Hutchinson and Comcare (Compensation) - [2018] AATA 4357

Hutchinson and Comcare (Compensation) [2018] AATA 4357 (23 November 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5357, 2017/6813
Re:Karen Hutchinson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Boyle

Date:23 November 2018
Place:Perth

The Tribunal affirms the decisions the subject of both applications.
.............................[sgd]...........................................
Deputy President Boyle
CATCHWORDS
WORKERS’ COMPENSATION – Commonwealth Employee – Safety, Rehabilitation and Compensation Act – DSM-IV and DSM-V – whether Applicant suffered an injury – whether there is a need for an “accepted injury” – need for claim for the injury to have been made – Posttraumatic Stress Disorder – Major Depressive Disorder – mixed subjective and objective test for traumatic event – whether injury contributed to in a significant degree by employment – contribution of stress of compensation proceedings and other litigation – decisions the subject of both applications affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
(Cth) – s 5A, s 5B, s 5B(1), s 6,

s 6(1)(f), s 14, s 16, s 16(1), s 20, s 54, s 54(1), s 54(2)
Superannuation Act 1990 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
CASES
Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430
Dunstan and Comcare [2012] AATA 567
Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533
Prain v Comcare [2017] FCAFC 143
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
Stevens and Repatriation Commission [2017] AATA 2419
Stoddart v Repatriation Commission (2003) 197 ALR 283; [2003] FCA 334
Wiegand v Comcare Australia (2003) 72 ALD
Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th edition, American Psychiatric Association Publishing, 1994)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edition, American Psychiatric Association Publishing, 2013)
REASONS FOR DECISION
Deputy President Boyle
23 November 2018
THE APPLICATIONS

The Applicant seeks the review of two decisions of the Respondent.
Application 2017/5357
The reviewable decision dated 22 August 2017 (R4, T43) affirmed a determination dated 20 July 2017 (R4, T39) that the Applicant had no entitlement to compensation for medical treatment under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) or to incapacity payments under s 20 of the SRC Act in relation to the Applicant’s accepted “Post Traumatic Stress Disorder” (PTSD) and “Major Depressive Disorder” conditions.
Application 2017/6813
On 1 October 2017 the Applicant wrote to the Respondent claiming compensation for a new injury, namely a “relapse” of her Major Depressive Disorder (R5, T6). The Applicant claimed that she suffered a relapse as a result of a consultation with Dr Catherine Brooker, her treating general practitioner, on 22 May 2017. The Applicant claimed that her new injury arose out of, or in the course of, her employment by virtue of s 6 of the SRC Act, because the injury was sustained while she was “at a place for the purpose of obtaining a medical certificate for the purposes of this Act; or receiving medical treatment for an injury” (see s 6(1)(f) of the SRC Act).
By determination, dated 9 October 2017 (R5, T7), the Respondent rejected the claim, and by a reconsideration decision, dated 19 October 2017 (R5, T9), the Respondent affirmed that determination.
BACKGROUND
The Applicant, a 57 year old female, commenced employment with the Respondent as a Claims Service Officer on 22 September 1998.
On 16 April 2010 the Applicant took three and a half months long service leave and thereafter annual leave, at half pay. She was scheduled to return to work on 4 January 2011. She says that she was too distressed and agitated to return to work at that time and took sick leave (R4, T6 at 39).
On 8 February 2011 the Applicant submitted a Claim for Workers’ Compensation (R4. T4). The claim form, which was in the form approved by the Respondent for the purposes of s 54 of the SRC Act, identified the injury for which compensation was claimed as “Depression & Anxiety”, the date of the injury as 5 March 2010 and the date upon which she first sought medical treatment as being 31 January 2011 (R4, T4 at 20). The Applicant described the circumstances of the injury as follows (R4, T4 at 22):
Attending the ‘Respect and Diversity’ training workshop on 5/3/2010. The trainer, Sue Read, was discussing the various forms of bullying that might occur in the workplace. She asked the participants; ‘What might you say to someone you wanted to threaten in the workplace?’ [Applicant’s director], who I was sitting next to said very quietly and directly to me: ‘I’m going to fucking kill you!’
I immediately drew the trainer’s attention and she asked [Applicant’s director] to contribute his ‘example’ to the group discussion. After a lengthy pause he repeated the statement he’d made to the entire group. My ‘anxiety’ state was precipitated by this event.
By a decision on reconsideration, dated 25 July 2011, the Respondent accepted liability under s 14 of the SRC Act for “major depressive disorder – single episode” with the date of the injury being 31 January 2011 (R4, T11 at 67).
On 30 May 2013 the Applicant lodged a Claim for Workers’ Compensation, again on the form approved by the Respondent for workers’ compensation claims, which identified the injury for which liability was claimed as “Post Traumatic Stress Disorder and Major Depression” (R4, T20 at 126). The same workplace event of 5 March 2010 was identified as being the cause of that injury (R4, T20 at 128).
By a determination dated 27 September 2013, the Respondent accepted liability for “post traumatic stress disorder with a secondary condition of major depressive disorder” (R4, T23).
The Applicant was approved for “Invalidity Retirement” on 17 January 2014 (R4, T24).
The Applicant lodged a further claim for compensation, seeking that liability be extended to “agoraphobia” and “binge eating”. By a determination dated 9 February 2016 (R4, T32), that claim was disallowed. The disallowance of that claim is not the subject of either application in the present proceedings. It has been the subject of other proceedings in the Federal Court and is presently the subject of a separate application in the Tribunal.
On 19 June 2017 the Respondent sent the Applicant a notice of its intention to determine that it was not presently liable to compensate the Applicant in respect of the PTSD and Major Depressive Disorder under ss 16 and 20 of the SRC Act (R4, T36). That notice referred to a report of the Applicant’s treating general practitioner, Dr Brooker and a report of Dr Dellar, the Applicant’s treating clinical psychologist, dated 26 May 2017 (R4, T35) as being the basis for the Respondent’s view that the Applicant no longer suffered from PTSD and Major Depressive Disorder.
In response to that notice, the Applicant provided a further report from Dr Dellar, dated 28 July 2017 (R4, T37). That report diagnosed the Applicant as suffering from PTSD and major depression (R4, T37 at 207). Amongst other things, that report also expressed Dr Dellar’s “concern that a brief letter to a General Practitioner was released to Comcare …without my consent and open to misinterpretation” (R4, T37 at 209). The Tribunal will comment on this later in this decision.
By a determination dated 20 July 2017 (R4, T39) the Respondent determined that the Applicant no longer suffered from PTSD or Major Depressive Disorder and that the Respondent had no present liability under s 16 or s 20 of the SRC Act for those conditions.
Following a request for reconsideration lodged by the Applicant (R4, T40) that determination was affirmed by a reviewable decision dated 22 August 2017 (R4, T43).
The Applicant lodged an Application for Review in the Administrative Appeals Tribunal (Tribunal), with respect to that reviewable decision, on 7 September 2017 (R4, T2). That application is Application number 2017/5357.
By email dated 1 October 2017 (R5, T6) the Applicant made a claim for compensation for a claimed relapse of Major Depressive Disorder, which she claimed arose as a result of a consultation with her general practitioner, Dr Catherine Brooker on 22 May 2017. The injury for which that claim was made was identified by the Applicant in her letter of 1 October 2017 as “relapse of ‘Major Depressive Disorder’” (R5, T6 at 24). That claim was accompanied by a WorkCover WA progress certificate of capacity (R5, T5), dated 29 September 2017 and signed by Dr Stuart Paterson, which identified the cause of the Applicant’s incapacity as “Relapse of depression/PTSD after conflict with previous GP” (R5, T5 at 22).
By a determination dated 9 October 2017 that claim was denied (R5, T7).
By email dated 19 October 2017 the Applicant requested a review of that determination (R5, T8).
By reviewable decision dated 6 November 2017 (R5, T10), the determination of 9 October 2017 was affirmed.
On 17 November 2017 the Applicant lodged an Application for Review in the Tribunal with respect to that reviewable decision of 6 November 2017. That application is Application number 2017/6813.
THE ISSUES
The Applicant’s submissions (A1, headed “Submissions of the Applicant in Support of Claims 2017/5357 & 6813”) identifies the issues for the Tribunal as follows:
(a)Did the Respondent cause (by act or omission) detriment to the Applicant?
(b)Did the Respondent breach the Applicant’s privacy by using information unlawfully disclosed by GP, Dr. C. Brooker to cease present liability?
(c)Did the Respondent incorrectly deny the Applicant’s claim, made under section 6 of the SRC Act 1988, for a relapse of her ‘Major Depressive Disorder’ by unreasonably discounting the contemporary medical evidence presented at the time?
(d)Has the Respondent caused unnecessary delay in resolving the Applicant’s claims by insisting she attend a medico-legal assessment sought with a view to support the primary delegate’s cessation of present liability?
i. If not, then can the Tribunal determine the real reasons for the Respondent’s unreasonable actions and omissions to its satisfaction?
(e)Should the Respondent be directed by the Tribunal to immediately re-commence the Applicant’s claim and backpay her outstanding entitlements in accordance to the legislation without further delay?
(f)Should the Respondent be instructed by the Tribunal to correctly determine the Applicant’s claim for an aggravation of her ‘major depressive disorder’ under section 6 of the SRC Act 1988 with a date of injury of 22 May 2017?
In her closing submissions dated 20 September 2018 the Applicant repeated the above as being the issues for determination by the Tribunal.
The Respondent’s Statement of Facts, Issues and Contentions identified the issues for determination as follows:
2017/5357 – cease effects application
Preliminary issues
(a) Does the applicant continue to suffer from the accepted conditions; and if so:
(b) Does the applicant’s former employment continue to significantly contribute to the accepted conditions; and if so
Section 16 issues
(c) Does the applicant require medical treatment in relation to the accepted conditions; and
(d) Is that treatment reasonable to obtain in the circumstances?
Section 20 issues
(e) Do the accepted conditions result in an incapacity for work?
2017/5357 – aggravation claim
(a)Is Comcare liable to pay compensation to the applicant in respect of a new injury, pursuant to section 14 of the SRC Act?
(b)This requires consideration of:
(i)     Whether the applicant suffered an aggravation of her major depressive disorder on 22 May 2017?
(ii)    If so, is that aggravation better classified as an “injury (other than a disease)” (injury simplicitor) (sic) pursuant to section 5A of the SRC Act, or a disease pursuant to section 5B of the SRC Act;
(A)   If an injury simplicitor (sic), did the injury arise out of, or in the course of the applicant’s employment?
(B)   If a disease, was the disease significantly contributed to by the applicant’s employment.
In its closing submissions dated 10 September 2018 the Respondent expressed the issues slightly differently, as follows:
2017/5357
a. Does the Applicant continue to suffer from the Injuries?
b. If so, do the Injuries continue to be contributed to, to a significant degree, by her previous employment by the Commonwealth?
2017/6813
a. Whether liability ought to be accepted under s 14 of the SRC Act with respect to the claimed aggravation of her Major Depressive Disorder? Determination of that issue involves considering:
i. Whether the Applicant suffered an aggravation of her Major Depressive Disorder?
ii. If so, is aggravation to be assessed as an Injury or a Disease for the purposes of the SRC Act?
iii. If it is to be classified as an Injury, did it arise out of, or in the course of, the Applicant’s employment by the Commonwealth?
iv. If it is to be classified as a Disease, was it significantly contributed to by her employment by the Commonwealth?
v. If so, does the Applicant suffer an incapacity for work or impairment?
Many of the issues identified by the Applicant are simply not matters for determination by the Tribunal and are not relevant to the applications that are before the Tribunal. The allegations inherent in issues (b) (breach of Applicant’s privacy) and (d) (unnecessary delay in resolving the claim) of the Applicant’s submissions (A1) are matters outside the scope of the Tribunal’s review.
In order to identify the issues for determination it is necessary to identify the operation of the relevant sections of the SRC Act. In the present case compensation is sought by the Applicant under ss 16 and 20 of the SRC Act. The critical wording of s 16 of the SRC Act is:
Where an employee suffers an injury…medical treatment obtained in relation to the injury…
and the critical wording of s 20 of the SRC Act is:
…incapacitated for work as a result of an injury…
“Injury” is defined, relevantly, in s 5A of the SRC Act as follows:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee …arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of…injury (other than a disease)… that arose out of, or in the course of, that employment…
There is no qualification or condition in s 16 of the SRC Act that “the injury” in relation to which treatment is sought must be one that has previously been “accepted”, or for which liability has previously been “accepted”, in order for liability for compensation to arise under that section. Subject to the qualification to which I refer below, all that is required for liability to arise under s 16 is that compensation is sought for treatment that is reasonable in the circumstances, for an injury. An injury, as s 5A of the SRC Act defines it, is an injury that is suffered in the course of or arising out of the employee’s employment. Similarly, there is no qualification or condition in s 20 of the SRC Act that the injury that incapacitates the employee is one for which liability has previously been accepted. All that is required is that there is an injury (as defined in s 5A) which causes an incapacity for work.
For practical reasons, when a claim is made by an employee for an injury, the initial claim is in generic terms. The judgment in Lees v Comcare (1999) 56 ALD; (1999) 29 AAR 350; [1999] FCA 753 (Lees v Comcare) at [31] provides a useful summary of the normal course of the claim process leading to acceptance of liability. As the Court in that case noted:
[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... 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.
One qualification which, in the Tribunal’s view, does apply to the application of liability under ss 16 and 20 of the SRC Act is that the injury for which compensation is sought must be an injury in relation to which a claim has been made. Consideration of liability under s 16 of the SRC Act would, on its face, only need to consider whether an applicant suffers from an injury that arose out of or in the course of their employment (s 5A of the SRC Act, definition of “injury”) and whether the treatment sought for that injury is reasonable in the circumstances. However, s 16 of the SRC Act must be read in light of the whole of the SRC Act, including s 54(1) of the SRC Act which relevantly provides that:
Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
The qualification which, therefore, arises in the present enquiry to the term “injury”, when used in ss 16 and 20 of the SRC Act, is that it must be an injury for which a claim has been made by the Applicant. Such qualification is consistent with the approach taken in Lees v Comcare. While the claim made can be generic as to the compensation claimed, the injury must be identified.
This construction is given further support by the fact that the “form approved by Comcare” by which a valid claim under s 54(1) must be made requires the identification of the injury for which the claim for compensation is made (see R4, T4 at 20) (s 54(2) of the SRC Act, amongst other things, requires the claim for compensation to “be in accordance with the form approved by Comcare”).
Accordingly, the questions posed by the Respondent as being the issues, at least in relation to Application 2017/5357, are not strictly correct in that they refer to the issue being whether the Applicant continues to suffer “the accepted conditions”. The correct question is whether the Applicant suffers from an injury (as that term is defined in s 5A of the SRC Act) for which a claim for compensation has been made. Of course in many cases they will be one and the same, however, it is important that it be made clear that prior acceptance of liability for an injury, whether under s 14 or another section of the SRC Act, is not a condition precedent to liability under s 16 or s 20 of the SRC Act. With that amendment, the issues for determination in these proceedings are those identified by the Respondent in [25] above.
LEGISLATIVE FRAMEWORK
Section 14 of the SRC Act relevantly provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 16(1) of the SRC Act provides:
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 20 of the SRC Act relevantly provides:
(1)Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:
(a)the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and
(b)the employee receives a pension under a superannuation scheme as a result of the employee’s retirement.
(2)Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.

Section 5A of the SRC Act relevantly provides:
(1)In this Act:
“injury” means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B of the SRC Act provides:
(1)In this Act:
“disease” means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
“significant degree” means a degree that is substantially more than material.
Section 54 of the SRC Act relevantly provides:
(1)Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2)A claim shall be made by giving the relevant authority:
(a)a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b)except where the claim is for compensation under section 16 or 17-- a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
…
(5)Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
THE HEARING
Both applications were heard on 6 September 2018. The Applicant was self-represented and appeared by telephone. The Respondent was represented by counsel, Ms Slack, instructed by Sparke Helmore.
Prior to the hearing, by email dated 4 September 2018, the Applicant advised the AAT Registry that:
I wish to advise that Ms Daphne Jones-Bolla is correct in her understanding that I will only be available as a witness for cross examination if required by the Tribunal.
As for prosecuting my applications as a self represented litigant, my entire case has already been put to the Tribunal in my submissions dated 14 May 2018.
There is nothing to be gained by any attempt by me to ‘prosecute my application’ either in person or over the phone. This is due to both the Registry’s and Sparke Helmore’s ongoing harassment and intimidation against me, most recently with the attempt to ‘encourage’ me to request an adjournment so my application would be delayed for hearing for at least another 3 months.
The above correspondence was the last in a series of letters and emails that the Applicant has sent to the Tribunal, making similar sorts of allegations against Registry staff and the Respondent’s lawyers. The Tribunal is satisfied that there is no substance to any of the allegations made by the Applicant, and that Registry staff and the Respondent’s lawyers have at all times acted properly and have attempted to accommodate the Applicant in prosecuting her applications.
At the commencement of the hearing, on 6 September 2018, the Tribunal explained to the Applicant that it was unusual for the Applicant not to appear in person at the hearing or to be present during the Respondent’s evidence. The following exchange took place (transcript, page 2):
DEPUTY PRESIDENT: Right. Now, just before we start, I just want to make sure, for the purposes of the transcript and for the record, that you appreciate how the proceedings are likely to proceed today in that it is a little unusual that there is no representative for the applicant present, and that will not be present during the giving of any evidence by the respondent’s witnesses, and that those witnesses will therefore, other than questions that I will obviously or are likely to ask any witness that the respondent calls, that you won’t have the chance to cross-examine those witnesses.
MS HUTCHINSON: Yes, that’s correct.
DEPUTY PRESIDENT: And I also believe that Dr Dellar will not be giving evidence today?
MS HUTCHINSON: No.
The hearing certificate lodged by the Respondent’s lawyers had advised the Applicant that they required the attendance of Dr Dellar for cross-examination. Dr Dellar was the Applicant’s primary medical witness. Following further discussion, in which the Tribunal explained to the Applicant the impact on the weight that could be given to Dr Dellar’s reports if he was not made available for cross-examination, the Applicant indicated that she could make arrangements for Dr Dellar to participate in the hearing. Dr Dellar did give evidence by telephone and was cross-examined.
Oral evidence was given at the hearing by the Applicant, Dr Brendon Dellar and Dr Jonathan Spear.
As set out in [43] above, prior to the hearing the Applicant had indicated that, other than being available to be cross-examined, she did not propose to be involved in the hearing or the presentation of her case. Her position was that her “entire case has already been put to the Tribunal in my submission dated 14 May 2018”. At the commencement of the Applicant’s case, the Tribunal asked the Applicant whether there was anything that she wished to add that was not in the material, submissions and statements that she had filed with the Tribunal. The Applicant confirmed that there was not (transcript, page 9).
To ensure procedural fairness, notwithstanding the Applicant’s several statements that she did not want to participate in the hearing, other than being available for cross-examination, the Tribunal encouraged the Applicant to stay on the line to listen to the evidence and cross-examination of her one witness, Dr Dellar. The following exchange took place (transcript, page 19):
DEPUTY PRESIDENT: I think Ms Slack has no further questions for you, Ms Hutchinson. Now, I think what we will try to do is see if Dr Dellar is available, and I think - are you still - I would suggest that you do, but I can’t force you to, obviously. I think it would be advisable for you to stay on the line if you’re still able to stay with us.
MS HUTCHINSON: Yes….
The Applicant did stay on the line while Dr Dellar gave evidence and was cross-examined. At the conclusion of the cross-examination of Dr Dellar, the Tribunal asked the Applicant whether there was anything that she wanted to ask Dr Dellar. The Applicant said that there was not.
Prior to the calling of the Respondent’s witness, Dr Spear, the Tribunal suggested to the Applicant that it would be in her interests to remain on the line to listen to Dr Spear’s evidence. The following exchange took place (transcript, page 29):
DEPUTY PRESIDENT: So, you are relying on the submissions made. Now, the only other thing is, Dr Spear is I think, Ms Slack’s associate has – or, instructor – has gone out to see if the Doctor is here. Again, whilst I can’t force you to stay on the line, I think in so far as Ms Slack may be asking a few questions of Dr Spear, I understand they will be relating primarily to the matters that you have raised in your submissions. But again, I think it would be worthwhile your listening in, so that you can ask Dr Spear any questions or clarify any matters that arise. Are you happy to do that?
MS HUTCHINSON: No, Deputy President. I really couldn’t face that.
Counsel for the Respondent advised that the only potentially new issue that she intended to canvass with Dr Spear related to the injury the subject of Application 2017/6813, being an aggravation of a pre-existing condition or an injury simpliciter. The following exchange took place (transcript, page 30):
DEPUTY PRESIDENT: So, I understand the case in relation to the second application to be, that an injury occurred – and I think it would be as we use the terminology, ‘An injury simpliciter’, which means that it is actually an injury on that date – on the 22nd of May.
MS HUTCHINSON: That’s correct.
DEPUTY PRESIDENT: Now, there may be – and I think this is what Ms Slack is getting at – there may be an alternative finding that it wasn’t an injury simpliciter and that it may have been an aggravation of a pre-existing condition. Is that what you want to explore with Dr Brooker?
MS SLACK: Yes.
DEPUTY PRESIDENT: So, with that in mind, is it still your desire not to be present when those questions are asked of Dr Spear?
MS HUTCHINSON: Yes.
DEPUTY PRESIDENT: Okay. Well, I guess – I think the respondent has probably discharged its obligations in relation to full disclosure and it is your rightful choice not to be present.
The hearing, including the examination of Dr Spear, thereafter proceeded without the Applicant.
THE EVIDENCE
The following documents were tendered at the hearing:
·Applicant’s Bundle of Primary Submissions for 2017/5357 & 2017/6813, dated 14 May 2018 (Exhibit A1);
·Applicant’s further Submissions, dated 26 July 2017 (Exhibit A2);
·Respondent’s Statement of Facts, Issues and Contentions, dated 10 June 2018 (Exhibit R1);
·Medical Report of Dr Jonathan Spear, dated 21 February 2018, and referral letter, dated 5 December 2017 (Exhibit R2);
·Medical Report of Dr Jonathan Spear, dated 17 August 2018, and referral letter, dated 14 August 2018 (Exhibit R3);
·T-Documents relating to 2017/5357 (2 volumes, including T1 to T56) (Exhibit R4);
·T-Documents relating to 2017/6813 (including T1 to T10) (Exhibit R5);
·Tender Bundle Prepared by Comcare, undated (pages 1-24) (Exhibit 6);
·Clinical Notes Prepared by Dr Brendon Dellar, dated 23 June 2017 (Exhibit 7); and
·Clinical Notes Prepared by Dr Brendon Dellar, dated 24 June 2017 (Exhibit 8).
THE MEDICAL EVIDENCE
The first medical report relevant to the present proceedings was that of Dr Brendan Spence, consultant psychiatrist, dated 4 March 2011 (R4, T6) in which he noted:
In 2007 the Comcare organization had a new director. Following his appointment Karen was disappointed that she didn’t get a number of promotions that had come up. She complained to the director’s superior…that she was not put on to a job for higher duties by him. She felt that this had upset the director who was her immediate superior. Since this time she has felt undermined by him in the workplace. She says she was moved to an isolated part of the floor away from other people. She was refused payment for reasonable travel allowances as her job entailed frequent trips to Canberra. She felt that he humiliated and ridiculed her in group situations. … At one point in an (sic) harassment and bullying workshop she was seated next to the director of the organization. The facilitator asked for examples of threats and bullying and he leaned across and whispered in her ear “I am going to fucking kill you”. Karen felt extremely anxious and agitated about this perceived threat. She felt there was an unsupportive harassment complaint process within her work. Subsequently she took long service leave in April 2010 for three and a half months.
Dr Spence prepared a further report dated 23 March 2011 (R4, T7) which addressed specific questions put to him by the Respondent. The specific questions posed to Dr Spence and his responses are set out below:
4. In your opinion what is the specific diagnosis of the condition from which Ms Hutchinson suffers?
…Ms Hutchinson is suffering from DSM IV, moderate episode of Major Depressive Disorder.
5. In your opinion when did Ms Hutchinson first suffer from clinical identifiable symptoms of a psychological condition?
From her description is (sic) sounds as if Ms Hutchinson was suffering from depressive and anxiety symptoms from 2008 onwards. These became more severe as her perceived harassment and bullying increased.
…
10. …is there a relationship between Ms Hutchinson’s claimed condition and her Commonwealth employment?
…there is a clear relationship between Ms Hutchinson’s Major Depression and her Commonwealth employment….I think the bullying and harassment is the main contributor to her claimed condition of Major Depression.
The Applicant was next seen by Dr Dielle Felman, consultant psychiatrist, who prepared a report dated 1 April 2011 (R4, T8). Under the heading “Diagnosis” Dr Felman said:
Ms Hutchinson currently meets the diagnosis for a Major Depressive Episode with anxiety features.
By a report dated 23 April 2011 (R4, T9) Dr Kathryn Dunne of Church Street Medical Centre (located in Richmond, Victoria) stated, amongst other things, that:
I believe she presents with Depression with Anxiety due to alleged bullying in the workforce.
…
As already stated her symptoms began at the time of the alleged bullying and harassment in 2008. Her symptoms are consistent with the alleged bullying and harassment as stated by herself (sic) … She denies that she had the symptoms of depression and anxiety before 2008.
By report dated 26 April 2011 (R4, T10) psychologist Ms Debbie Buesnel in effect confirmed the previous diagnoses of depression and anxiety caused by the Applicant’s perception of bullying and unsupportive treatment in the workplace.
By decision on reconsideration, on 25 July 2011, the Respondent accepted the Applicant’s claim for compensation for “major depressive disorder – single episode” (R4, T11).
By report dated 15 September 2011 (R4, T12) Dr Jonathan Spear, consultant psychiatrist, under DSM-IV assessed the Applicant with “Axis I: Major Depressive Disorder, single episode, chronic, atypical features”.
By report dated 3 April 2012 (R4, T14) Dr Spear, under DSM-IV, assessed the Applicant with “Axis I: Major Depressive Disorder in Partial Remission”. In that report he also noted (R4, T14 at 87) that:
Ms Hutchinson continues to have denial regarding her diagnosis of a mental health problem. She does however recognise that she has gained benefit from psychotherapy and is appreciative of this. An avoidant coping strategy has delayed recovery, delayed vocational rehabilitation and is now associated with a secondary diagnosis of Agoraphobia with Panic Disorder.
She described a generalised distrust of government agencies and of ‘people of colour’.
In August 2012 the Applicant was seen by another consultant psychiatrist, Dr Gemma Edwards-Smith. In her report dated 28 August 2012 (R4, T15 at 95) Dr Edwards-Smith commented that:
…psychiatric conditions described on Axis I, are significantly aetiologically linked to the work related stressors she reported experiencing in the course of her work with Comcare. Although she had previously suffered from significant health issues, I could not identify that these were aetiologically relevant with respect to the onset of her psychiatric disorder, nor is there any evidence of any pre-existing or constitutional psychiatric pathology.
In a report to the Respondent dated 20 November 2012 (R4, T17) Dr Pamela Thompson, of the Ellen Street Family Practice, advised that the Applicant’s current diagnosis was that of depressive and anxiety disorder and that she has only a partial response to treatment and still “demonstrates…marked anxiety symptoms resulting in avoidant behaviour.”
The Applicant was again seen by Dr Edwards-Smith on 20 November 2012. In her report dated 21 November 2012 (R4, T18) Dr Edwards-Smith, on the multi-axial classification of the Applicant’s psychiatric disorder, on Axis I diagnosed the Applicant as having “Major Depressive Disorder, single episode, chronic in partial remission. Panic Disorder”.
In January 2013 Dr Brendon Dellar, clinical psychologist, reported that the Applicant had had “over 29 sessions, with the initial intake session on 10 February, 2012”. In his report, dated 31 January 2013 (R4, T19), he diagnosed the Applicant as follows:
Ms Hutchinson meets the criteria for Major Depressive Disorder and Posttraumatic Stress Disorder. During the aforementioned experience of being threatened during a workshop, Ms Hutchinson reported feeling intense horror and helplessness coupled with depersonalisation (i.e, feeling detached from one’s self) and derealisation (i.e, feeling that her surroundings were unreal and that her perception of time was altered). The intense horror she experienced meets the first criterion for PTSD as cited in DSM-IV-TR which pertains to the threat of harm or death.
It was this diagnosis by Dr Dellar on which the Applicant relied in making the claim for compensation for “PTSD” and “Major Depression” on 30 May 2013 (R4, T20).
Dr Lawrence Blumberg, consultant psychiatrist prepared a report dated 25 June 2013 (R4, T21) in which he diagnosed the Applicant as having:
…DSM-IV-TR diagnosis of a Major Depressive Disorder, recurrent without psychotic features and a co-morbid Chronic Post-Traumatic Stress Disorder.
The Applicant was next seen by Dr Christiaan Barnard, consultant occupational physician, who, in his report dated 4 September 2013 (R4, T22), advised that he agreed with Dr Blumberg’s diagnosis of the Applicant suffering from “Major Depressive Disorder which was recurrent and strongly associated with a co-morbid chronic Post-Traumatic Stress Disorder”.
On 17 January 2014 the Applicant was approved for invalidity retirement under the Superannuation Act 1990 (Cth) (R4, T24).
Dr Dellar provided an update on the Applicant by his report dated 28 October 2015 in which he reported (R4, T27):
Ms Hutchinson at the initial assessment presented with severe depression and anxiety symptoms. She had thematic recurring nightmares of being ‘hunted’ and disrupted sleep. At times she presented with passive suicidal ideation. Her anxiety has improved since February 2012 and in particular Ms Hutchinson responded to EMDR treatment for traumatic anxiety… however, her agoraphobic tendencies have continued and the avoidance cluster of symptoms appears to be the most chronic.
Ms Hutchinson’s depressive symptoms have significantly reduced from extremely severe to moderate over the course of treatment. There has been complimentary psychopharmacological treatment from Ms Hutchinson’s General Practitioner that I believe has improved her depression significantly.
The Applicant was next seen by Dr Kevin O’Daly, consultant psychiatrist, who, by report dated 2 December 2015 (R4, T29 at 182), diagnosed her with “Axis I: Major depressive disorder, chronic with atypical features and anxious distress. Binge eating disorder.”
Dr O’Daly also opined (R4, T29 at 183) that:
Although Ms Hutchinson meets the DSM criteria for a major depressive episode with anxiety (anxious distress), there appears a delay in progress likely secondary to her avoidant personality traits and coping style.
…
In my opinion, the incident cited as the precipitating factor is significant to Ms Hutchinson’s condition in the development of her psychiatric symptoms. She described no psychiatric or psychological contacts prior to that time…
…
In my opinion, Ms Hutchinson’s employment does continue to contribute to her condition and that her ruminative obsessive style on the theme of injustice and a lack of support and reactions to the stress of an alleged serious threat, have manifest with symptoms of depression and anxiety and a lack of trust in returning to the workplace.

The Applicant was again seen by Dr O’Daly in January 2016. By his report dated 28 January 2016 (R4, T31 at 193) Dr Daly answered a question put to him by the Respondent as follows:
Does Ms Hutchinson suffer from Agoraphobia and if so, it is (sic) related to her compensable condition of Major depressive disorder or any underlying condition?
In my opinion, by definition of the description of personality traits are that these are underlying conditions. Such personality traits are both likely precipitants and perpetuants (sic) of her depressive and anxiety symptoms. These are also barriers to recovery.
…
In my opinion, specifically Ms Hutchinson does not meet the DSM 5 criteria for agoraphobia. She does not have a marked fear or anxiety for example about using public transport specifically or being in open spaces, or being in enclosed spaces or being outside of the home for fear that thoughts of escape might be problematic. Her social avoidance is, in my opinion, in the context of her avoidant personality style rather than specifically secondary to the condition of agoraphobia.
At a time not disclosed by the evidence before the Tribunal, it appears that the Applicant made a claim for compensation under the SRC Act for “Agoraphobia” and “binge eating” On 9 February 2016 the Applicant’s claim for “Agoraphobia” and “binge eating” was disallowed (R4, T32). As noted above (at [12]), the rejection of those claims is not part of either of the applications before the Tribunal in these proceedings.
On 22 May 2017 the Applicant’s treating general practitioner, Dr Catherine Brooker, wrote a letter “To Whom it May Concern” seeking advice on the Applicant’s psychiatric condition for the purpose of issuing a medical certificate certifying the Applicant unfit for work for 12 months. The full text of that letter (R4, T34) was as follows:
This is to confirm the above person has been invalidity retired by Comm Care (sic). She has not worked since 2010 following Post-Traumatic Stress Disorder and Major Depressive Disorder following a bullying situation at work.
Other medical conditions include type 2 diabetes and atrial flutter.
I understand that she now requires a letter certifying her off work for a year.
She sees a counsellor on a monthly basis though I have no correspondence from the counsellor, I have requested these now.
She takes medication for all the above conditions.
She has significant agoraphobia and rarely leaves her house.
That letter was presumably provided by the Applicant to Dr Dellar who, in a letter dated 26 May 2017 (R4, T35), wrote as follows:
Dear Dr Brooker,
RE: Initial Assessment for Ms Karen Hutchinson …
Thank you for your letter dated 22 May 2017 regarding Ms Hutchinson. Ms Hutchinson informed me that you had written a letter previously to me in November of last year. Unfortunately I do not have this correspondence and would appreciate if you could re-send your original letter for my records.
I have been seeing Ms Hutchinson since she was referred by Dr Pamela Thompson (Ellens Health) in 2012 related to a workplace bullying claim. At the time I had first seen Ms Hutchinson, she presented with Major Depression and symptoms of Posttraumatic Stress Disorder, including re-experiencing an incident where she felt her physical integrity was threatened. Ms Hutchinson scored in the clinical range on the PCL-C and had dissociative symptoms consistent with Posttraumatic Stress Disorder, including avoidance. Her avoidance cluster of symptoms were the main reason for her move to Fremantle from Melbourne, and these behaviours escalated into agoraphobia.
Her PTSD symptoms responded well to exposure therapy and she no longer presents with this condition. The frequency of her appointments with me are monthly and focussed around relapse prevention for her Major Depressive Disorder (also in remission and treated with Pristiq. Much of her concerns have been due to stress of being a self-represented litigant.
Karen continues to be socially isolated and does not leave her home based on feelings of vulnerability to harm. Because of the infrequent sessions (monthly rather than the traditional weekly appointments) our sessions often last 90minutes, however I have no intention of requested extended time for consultations as its not based on purely clinical reasons.
I would expect to see Karen for 8 sessions before sending you a progress update.
By a report dated 28 June 2017 (R4, T37) Dr Dellar appeared to resile from the position that he had taken in his letter of 26 May 2017. In his report of 28 June 2017, under the heading “Current Diagnosis”, Dr Dellar stated:
…current diagnosis is Posttraumatic Stress Disorder (chronic) and Major Depression. Agoraphobia is conceptualised as part of the avoidance cluster of symptoms in PTSD. Ms Hutchinson reports symptoms consistent with DSM-5 criteria for both these disorders.
In that report of 28 June 2017, Dr Dellar also made the following complaint:
I would like to express concern that a brief letter to a General Practitioner was released to Comcare (and subsequently Ms Hutchinson) without my consent and open to misinterpretation. This has been atypical and inappropriate as I have not written a report with sufficient depth and detail to warrant a psychological progress plan.
The Tribunal notes that Dr Dellar denies that his letter of 26 May 2017 and his report of 28 June 2017 are inconsistent. This is explored in more detail below.
On 20 July 2017 the Respondent made the determination that there was no present liability for medical expenses under s 16 of the SRC Act or incapacity payments under

s 20 of the SRC Act (R4, T39).
The Applicant was again seen by Dr Spear on 8 February 2018. In a report dated 21 February 2018 (R2) Dr Spear materially reported:
Documented stressors of alleged workplace stress including:
ointerpersonal conflict with a director between 2007 and 2011,
oa failure to gain promotion in 2008,
oa sense of isolation,
oher belief that her workload was excessive,
oalleged bullying and a perceived death threat made by the director (She alleged clinical director whispered to her ‘I’m going to f**king kill you’ [Additional document 80].)
oa lack of support.
Personal stressors include:
onot working,
orelocation to Western Australia [76 and Additional document 27],
osocial isolation [82],
ofinancial stress [82], [Additional document 182], and mounting debt [Additional document 207],
otermination of employment in February 2014 [Additional document 171],
oallegations to the Privacy Commission in 2014 [Additional document 171],
oconsideration of an application to the Federal Court in 2014 [Additional document 178],
oclaims regarding public interest disclosure [Additional document 207],
oconflict with a friend in 2014 [Additional document 180],
oissues of mistrust and abuse,
olongstanding relationship issues with her brother and sister [Additional document 185],
ogrief following the death of her mother in 2015 [Additional document 188],
oshe has single marital status and lives alone [Additional document 46].
(page 4)
History Provided by Applicant:
…
She described the perceived death threat on 5 February 2010. She was attending a diversity training workshop with her clinical director, who was sitting next to her. She felt intimidated, because he sat next to her. They were asked to give examples of behaviour that could be intimidating. She alleged the director whispered to her, ‘I’m going to f**king kill you’. She explained she did not feel anything at the time and shouted, ‘That will do it’. She stared at the director who was ‘like a deer in headlights’. This description of behaviour was not consistent with Criterion A for posttraumatic stress disorder as defined by DMS-IV-TR or DSM-5.
(page 5)
…
MENTAL STATE EXAMINATION:
At interview Ms Hutchinson was co-operative and appropriate. She had grey hair and wore no make-up. She appeared well cared for. She was not hostile or threatening. She was non-demonstrative. She was a consistent and convincing historian. Her behaviour was respectful and polite. She had no observable signs of major depressive disorder or generalised anxiety disorder.
She had no perseveration, no difficulties shifting set and she had no formal thought disorder. She had no flight of ideas. She described her mood as ‘disinterested’. Her affect appeared flat. She appeared emotionally detached and distant consistent with her description of dissociation, ‘comfortably numb’.
She was preoccupied with the claim and financial worries. She had cognitive distortions including a sense of shame, sense of injustice, projection, catastrophic thinking, ideas of helplessness and ideas of hopelessness. She reported ongoing suicidal ideation, but denied any plan or intent to commit suicide. She had no delusions or hallucinations.
She appeared of normal intelligence. She was fully orientated for time and place. Her concentration was mildly impaired. She had no nominal aphasia, and no paraphrasic errors. Her verbal fluency was normal with no repeats. She had no clinical evidence of cognitive impairment.
She explained that she is focussing on the claim, ‘It’s all I have in my life’. When I asked her to explain how she made sense of her mental health condition, she stated, ‘I don't know how to answer that’.
In terms of her treatment she stated, ‘I think Pristiq [desvenlafaxine] is incredibly helpful. It keeps me calm.’
She believes she will make a recovery by ‘getting Comcare out of my life so I can have what remains of my life returned to me’. She believes that financial independence from Comcare would be beneficial for her wellbeing
(page 8)
SUMMARY AND ASSESSMENT:
Ms Hutchinson is a 57-year-old former Claims Officer with Comcare from 1998 until her retirement in 2014. She confirmed she last worked on 6 April 2010.
…
Alleged workplace stressors include interpersonal conflict, a failure to gain promotion, a sense of isolation, her belief that her workload was excessive, a perceived death threat and a perceived lack of support. Personal stressors include not working, relocation to Western Australia, social isolation financial stress, termination of employment, various legal disputes, interpersonal issues, alleged abuse by a general practitioner, bereavement, single marital status and living alone. Cognitive distortions (low self-esteem, catastrophic thinking, sense of betrayal, a sense of injustice and ideas of helplessness) indicate a vulnerability to develop mental health disorder. She has no evidence of alcohol abuse, recreational drug abuse or excessive caffeine use. She has no clinical evidence of cognitive impairment. She appears to have a paranoid personality style, but most likely she does not meet the DSM criteria for personality disorder.
(page 9)
…
(a) What condition(s) does the applicant presently suffer from?
My diagnosis according to DSM-IV-TR is as follows:
Axis I: Agoraphobia.
Axis II: Cognitive distortions. Avoidant coping strategy.
Axis III: Medical comorbidities. Haemochromatosis, diabetes, atrial flutter.
Axis IV: Perceived workplace harassment. Failure to obtain promotion. Perceived excessive workload. Not working. Financial pressure. Social isolation. Relocation to Perth. Single status, living alone. Financial strain. The stress of various legal claims. Relationship issues with family. Bereavement with the death of her mother in 2015. Termination of employment in February 2014.
Axis V: GAF 55 (avoidance of leaving house).
(page 10)
…
On balance, taking into account the documentation provided and the history the applicant gave at interview together with her presentation, agoraphobia appears to be the most appropriate descriptor. She describes avoidance of leaving her home, together with anxiety triggered by seeing people of ‘African or Indian appearance’, together with ruminations, a history of intrusive memories of a perceived death threat, intolerance of standing in queues and longstanding suicidal thoughts. She worries about her financial situation.
Normally patients diagnosed with agoraphobia would be expected to have a family history of anxiety, and childhood issues such as overprotective parenting or an anxious temperament evident from early childhood. An alternative cause for agoraphobia could be atrial flutter which is often associated with anxiety. It is unusual to present with agoraphobia in mid-life. Therefore, is most likely that atrial flutter is the principal cause of her anxiety symptoms. I understand that she is receiving medical treatment for this.
Although she has been diagnosed as having a major depressive disorder her symptoms and history did not appear to be consistent with major depressive disorder as defined by DSM.
Although she has some symptoms of posttraumatic stress disorder, such as, previously experiencing intrusive memories, anger outbursts and ongoing avoidance and triggers, she does not appear to meet the DSM criteria for posttraumatic stress disorder. Specifically, the history she provided me was not consistent with criterion A. It appeared more to be her interpretation of the behaviour of her clinical director rather than a traumatic incident as defined by DSM.
…
She recognises that the claim process has taken over her life. She has a strong sense of injustice of being treated unfairly and of being harassed by her former employer and recently by a treating general practitioner. An explanation for these would be a paranoid personality style. It is unclear from the history provided whether these symptoms and behaviours and patterns of thinking are longstanding. At interview Ms Hutchinson denied that. Therefore, I am unable to make a diagnosis of a paranoid personality disorder according to DSM.
(page 11)
…
(b) Does the applicant continue to suffer from the PTSD and the major depressive disorder, single episode conditions (the accepted injuries); and if so (sic)
Although Ms Hutchinson has been diagnosed as having posttraumatic stress disorder, she does not appear to meet criterion A for posttraumatic stress disorder, and therefore she does not meet the criteria for a diagnosis of posttraumatic stress disorder. It is important to remember that a medicolegal diagnosis of posttraumatic stress disorder based on formal diagnostic criteria may be different from a clinical diagnosis of posttraumatic stress disorder.
It appeared most likely that she considered the statement made by her director as evidence that he was harassing her. She perceived this comment as a death threat (projection). She did not experience helplessness or shock at the time, but instead noted that her clinical director was ‘like a deer in the headlights’. Her description was inconsistent with criterion A for posttraumatic stress disorder.
Currently she does not meet the criteria for posttraumatic stress disorder. She did not report current symptoms consistent with posttraumatic stress disorder apart from triggers for anger when seeing people of ‘African or Indian appearance’ and avoidance.
She has been documented to have symptoms consistent with Major Depressive Disorder, but it is unclear if those symptoms were persistent and concurrent for at least two weeks and therefore she does not appear to meet the DSM-IV TR (sic) criteria for Major Depressive Disorder.
She appears to have severe, chronic and disabling anxiety and avoidant symptoms, so ‘Agoraphobia’ is the more appropriate diagnosis rather than Major Depressive Disorder or posttraumatic stress disorder.
(pages 11 and 12)
…
3.7 Do you consider that the applicant suffered a ‘relapse’ of her condition on or around 22 May 2017?
The history provided by the Applicant did not indicate a relapse of the mental health condition on or around 22 May 2017. It appears most likely that the Applicant did not have a relapse of her condition on or around 22 May 2017.
(page 15)
…
3.12 If so, does the applicant’s employment continue to significantly contribute to the applicant’s claimed condition of ‘agoraphobia’?
The principal cause of Agoraphobia is most likely atrial flutter for the reasons given in Question 11.
Documented stressors of alleged workplace stress including:
ointerpersonal conflict with a director between 2007 and 2011
oa failure to gain promotion in 2008
oa sense of isolation,
oher belief that her workload was excessive,
oalleged bullying and a perceived death threat made by the director (She alleged
oclinical director whispered to her ‘I’m going to f**king kill you’ [Additional document 80].)
o a lack of support.
The Applicant’s employment most likely makes a material contribution to her diagnosis of Agoraphobia, but not a significant contribution. Work was most likely beneficial for her mental wellbeing despite her ambivalence regarding responsibility. Her mental health appeared to have deteriorated since she left work, she experiences financial pressure because of reduced income and she has become preoccupied with various legal disputes.
Dr Dellar provide a report dated 12 May 2018 (Attachment 34 to the Applicant’s submissions filed on 14 May 2018). This report is a series of answers to questions posed by the Applicant. It includes the following questions and answers:
1. When did Ms Hutchinson first consult with you in relation to the incident she experienced with Dr. Catherine Brooker? Please provide the details of the experience with Dr. Brooker as Ms Hutchinson reported it to you.
Ms Hutchinson reported the incident with Dr Brooker on 26 May 2017 (her consultation with Dr Brooker was 22 May 2017). She described a consultation where she felt berated by Dr Brooker and shocked by her sudden change in attitude from previous medical consultations. She reported a ‘dressing down’ and being spoken to in a demeaning and condescending manner. Ms Hutchinson reported a sense that Dr Brooker was skeptical of the legitimacy of her claim and had reacted in an accusatory manner. She described Dr Brooker as angry and dismissive during this consultation and stood up abruptly to usher her out of the consultancy room. Ms Hutchinson remarked that she would not be going back to Dr Brooker and would seek out a new General Practitioner.
2. Do you consider Ms Hutchinson suffered a new psychological injury as a result of her interaction with Dr. Brooker? If yes, please explain your opinion in detail.
No, I do not view this incident as a new injury. It does not meet the criteria for traumatic stress or other psychological injury.
3. Do you consider that Ms Hutchinson suffered an exacerbation, aggravation or relapse of a pre-existing psychological injury as a result of her interaction with Dr. Brooker? If yes, please describe in detail the impact Dr. Brooker’s actions would have had on someone with Ms Hutchinson’s previously diagnosed psychological presentation?
Yes. I was concerned about the detrimental impact on Ms Hutchinson’s mental health given a number of risk factors, including social isolation, general health condition (sic) financial impoverishment and the history of suicidal ideation. Dr Brooker had cited Ms Hutchinson’s potential para suicidal behaviour in her letter addressed to me dated 22 May 2017. I was aware that given Ms Hutchinson’s history that a relapse of depression would be the likely result of abrupt cessation of psychological support.
…
6. Please explain in detail what occurred psychologically to Ms Hutchinson as a result of Comcare ceasing present liability on her claim?
The result of the cessation of her claim was significant. There was a major rupture in the therapeutic relationship and Ms Hutchinson expressed significant mistrust in health professionals. My concern was her previous gains in the month preceding the cessation were undone, and she had lapsed into a Major Depressive episode with the associated risks of self-harm or suicide. I had encouraged a referral through Medicare which took place some time afterwards due to Ms Hutchinson’s increased agoraphobic avoidance and depression symptoms.
…
10. Has Ms Hutchinson discussed her litigation efforts against Comcare with you and the effect it continues to have on her? If so, please detail.
The complexity of this case is that the compensatory body is the same entity as the employer. This dual relationship has been very difficult to navigate and the impact of this on Ms Hutchinson’s mental health has been significant (a perpetuating factor as previously discussed). I do not see any future gains for Ms Hutchinson if this process was to be drawn out any longer than it already has.
11. Has Ms Hutchinson been traumatised by the experience of dealing with Comcare managing her compensation claim during the time you have been treating her? Please provide full detail of your observations as a clinical practitioner.
The influence of interacting with various claims managers has been observed to perpetuate some of the symptoms central to depression (e.g., helplessness and perceived loss of control).
There were serious allegations that Ms Hutchinson made against Comcare for a range of incidences where it was alleged that Comcare breached privacy laws and provided access without proper consent. The compounding nature of this on Ms Hutchinson’s state of helplessness has been evident.
12. Has Ms Hutchinson’s anxiety condition been exacerbated by her recent attempt to engage with Centrelink? If so, please provide your clinical observations.
Yes, again I believe that this has proven to be a difficult process for Ms Hutchinson and she has had several problems with gaining a disability support pension. Ms Hutchinson reported inconsistent and at times contradictory information about her eligibility and date of commencement of support. This has, in my opinion, mirrored her previous experiences with Comcare and led to an exacerbation of helplessness.
13. Have the reported delays experienced and the associated anxiety related to being assessed and accepted for a ‘Disability Support Pension’ had a negative impact on Ms Hutchinson? If so, please comment.
Yes, again this has been exacerbating and perpetuating the state of helplessness that she was recovering from prior to her claims manager’s abrupt cessation of present liability.
14. Has Ms Hutchinson discussed her perilous impecunious circumstances with you and the effect it continues to have on her? If so, please detail.
Yes, there has been significant hardship with Ms Hutchinson having to rely on credit cards to pay for day-to-day living expenses. The financial impact is significant and I view this as a major perpetuating factor in Ms Hutchinson’s overall mental health.
15. Have the interactions with Comcare Ms Hutchinson has had affected your ability to provide restorative and remedial treatment and assist Ms Hutchinson to recover from her original incapacity? If yes, please explain in detail.
Yes, as I mentioned previously, the prolonged nature of the claim and the number of difficulties associated with this have impacted on Ms Hutchinson. Just prior to the cessation of her compensation claim, Ms Hutchinson was demonstrating strong indications of future goal setting and planning that had been independent of her Comcare claim.
There has been a number of set-backs throughout her engagement that have made progression difficult and restorative treatment complex.

Dr Spear provided a supplementary report dated 17 August 2018 (R3). In that report Dr Spear largely clarified and confirmed some of what he said in his report of 21 February 2018. He did not examine the Applicant again for the purpose of preparing this supplementary report. He did provide the following clarifications:
If atrial flutter was excluded as a contributor to Ms Hutchinson’s agoraphobia condition, I would consider that her degree of employment contribution remained material, but not significant. This is because there are many at least material causes of her mental health condition including personal stressors, and her vulnerability to develop mental health disorder was evident with cognitive distortions.
(page 3)
…
In your report of 21 February 2018, you form the opinion that the applicant would not have satisfied the criteria for major depressive disorder. This appears to be at odds with your earlier report in 2011 which noted:
My diagnosis according to DSM-IV TR is as follows:
Axis I: Major Depressive disorder, single episode, chronic, atypical features...
Symptoms are due to major depressive disorder
Ms Hutchinson appears to have a Major Depressive Episode, a mental health condition. There was a delay in treatment because of denial. In addition, this is aggravated by an avoidant coping strategy which may also be delaying recovery.
In your 2012 report you noted:
My diagnosis using DSMIV is now as follows:
Axis I: Major depressive disorder in partial remission; Agoraphobia with panic disorder
Can you please advise whether you maintain the position that the applicant has never suffered from major depressive disorder? If so, can you please advise what has caused you to change your opinion in your latest report?
Ms Hutchinson has had episodic depressive symptoms such as low mood, subjective impaired concentration, suicidal thoughts, fatigue and insomnia. As stated in my report dated 8 February 2018:
‘Although she has been diagnosed as having a major depressive disorder her symptoms and history did not appear to be consistent with major depressive disorder as defined by DSM’.
At the time of my first assessment in September 2011, I considered that the symptoms of low mood, weight gain, insomnia, social anxiety, intrusive thoughts, lethargy, poor concentration and suicidal thoughts were most likely consistent with resolving major depressive disorder, but her only clinical signs of major depressive disorder were low mood and soft speech.
In 2012 and 2018 during her assessments she had no clinical signs of major depressive disorder.
In 2012, she had clinical signs of anxiety disorder with a fine tremor, tension and anxious speech.
In 2018, she had no observable signs of generalised anxiety disorder, but she did appear emotionally detached, consistent with her complaints of dissociation. She had cognitive distortions including a sense of shame, sense of injustice, projection, catastrophic thinking, ideas of helplessness and ideas of hopelessness.
Another explanation would be that she had a major depressive episode, which has resolved, and which has been superseded by Agoraphobia.
CONSIDERATION
In the end we have two divergent medical opinions. On the one hand there is Dr Dellar, whose diagnosis in his report of 28 June 2017 (expanded and clarified in his report dated 12 May 2018) was:
‘…Posttraumatic Stress Disorder (chronic) and Major Depression. Agoraphobia is conceptualised as part of the avoidance cluster of symptoms in PTSD. Ms Hutchinson reports symptoms consistent with DSM-5 criteria for both these disorders’.
and, on the other, Dr Spear whose diagnosis as set out in his reports of 21 February 2018 and 17 August 2018 was:
Although Ms Hutchinson has been diagnosed as having posttraumatic stress disorder, she does not appear to meet criterion A for posttraumatic stress disorder, and therefore she does not meet the criteria for a diagnosis of posttraumatic stress disorder.
and
Although she has been diagnosed as having a major depressive disorder her symptoms and history did not appear to be consistent with major depressive disorder as defined by DSM.
and
She appears to have severe, chronic and disabling anxiety and avoidant symptoms, so ‘Agoraphobia’ is the more appropriate diagnosis rather than Major Depressive Disorder or posttraumatic stress disorder.
Which medical evidence should be preferred? Dr Dellar was cross-examined on both his reports and diagnosis of the Applicant. Not surprisingly he was cross-examined at some length on the apparent inconsistency in his letter of 26 May 2017 in which he stated that:
Her PTSD symptoms responded well to exposure therapy and she no longer presents with this condition. The frequency of her appointments with me are monthly and are focussed around relapse prevention for her Major Depressive Disorder (also in remission and treated with Pristiq). Much of her concerns have been due to stress of being self-represented litigant
and his diagnosis in his report of 28 June 2017, set out in [78] above, to the effect that the Applicant continued to suffer from both PTSD and Major Depression.
In cross-examination, Dr Dellar accepted that his letter of 26 May 2017 stated that the Applicant no longer suffered from PTSD and Major Depression. The following exchange took place (transcript, page 23):
MS SLACK: And on the face of this report, to anyone reading it, you would accept that the report indicates that you were of the opinion that the PTSD and the major depressive disorders were both in remission?
DR DELLAR: Yes, I do. I don’t accept that it was a report, it was a letter addressing the initial request for additional session time and also the lack of correspondence that was apparently received, or sent, by Dr Brooker earlier. So the first paragraph you probably read that, so---
MS SLACK: But the answer to my question is yes?
DR DELLAR: Sorry, what was the question again, that they’re in remission?
MS SLACK: No, you accept that anyone reading this report would come away with the understanding that you were of the opinion that the PTSD and major depressive disorders were in remission?
DR DELLAR: Yes.
The 26 May 2017 letter from Dr Dellar, advising that the Applicant no longer suffered from PTSD or Major Depression, was cited in the Respondent’s letter dated 19 June 2017 to the Applicant (R4, T36). This letter advised the Applicant that, based on that advice from Dr Dellar, the Respondent intended to make a determination of no present liability under ss 16 and 20 of the SRC Act. Following the issue of that letter by the Respondent, the Applicant saw Dr Dellar. Dr Dellar’s clinical notes of the meeting with the Applicant on 24 June 2017 (R8) recorded that:
Karen was angry at my written reposes (sic) to Dr Brooker. She claimed that it was forwarded as a medical report to Comcare which led to the cessation of the claim.
She expressed that initially she was angry that I had written a letter that was forwarded to Comcare as a medical report saying she was essentially asymptomatic. I explained that I did not bill Comcare for a report and that it is standard practice to respond to a GP letter.
I expressed remorse at the consequences and reassured her that it was not a formal report rather a rejection of the request for funded 90 minute sessions with me. She continued to express anger that I had not taken into account her decision to change GPs and that the session with Dr Brooker was sufficiently distressing for her to end the relationship and find a new GP.
She also stated that because I had written a response which ended her claim, she felt betrayed and that the trust therapeutically was ruptured…
I stated that despite my shock that this was used as a medical report that I did not bill to Comcare as such, I was professionally obliged to respond to a GP requesting information.
I stated that I would write a proper report based on assessment information updated in the next session forwarded to Comcare.
The above note was put to Dr Dellar at the hearing. The following exchange then took place (transcript, page 24-25):
MS SLACK: Now, that professional obligation extended to reporting to a GP an accurate assessment of your opinion, didn’t it?
DR DELLAR: Yes, yes.
MS SLACK: And that’s what you did in your report to Dr Brooker, you provided an accurate assessment of the applicant’s condition at the time of writing your report, didn’t you?
DR DELLAR: No, I reject that completely. I think it wasn’t a report, it was a letter that summarise intent to not have extended sessions based on the successful treatment of a class of PTSD symptoms. My report that I did, which was billed, thoroughly explains that there are three classes of PTSD symptoms. I’m not too sure if you’re aware of that report and the significant remission of one of those is partly due to the fact that she had treatment with me, including EMDR, but the remission from the psychological condition does not mean complete recovery, if that’s what you’re trying to indicate.
MS SLACK: So, when you say in your file note:
I was professionally obliged to respond to a GP requesting information.
You say it’s a letter, so that includes, whenever you send a letter to a GP, you’re professionally obliged to give an accurate summation of your opinion of the state of the condition, aren’t you?
DR DELLAR: I think I’ve done that but I’ve done that in a more comprehensive way than somebody who is seeking treatment from an alternative GP at the time. So, this letter was really a letter saying thank you for your request and I was aware that Karen was seeking a different GP at that particular point in time because of the interaction with Dr Brooker. So, it was a courtesy letter and we do that quite frequently but the more comprehensive analysis of PTSD symptoms I’ve explained in far more detail in a report.
It was then put to Dr Dellar that the diagnosis in his report of 28 June 2017 (R4, T37) was “diametrically opposed” to that in his letter of 26 May 2017. Dr Dellar responded to that suggestion as follows (transcript, page 25):
MS SLACK: Now, it’s also fair to say, isn’t it, that what you’ve written in the letter to Dr Brooker dated 26 May, and what you put in this report to Comcare dated 28 June, are diametrically opposed opinions, aren’t they?
DR DELLAR: No.
MS SLACK: Well, in the letter of 26 May you say the PTSD condition and the major depressive disorder are in remission and in 28 June you say that she has both conditions. They’re completely opposite opinions, aren’t they?
DR DELLAR: Well, PTSD has several class of symptoms. One of the major classes of symptoms are pretty significant in this case and Ms Hutchinson presents with a lot of the anxious arousal avoidance symptoms. I think I outlined that in the letter to Dr Brooker partly because I knew that she wasn’t going back to see Dr Brooker but the anxious arousal symptoms and avoidance category is significant. I mean there’s an impairment there that I would say would be in a very severe range and I don’t think there would be many people who would disagree with me on that.
MS SLACK: And those symptoms can be indicative of agoraphobia, can’t they?
DR DELLAR: Yes, they can.
MS SLACK: I previously read out the consultation note of 24 June 2017, you recall that, just a couple of moments ago?
DR DELLAR: Yes.
MS SLACK: So, it’s fair to say this report dated 28 June was prepared four days later. So, this is a report that was prepared in response to a request made by Ms Hutchinson to you?
DR DELLAR: I found out that this letter I wrote to Dr Brooker had been misinterpreted, so I wanted to do a complete report that was far more detailed, so, yes.
MS SLACK: Yes, and you took into account what Ms Hutchinson had said to you during the consultation four days earlier?
DR DELLAR: I’m sure I did, I take everything into account.
MS SLACK: So, it’s fair to say that if the tribunal accepts that you have changed your opinion in this report that you’re actually acting as Ms Hutchinson’s advocate in seeking to ensure that her compensation?
DR DELLAR: No.
While the characterisation of Dr Dellar as being an “advocate” for the Applicant is overstating it, the Tribunal is concerned with Dr Dellar’s explanation for what was, on any fair reading of the letter of 26 May 2017, a reversal of opinion. The opinion expressed by Dr Dellar in his report of 28 June 2017 is clearly at odds with the diagnosis in the 26 May 2017 letter of the Applicant not suffering PTSD or Major Depression. Dr Dellar’s explanation that the 26 May 2017 letter was in response to a request from Dr Brooker for “extended sessions” is hard to accept given the terms of the letter from Dr Brooker of 22 May 2017, which does not mention duration of sessions, and the equally unequivocal response to that letter provided in Dr Dellar’s letter of 26 May 2017.
The Tribunal also notes that in comparing the reports of Dr Dellar and Dr Spear, Dr Spear’s reports contain a more comprehensive analysis of the criteria set out in DSM-IV and DSM-V for PTSD and Major Depression than Dr Dellar’s reports, which tend to be more conclusory. In that regard, the Tribunal notes that Dr Dellar and Dr Spear, as well as the various other medical practitioners who produced reports, use DSM-IV and/or DSM-V as being the relevant authority for diagnosis of the Applicant’s psychiatric conditions, in particular PTSD.
For instance, Dr Delllar’s critical report dated 28 June 2017 (R4, T37) states, as cited at [85] above, that:
…current diagnosis is Posttraumatic Stress Disorder (chronic) and Major Depression. Agoraphobia is conceptualised as part of the avoidance cluster of symptoms in PTSD. Ms Hutchinson reports symptoms consistent with DSM-5 criteria for both these disorders.
While Dr Dellar’s report does describe certain symptoms that the Applicant “reports” (R4, T37 at 2015), he does not specifically relate those symptoms to the various criteria of DSM-IV or DSM-V.
Dr Spear’s reports, on the other hand, provide a more comprehensive analysis of the Applicant’s symptoms against the criteria in DSM-IV and DSM-V. In that regard, one of the reasons given in Dr Spear’s reports for his opinion that the Applicant does not suffer from PTSD is that her claimed condition does not meet Criterion A of DSM-IV or DSM-V. In his report dated 21 February 2018 (R2), extracted in [82] above, Dr Spear sets out his reasoning as to why the Applicant does not meet Criterion A.
There is also, in the Tribunal’s view, another reason why the Applicant would not satisfy Criterion A. The claimed death threat which occurred in the diversity training workshop on 5 March 2010 is central to the Applicant’s claim for PTSD and, presumably, Major Depression. In making his assessment that the Applicant satisfied the criteria for PTSD under DSM-IV and DSM-V, Dr Dellar must have accepted that Criterion A was satisfied. Of course, insofar as Dr Spear also originally accepted that the Applicant suffered from PTSD under the criteria in DSM-IV and DSM-V, he must also have accepted that Criterion A was satisfied. The Criteria A are, relevantly, as follows:
DSM-IV
Diagnostic criteria for 309.81 Posttraumatic Stress Disorder
A.The person has been exposed to a traumatic event in which both of the following were present:
(1)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2)the person’s response involved intense fear, helplessness, or horror.
DSM-V
Diagnostic Criteria 309.81 (F43.10) Posttraumatic Stress Disorder
A.Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1.Directly experiencing the traumatic event(s).
The critical wording is, in DSM-IV, “exposed to...an event… that involved actual or threatened death” and, in DSM-V, “exposure to actual or threatened death”.
Assuming that the Applicant took what was said to her as a genuine “death threat”, and assuming that her subjective reaction to what was said to her was as she claimed, is that sufficient to satisfy Criterion A in either DSM-IV or DSM-V for a diagnosis of PTSD?
While it is the case that the test to establish whether a mental injury arises “out of, or (is) in the course of, the employee’s employment” for the purposes of the definition of “injury” under s 5A of the SRC Act is a subjective one (Wiegand v Comcare Australia (2003) 72 ALD applied in Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52), the test for whether an event qualifies as a traumatic event to sustain a diagnosis of PTSD under DSM-IV or DSM-V is partly subjective and partly objective.
While generally in the context of consideration of the operation of Statements of Principle for the purposes of the Veterans’ Entitlement Act 1986 (Cth), which are based on DSM-IV and DSM-V, the Tribunal is of the view that a number of cases are applicable to the present case. Justice Mansfield in Stoddart v Repatriation Commission (2003) 197 ALR 283; [2003] FCA 334 observed:
[47] It is not apparent to me why the SoPs should distinguish between events which actually involved the threat of death or serious injury leading to ALD or PTSD and events which were perceived (and for the sake of considering the contention, I assume reasonably perceived) as involving the threat of death or serious injury leading to ALD or PTSD…
…
[50] In my judgment, the meaning of the word ‘threat’ as used in the definition of ‘experiencing a severe stressor’ does not require the construction or meaning contended for by the respondent and accepted by the Tribunal. The adjectival clause ‘that involved actual or threat of death or serious injury ...’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause… That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them.
…
[55] In my judgment the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.
That interpretation was given approval and followed by the Full Court of the Federal Court in Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160 wherein, following citation of the above paragraphs, the Court observed:
[139] Mansfield J concluded that the AAT erred in law in its understanding of the expression ‘experiencing a severe stressor’ in each of the relevant SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, ‘experiencing’ should be construed as having at least this partially subjective connotation.

The “objective subjective dichotomy” was discussed by Reeves J in Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430, wherein His Honour observed:
[61] While both Stoddart and Woodward involved definitions that contained specific mention of subjective feelings, I consider these observations are apposite to identify the subjective element involved in experiencing a category 1A stressor involving a life-threatening event.
[62] Finally, there are two decisions of Tamberlin J that post date Woodward that are worth mentioning in relation to this objective subjective dichotomy. They are Delahunty v Repatriation Commission [2004] FCA 309 (Delahunty) and Guy v Repatriation Commission [2005] FCA 562 (Guy). In Delahunty, Tamberlin J referred…to the fact that in Woodward the Full Court had pointed out that: ‘the “experience” had to be based on an “event” and that a figment of the imagination such as might arise through “paranoid ideation” would not be sufficient to meet this requirement’. His Honour then observed…that:
On the criteria adopted by the Woodward Full Court, it is necessary to ask whether there was an event. In my opinion, there was an objective event, namely the violent destruction of a sampan or junk. This is an objective fact. The next step is to have regard to the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events. This is a mixed objective and subjective test. The question then arises as to what the veteran’s position and knowledge was. (original emphasis.)
This approach has more recently been applied by the Tribunal in the case of Stevens and Repatriation Commission [2017] AATA 2419 where Senior Member Tavoularis summarised the position as being:
[49] In the Federal Court case of Delahunty v Repatriation Commission [2004] FCA 309, Justice Tamberlin canvasses the accepted tests for considering whether a veteran has experienced ‘a severe stressor’ (as per the old SoP). In each of the cited authorities the common ground is that there must have been an ‘actual event’ that gave rise to the perceived threat, the event said to constitute the threat must then be judged objectively from the point of view of a reasonable person with the knowledge and experience of the veteran.
The “event” relied on by the Applicant in her PTSD claim is the claimed death threat at the diversity training workshop on 5 March 2010. The Applicant’s description of that event is set out in [7] above. Looked at objectively, no reasonable person in the position of the Applicant, in the context of the question posed by the facilitator in such a workshop, could have perceived the statement made by the Applicant’s director as a threat to kill the Applicant. The Applicant may, because of personality traits or existing psychological issues, have taken the statement to be a genuine death threat, however, no reasonable person would have. The Applicant taking the statement as a genuine death threat falls into the category of an “idiosyncratic and personal perception” as described by Justice Mansfield in Stoddart v Repatriation Commission (see [100] above). The event relied on, therefore, is not one satisfying Criterion A of DMS-IV or DMS-V.
The Tribunal generally prefers the evidence of Dr Spear to that of Dr Dellar in relation to the Applicant’s diagnosis of PTSD and Major Depression. While Dr Spear and Dr Dellar are both highly qualified and experienced in their respective fields, Dr Spear’s diagnoses and reports are, in the Tribunal’s view, more comprehensive and provide a better objective analysis of symptomology to support diagnoses.
The Tribunal is also conscious of the role that Dr Dellar plays as the Applicant’s treating psychologist and the potentially difficult position in which that places Dr Dellar in making a completely independent, objective assessment and diagnosis of the Applicant’s condition.
Dr Spear, having for some time diagnosed the Applicant as suffering from PTSD and Major Depression, changed that diagnosis in his report of 21 February 2018 (R2). His reasons for that changed diagnosis are set out in that report and expanded in his supplementary report of 17 August 2018 (R3).
As is canvassed in detail above, Dr Dellar, on the face of it, changed his diagnosis from that set out in unequivocal terms in his letter of 26 May 2017 (R4, T35), being that the Applicant did not suffer from PTSD or Major Depression, to the Applicant suffering from those conditions in his report dated 28 June 2017. Dr Dellar’s explanation for that change was not particularly satisfactory. The Tribunal does have some concern that the change in diagnosis was, to some extent, precipitated or influenced by the Applicant’s response to the Respondent’s determination of 19 June 2017 of there being no liability, based on Dr Dellar’s letter of 26 May 2017 (R4, T3). It is clear from Dr Dellar’s notes of the contact that he had with the Applicant on 24 June 2017 (R8) (see [88] above) that the Applicant reacted strongly towards Dr Dellar regarding the contents of his letter of 26 May 2017, and the consequences of that letter. The Tribunal cannot help but conclude that Dr Dellar’s subsequent report of 28 June 2017, and the apparent reversal of diagnosis, was affected by the Applicant’s reaction to the letter of 26 May 2017.
For the reasons set out above, the Tribunal accepts the opinion of Dr Spear that the Applicant does not have PTSD or Major Depression. It may be that, as Dr Spear opines in his report dated 21 February (R2, at 10), the Applicant has agoraphobia, her symptoms being consistent with that diagnosis. However, the claims the subject of these proceedings do not include a claim for agoraphobia. A separate claim for agoraphobia was made by the Applicant and rejected in February 2016 (R4, T32) (see [12] above). The Applicant’s case in these proceedings was limited to the injuries for which the relevant claims had been made, namely, PTSD and Major Depression. There was no argument made for an alternative determination of agoraphobia and, not surprisingly, therefore, the Respondent did not seek to address such an alternative in presenting its case.
In cross-examination, Dr Dellar agreed that the symptoms presented by the Applicant can be indicative of agoraphobia (transcript, page 25). The Tribunal does understand, however, that Dr Dellar’s opinion is that the agoraphobic behaviour was avoidance (transcript, page 27), presumably coming within Criterion C of the DSMs. In that regard, the Tribunal notes that DSM-IV refers to such avoidance as being of “stimuli associated with the trauma” and DSM-V refers to “avoidance of stimuli associated with the traumatic event(s)”. The agoraphobic behaviour described in the various reports, however, seems to be broader than merely avoidance of stimuli “associated with the traumatic event”.
There is, in any event, insufficient medical and other evidence in these proceedings for the Tribunal to make a finding that the Applicant does suffer from agoraphobia and that that condition is an injury for the purposes of ss 16 and 20 of the SRC Act or that the Applicant is incapacitated for work as a result of such injury. The evidence, in particular the medical evidence, for understandable reasons, did not opine on any causative link between the Applicant’s employment and agoraphobia, or her presentation of agoraphobic behaviour. There was certainly insufficient evidence from which the Tribunal could conclude that any agoraphobia was still contributed to, to a significant degree, by the Applicant’s employment by the Respondent for the purposes of s 5B(1) of the SRC Act (Prain v Comcare [2017] FCAFC 143 at [87]).
In relation to factors affecting the Applicant’s current mental condition, Dr Spear in his report of 21 February 2018 (R2), quoted in [82] above, identified a large number of stressors. The evidence of Dr Dellar was also that there are a large number of factors causing the Applicant’s present mental issues. In his report dated 12 May 2018 (see [82] above), responding to the Applicant’s questions, Dr Dellar agreed that the following factors were contributing to the Applicant’s mental condition:
·Litigation against the Respondent (in response to question 10)
·Trauma caused by experience of dealing with the Respondent in managing her compensation claim (in response to question 11)
·Attempts to engage with Centrelink (in response to question 12)
·Delays in being assessed for Disability Support Pension (in response to question 13)
·Perilous impecunious circumstances (in response to question 14)
The Applicant, herself, identifies a range of issues, in particular the stress associated with her various litigious actions and her frustration with the compensation process, as causing or significantly contributing to her current mental state (see Applicant’s submissions paragraphs 2.18, 2.19, 2.23, 2.27, 2.28, 2.33, 2.34, 2.40, 2.46, 3.32, 3.44, 3.47, 3.59, 3.66, 3.74, 3.75, 3.77, 3.78, 3.79, 3.87, 3.88, 3.1.4 to 3.1.14, 3.1.21, 3.1.22, 3.1.27, 3.1.49, 3.2.4 and Annexure A11).
There is also contemporaneous evidence that the Applicant’s involvement in litigation is a significant stressor. The consultation note of Ms Jille Burns dated 8 May 2013 (R6, page 1) recorded “stressed re legal agitation” and another note of the same date recorded by Dr Pamela Thompson general practitioner (R6 at 1) recorded that “Karen has decided that her future mental and physical health is dependent on getting rid of the everpresent (sic) stress from her life (legal action)”.
Similarly, the consultation notes of Dr Dellar, dated 2 September 2016 (R6 at 7) and 16 December 2016 (R6 at 9), record that the Applicant reported being stressed about legal issues. Dr Dellar referred to these factors as being “perpetuating” factors in the Applicant’s mental health condition in response to questions 12, 13 and 14 of his report dated 12 May 2018 (see [83] above).
The actions of Respondent employees were referred to by the Applicant in her correspondence dated 12 August 2017 (R6 at 18-20) and 16 December 2017 (R6 at 21-24) as adversely affecting her psychological health.
The notes of Dr Gia Barbarich relating to a consultation with the Applicant on 14 July 2015 (R6 at 2-3) records:
She states that they [Comcare] are intrusive and have multiple previous reports explaining everything…She is completing report (700 pages!) for litigation and then expects at least 12 more months before any resolution. States that they will be scared to have the information out there that is contained in her report. Acknowledges that she needs to break ties with them and move on.
Dr Dellar, in a consultation note dated 2 September 2016 (R6 at 7) recorded that the Applicant’s “current stress factors” were “primarily 1) Federal Court and 2) Mounting Debt”. Similar matters are recorded by Dr Dellar in consultation notes dated 30 September 2016 (R6 at 8) and 16 December 2016 (R6 at 9).
The Full Court of the Federal Court (Davies, Beaumont and Burchett JJ) in Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533 at 537-538, stated:
In Australian Telecommunications Commission v Tzikas unreported, Full Court, Smithers, Sweeney and Woodward JJ, 12 August 1985) the joint judgment of Sweeney and Woodward JJ contains some observations concerning a claim for compensation for further aggravation of neurosis by, inter alia, resentment towards the employer alleged to have resulted ‘first, from the actual (ie original) aggravation and acceleration of the illness, then, from the loss of her previous income, and finally from the delays which occurred as the result of the procedures which were needed in order for her to obtain compensation’. It was a case in which it was accepted that an aggravation had originally occurred by reason of excessive noise in the workplace, but payments of compensation had been terminated on the basis that the aggravation was spent. The tribunal restored the payments, and upon appeal the Full Court referred the matter back for reconsideration, as Sweeney and Woodward JJ put it, ‘to determine whether the continuing resentment of the respondent about the first aggravation and acceleration of her disease is in fact causally related to her former employment and, if so, whether it is playing such a part in her present state of health that it can properly and fairly be said to be contributing to a current aggravation or acceleration of her disease and not merely providing a focus for that disease’. They also said: ‘There is, of course, an important difference between, on the one hand, the sequelae making a sick mind sicker and thus perhaps contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity. Since it tended to refer interchangeably to the sequelae contributing to the illness and contributing to the incapacity, we think it is likely that the distinction that we have referred to was not always borne in mind by the Tribunal.’
In Dunstan and Comcare [2012] AATA 567 Deputy President Forgie observed:
[247] The majority of the Full Court, Sweeney and Woodward JJ, identified two flaws in this passage of the Tribunal’s reasons. The first related to whether employment by the Commonwealth was still a contributing factor to any relevant aggravation or acceleration of Ms Tzikas’s disease bearing in mind that its former aggravation or acceleration had resulted from noise and stress. The Tribunal was required to consider whether the factors it had listed were truly the results or consequences of that former aggravation and acceleration or the manifestations or results of her underlying disease. Their Honours went on to consider the four factors identified by the Tribunal:
‘... The first three factors listed flow not from the respondent’s employment with Telecom, but from her cessation of that work; they are not affected in any way by the nature of her former work, but arise simply from the fact of previous employment operating on a person of her temperament, background and family circumstances. The fact that she feels her status has decreased as a result of lower earnings, but she finds not working congenial, and enjoys the increased attention from her family, can hardly be said to flow from, or have been contributed to by, her employment by the Commonwealth. This issue of causation was simply not considered by the Tribunal, which assumed a causal connection because these things flowed, in a medical sense, from the cessation of work, which was in turn contributed to bite employment factors.
The fourth factor listed by the Tribunal is more difficult to resolve than the others. In our opinion, the resentment of a sick mind, directed towards former conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s 29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier.’
In Prain and Comcare [2016] AATA 459 Deputy President Humphries made the following observations:
[63]. In determining whether resentment towards Comcare or the Canberra Hospital in relation to the conduct of litigation seeking compensation can weigh as a compensable factor, it is important to identify the true source of the resentment. Reactions – or indeed overreactions – to events in the workplace, if they are properly regarded as sequelae of an applicant’s employment, are part and parcel of the original injury, but it is well established that anger and frustration towards a respondent in resolving a legal claim for that injury is not. The Federal Court in Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at 195 noted:
In our opinion, the resentment of a sick mind, directed towards formed conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s 29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are remote from the employment as the other factors, such as relief at not having to work, dealt with earlier. (my emphasis)
[64]. In Plumb and Comcare [2004] AATA 999 the Tribunal considered a workers compensation claim for a condition based partly on a non-work-related disorder and partly on anger towards Comcare. The medical evidence suggested that:
... Mr Plumb’s employment was the initial contributing factor to the anxiety disorder. However since that time the causative factor had become Mr Plumb’s involvement in the proceedings, and the Department’s approach to those proceedings.
The Tribunal also noted a need for vindication and justification. It went on to find that the contribution to his condition made by the stress of the litigation afforded Mr Plumb no basis for compensation.
In the present case it seems that a considerable contributor to, even possibly a dominant cause of, the Applicant’s present mental condition is the stress and anxiety caused by the many Federal Court and AAT actions that the Applicant has, in her view, been required to undertake, and is still undertaking, to receive the compensation to which she sees herself entitled. It is also clear from the very lengthy submissions made by the Applicant in these proceedings and her communications with the Tribunal registry, that she sees herself as being mistreated, or at least not treated fairly, by Comcare and the legal system. These factors all seem to be significant contributors to the Applicant’s mental condition. As the above cited cases establish, these are not factors that relate to the Applicant’s employment by the Respondent for the purposes of s 5B(1) of the SRC Act.
In light of the numerous other factors identified by Dr Spear, Dr Dellar and the Applicant herself, the Tribunal is not satisfied that the Applicant’s current mental issues are contributed to, to a significant degree, by her employment by the Respondent.
CONCLUSION
The Tribunal finds that the Applicant does not suffer from a relevant injury, as that term is defined in s 5A of the SRC Act, being PTSD or Major Depression. Accordingly, in answer to the issues as identified in [26] as amended in [35] above, the Tribunal finds:
Application 2017/5357
Issue: Does the Applicant continue to suffer from an injury for which claim is made, in this case, PTSD and/or Major Depression?
Answer: No
Application 2017/6813
Whether liability ought to be accepted under s 14 of the SRC Act with respect to the claimed aggravation of the Applicant’s Major Depressive Disorder?
Answer: No. The Tribunal finds that the Applicant does not suffer from a relevant injury, namely, Major Depression.
DECISION
For the reasons set out above, the Tribunal affirms the decisions the subject of both Applications.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

........................[sgd]................................................
Associate
Dated: 23 November 2018

Date of hearing: 6 September

Applicant: By telephone

Counsel for the Respondent: Ms Slack

Representative for the Respondent: Ms Jones-Bolla

Solicitors for the Respondent: Sparke Helmore

Date of hearing:	6 September
Applicant:	By telephone
Counsel for the Respondent:	Ms Slack
Representative for the Respondent:	Ms Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore