Karaferis and Australian Postal Corporation (Compensation)

Karaferis and Australian Postal Corporation (Compensation) [2023] AATA 2634 (21 August 2023)
Division:GENERAL DIVISION
File Number(s): 2022/4612
Re:Vagios Karaferis
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:21 August 2023
Place:Melbourne

The Tribunal sets aside the decision under review dated 3 June 2022 and substitutes a decision that the Applicant is entitled to permanent impairment compensation pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
........................[SGD]..........................
Dr Damien Cremean, Senior Member
Catchwords
COMPENSATION – entitlement to compensation for psychological impairment – review of determination that employer not liable to pay compensation under s 24 or 27 of the SRC Act – whether the Applicant suffers an impairment as a result of his accepted condition – whether the impairment is permanent – degree of impairment under the relevant Guide – decision set aside and a decision in his favour substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
21 August 2023

Background

The Applicant, Mr Vagios (sometimes called Vages) Karaferis, lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) on 21 October 2021.
Such claim was for Permanent Impairment and Non-Economic loss.
By letter dated 9 May 2022 the Respondent, the Australian Postal Corporation, determined that it was not liable to pay compensation for permanent impairment and non-economic loss in respect of psychological impairment under sections 24 and 27 of the Act on the ground that at that point he did not have an accepted claim in respect of any psychological condition.
The Applicant the following day requested a reconsideration of this but on 3 June 2022 the Respondent affirmed its decision.
However, on 16 June 2022, the Respondent of its own motion accepted liability under s 14 of the Act to pay the Applicant compensation in respect of “chronic adjustment disorder with depressed mood” secondary to his accepted “aggravation of bilateral first carpometacarpal osteoarthritis” payment.
The Applicant now seeks review of the decision (“Later Application”) which was made by the Respondent on 3 June 2022.
Mr Karaferis
The Applicant is aged 52, and lives in suburban Melbourne.
He is a married man and his wife’s name is Daphne and she lives with him at the same address.
He commenced employment with the Respondent in about 2002 and at all relevant times prior to injury was employed full time as a postal delivery officer at one of the Respondent’s Delivery Centres.
On 30 September 2010 he lodged a compensation claim under the Act for an injury described as “lump on right wrist, ganglion” which he reported first noticing three weeks before with it being first treated, which was some three days before lodgement.
On 20 October of that year, the Respondent issued a determination accepting liability under s 14 of the Act for “ganglion on right wrist ” as of 7 September 2010.
In late 2010 the Applicant underwent surgery to excise the right wrist ganglion.
Years later, on 3 January 2018, the Applicant reported suffering a further right wrist ganglion said to be attributable to “throwing off mail at a V-sort frame and delivery of mail” and regarded as a recurrence of the previous condition.
On 15 March 2018 the Applicant completed another claim form and on 3 April of that year the Respondent issued another determination accepting liability under s 14 of the Act in respect of the ganglion as a recurrence of the previously accepted injury.
On 20 June 2018, the Applicant again underwent surgery to excise the ganglion.
Following this, on 2 May 2019, the Applicant reported an injury noted as “soreness in thumbs and hand” as of 4 April 2019.
On 1 August 2019 the Applicant was referred to psychological counselling and then on 8 August of that year he lodged a claim for an injury described as “pain in thumb joints” first noticed on 4 April 2017 and first treated on 31 July 2019. On 24 August 2019, a psychological assessment was conducted by Dr David Smith.
Then on 16 September 2019 the Applicant was examined by Associate Professor Evan Romas, a consultant rheumatologist at the Respondent’s request and he duly provided a report dated 23 September 2019.
On 2 October 2019 the Respondent issued a determination accepting liability for “aggravation of bilateral first carpometacarpal osteoarthritis” as of 31 July of that year.
Following this the Applicant underwent surgery again on his left thumb on 13 May 2020 and was off work from that date until 7 September 2020 — nearly four months. On 8 September 2020, he resumed work on light duties working reduced hours.
However on 22 February 2021 the Applicant attended his local medical clinic, where Dr Adrian Tang provided a certificate for “ongoing depressive mood/anxiety issues related to work related injuries” and noted he had been on Zoloft (a well-known anti-depressant) since 2010.
Then on 24 February 2021 the Applicant by his lawyers claimed of the Respondent on his behalf that he was suffering “a psychological condition secondary to the injuries in his accepted claim”.
After this, on 31 March 2021, the Applicant underwent further surgery – this time to his right thumb — and was away from work until 7 July 2021.
On 18 June 2021, the Respondent issued a determination denying liability under sections 14, 16 and 19 of the Act for a psychological condition expressed as “anxiety and depression” secondary to the Applicant’s accepted bilateral thumb injury.
On 26 July 2021, the Respondent affirmed that determination by reviewable decision.
By application lodged with the Tribunal on 10 August 2021 (“Prior Application”) the Applicant also sought review of the 26 July 2021 reviewable decision.
Issues
(a) Respondent
In the scenario set out above, certain matters in issue have now been conceded so it is instructive to set out the Respondent’s position on issues first.
The Respondent concedes liability under s 14 of the Act for (a) an “aggravation of bilateral first carpometacarpal osteoarthritis” as of 31 July 2019; and (b) a “chronic adjustment disorder with depressed mood” secondary to the Applicant’s accepted claim for “aggravation bilateral first carpometacarpal osteoarthritis”. The latter is called the Applicant’s “accepted psychological injury”.
The Respondent however does not concede that the Applicant currently continues to suffer from the injury in (b).
However, if it is found that the Applicant does continue to suffer from the injury in (b), then the Respondent contends that whilst he suffers from a psychological impairment, this does not result from, or alternatively, only partially results from his accepted psychological injury. That is the Applicant has suffered a number of pre-existing psychological symptoms and impairments which predate his accepted bilateral thumb injury.
Further or alternatively, the Respondent contends that when the Applicant’s psychological impairment was assessed by the medical experts he was in a post-surgery stage and was still working on restricted duties for reduced hours so any psychological impairments were not “permanent” as required.
However, if a finding of permanency is made, the Respondent does not concede the level of permanency, and submits that a level of 5% should be the figure determined to be appropriate, which therefore does not meet the threshold figure of 10% under s 24 of the Act.
The Respondent denies the Applicant has any entitlement to non-economic loss in the absence of entitlement under s 24.
In these various ways the Respondent claims the Applicant should fail wholly—or (which is not mentioned) partly as mentioned depending on other considerations.
(b)Applicant
The Applicant contends that he suffers an impairment as a result of an accepted condition. On one analysis this refers to his “chronic adjustment disorder with depressed mood” secondary to accepted “aggravation of bilateral first carpometacarpal osteoarthritis”. He refers to the former as “the accepted injury”. On another, however, it refers to “impairment as a result of an accepted mental injury”.
He contends that such impairment (meaning I consider the latter) is permanent—that is, likely to continue indefinitely.
As a result he contends that he suffers on the evidence a 10% impairment assessed under Table 5.1 of the Guide, thereby entitling him to a 10% payment under s 24 of the Act.
Further, in issue is non-economic loss: the Applicant contends he suffers non-economic loss (as assessed by Associate Professor Paoletti as 10.7 out of 15, resulting in entitlement to 10% under Part A of s 27 of the Act, and a 71.3% payment under Part B of that provision).
Concerning the issue of permanency, the Applicant notes that he has suffered from psychological symptomatology from at least 2008 and since then has been prescribed anti-depressant medication which he has taken continuously from that time.
Further, he refers to having seen a psychologist for four sessions since 2019 and to the circumstance that in that year his anti-depressant medication was doubled. He refers as well to the opinion of Associate Professor Paoletti that the prognostic outlook is static for the foreseeable future and points out the view of Dr Hundertmark that his condition could be viewed as permanent and stable.
It was submitted during the hearing that Dr Hundertmark’s opinion should be held to remain as that.
As to his degree of impairment the Applicant says that he suffers a 10% whole person impairment based on the opinion of Associate Professor Paoletti in his report dated 29 October 2021.
The Applicant submits he meets more than one of the criteria under the relevant sections of the Guide and thus meets a 10% WPI under Table 5.1.
The Applicant also considers he is entitled to compensation for non-economic loss under s 27 of the Act which he details and which he claims warrants a score of 10.7 out of 15.
Accordingly, in these various ways the Applicant seeks the reviewable decision of 3 June 2022 be set aside, and that in substitution it be determined that he be entitled to permanent impairment compensation under sections 24 and 27 of the Act and that he be ordered his costs under s 67.
Hearing
The hearing in this matter took place via Microsoft Teams over four days — 28 and 29 November 2022, 13 February 2023, and 10 March 2023.
The Applicant was represented by Mr Joel Harris of Counsel instructed by Ms Angela Sdrinis solicitor.
The Respondent was represented by Mr Roy Seit of Counsel instructed by Ms Carmel Sassani solicitor.
The Applicant at the hearing gave affirmed evidence as did his wife Daphne Karaferis.
Giving affirmed expert evidence for the Applicant at the hearing was Associate Professor Nicolino Paoletti, Dr David Smith and Dr Adrian Tang.
The Applicant and his wife and each of his expert witnesses were cross-examined.
The Respondent called only expert evidence from Dr James Hundertmark. He gave affirmed evidence and was cross-examined.
At the conclusion of the hearing I reserved my decision and directed the parties to lodge and serve submissions which they have each duly done.
Evidence

(a) Applicant
In light of concessions made by the Respondent, I shall not go into all the detail of the Applicant’s evidence — especially regarding the various happenings at work which led to his injured hands or thumbs.
I am satisfied the Applicant gave me truthful evidence ─ in particular, in affirming the contents of his Statements of 1 March and 12 August 2022 and in detailing matters referred to in those Statements. An important point in his evidence ─ which I consider to be the medical issue of concern ─ is that he said he still suffers from depression. He stated that “I can’t look forward to anything”, and he said when going anywhere “I just put up a brave face” although he agreed he used to be very social. He said he is never pain free.
I accept that the Respondent has rightly conceded liability under s 14 of the Act in that the Applicant suffers “chronic adjustment disorder with depressed mood” secondary to “aggravation of bilateral carpometacarpal osteoarthritis”.
It was very apparent to me that the Applicant has suffered troublesome thumb conditions over a long period of time and that he presents as a very depressed person. He said he saw Dr Tang in 2008 because of his “mental state” referring to feeling depressed about difficulties in getting to work because of his injuries. He was prescribed anti-depressants by Dr Tang on the basis that this would lift his “mood just a little bit”. He took sleeping tablets as far back as 2007 because he could not sleep on his right shoulder. But it seems he recorded the right shoulder injury as occurring on or about 18 May 2009 whereas he had seen Dr Tang the previous year (2008) for his psychological condition. He said however that “I hit a point where …I was losing hope over everything”. He said he would not say he was a perfectionist.
I accept his evidence that he suffers from anxiety and feels emotionally stressed and that as he put it in his Statement “[e]very day is a struggle for me mentally”. He said he knows his hands will not go back to normal.
He detailed various aspects of his life which he considers have been impacted including loss of appetite, decreased libido, reduced social contact, chest palpitations, headaches and various aches and pains. He has also suffered a genetic disorder – thalassaemia major — since birth requiring monthly transfusions and used to suffer from Hepatitis C (which he may have got from one of the transfusions) and which was treated by Interferon. He said he also has regular blood tests every three weeks.
In reporting all these matters I do not regard the Applicant as given to exaggeration. He also mentioned unkind attitudes amongst some co-workers at the Respondent’s premises which were made known or which he feels were made known.
(b) Daphne Karaferis
Again I shall not go into all the detail of the evidence of the Applicant’s wife.
I accept what she said as true and correct.
It is right to say that she saw a deterioration in the Applicant’s health (or condition generally) from around 2008 or 2009. By 2009 she said she could see that “mentally he was struggling” and that he was “very shut down”. His mood altered and he would lose patience with her and the family.
At the same time the Applicant became more withdrawn but she agreed that recently she, her husband and one of her sons had travelled to Greece where his mood improved a little.
I have no hesitation in accepting that life has been very difficult for her over the years with the Applicant for instance lying in bed or on the couch on weekends, and not socialising very much at all.
(c)Dr David Ian Smith
Dr David Smith, psychologist, gave evidence which essentially accorded with the report which he provided dated 24 August 2019.
Dr Smith said that when the Applicant first presented in 2019 he was “highly anxious about being at work and quite depressed about his situation”. He said the Applicant mentioned the physical pain of his injuries and that he was being “victimised and bullied [at work] by the fact that he had [his] injuries”. In effect he found himself in a “very stressful environment that he couldn’t escape from where he felt powerless to change it”.
When he saw him again in 2022 Dr Smith said the Applicant was experiencing “[j]ust a continuation of anxiety and depression”.
In cross-examination he agreed that the Applicant had a number of chronic health issues — which “all contribute to his stress on some level”. However he said that since 2008 his view was that the Applicant was suffering both chronic stress and chronic pain issues.
(d)Dr Adrian Tang
Dr Tang, general practitioner, gave impressive affirmed evidence (in the course of a busy day) in line with his report dated 30 April 2021.
In his report he refers to the Applicant having sought treatment for anxiety and depression as early as February 2008 (which accords with the evidence particularly of the Applicant’s wife). He also refers to the Applicant being prescribed medication and of a worsening of his mood in mid July 2019. The latter he said reflected work stresses.
In his evidence Dr Tang said the Applicant was prescribed Zoloft for physical symptoms related to anxiety and depression he may also have had gastroenteritis.
I formed the view, I should indicate at this stage, that Dr Tang knew his patient well and was both caring and compassionate.
But based on his view alone, I am satisfied the Respondent has rightly made the concessions noted as regards the Applicant’s mental state.
(e)Associate Professor Nick Paoletti
Associate Professor Paoletti, psychiatrist, prepared a detailed report dated 29 October 2021 which was finalised on 27 February 2022. He also provided a further report dated 28 September 2022, which was finalised on 3 October 2022.
He also gave affirmed evidence and was cross examined extensively.
His overall view — which I am only summarising, was that the Applicant suffers from a chronic adjustment disorder with mixed anxiety and depressed mood. He regarded this as stemming from two sources which were both work related — various problems with his upper limbs and the mocking (and other) behaviour of co-workers. He said the disorder “appears to have been bubbling over the years”.
He mentioned also that the Applicant suffers from thalassaemia.
Associate Professor Paoletti said the Applicant suffered “a complex interaction of physical symptoms, having to go through …surgery, not being able to get back to a clean slate when he went back to work, being mocked, and then all [the] interaction with [his] supervisor”. He noted that the Applicant had been prescribed an anti-depressant, Sertraline (Zoloft) initially when he had the problem with his shoulder in 2007 and then with his right wrist in 2008. But (as I understood him) it was unclear whether the Sertraline (Zoloft) came before the first injury or not. He was aware of the Applicant’s sleep problems over the years for which the Applicant was given sleeping tablets.
For psychiatric conditions, Associate Professor Paoletti assessed the Applicant in his first report as having 10% impairment, and this was confirmed in his second report. For other aspects (such as pain, suffering and mobility) he gave him in his first report a total score of 10.7. In his second report this was lowered to 10.6. He explained the difference between the two assessments as being due to a minor difference in the pain score.
In his second report Associate Professor Paoletti confirmed the view expressed in his earlier report, that the Applicant’s disorder “stems from two sources, both related to employment at Australia Post”
He confirmed this as his view in evidence but admitted the history he took overlooked the Applicant’s journeying in Greece for two and a half months ─ which he said, although having read Dr Hundertmark’s first report, “I didn’t pick it up”.
When I asked Associate Professor Paoletti whether the Applicant is somewhat vulnerable as a personality, he said “he probably was” and he referred to two factors in that regard: the fact that early on he was seeing a psychiatrist and was prescribed Stilnox. He called reliance on sleeping pills an “abominable practice”. He also said of the Applicant — “he’s a bit of a perfectionist”.
(f)Dr James Hundertmark
Dr James Hundertmark, consultant psychiatrist, prepared a detailed report dated 31 May 2022.
As well, he gave affirmed evidence and was cross examined on it.
In his report — again only to summarise, Dr Hundertmark referred to the Applicant’s “underlying chronic adjustment disorder which began [he said] in 2008”. Importantly he expressed the view that his “diagnosable psychological condition has been contributed to by his employment to a significant degree”. He said that the Applicant’s condition can be regarded as “permanent and stable”.

Dr Hundertmark expressed the view that the Applicant has a whole person impairment of 5% which he noted differed from the figures assessed by Associate Professor Paoletti.
A development took place shortly before the hearing where a Supplementary Report of Dr Hundertmark was provided on 28 November 2022 in which he departed from his previous position. He had received some further materials. There was objection to this by the Applicant, but I anticipated there would be no injustice done by allowing it to form part of the evidence in the matter, because the hearing was one not likely to finish without the Applicant having ample opportunity to adequately respond or seek further expert opinion.
Cross examination of Dr Hundertmark at one point focused on his duties as an expert in giving evidence and he said he expressed his later view in light of further materials provided to him. As regards both his reports he answered affirmatively that he had complied with his duties as an expert witness to the Tribunal.
It was pointed out though that he was not instructed as such to provide the second report. I was asked to place no reliance on his second report because it did not contain the expert witness statement at the base of it which appeared on the first report — thus as going to its weight. I described that as a “miniscule” point.
Having moved on, Dr Hundertmark said in cross examination on the issue of causation that “my evidence is that there was pre-existing psychiatric illness”. Dr Hundertmark noted however, that there were nonetheless other “quite significant” contributing factors including the “joint issues” which “may or may not have been associated with his work”. As to causation, he notes a “range of medical factors”.
Dr Hundertmark then clarified in a question in cross examination that “[w]hat I’m saying is that there was a psychiatric problem earlier than any of the workplace issues, or earlier than any of the workplace joint issues”. He then referred to several medical matters affecting the Applicant including a nephrostomy (on 23 August 2021), his ongoing transfusions, and his cardiac issues. He agreed however with the contention that the surgery on the Applicant’s thumbs would have contributed to the Applicant’s psychiatric condition would be “a reasonable thing to say”. He also agreed that a person suffering recurrent and ongoing pain in their wrists would contribute to their psychiatric condition. He said this was “reasonable evidence for the Tribunal”. He then agreed that the Applicant’s wrist issues and ongoing pain would be a cause of the Applicant’s adjustment disorder. He said that this was “very reasonable” evidence, however qualified this by saying that the Applicant’s condition is “multifactorial” and that “he’s got quite a range of health issues”.
In re-examination, he said that if he was looking to quantify the contribution of the Applicant’s thumb injuries to his psychological illness, “the figure of maybe a tenth of the issues relate to joint problems”.
Analysis
I have indicated already that I accept the evidence of the Applicant and his wife as truthfully given and not exaggerated.
Likewise there are no reasons for me to regard each of the experts in the matter as giving other than their honest opinions. Discrepancies may exist between them – such as, for instance, the holiday in Greece taken by the Applicant and family members. The discrepancies however, are not such that I should for that reason alone prefer one expert’s evidence over that of the other. Differences can often exist between experts who are engaged for their expertise — not for their story telling.
I should point out also that I make nothing out of the second report of Dr Hundertmark not containing at its base the experts’ declaration appearing in his first report. I regarded the Applicant’s submission that this should reduce the weight to be placed on the report, as absurd in the circumstances, I am sorry to say. There was no ground for me to say that I should accept his first report as that of an expert but give little or no weight to his second. If he was an expert the first time how could he not be an expert the second time? Hence my reason for rejecting the submission or objection as absurd.
Further, and as I have said, I reject the notion that on this occasion the Applicant was prejudiced by late receipt of Dr Hundertmark’s second report. I should not wish by this to encourage experts to provide ─ of their own volition ─ supplementary reports at a late stage all too frequently. It can have the effect of a proceeding having to be adjourned and delayed perhaps for many months and can increase costs if the other party decides to enlist the services of a further expert. But in the special circumstances of this case ─ spread over several months ─ I could not see that any injustice was done. But it is definitely not a practice to be encouraged.
In giving my reasons I have taken into account both the evidence and the Submissions prepared by each party.
Does the Applicant fall within Section 14 of the Act?
My concern in the first place is to determine whether the Applicant falls within s 14 of the Act or not and as with all these matters I must do so on the balance of probabilities.
In brief, an “injury” under the Act includes a disease (s5A) and a “disease” includes an ailment suffered by an employee that was contributed to, to a significant degree, by the employee’s employment (s5B(1)). See also s5A(1)(b). A “significant degree” means a degree that is substantially more than material (s 5B(3)). An “ailment” means any physical or mental ailment, disorder, defect, or morbid condition (whether of sudden onset or gradual development) (s 4(1)).
I have already indicated my view that the Respondent has rightly conceded that the Applicant suffers a “chronic adjustment disorder with depressed mood” secondary to “aggravation of bilateral carpometacarpal osteoarthritis”. I am not surprised by this concession I should add: anyone suffering physical conditions like the Applicant for as long as he has suffered them, would be bound, I would think, to suffer mentally as well.
That being so, one issue for me is whether he continues to suffer from his mental condition and, if he does, how far (if at all) is this attributable to his work with the Respondent? Or is it due to some pre-existing ailment or condition? Another issue is whether his condition can be regarded as permanent or not and if so to what degree?
I am quite satisfied, and find on the evidence, that the Applicant does continue to suffer from his accepted condition. Although the Respondent did not concede this point, I could not see that his evidence was seriously challenged on the point. His evidence was plainly to the effect that he still does suffer from the condition. He said for instance, that “I can’t look forward to anything”, and if going out he puts on a “brave face” and is never pain free. His evidence was supported by all the medical professionals.
The next issue for me is whether the condition the Applicant suffers from is at all attributable to his work with the Respondent. Not merely any connexion with his work must be established but the contribution (if any) must have been to a significant degree. See s 5B definition of “disease”.
The evidence in this area was at times complex and difficult to follow because of the Applicant’s extensive medical history going back at least 15 years. Moreover, the medical evidence was not straightforward and was made somewhat more complicated by the self- generated report of Dr Hundertmark.
There is no doubt in my mind that the Applicant has been troubled by health issues of a serious kind for most of his life. I refer for instance to his thalassaemia major suffered since birth resulting in regular transfusions. That, I think, would affect anyone’s outlook on life. Additionally, the Hepatitis C reportedly brought on by one of those transfusions could not have helped — nor would the course of Interferon. Indeed, that treatment apparently had unpleasant side effects.
So, there has been a lot going on in the Applicant’s life ─ entirely apart from his employment with the Respondent — which would have impacted on his mental state, not to mention his physical condition. Therefore, the notion advanced by Dr Hundertmark that the Applicant had in the mental sphere a “pre-existing psychiatric illness” does not lack respectability.
On the other hand, if that is right then it would seem that, at the time he began employment with the Respondent, the Applicant may well have been suffering that illness or that illness in nascent form. Yet the Respondent did still choose to employ him and I find it hard to accept that the Respondent can now say it is absolved because his illness was pre-existing. But I am not in a position to make any findings about whether the Respondent knew this or not. I simply cannot say one way or the other.
It is a different point however whether at the time of his first reported injury the Applicant was suffering a “pre-existing psychiatric illness”. On one view, a pre-existing psychiatric illness could remain unchanged by employment conditions, with employment having no effect on it. On another view, the illness could be changed by employment conditions and possibly either helped or made worse. In other words — as to the latter — exacerbated. And if made worse ─ to what extent made worse? And in other words also — significantly or not?
My first impression of the evidence of Dr Hundertmark was that he was saying that the Applicant’s pre-existing illness did change but only because of non-employment related factors in his life. Indeed, he did say clearly that the Applicant had a psychiatric problem earlier than any “workplace issues” or “workplace joint issues”. But as regards non-employment related factors, he mentioned for instance the Applicant’s nephrostomy in 2021, his transfusions and cardiac issues. This made it seem to me that he was not attributing the Applicant’s psychiatric illness or any worsening of it to his work at all. That is to say, that employment with the Respondent did not alter his condition — it was pre-existing and was not made better or worse by his employment
It is possible I misunderstood Dr Hundertmark. But he was not present when the Applicant and his wife gave evidence to me and had he been — if I have not misunderstood him — he may have expressed himself differently. In other words, he did not have the benefit of seeing and hearing the Applicant and his wife give evidence — and that is in my view important.
In any event, the clear purport of all the other evidence in the case ─ including that of the Applicant and his wife ─ is that work with the Respondent did have a deleterious effect on him. It did not have a positive or beneficial effect on him. Associate Professor Paoletti’s evidence was plainly to the effect that work contributed to the Applicant’s mental condition in two ways: via his physical injuries and via the mocking behaviour of co-workers. I would regard this as so even if I accept that the Applicant was suffering a pre-existing condition. Indeed, I consider Associate Professor Paoletti addressed this indirectly ─ if not directly — when he said the Applicant’s adjustment disorder appears to have been “bubbling” away over the years.
Certainly, this evidence is entirely consistent with the evidence of the Applicant and his wife and also Dr Tang. Clearly the Applicant saw Dr Tang at an early point in this matter — in 2008 — and was prescribed anti-depressant medicine because, said Dr Tang, he was treating him for anxiety and depression. Admittedly though Dr Tang did say there was “no clear cause” for that although the Applicant had indicated he had a number of stressors in his life at that time. As regards whether work had a positive or beneficial effect on the Applicant’s pre-existing condition, Dr Tang’s evidence was that his mood had worsened in 2019 which reflected work stressors.
As it happens, I consider that my first impression of the evidence of Dr Hundertmark does need to be adjusted in light of some of his later evidence. This also is not unusual and often it is only when all the evidence of a witness has been considered that its true import becomes apparent.
Near the end of his evidence Dr Hundertmark agreed that surgery of the Applicant’s thumbs would have contributed to his psychiatric condition “as a reasonable thing to say”. This connects up the Applicant’s work, his thumb condition and his psychiatric disorder. He also agreed that his suffering wrist pain would have contributed to his psychiatric condition — there being “reasonable” evidence for this. Again this connects up the Applicant’s work, his wrist conditions and his psychiatric disorder. Although saying that the Applicant has or had “quite a range of health issues”, lastly Dr Hundertmark said it was “very reasonable” for him to agree that the Applicant’s wrist issues and ongoing pain would have been or were a cause of his adjustment disorder. It is worthwhile repeating these points taken from Dr Hundertmark’s evidence for emphasis.
Much of this part of Dr Hundertmark’s evidence was revealed only in cross examination by Mr Harris.
In light of the later evidence of Dr Hundertmark, and in light of the other evidence in the case, I am not in any doubt that the circumstances of the Applicant’s employment with the Respondent have been such that there is a clear causal connection between his employment and his accepted psychiatric condition. I consider it reasonable on the evidence to make that connection even if he did have a pre-existing psychiatric disorder “bubbling” away over the years. I consider on the balance of probabilities it is reasonable to make a finding to that effect. Accordingly, I so find.
Indeed, having heard the evidence, I consider it not only reasonable to make that finding but also reasonable to find that the contribution of his employment to the Applicant’s condition was significant (and not merely material) in the statutory sense. In a way Dr Hundertmark’s evidence highlighted this for me and it is worth recalling several points. Especially when he used the word “very” — that it was “very reasonable” for him to agree with the contention that the Applicant’s wrist issues and ongoing pain would have been or were a cause of his adjustment disorder. That seems to go beyond being merely reasonable and is a fortified proposition. But further than this, Dr Hundertmark was asked to quantify the matter and he said ─ in the context of saying the Applicant’s condition is “multifactorial” ─ after some (but not lengthy) consideration that “maybe a tenth of the issues relate to joint problems”. As I see it on the evidence, a critical factor in the presence of those problems has been the Applicant’s employment with the Respondent. But at a 10% level of contribution (approximately) I am unable to regard that as other than significant. That to my mind is more than merely material. And I consider that in truth that was the purport of Dr Hundertmark’s evidence properly considered. In fact if I refer to his earlier report dated 31 May 2022, and rely on it, Dr Hundertmark even says that the Applicant’s employment has contributed to his condition “to a significant degree”. It cannot be said more plainly than that.
Of course the Applicant’s employment with the Respondent was also regarded as significant by Associate Professor Paoletti. He assigned two sources for the Applicant’s adjustment disorder ─ both work related (although his disorder may have been “bubbling” away over the years). I am unable to understand that evidence as doing other than affirming that the Applicant’s employment with the Respondent made a significant contribution to his condition ─ and beyond merely material.
Having made the finding that the Applicant’s conceded disorder was significantly contributed to by his employment with the Respondent, I turn to consider the question of impairment.
Permanence
One issue arising is whether the Applicant’s injury is permanent or not. The word “permanent” is defined in s 4(1) of the Act as likely to continue indefinitely. I can determine this question quite readily in my view. I am satisfied that the Applicant’s condition is permanent in the statutory sense. It certainly is long standing — suffered for 15 years now — and is apparently not greatly alleviated by anti-depressants. Even increased dosage of anti-depressant medication appears to have had little positive result, if any at all. Throughout the years since 2008 the Applicant has taken sleeping tablets ─ usually or only Stilnox — and still needs to take them. Despite all the interventions — including medical visits and psychological counselling together with medication in significant quantities — the Applicant still says “I can’t look forward to anything”. This to my mind is profound. To my mind also it is likely to continue.
This also was Associate Professor Paoletti’s view. In his report dated 29 October 2021 ─ although expressing “some guardedness” — he said of the Applicant’s prognosis ─ “outlook is static for the foreseeable future”. And as regards Dr Hundertmark, if I go by his report dated 31 May 2022, he says the Applicant’s issues “can be viewed as permanent and stable”. That does not seem an irrational view and at the time Dr Hundertmark did not think it irrational either ─ had he thought it was, he would not have said it.
I am unable to see anything in particular which the Applicant can do by way of reasonable rehabilitative treatment — beyond in fact what he has done. I refer to the several operations he has undergone, the various medications he has taken, the various medical professionals he has seen for counselling or other, and returns to work on light duties. I should mention here I accept that at work his work colleagues have played a mischievous and irritating role.
Based on these several considerations, I find therefore that the Applicant’s impairment brought on by the accepted mental health condition is “permanent” in the statutory sense.
Degree of Impairment
Lastly, I now consider the question of the degree of impairment. This arises under s 24 of the Act. This calls for me to determine the degree of impairment having regard to the approved Guide, recalling that s 24(7)(b) of the Act specifies that compensation for permanent impairment is not payable if the degree of impairment is less than 10%.
The Guide sets out various criteria for carrying out an assessment and I am greatly assisted in that regard by the evidence given by both Associate Professor Paoletti and Dr Hundertmark. Each assessed the Applicant’s degree of impairment under the Guide — but came to differing conclusions.
Associate Professor Paoletti assesses the Applicant overall at above the 10% threshold whereas Dr Hundertmark assesses the Applicant at considerably less than that overall. Each overall figure is arrived at by computing figures for various items and then calculating.
I listened very carefully to the evidence of each of those witnesses in light of the evidence given to me by the Applicant and also by his wife. In my view a consideration of each of the components in question in the Guide warrants my accepting the assessment of Associate Professor Paoletti over that of Dr Hundertmark. An important consideration is the evidence of the Applicant and his wife which I heard and saw given. I considered there was a tendency in the evidence of Dr Hundertmark to be less receptive to the Applicant’s plight. I considered he tended to be more inclined to regard the Applicant’s pre-existing ailment as dominating over issues arising from his employment with the Respondent. Indeed, at one point I viewed his evidence with some disquiet as being far too rigid in an area where rigidity can hardly be demanded. As I have pointed out, however, I do not consider he was consistently of that view but I do regard that as one of the factors at play in his impairment assessment. But the challenge to his expertise — or integrity ─ in his second report possibly did not assist me in how I should regard his evidence in the course of my determining matters.

I am not at all unsympathetic to the Applicant’s plight. He has suffered considerably — physically, emotionally and psychologically — over many years due predominantly to work-based issues. There is a tendency on the part of some — neither Associate Professor Paoletti nor Dr Hundertmark I add — to underrate psychological harm and injury. In this particular case there is no justification in my view for doing that ─ should someone think to do it ─ including the Applicant’s work colleagues who may have seen the harm done to him as a subject of mirth, humour or merriment.
But considering also the evidence of Dr Tang I find I should accept the analysis of Associate Professor Paoletti as more in keeping with his (Dr Tang’s) views gained over 15 years or so. I consider Associate Professor Paoletti’s views are correct in relation to the various items and the overall result. And they accord more with what I saw and heard when the Applicant and his wife gave evidence
I should mention also that I was impressed by Associate Professor Paoletti re-calculating his assessment so as to reduce the figure for pain. Dr Hundertmark saw no need to revise his figures. That in itself means nothing of course. But Associate Professor Paoletti having done so ─ and making a small adjustment transposing figures — indicated very plainly to me that he was being exceedingly careful in his assessment. In that way I saw his assessment as more exacting and thus as plainly demonstrating exactitude. Hence, I considered his assessment for this reason and the others as the one I should adopt.
Having found that the Applicant satisfies s 24 of the Act, and attains the 10% standard, I am satisfied also that the Applicant is entitled to compensation for non-economic loss under s 27 of the Act.
Considering the relevant criteria, in light of all the evidence given to me, I am satisfied as the Applicant contends that a figure of 10.7 out of 15 is appropriate as regards “B” in s 27 (2) of the Act. I rely again, in preference, on the evidence provided by Associate Professor Paoletti in light of the evidence given by the Applicant and also by his wife as regards ─ Pain, Suffering, Mobility, Social Relationships and Recreation and Leisure. It is very obvious to me that the Applicant’s wife in particular correctly reported the depressed and defeated environment which she and the Applicant both now find themselves in, and which they must cope with for the future. I am satisfied accordingly that I should adopt the figures provided by Associate Professor Paoletti as verified by the facts in the evidence as I saw and heard it.
Conclusion
It follows from my above analysis that the decision under review cannot stand.
Decision
As a result, the reviewable decision dated 3 June 2022 is set aside and I substitute a decision that the Applicant is entitled to permanent impairment compensation pursuant to s 24 of the Act and also under s 27 of the Act in respect of his psychiatric impairment based on a 10% whole person impairment with a score of 10.7 out of 15 for non-economic loss.
As were sought, the Respondent must pay the costs of the Applicant pursuant to s 67 of the Act

I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein

.............[SGD]..............
Associate
Dated: 21 August 2023

Date(s) of hearing: 28-29 November 2022, 13 February 2023, 10 March 2023

Date final submissions received: 17 April 2023

Counsel for the Applicant: Joel Harris

Solicitors for the Applicant: Angela Sdrinis Legal

Counsel for the Respondent: Roy Seit

Solicitors for the Respondent: Carmel Sassani

[2023] AATA 2634

21 August 2023

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Damages

Remedies

Costs

Statutory Construction

Date(s) of hearing:	28-29 November 2022, 13 February 2023, 10 March 2023
Date final submissions received:	17 April 2023
Counsel for the Applicant:	Joel Harris
Solicitors for the Applicant:	Angela Sdrinis Legal
Counsel for the Respondent:	Roy Seit
Solicitors for the Respondent:	Carmel Sassani