Italiano and Commonwealth Bank of Australia (Compensation)

Italiano and Commonwealth Bank of Australia (Compensation) [2021] AATA 4758 (17 December 2021)
Division:GENERAL DIVISION
File Number(s): 2019/3355; 2020/2189
Re:Graciella Italiano
APPLICANT

Commonwealth Bank of Australia And
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:17 December 2021
Place:Melbourne

(a) In 2019/3355
(i)the decision under review is set aside and a decision substituted that the Respondent is to pay the Applicant compensation in accordance with s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury in the nature of a musculo-ligamentous strain to the left shoulder and arm occasioned to her on 18 December 2018; and is to pay the Applicant other lawfully claimable expenses in respect of such injury under and in accordance with that Act; and
(ii)accordingly, I remit the matter for reconsideration in accordance with these Reasons.

(b) In 2020/2189 the decision under review is affirmed.
.................[Sdg].................................................
Dr Damien Cremean, Senior Member
Catchwords
COMPENSATION – entitlement to compensation – review of determinations that employer was not liable to pay compensation under s 14 of the SRC Act – whether applicant suffered back/shoulder injury – whether injury occurred at work – decision under review set aside and remitted for reconsideration – whether applicant suffered psychological injury – depression – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Jones v Dunkel (1959) 101 CLR 298
Pochi v Minister for Immigration and EthnicAffairs (1979) 2 ALD 33
R v War Pensions Entitlements Tribunal; ex parte Bott (1933) 50 CLR 228
Tippett v Australian Postal Corporation [1998] 27 AAR 40
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
17 December 2021
INTRODUCTION

In 2019/3355 the Applicant, Ms Graciella Italiano, seeks review of a decision made on

16 April 2019 denying the Respondent’s liability to her under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act‘) to pay compensation for (what I compendiously call) a shoulder injury and denying liability to pay for ongoing compensation for that or other claimed injuries to her upper back neck and left shoulder.
In 2020/2189 the Applicant seeks review of a decision made on 31 March 2020 denying liability under s 14 of the SRC Act to pay compensation for depression.
Both such proceedings were heard together by me on 9,10 and 11 August 2021.
HEARING
The Applicant had been represented by lawyers (Ryan, Carlisle and Thomas lawyers) until a late stage and, for one reason or another, they were discontinued; another firm was briefly involved but the Applicant then decided to use the services of her son (Mr Italiano) who is an admitted lawyer but acting in his private capacity.
I approved his appearance on her behalf in that capacity under s 32(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (’AAT Act‘) even though he was advised by the Victorian Legal Services Board that he could not yet appear.
The Respondent was represented by Mr Peter G Woulfe of Canberra Counsel instructed by Minter Ellison lawyers.
At the hearing affirmed evidence was given by the Applicant and — on her behalf — by

Mr David Micallef, physiotherapist, Dr Stephen Williams, general practitioner and

Ms Victoria Italiano, her daughter. Evidence was to be given by Dr Wong, general practitioner, but the Respondent allowed his report to go into evidence unchallenged. I was not given any explanation as to why he was not available to give evidence — a point mentioned by the Respondent.
The Applicant did not call Dr Brendan O’Brien, neurosurgeon, to give evidence although there was a report from him on file. I have not relied on it as a result and I note also there was an objection to it from Mr Woulfe.
The Applicant did not call any psychiatric evidence and no evidence was given by her husband — as I thought it might have been.
Affirmed evidence was given on behalf of the Respondent by Ms Jessica Crowe,

Mr Graeme Doig, consultant orthopaedic surgeon, and Mr Dushyanta Shan, consultant psychiatrist.
The Respondent did not call any evidence from Ms K Boutros, the Applicant’s case manager, although she was present observing all or part of the hearing.
A report from Associate Professor Bruce Love, consultant orthopaedic surgeon, was relied on in evidence by the Respondent but was incomplete in several respects.
The Applicant, via her son, registered a complaint that she did not have time to properly digest the contents of that report. This complaint is without merit because the report was called for and arranged and made available to her former solicitors. The Applicant should have obtained the report from them or at least asked them for it or sought an adjournment (which was never sought for that reason). The provision in s 66 of the SRC Act does not apply despite Mr Italiano raising it.
Each of the witnesses called was cross examined at length — particularly the Applicant.
At the conclusion of the hearing, I reserved my decision but indicated to the parties that they might file written closing submissions at a later point, and both did—those of the Applicant are dated 22 September 2021 and those of the Respondent are dated 1 September 2021 and 28 September 2021.
Those closing submissions of both parties are very detailed and, I consider, show quite some personal animus on both sides.
As well, I received an email from the Applicant (of which the Respondent’s legal representatives were made aware) after both parties had provided their submissions. The email was of no consequence to me. Parties themselves even if self-represented must refrain from writing to the Tribunal once a hearing is over.
Various documents including medical reports were received into evidence in the course of the hearing including the documents provided pursuant to s 37 of the AAT Act (‘T Documents’).
LEGISLATION
Section 14 of the SRC Act provides:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
By s 16 the SRC Act materially provides:
Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
Subsections (3)-(9) of s 16 of the SRC Act clarify the kinds of costs that fall under medical treatment, which is not relevant to this decision.
An “injury” under the SRC Act (s 4(1)) includes “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”.
By s 5A(1) of the SRC Act an “injury” is further defined as:
(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.
In s 5B of the SRC Act a “disease” is defined as follows:
(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.
EVIDENCE
I provide as follows a summary of the main points of the evidence given by each of the witnesses.
Applicant
The Applicant gave evidence in which she confirmed as true and correct the contents of a witness statement made by her on 17 January 2021.
In that statement the Applicant states:
(a)she is employed as a part time cashier by the Respondent at its premises at 385 Bourke Street Melbourne;
(b)she has been employed by the Respondent for over 35 years ever since 1 July 1985 (now over 36 years);
(c)on 18 December 2018, “I attempted to pull open a security door leading to my work area”. Recently this had been changed from a key entry in the wall to automatically open the door to a pin pad code releasing a lock and then requiring the door “to be pulled open”;
(d)as she pulled the door it did not open but “I continued to try to pull the door open”. The door however was “very heavy”;
(e)as she pulled on the door “I had a strange sensation in my right arm and sharp pain in my back between my shoulder blades”;
(f)on her next working day (20 December 2018) “I went to work, still in considerable pain and noticed my back pain intensify as the day progressed” and that night “I could not sleep as I was in a lot of pain”;
(g)on Friday 21 December 2018, she rang in and said she could not come to work and finally returned to work on 3 January 2019 but “was still in pain and throughout the day the pain in my neck and left shoulder seemed to get worse”;
(h)on 4 January 2019, “the pain was still present” and in the course of the morning she contacted her husband to drive her to hospital as “I was in so much pain, I was unable to think rationally”.
In oral evidence the Applicant said, “I have suffered both mentally and physically through this workplace injury”. But she said the Respondent has “refused to accept my injuries” and “have added more pain to my suffering because of this”. She said as a result of her injury “I am not able to have the life that I once had [and] am not able to do things that I once did”.
The Applicant said she was currently taking Panadol Rapid and Panadeine Forte but was not taking any medication for depression. She said, “I feel tearful all the time”.
The Applicant said she could not recall whether she pulled on the door two or three times. She described the door as “a thick door, heavy thick door”. She had used her right hand to pull the door — “It could have been about three — two, three times, I’m not sure”. But she said — “I just remember pulling on the door”.
The Applicant said as regards her right arm sensation— “It [is] hard to describe what that sensation was”. The pain she suffered “[i]mmediately afterwards” she described as “a strong pain in my back” and “that was the main pain that I felt was in between my shoulder blades”. The pain in her back between her shoulder blades she described as a “grabbing pain”.
A lengthy and searching cross examination of the Applicant was directed to several matters including the date of her injury, reports she made with regard to it and records of medical and other practitioners concerning it.
The Applicant agreed she worked in a position of trust with the Respondent and that she accepted she was required as such to be honest and accurate with versions of events or things occurring — “I most definitely do” she said.
She was taken to a note by Dr Welendawe, general practitioner, whom she saw on Friday 21 December 2018, which recorded that she said to the doctor that pain in her upper back had started five days before — noted as “started 5 days ago” – but she said she did not think she told the doctor that. In fact, she said, “I don’t recall saying five days ago” and restated “My pain started on Tuesday, the 18^th of the 12^th”. She said, “That is the time of the workplace injury” prior to which she responded to Counsel — “you’re trying to confuse me” to which Mr Woulfe replied that she should “please remove any intemperate language like that from [her] phrasing”. She said if the doctor had put 5 days in his note “that would have been an error on his part”. She agreed though that she had not said anything to that effect in her witness statement and she rejected the assertion that she had been careless in that regard.
The note referred to also recorded that the Applicant said “not used any painkillers as she is allergic to most” but she said she took painkillers to mean “harsh drugs” and she said in any event she could not recall saying what was in the note. She agreed she had reported to the doctor that there was pain in her upper back.
The Applicant agreed she had spoken to her manager Ms Crowe at her workplace on

24 December 2018 and that she had complained to her of a sore back which had been “sore all week” but she said, “I cannot recall telling her that I was sore all week [but] I do recall telling her that I had pain on opening the door”. The Applicant denied saying to

Ms Crowe that her pain had actually started on the Sunday preceding.
She was shown an incident report stating “Injury/illness, including psychological”. But she said she had not seen that before.
The Applicant agreed she presented at the Sunshine Emergency department on 4 January 2019 at 11:13 am where she complained of pain in her left shoulder and she also agreed she saw Mr Peter Gavalas, physiotherapist, on 15 January 2019 who made a note — "Back pain feeling better”—which she agreed she did tell him but meant by that “it was not intense at that time”. The word “better” she said was what he wrote but was not what she said. She said his words — that her left shoulder pain “came out of nowhere”— were his words not hers.
The Applicant agreed she had filed her compensation claim on 18 January 2019 and agreed she had put down that she first noticed her injury (“Injury to thoracic spine and bursitis”) on 22 December 2018, but she said she specified that date because “at that time [I knew] that my injury was not going to go away, so that is the date that I put on there”. In hindsight she said, “I should have put the date that the injury occurred, but I misread [the] question”.
Asked further questions about the claim form the Applicant said, “I initially opened the door with my right hand” but it “did not open, so I forced it with both hands”. She agreed the first time she mentioned use of both hands was with Associate Professor Bruce Love.
As regards taking Panadol and having reactions to heavier medications, the Applicant said she had previously tried “six different medications, which all had reverse [sic] reactions to me”. She said she was currently taking Panadol Rapid but had been prescribed other medications.
As regards her interview with Konekt, who conducted an assessment for the purposes of the Applicant returning to work, she at first denied saying she injured her back on

24 December 2018 but then had to admit she did say that after shown a Background Information extract. She was then asked about a statement appearing there that she “attributed” her back injury to “carrying and transferring bags of currency” and she denied saying this but saying however that “[h]e asked me what my work involved [and] [t]hat is what I told him…. that I do that sort of work”.
The Applicant was then asked about her appointment with Dr Doig and she agreed she had assembled “a range of rather serious allegations against [his] professional integrity, and [had] dredge[d] up a range of items off websites”. In fact, this refers to online reviews found in the Tribunal file. The Applicant in answer to questions indicated her dissatisfaction with the length of the consultation with him — which she said was of three minutes duration — and about whether she said she had right shoulder pain and she said there was no mention of that during the consultation. But she did agree with Dr Doig’s note which stated that “[s]he maintains that on Tuesday 18.12.2018, she was pulling the new heavy metal and glass door at work using her dominant right arm” and she agreed also she did not then mention her left arm. She said, “I didn’t think that was relevant”.
When with Dr Doig the Applicant said she had pointed “to what was the centre of my back, in between my shoulder blades” which she said, “he didn’t get up to see”. Therefore, she said, she could not see how he came to a conclusion that she had “developed acute pain in [her] right biceps and posteriorly over the scapulars, so the back of the shoulder”. But she agreed there was no mention made by Dr Doig of her having used her left arm. However, she denied she had not used her left arm on Tuesday, 18 December 2018 — “I originally used my right arm. When that did not open, I used my other. I used both”.
The Applicant denied that when she was taken to hospital by her husband she thought “I was having a heart attack”.
Returning to the site of her injury the Applicant answered that her injury occurred “[n]ot on my shoulder blade, between them, it was more the area between my shoulder blades”. She said when she opened the door she experienced “very sharp pain” or “very strong pain” or “it was acute pain”.
On the occasion of her giving evidence, she indicated she was experiencing pain down from her left ear to her neck area —“There is pain in my shoulder, my movement is restricted”—that is in her left shoulder and in “[t]he whole shoulder area” but not going down into her left bicep or arm.
The Applicant denied that that she only felt depressed after her claim was rejected — “No, I felt depressed when I was unable to do what I — what I normally did. After the incident …I was upset…” Indeed, she said she saw Dr O’Brien a specialist who told her that he felt “I was suffering depression”. She agreed she had researched Dr Shan and agreed she “didn’t like his report”.
The Applicant said she was currently working two half days a week and that she had taken time off after 4 January 2019 and that in August 2019 she and the family had gone to Hawaii but could not remember going on a holiday to the Gold Coast in February 2019.
The Applicant agreed she had not reported the claimed incident at work until the following Friday. She said this was because “I remember the harsh treatment given to employees injured at work”.
In re-examination by Mr Italiano the Applicant said she delayed reporting the incident because “I did not want to be in a situation where I was going to be treated badly”.
When asked in re-examination about the date of her injury she said she did not know where the reference in the notes to the incident happening “five days” before came from. She said, “I told my doctor that the injury happened on 18 December 2018”. She said “[t]hat is a date I will not forget”. She added “I have always maintained that that is the date of the incident”.
Mr David Micallef

The affirmed evidence of Mr Micallef was given in the morning of 10 August 2021 and then later on in the afternoon of the same day.
Mr Micallef gave evidence that he is professionally qualified as a physiotherapist.
He said he had been treating the Applicant since 24 July 2019 and prior to him she was being treated by Mr Peter Gavalas, also a registered physiotherapist, who had now left the clinic.
Mr Micallef acknowledged a letter of his and one of Mr Gavalas (which was able to be obtained during the hearing).
Mr Micallef agreed with the view he had expressed that the Applicant “has developed cervicothoracic and left upper limb dysfunction primarily caused by the initial strain to her shoulder and thoracic spine which occurred at work”. He said that in his notes Mr Gavalas had written — “Injured back pulling door at work. New set up that requires different action”.

Mr Micallef when asked said “lots of things” could cause an injury of that kind: he said, “it could have been a slight amount of thoracic rotation when she opened the door” even he said, “It could have been quite a trivial movement”.
When he first saw the Applicant, he said “she wasn’t able to work”. Despite going back to work he said, “she’s still weaker through her shoulder than she would probably previously have been”. As regards her injury affecting her mentally Mr Micallef said, “she has a complete lack of confidence in being able to move and being able to do things properly, you know, being able to drive”.
In cross examination by Mr Woulfe Mr Micallef agreed he is no medical practitioner with degrees in medicine.
Mr Micallef was asked to assume that the Applicant had in fact injured herself on

16 December and not 18 December 2018 and away from work and was then asked if that would “point against” a conclusion that her work had anything to do with her complaint and he said, “I’m not sure if I know the full story but quite possibly but perhaps it still could be aggravated by opening the door so I’m not sure”. However, he agreed that if her injury came on “spontaneously” on the Sunday prior (16 December) then it would be correct that that would point against it being a work-related condition.
In re-examination Mr Micallef agreed he had no information to suggest that the Applicant’s injury did occur two days before 18 December 2018.
Dr Stephen Williams
Dr Williams gave affirmed evidence that he was a general practitioner and had been one for about 35 years.
He said he had consulted with the Applicant “a few times in 2019” and “once or twice” in 2020 and “that’s about it”.
A report prepared by Dr Williams was received into evidence and was confirmed by him to be “correct and accurate”.
In the report Dr Williams said in reference to the Applicant that he “diagnosed depression secondary to her chronic pain”. When asked by Mr Italiano about the basis for that diagnosis

Dr Williams said, “I could have imagined that would relate to her symptoms, low mood, sleep disturbance, difficulty concentrating, anxiety symptoms, tiredness”. These were he said “the symptoms she complained of” on the day of the consultation.
Dr Williams said he could see no history of right shoulder injury in the Applicant’s case — “This is her left shoulder that we’ve been talking about in my report”.
Dr Williams said that he thought “the injury that she sustained is consistent with her story she gave of pulling hard on a heavy security door ….”
In cross examination Dr Williams agreed with a description of him as “a part-time treating practitioner when Dr Wong is not available”.
Dr Williams agreed that if the Applicant’s symptoms appeared on the Sunday before

18 December 2018 then the event of that date would not be responsible for her condition.
He also agreed that “it’s possible” her condition could be a “progression of life catching up on her” given the Applicant’s “age and state of her spine and the rest of her body”.
Dr Williams — in answer to a question whether he would expect a person pulling on a security door would cause themselves a permanent change to the process affecting that person’s spine — said “Well… you can understand how it’s possible to strain muscles and ligaments and other structures, soft tissue structures in that region that would take a long time to recover and sometimes with a very painful condition sometimes the pain does continue on and become chronic”. As to whether permanent damage might be caused to the thoracic spine, he said “It’s unlikely but it’s possible”.
Dr Williams agreed he would defer to the opinions of an orthopaedic surgeon and a psychiatrist if differing from his.
In re-examination Dr Williams re-affirmed his view that the Applicant’s injury is “consistent with pulling on a security door”.
Ms Victoria Italiano
Ms Italiano gave affirmed evidence that she is the Applicant’s daughter and that she was aged 25 living at home with her parents.
The witness affirmed that the contents of her witness statement are true and correct.
In that statement she agreed she stated that her mother’s injury was sustained on

18 December 2018. She agreed she had said in her statement that she had directly witnessed the physical and mental impacts of her mother’s workplace injury.
As to further evidence beyond that appearing in that statement, Counsel for the Respondent objected based on a failure to comply with s 66(1) of the SRC Act and I considered the objection sound, saying I attributed the failure to the Applicant having left her legal practitioners by which I indicated that the need to comply with s 66(1) could have been overlooked.
In cross examination Ms Italiano agreed that in saying her mother suffered a workplace injury on 18 December 2018 she was relying on what her mother had told her, but she added “I did witness her in pain”.
The witness agreed she had not witnessed her mother’s injury but in re-examination said that on “the 18^th when my mum came home from work she let us know that she’d hurt herself and she was in a bit of pain and she went straight to bed”.
Ms Jessica Crowe
Ms Crowe gave affirmed evidence that she is employed by the Respondent at its 385 Bourke Street premises as Branch Support Manager and that she had worked for the Respondent for about 13 years.
The witness agreed she had made a statement dated 17 March 2021 and that it was true and correct.
Associated with that statement were pictures identified by the witness, in respect of which I made unopposed orders under s 35(4) of the AAT Act, depicting the door in the case and the security area.
Ms Crowe agreed she took a note which read “Grace called in sick on Friday [21 December 2018] as she had a sore back which she stated had been sore all week”. She agreed it also stated that “Grace mentioned the only thing she could think of was the opening of the cashier’s door”. She said “No, I — well, no, sorry” when asked whether that was a question she raised with the Applicant in terms of what she could think of that might have caused her a problem. She did say though that she did not record the Applicant mentioning sharp pain in her back between her shoulder blades or in the middle of her neck or on her shoulder on the left side or of a strange sensation in her right arm. It would be her practice to record such things if they were mentioned.
Ms Crowe mentioned that the pin pad on the door in question in this case was, she believed, installed in November 2018.
In cross examination, Mr Woulfe objected to Ms Crowe being asked what she thought the Applicant meant by saying that she had had a sore back “all week” but in answer to a question by me she said she had not seen any need to ask what the Applicant meant when she said that.
Ms Crowe said she did “believe” that the Applicant was at work on Monday

17 December 2018. But she could not recall whether the Applicant took the Wednesday of that week off from work.
Certain security-related matters in the evidence of Ms Crowe I ruled should be suppressed under s 35(4) of the AAT Act as well as certain photographs of the workplace area.
Ms Crowe agreed that “within a couple of weeks” of the alleged incident involving the Applicant “adjustments” were made to the door in question.
In answer to a question from me Ms Crowe said she believed the complaint made by the Applicant to her was genuine — “I believe it was genuine”.
Nothing of moment arose from re-examination.
Dr Graeme Doig
Dr Doig gave affirmed evidence that he holds specialist medical qualifications and that he was aware of the terms of the expert witness code. He said he has given evidence “in various jurisdictions around Australia and also home in Glasgow”.
Three reports by Dr Doig (dated 20 February 2020, 21 February 2020 and 18 February 2021), were tendered in evidence and he affirmed that they were true and correct “based on the documentation provided to me” and he believed were in compliance with the terms of the expert witness code.
In the report of 20 February 2020, Dr Doig said that the Applicant “[m]aintains on Tuesday 18.12.2018 she was pulling the new heavy metal and glass door at work using her dominant right arm …. [She] found it difficult and had to yank on the door several times. At that point she developed acute pain in the right biceps and posteriorly over the scapula”. He said he believed that this was based on what she had told him but could have been prepared in advance but checked with the Applicant.
Dr Doig was asked to assume that the Applicant’s pain or soreness “was actually present all week, so not commencing on 18 December 2018, but on the Sunday,16 December 2018”. With a further assumption or two he was asked whether this “supports the conclusion that she did not suffer any injury at work on 18 December 2018?” and he replied — “That’s correct”.
Asked about a conclusion he reached in his report — “The current left sided symptoms appear to be unrelated to any incident at work” — Dr Doig replied: “Yes, there was no reported injury at work”. He then said — the Applicant mentioned to him “that the symptoms developed carrying out her normal duties at work”.
Dr Doig agreed with the proposition that the Applicant is at an “age where in general terms the body can start to feel more pain and people can experience disability due to the natural progression of the body and physiology”.
When asked about the Applicant’s act of pulling on the door and whether that was “unlikely to result in a permanent physiological change?” Dr Doig gave as his answer: “She pulled on the door just with her dominant right hand, not both hands”. Then when asked if using “both arms” to pull the door would be unlikely to cause a permanent physiological change,

Dr Doig answered: “Yes, because a short-term strain, muscular ligamentous strain, particularly in an older lady who’s not particularly muscular…” but he said, “I would have to see the size, the extent and weight of the door”.
In cross examination, Dr Doig said he is now semi-retired but still a registered medical practitioner “performing independent medical examinations” and he had been providing medico-legal reports for insurers for about 20 years. He said he had stopped treating patients five years before this.
Dr Doig said he saw the Applicant on 7 February 2019, but it would be “very inaccurate” to say (as the Applicant had said in her witness statement) he saw her for only about 5 minutes. He agreed that he had only seen her on one occasion “about six weeks following the alleged injury”.
Dr Doig said he cannot recollect whether the Applicant said to him that “she developed acute pain in the right biceps and posteriorly over the scapula” but he said that he had to assume she told him that “unless I’ve derived that history from the documentation provided”. Dr Doig said the Applicant was “uncomplaining on the right side, which was the alleged site of injury”. Indeed, he said she was “uncomplaining with respect to the entire anatomical region” and “symptomatically she felt she was improving”. He said he regarded the Applicant as a “fit lady for her age with no significant medical issues”. He could not recollect whether he regarded her as overweight.
In re-examination Dr Doig advised that “I’ve performed thousands of shoulder procedures over the years, with shoulder replacement, traumatic reconstruction”.
Dr Doig said that at the time of consultation his two sources of information were — “The documentation supplied which I would have pre-read and the history taken from the patient”. He agreed that his opinion was formed on the basis of those as well as on his training, qualifications and experience.
Dr Dushytanta Shan
Dr Shan gave affirmed evidence that he is a medical practitioner with a specialist qualification in psychiatry working as a consultant psychiatrist as well as doing medico-legal work.
His evidence was that he conducted a tele-health examination of the Applicant on

21 January 2021 — which is, of course, over two years after the alleged injury. As a result of that consultation, he agreed he prepared a report the same day which was based also on materials provided to him. The report he affirmed was true and correct.
Dr Shan said that the Applicant did not present with any psychiatric condition although she complained of depression.
In cross examination Dr Shan said he consulted with the Applicant for about 45 minutes. He said he based his opinion as being “a clinical assessment by a psychiatrist” and he added “I consider myself experienced”.
Asked about persons reporting being upset over an issue and seeking counselling or similar Dr Shan said “[t]hat is not evidence in itself of the presence of a mental illness as such”. He said in answer to a question from me as to whether he formed an opinion that the Applicant was a depressed or anxious person — “No, I did not …”
Asked about physical symptoms and depression Dr Shan agreed that “[p]hysical symptoms can be a cause of depression, yes, that is well established”.
Dr Shan agreed he had been providing medico-legal reports since “around 1994”.
In re-examination Dr Shan agreed with a distinction being drawn between a “mere emotion” and a “diagnosable condition”. For example, he said there “are many persons who talk about important issues in a pressured fashion…But does that mean that one should automatically assume that a psychiatric diagnosis is present?” He answered his question — “I think not”.
ISSUES AND CONTENTIONS
The Applicant contends that the decisions under review should be set aside.
This is on the basis that she has “sustained an injury in [her] workplace on 18 December 2018 by having to forcibly pull on a security door to access a work area [which] resulted in an injury to her thoracic spine, neck and left shoulder bursitis, and that [such] injury was in the course of [her] employment [and she] is also suffering depression as a result of her injury”.
It is submitted that the Applicant’s injury is one within the meaning of s 5A(1)(b) of the SRC Act.
It is contended on her behalf that she “is only interested in obtaining what she is entitled to, is a loyal, conscientious and trustworthy employee who loves working at CBA [Commonwealth Bank of Australia] and cannot understand why CBA has rejected her claim particularly when there is a clear workplace incident that caused her current condition”.
The Respondent however contends that the decisions under review should be affirmed.
The Respondent contends that the Applicant’s closing submissions “illustrate that hers is a conspicuously fragile case” which if it was accepted would “lead the Tribunal to make a decision without a basis in evidence having probative force”. I am asked to compare RePochi and Minister for Immigration and EthnicAffairs (1979) 2 ALD 33 at 41 and some other authorities.
I think that statement by the Respondent is a reference by then President Brennan J to Evatt J who, in an early High Court case (R v War Pensions Entitlements Tribunal; ex parte Bott (1933) 50 CLR 228 at 256), referring to the rules of evidence, spoke of that as a system “calculated to produce a body of proof which has rational probative force”.
The Respondent submits it is an issue in this case “whether or not the Applicant suffered and still suffers injury pursuant to s 5A of the SRC Act and/or disease pursuant to s 5B of the SRC Act arising from the claimed specific incident on or about
18 December 2018 from ‘pulling a door’”.
It is contended that the Applicant “suffered a temporary injury or disease of a ‘right trapezius muscle strain’ from the incident on about 18 December and this had resolved by at least 7 February 2019, being the date of Dr Doig’s first examination”.
It is contended that the Applicant “did not suffer any other injury or disease to the upper back, neck or left shoulder arising out of or in the course of her employment on 18 December 2018 and/or to which [her] employment contributed to a significant degree”.
The Respondent further contends that the Applicant “is not diagnosed with ‘depression’ or any diagnosable psychiatric injury or disease”. However, if the Applicant “is diagnosed with a psychiatric or psychological condition, then this is not related to a compensable physical injury or condition”.
In any event the Respondent contends that the Applicant “is not entitled to compensation for any condition of the upper back, neck, left shoulder or depression”.
Observations
Before setting out my consideration, I wish to record certain observations.
As I have indicated earlier, in preparing my Reasons I have not taken into account information on file of allegations made over the internet relating either to Dr Doig or to

Dr Shan. It surprises me that the Applicant — or someone on her behalf — went to the considerable bother of sourcing them.
This indicated to me that the Applicant has become too personally involved in her litigation and has compromised her own objectivity as a result. That has not been assisted by having her son argue her case for her.
I have taken no account either of allegations of “harsh treatment” experienced by other employees at the Applicant’s workplace reporting injuries. This seems to me to fall within the description of ‘office gossip’.
As I have already said, I have paid no regard to the email sent to me by the Applicant herself subsequent to the hearing.
The Applicant’s discontinuance of professional lawyers in the matter has prejudiced the presentation of her case in what is a difficult and complex area of law — and delayed the progress of the hearing.
I do not consider her son, Mr Italiano, was properly equipped (yet) to know what to do on several difficult points. He registered a complaint that certain questions could not be asked by him as a result of objections made. But he simply was unable to cope with the legal niceties raised in the course of a heavily contested proceeding.
In particular, Mr Italiano appeared (at present) to lack experience in examining witnesses, in framing questions and in being able to respond to objections raising subtle but significant points.
I was able to extend some leniencies and courtesies towards him — given his lack of experience — but there comes a point where I must refrain and remain out of the arena.
In any event he was placed in the unenviable position of not only having to act for his mother but of having to approach the Legal Services Board of Victoria to be able to do so.
He was fortunate I allowed him to appear for her — despite what the Legal Services Board advised — solely on the ground of the disadvantage that could be caused to her if she was required to do her case herself even though I do not regard her as unresourceful. I acted under s 32 of the AAT Act having regard to s 2A of that Act.
It is not all one-way traffic however; the Respondent I consider has wasted a lot of time and money on a matter which should have been readily able to be resolved.
Had the Respondent been somewhat more prepared to be conciliatory, or understanding, I consider this matter would not have reached the point it has.
Reading the Respondent’s closing submissions seems to indicate a mindset about the Applicant’s case which appears to be founded on a lack of belief in its own trusted employee.
Consideration

I must indicate that even though the hearing took three days the central or real issues are to my mind quite narrowly defined. Has the Applicant suffered an injury — and if so, is it compensable under the SRC Act?
In arriving at findings on the central or real issues in the case I am bound to proceed according to the balance of probabilities — to determine what is more likely than not to be so.
There is no onus of proof as such as is correctly pointed out by the Respondent.
However, I must be satisfied of the correct or preferable decision based on all the evidence before me.
Normally this will involve an applicant arguing that the decision under review is not the correct or preferable one and the respondent arguing the contrary.
OVERALL FINDING
I am satisfied on the basis of all the evidence that it is more likely than not that the Applicant when pulling open a door at her workplace at 385 Bourke Street Melbourne on

18 December 2018 did suffer or sustain injury compensable under the SRC Act.
I regard that as the rational conclusion I should reach based on all the evidence before me.
I reject the notion that in reaching that conclusion I am making a decision without a basis in evidence having probative force.
In other words, I accept the Applicant’s evidence on the matters set out in her witness statement which she affirmed was true and correct and in her oral evidence.
That is not to say that the Applicant’s evidence at all times was unassailable in every respect as cross examination showed.
It was clear to me that the Applicant had a version of events fixed in her mind and was not going to depart from it.
It does not follow from that however, that her version is a fabrication or that she ought not to be concerned to assert and re-assert her position when under cross examination.
There is no rule that a witness who assertively resists imputations in cross examination should not be believed — or that one who is not prepared to compromise on their position in cross examination also should not be believed.
Indeed, cross examination of the Applicant was quite so searching that it tended to have an unintended reverse effect — the Applicant’s veracity gained traction. In passing, my view was that no occasion arose to accuse the Applicant of “intemperate language”.
I consider that to reject the essential facts contained in her evidence I would need to be satisfied either that she was lying or was mistaken — but the evidence does not lead me to make a finding to either effect.
Indeed, I make findings: (a) that the Applicant was not lying; and (b) that the Applicant was not mistaken.
Workplace
In her witness statement the Applicant is quite clear that the injury occurred “[o]n
18 December 2018 [as] I attempted to pull open a security door leading to my work area at 385 Bourke Street”.
It was not in dispute that at the time the Applicant was an employee of the Respondent.
It was not disputed that the area where the incident she alleged occurred was an area within her workplace.
It was not disputed that Tuesday, 18 December 2018 was a working day for her.
The photos I saw of the door indicate it was a big heavy door as described by the Applicant.
There were no witnesses to the incident except the Applicant herself.
No one (if anyone) who was there at the time testified that the incident did not occur or that on that day the Applicant never went near the door.
Strictly then, there was no better evidence about what happened to the Applicant on the day than what she recounted.
This does not seem to have penetrated the fastnesses of the Respondent.
Instead, the Respondent by its Counsel sought to show that the incident did not in fact take place as alleged.
It sought to show that the Applicant’s injury or condition took place on another day and away from the workplace altogether.
Should that be so of course the Respondent would have no liability under the SRC Act at all.
But the Respondent sought to show this on the basis of a few scattered or casual references in documentation. I shall return to those later in these Reasons.
As I have said, the Applicant maintaining her position, could only mean either she was lying or was mistaken, or in fact was telling the truth.
In a general way it would seem unusual for an admittedly trusted employee of the Respondent of some 36 years standing — handling large sums of money — to lie about something as straightforward as pulling open a door at work and injuring herself.
I say ‘admittedly’ because among the very first questions put to the Applicant in cross examination was the assertion made that she was required to be accurate and honest in her job and she readily agreed she was.
Following on from this, I regarded it then as odd that the Respondent should proceed to impugn her veracity. I saw this as an exercise in ambiguity, in that on the one hand the Respondent was asserting the Applicant in her job was required to be accurate and honest, but on the other was disputing that she was telling the truth as to what she claimed had happened to her in the course of her work.
In reality, I consider there was no basis whatever for a suggestion that the Applicant was lying, and I find she was not lying, and I would regard it as irrational to make a finding that she was.
I say this having listened carefully to her evidence and having observed her demeanour as well as I could in the audiovisual setting.
True it is that the Applicant was concerned to assert and re-assert her position as I have said, but this does not mean she was lying.
Indeed, I cannot recall a question put directly to her that she was lying in her evidence. But even if it was — allowing for mishaps or some deficiencies in the audiovisual setting — it makes no difference to my views.
I rather think the Respondent sought to suggest to the Applicant that she was lying by questioning which suggested that that possibility was open or credible. That is to say that she injured herself away from the workplace on 16 December 2018, the Sunday prior to the date of injury given by the Applicant. But the Applicant denied this without hesitation.
Nor can I recall the Applicant actually being asked about what she was doing at home on the Sunday prior.
But the insinuation that it was on the Sunday prior that the Applicant injured herself was clearly there and was carefully and clearly put.
In reality, I think the Respondent simply had no idea at all about what the Applicant was doing on the Sunday prior — so there would be difficulties in giving instructions to Counsel in that regard.
The Applicant’s position also was supported — verified I consider— by the evidence of her daughter who apart from what she said in her witness statement answered in re- examination that she saw her mother come home from work on Tuesday, 18 December 2018 saying she had hurt herself. And she said she saw her in pain.
It was clear to me particularly following cross examination that the Applicant’s daughter could herself have no personal knowledge of what happened on that day to her mother at work.
Not unexpectedly either, it was obvious to me that she was giving evidence in support of her mother’s case. That is not irregular or uncommon.
But on the short point of her evidence of having seen her mother come home from work on Tuesday, 18 December 2018 saying she had hurt herself I regard her evidence as unchallenged.
In any event, there were other difficulties in the way of the Respondent giving instructions about the Sunday prior being the day of the injury, and thus in being able to put the matter directly to the Applicant of lying.
If the Applicant had been injured on the Sunday prior it could be doubtful that she might go to work on the Monday —17 December 2018. Or possibly even on the Tuesday.
But it was not disputed that Tuesday 18 December 2018 was a working day for her. Moreover, Ms Crowe, Branch Support Manager, gave evidence she “believed” the Applicant was at work on the Monday. This could not assist a version that the Applicant injured herself on the Sunday prior.
Referring again to Ms Crowe’s evidence, I think there was also this difficulty: she believed that the Applicant’s complaint was “genuine”. I assume then it would be difficult to obtain instructions to contrary effect.
It surprised me that Ms Crowe did not seem to enquire much about the Applicant’s complaint. Mr Italiano made a point of this in Closing Submissions which was countered by Mr Woulfe in his.
It is not distinctly relevant to say any more about this, but if Ms Crowe did believe the Applicant’s complaint was genuine, then I expect she might have been interested in finding out more about the claim.
I would expect also she might have spoken to the Applicant’s Case Manager —

Ms Boutros. Every now and then, I would think the Branch Support Manager might speak to or with a Case Manager about claims.
But I did not hear from Ms Boutros, and the Respondent in Closing Submissions said she “was not a relevant witness” — she did not witness the incident on Tuesday, 18 December 2018 (nor of course did Ms Crowe) and as she was the decision-maker in the matter she “would seldom, if at all, have occasion to give evidence”.
On the basis of her failure to be called, I was asked by Mr Italiano to draw an adverse inference based on Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’). Mr Woulfe’s response was that a “Jones v Dunkel inference is not available nor necessary in the circumstances”.
I disagree that the Jones v Dunkel inference is not available in the circumstances.
I agree however it is not necessary for me to draw a Jones v Dunkel inference and accordingly I decline to draw it.
As Mr Woulfe pointed out, the hearing is a de novo one and I consider, that being so, it would have been helpful to hear from the actual decision maker in the case given especially that there had been a reversal of the Respondent’s stated position on

18 February 2019 accepting the Applicant’s claim.
Presumably, Ms Boutros could have given evidence showing how the Applicant’s claim had been handled or administered internally within the Respondent’s Claim’s area and could have explained the reason for the change.
Presumably also her evidence could have helped clear up any contention that the Respondent had developed a mindset regarding the Applicant’s case — in particular, about whether the Applicant was a liar or not.
I go no further but I consider her failure to give evidence — when she was the Case Manager — not only curious, but in reality, unexplained.
Someone or other — working in the Respondent’s Claims area — may have formed a mindset about the Applicant’s case based on her being a liar, and if so that person has caused a costly and lengthy hearing to proceed. And it has been costly not only for the Applicant I would add. Although I make no findings in these regards, I do think the Respondent could be well served by a review of that area of its business in due course.
I exclude Counsel and instructing solicitors from this observation of mine.
Having made a finding that the Applicant was not lying, I turn now to the other alternative — that she was mistaken in saying the injury occurred on Tuesday, 18 December 2018.
This seems to be founded on what I have called a few scattered or casual references in documentation.
It could not be founded on her oral evidence because she at all times maintained that the date of the injury was Tuesday, 18 December 2018. She was very clear on that in her evidence.
It is possible for someone to be mistaken about the date when they were injured. Normally nothing turns on this in a proceeding unless the date is critical.
The date is critical in this case only if the Applicant’s mistake would take her case out of the workplace.
But I reject any analysis that she was mistaken about the date and the place — she knew what date it was, and she knew it happened at work.
I have already made a finding that the Applicant has not been lying about her injury occurring on the Tuesday at work and not the Sunday before.
Indeed, in the course of evidence in re-examination the Applicant said that Tuesday, 18 December 2018 is a date “I will not forget”.
I accept her evidence on that and other points as true and correct.
It is unnecessary then to go any further but, since they relate to matters that were raised, I shall consider what I have called “a few scattered or casual references in the documentation”.
In the first place there is the reference in the notes of Dr Welendawe, prepared on Friday, 21 December 2018, that the Applicant attended the Clinic in pain which “Started five days ago”.
The Applicant said in evidence she did not recall saying that and if the doctor wrote down “five days”— as I accept he did — then that was an error on his part.
Surprisingly, this seems to be the main document relied on by the Respondent to argue that the Applicant’s alleged injury occurred on the Sunday prior, 16 December 2018.
I accept that one naturally expects medical practitioners to take correct notes — and it seemed of no use to ask the Applicant about that — but I do not accept that the notes they take are always correct.
The reference in the note is written down by the doctor on a Friday which happens to be the last Friday before Christmas 2018. Possibly the Clinic was very busy at the time — but I make no finding of that.
The Respondent however seems to have made no effort at all to call Dr Welendawe to give evidence in the matter. However, I draw no adverse inference from that.
Moreover, the note is not consistent with the evidence of Ms Italiano given in re-examination of her mother coming home from work on the “18^th” — which was the Tuesday — and saying she had hurt herself at work and was in “a bit of pain”. Her evidence I accept on that point.
Without the advantage of having heard from Dr Welendawe a range of possibilities opens up in light of the Applicant’s evidence — in respect of none of which am I able to make findings. It is possible, for instance, that the doctor misheard the Applicant or misunderstood what she was saying or simply made a mistake when writing the note or was thinking of something else. I simply have no idea.
But I am satisfied and find that “five days” was not said by the Applicant and I accept her evidence on that point.
I therefore reject any notion that, in face of the evidence before me, I can rationally rely on the note to make a finding that the Applicant injured herself on the Sunday prior to

18 December 2018 and hence away from the workplace.
The next item relied on by the Respondent is the note taken by Ms Crowe — who said the Applicant called in on the Friday after 18 December 2018, saying she had a sore back and it had been “sore all week”.
The Applicant could not recall saying this to her — in evidence which I accept — and it is in my view by its nature vague or obscure.
In any event the Applicant denied the intimation that she had injured herself on the Sunday.
I note that the day the Applicant calls in reporting a back complaint to Ms Crowe happens to be the very day she attends the medical clinic in considerable pain.
Even if the Applicant did use the expression “all week” it is an expression in relatively common everyday use (often to give exaggerated effect). Often when used, people do not mean literally the whole week. Substantially it seems to summarise how the Applicant had (or may have) been feeling all that working week from the time of her injury on the Tuesday.
The reference on Friday, 21 December 2018 to the Applicant being “sore all week”— if intended by the Respondent to show that the Applicant’s alleged injury could not have occurred on Tuesday, 18 December 2018 — moreover is in conflict with the evidence in re-examination given by the Applicant’s daughter (which I accept) to which I have already made reference.
I therefore reject any notion this reference shows, or tends to show, that the Applicant was injured on the Sunday, 16 December 2018.
It seems the next reference I should mention is the Applicant’s statement on the claim form that she first noticed her injury on 22 December 2018.
It is correct she wrote this down — misreading the question she says — but it is not her case that the injury occurred on that date. Nor is it the Respondent’s case as I understood it. And it is true I think that there is some ambiguity in the question asked on the claim form.
In any event it could not be the Respondent’s case that the alleged injury occurred on December 22, considering it was the evidence of its own employee, Ms Crowe, that she was in contact with the Applicant on Friday, 21 December.
In addition, I have made no mention of the notes of Dr Doig which clearly specify that the Applicant maintained that she injured herself on “Tuesday 18.12.2018”.
Whether this clear reference by Dr Doig was overlooked by the Respondent I am unable to say. If it was, it should not have been.
In my view the reference on the claim form to 22 December 2018 takes the matter nowhere.
Injury
The Applicant is claiming both physical injury and depression.
Physical injury
What the Applicant in evidence claimed happened to her is in my view plausible.
I can well understand the notion of someone pulling on a door — the kind of heavy door in question — because it will not open.
At the hearing however the Applicant said she pulled on the door with both hands after first using her right hand.
I can well understand how that might or could be likely to cause muscle strain.
The fact — which I accept and find — that she used both hands explains some of the medical details in the case and explains how her left arm and shoulder became involved.
It seems that the door before the incident was only recently converted to pin pad form.
I was asked by Mr Italiano to consider making a finding about the adjustment of the door shortly after the incident.
It seems that the door was indeed adjusted sometime after the incident, but I make nothing of it because I do not know anything of the way or ways in which it was adjusted.
I reject the explanation by Konekt that the Applicant attributed her injury to carrying or transferring bags of money.
I regard that as a careless conclusion drawn by someone who asked the Applicant what kind of work she did.
The person writing that down was not called as a witness, but this may have contributed to the Respondent’s doubts about the Applicant’s case.
The evidence is clearly consistent with someone who has been injured. Pulling on a heavy door could cause injury. And it could do so in exactly the way the Applicant recounts.
Later — consistent with an injury — the Applicant goes home from work and “goes straight to bed” her daughter said in evidence which I accept.
Before doing so, Ms Italiano’s evidence — which I accept — is that the Applicant says she has hurt herself and tells the family she is in a “bit of pain”.
Then on the Friday, 21 December 2018, the Applicant speaks with Ms Crowe and reports in sick and visits her Clinic about her pain and receives medical treatment.
There is nothing surprising or unexpected about this account which I accept is true.
There is nothing in the account which would suggest to me that the Applicant is lying or exaggerating.
The Applicant, in suffering pain as she did, suffered in my view an “injury” under s 5A of the SRC Act.
I refer in that regard to the observation of Finkelstein J in Tippett v Australian Postal Corporation (1998) 27 AAR 40 at paragraph [44]: “Pain is the most common symptom of an injury”.
Having found that the Applicant suffered an injury under the SRC Act, it is then a matter of determining what the nature of that injury was.
At this point I should indicate the evidence in support of the Applicant in detailing the full extent of her injury is lacking.
I can rely on the evidence of Dr Williams, I consider, to make a finding that the Applicant suffered a musculo-ligamentous strain characterised by the chronic pain he mentioned but I do not consider, as far as physical injury is concerned, that I can go further than that.

I am assisted in that regard by the evidence of Mr Micallef — who spoke of “an initial strain to [the Applicant’s] shoulder and thoracic spine” — but I am not assisted by that of Associate Professor Love who was not called in any event.
I am unable in the circumstances to make any finding that the Applicant has suffered a long- term or permanent condition brought on by her injury.
Medical evidence in that regard — from a specialist which is comprehensive and up to date — in favour of the Applicant is simply lacking, and greater attention should have been paid to this by the Applicant or by her former lawyers.
On the basis of the evidence before me, her injury I would regard as incapacitating but only for a short period of time in terms of a month or two.
The evidence, moreover, is such that I cannot exclude age as a factor if she does suffer a long-term condition of some particular description. That is suggested by Dr Doig. Nor can I exclude the possibility of some emotional content of some kind contributing to her condition.
The Applicant’s position is in fact not one assisted by the evidence of Dr Doig in his reports. Nor do his reports greatly assist me.
I consider his reports may have been influenced by the view conveyed to him that the Applicant was complaining of a right-side condition brought on by using her right hand to pull on the door. This is the disadvantage of a specialist — or the folly of one —substantially preparing reports in advance of actually consulting with a patient. That is not a practice which should be repeated.
In fairness however, on the basis of the evidence of her having used both hands to pull the door (as he was asked in evidence), Dr Doig (with some qualification) agreed that that would or could cause “a short-term strain, muscular ligamentous strain”.
To that extent, Dr Doig’s evidence does support the Applicant having suffered an injury of such a kind and supports the finding I have made.
It is unnecessary for me to make any finding about the length of time he was in consultation with the Applicant but certainly somewhat more than a few minutes I would have thought.
Depression
I can well understand how a muscle strain of the back or shoulders — if painful or very painful — could affect the sufferer’s enjoyment of life and lead to feelings of sadness and altered disposition.
Mr Micallef made a point of this in his evidence about the Applicant.
But this is not necessarily the same thing as suffering depression.
It was the evidence of Dr Williams that he diagnosed the Applicant with depression secondary to chronic pain.
But Dr Williams is not a psychiatrist and he agreed in cross examination that he would defer to the opinion of a psychiatrist in the matter.
An open-ended deferral of that kind is not decisive because it does depend on the worth of the psychiatric evidence.
I have an opinion given in evidence by Dr Shan — who is a consultant psychiatrist — that the Applicant did not present with any psychiatric condition as opposed to anxiety or emotional upset.
That opinion was given in the course of a tele-consultation due to the health climate, but I see no reason to disregard it on that account.
I do not consider it lost any validity by being conducted quite some time after the incident.
I can understand how there may be a basis for the diagnosis made by Dr Williams but then again, he had not seen the Applicant very often — he agreed he regarded himself as a “part time” treating practitioner — and Dr Shan had not seen the Applicant at all before the 45-minute telephone consultation.
In all the circumstances I am unable to resolve this issue — now the better part of three years ago — of whether the Applicant suffers or had suffered depression or not, as opposed to something in the nature of serious emotional upset.
The situation would or could be different had the Applicant produced a specialist psychiatric opinion of depression.
Therefore, I am unable to be satisfied on the evidence, on the balance of probabilities, that the Applicant has suffered depression.
CONCLUSION
In matter 2019/3355 I set aside the decision under review.
I substitute a decision that the Respondent is liable to pay compensation under s 14 of the SRC Act in respect of the Applicant’s left shoulder and arm condition as being in the nature of a musculo-ligamentous strain and thus an “injury” under that Act and in respect of lawful expenses.
That matter must be remitted for reconsideration.
In matter 2020/2189 I affirm the decision under review.

I certify that the preceding 281 (two hundred and eighty one) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

........................[sgd].............................
Associate
Dated: 17 December 2021

Dates of hearing: 9, 10 and 11 August 2021

Advocate for the Applicant: Mr Jonathan Italiano

Counsel for the Respondent: Mr Peter G Woulfe

Solicitors for the Respondent: Minter Ellison

[2021] AATA 4758

17 December 2021

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Remedies

Statutory Construction

Judicial Review

Dates of hearing:	9, 10 and 11 August 2021
Advocate for the Applicant:	Mr Jonathan Italiano
Counsel for the Respondent:	Mr Peter G Woulfe
Solicitors for the Respondent:	Minter Ellison