state of affairs, albeit possibly unreasonably, then the relevant workplace contribution test can be met. This principle was explained by von Doussa J in Wiegand v Comcare [2002] FCA 1464 (Wiegand) as follows (at [31]):

    “In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.”

13. It is tolerably clear in this matter that the Applicant’s perception of the events at CIT were grounded in reality and not a figment of her imagination. Moreover, as has previously discussed, there were a number of workplace issues at CIT that resulted in at least two external inquiries, and a letter of apology being sent to the Applicant.

14. Ms Wright quite understandably highlighted her cross-examination of the Applicant on the final day of the Hearing and what she labelled as the Applicant’s “inaccurate and skewed picture of events in 2010” – CCS para 22.

15. A careful reading of that cross-examination does not, with respect, lead to the view that the Applicant’s recollection of events was as inaccurate and skewed as stated. In this regard, the Tribunal agrees with the submission of Mr Grey – AWSR para 4.3

16. The Applicant was cross-examined as to whether she had told Dr Knox that while she was holidaying in India that she was informed that CIT was going to get rid of her. The Applicant clarified that she was given a letter before going on leave informing her that she would not be coming back to her position. She testified that she was of the opinion that CIT was “getting rid of me from my position”. The Applicant went on to testify that the “basis for the person that wrote the complaint was to get rid of me and – because I was unsuitable to work there, and I think that was echoed up the chain. They put a lot of pressure on me to go to some other part of CIT.” When asked by Ms Wright whether this constituted giving false information to Drs Lean and Knox she replied: “I don’t think it’s false information, I just think it’s a different interpretation of the same words.” – Tr. 30.11.2018 pp. 218 – 219.

17. Likewise there was an extended exchange over whether the Applicant had misinformed Drs Lean and Knox that she had been exonerated by the Commissioner for Public Administration. The Applicant’s response is best summed up by this answer – Tr. 30.11.2018 p. 221:

    “But I have a general memory of the Commissioner for Public Administration being very favourable and the letter from CIT after that process being favourable. That’s all I remember.”

18. Ms Wright asked further questions of the Applicant on matters such as whether she was in fact suspended from work (Tr. 30.11.2018 pp. 221 – 222) and complaints made about her behaviour by fellow workers (Tr. 30.11.2018 pp. 222 – 225).

19. The Tribunal formed the view that the Applicant has not deliberately misled Drs Lean and Knox, and her version of the events that transpired were grounded in her perception of what occurred, albeit one that not always objectively correct. It seems patently clear that the exposition of the law by von Doussa J in Wiegand has particular resonance to this matter. Further, the Tribunal agrees with the submissions made by Mr Grey – AWSR paras 4.4 – 4.7.

20. Attention now must be given to the substantive issue, namely whether the workplace contribution test is met.

21. In determining whether an aggravation was contributed to, to a significant degree, by an employee’s employment, s 5B(2) of the Act lists five matters that may be taken into account. In this matter the relevant matters are:

    (a)the duration of the employment;

    (c)bthe nature of, and particular tasks, involved in, the employment; any predisposition of the employee to the aggravation.

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee’s health.

22. It is clear that the Applicant was working in what could be described as a toxic work environment. The industrial problems that bedevilled CIT during much of her employment were a matter of public comment in the ACT and the subject of external reviews. It is obvious from reading the reports referred to earlier that management at CIT was resistant to acknowledging there were problems and slow to respond to recommendations for change. If the Applicant was inventing or exaggerating the problems she claimed she experienced, then there would have been some record of negative findings against her. Instead, a fair reading of the material discloses that eventually her complaints were taken seriously.

23. It is also tolerably clear that the Applicant was not blameless and some of her behaviour was less than ideal. However, absent questions of reasonable administrative action, it is not germane to the task required of the Tribunal to apportion blame or to reach conclusions as to what person or persons were responsible for particular incidents.

24. It is the case that the Applicant perceived that she was being bullied and victimised. This perception was grounded in reality in that she was in conflict with fellow workers and the subject of investigation. In short, the Applicant’s perception of what was occurring was not the fevered imagination of a deluded individual whose delusions were not founded on the actuality of what was occurring.

25. This perception was also grounded in the Applicant’s existing fragile mental health. Her pre-existing mental ailment left her vulnerable and predisposed to succumbing to workplace stressors, especially if those stressors involved persons challenging her professionalism and competence.

26. The stresses that resulted in the aggravation of the Applicant’s pre-existing mental ailments were primarily driven by workplace events.  It is the case that there were other matters that supervened and made the Applicant’s condition worse that were unrelated to her employment at CIT. The most significant of these was when the Applicant experienced a toxic reaction to her prescribed medication.

27. Ms Wright submitted (CCS at para 20) that the increase in the Applicant’s symptoms was temporary and not significantly contributed to by her employment. However, as Mr Grey correctly submits (AWS para 5.19), contribution to a significant degree refers to the contribution made to causation, and not to the seriousness of the condition. Reference can be made to the following observations of Bennett J in Mellor (at [35]/166):

    “That is, the tribunal concluded that the employment was the cause of the aggravation represented by the pain but that the effect of that aggravation was not material because it was temporary and not severe. Is the requirement of materiality directed to the cause of the aggravation or its effect? ‘Disease’ means an ailment or aggravation of an ailment ‘that was contributed to in a material degree by the employee’s employment’. ‘Injury’ means, relevantly, a disease or aggravation of an injury other than a disease. In Sahu-Khan, Finn J traced the legislative history of and judicial consideration of the requirement of materiality, including the decision of the Full Court in Comcare v Canute…In Canute at [67], French and Stone JJ said that the term ‘material’ ‘imposes an evaluative threshold below which a causal connection may be disregarded’. Justice Finn in Sahu-Khan adopted that analysis at [13]. It is the nature of the contribution that is necessarily material (Sahu-Kahn at [15]).” (Emphasis in the original)

28. Drs Knox and Oelrichs were each asked whether the Applicant’s aggravation or fresh condition was contributed to by her employment, and the matters outlined in s 5B(2) were outlined. Of relevance was the response of Dr Oelrichs – Tr. 29.11.2018 p. 184:

    “Yes, I think there has been an aggravation of her symptoms and of her clinical condition due to stressors in her employment over a period of time and this has been sporadic and has fluctuated.”

29. A contribution to a significant degree, is a degree substantially more than material – s 5B(3). The Tribunal is required to evaluate and weigh the role played by employment and non-employment factors: Havnen and Comcare [2010] AATA 535.

30. The Tribunal is satisfied having regard to the matters previously discussed that although there were both employment and non-employment factors at play causing an aggravation in the Applicant’s pre-existing mental health condition, that the employment factors contributed to, to a significant degree, the aggravation of that condition.

    DECISION

31. The Tribunal:

    (a)sets aside the decision under review and in substitution decides that the ACT is liable to pay compensation to the Applicant pursuant to section 14 of the Act in respect of an aggravation of her pre-existing PTSD and major depression with a date of injury of 2010;

    (b)remits the matter to the ACT to give effect to the decision in accordance with the reasons outlined in this decision; and

    (c)

    orders that the ACT pay the Applicant’s costs of this application pursuant to section 67 of the Act as agreed, or taxed.

    
    
    

I certify that the preceding 273 (two hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President John Sosso.

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Associate

Dated: 8 August 2019

Date(s) of hearing: 28 to 30 November 2018

Date final submissions received: 22 January 2019

Counsel for Ms Hurley: Mr L Grey

Solicitors for Ms Hurley: Gabbedy Milson Lee

Counsel for the Australian Capital Territory: Ms S Wright

Solicitors for the Australian Capital Territory: Sparke Helmore Lawyers