Karen Hutchinson and Comcare - [2014] AATA 588

[2014] AATA 588

Division

General Administrative Division

File Number

2013/5565

Re

Karen Hutchinson

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President S D Hotop

Date

22 August 2014

Place

Perth

The decision under review, being the reviewable decision of the respondent made on 21 July 2011, is varied by amending the description of the compensable mental injury suffered by the applicant to “major depressive disorder”, but is otherwise affirmed.

.....(Sgd) S D Hotop.......................

S D Hotop
Deputy President

CATCHWORDS
COMPENSATION – Commonwealth employees – applicant suffered mental ailments – respondent accepted liability to pay compensation to applicant for "major depressive disorder – single episode" - respondent subsequently accepted liability to pay compensation to applicant for "post-traumatic stress disorder" – date on which applicant first suffered compensable mental injury – description of first compensable mental injury amended to “major depressive disorder”- decision under review varied

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 5A(1), s 5B(1), s 7(4) and s 14(1)
REASONS FOR DECISION
Deputy President S D Hotop
22 August 2014
Introduction

Karen Hutchinson (“the applicant”) has applied to the Tribunal for review of a “reviewable decision” made by an Independent Review Officer of Comcare (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) on 21 July 2011. That reviewable decision revoked a determination made by a delegate of the respondent on 23 May 2011 disallowing the applicant’s claim for compensation for “Depression & Anxiety” and, instead, accepted liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “a major depressive disorder – single episode from 31 January 2011 being the deemed date of injury for the purpose of the Act”.
In her application for review the applicant stated her reasons for seeking review of the abovementioned reviewable decision as (relevantly):
“ · Not the compensable injury I claimed for.
·Not the date of injury I claimed for.”
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T55, pp 1–439) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·Exhibit A1 tendered by the applicant;
·Exhibits R1–R4 tendered by the respondent; and
·the oral evidence of the applicant.
The Factual Background
The relevant factual background, as found by the Tribunal on the basis of the T Documents, is as follows
On 16 February 2011 the applicant, who was at all material times employed by the respondent, lodged with the respondent a completed Claim for Workers’ Compensation form, signed by her and dated 8 February 2011, in which she indicated that (inter alia):
·she was claiming workers’ compensation for “Depression & Anxiety”;
·she was injured, or first noticed she was ill, on 5 March 2010;
·she first sought medical treatment for her injury or illness on 31 January 2011 from Dr Kathryn Dunne;
·when she was injured or contracted her illness she was working at her usual workplace.
In response to questions as to what she was doing at the time she was injured or contracted her illness, what event happened to cause her injury or illness, and what actually injured her or made her ill, the applicant stated as follows:
“ Attending the ‘Respect and Diversity’ training workshop on 5/3/2010.
The trainer … was discussing the various forms of bullying that might occur in the workplace. She asked the participants: ‘What might you say to someone you wanted to threaten in the workplace?’. [X], who I was sitting next to said very quietly and directly to me: ‘I’m going to fucking kill you!’
I immediately drew the trainer’s attention and she asked [X] to contribute his ‘example’ to the group discussion. After a lengthy pause he repeated the statement he’d made to the entire group.
My ‘anxiety’ state was precipitated by this event.” (T3)
On 23 May 2011 a delegate of the respondent made a determination under the SRC Act disallowing the applicant’s “claim for compensation for: Major Depressive Disorder – single episode under section 14 of the … (SRC Act)”. (T21)
Following a request by the applicant to the respondent for a reconsideration of the abovementioned determination of 23 May 2011, an Independent Review Officer of the respondent made a reviewable decision, dated 21 July 2011, under s 62 of the SRC Act revoking that determination and, instead, accepting liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “a major depressive disorder – single episode from 31 January 2011, being the deemed date of injury for the purpose of the Act”. (T24, pp 153-157). The respondent formally notified the applicant of that reviewable decision by letter dated 25 July 2011 (T24, p 152).
On 4 June 2013 the applicant lodged with the respondent a further completed Claim for Workers’ Compensation form, signed by her and dated 30 May 2013, in which she indicated that she was claiming workers’ compensation for “Post Traumatic Stress Disorder, Major Depression” suffered by her in the circumstances referred to in her previous claim (see paragraph 5 above). The applicant likewise indicated that:
·she was injured, or first noticed she was ill, on 5 March 2010;
·she first sought medical treatment for her injury or illness on 31 January 2011 from Dr Kathryn Dunne. (T42)
By letter dated 4 September 2013 a delegate of the respondent notified the applicant that she had made a determination accepting liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “Post-Traumatic Stress Disorder”. That letter went on to state:
“ Date of injury is deemed under section 7(4) of the SRC Act. The evidence held on file indicates you first sought medical treatment for your claimed condition on 31 January 2011. Whilst I acknowledge the incident that lead to your diagnosis of Post-Traumatic stress disorder occurred 5 March 2010 I have no medical evidence to suggest you were suffering from a diagnosable psychiatric condition outside the bounds of normal mental behaviour and functioning prior to 31 January 2011 and therefore deem your date of injury to be 31 January 2011.
…” (T49)
On 17 September 2013 the applicant made a request to the respondent for a reconsideration of the abovementioned determination of 4 September 2013. (T51)
By letter dated 17 September 2013 an officer of the respondent wrote to the applicant as follows:
“ …
I refer to your emails dated 12 September 2013 and 17 September 2013 requesting a reconsideration of Comcare’s determination dated 4 September 2013.
From reading your emails, it is apparent that the aspect of the determination you disagree with is the deemed date of injury and not the acceptance of Post Traumatic Stress Disorder.
Section 60 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) defined a determination as a determination, decision or requirement made under the following sections 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
As the date of injury is deemed under Section 7(4) of the Act, there is no determination to be reconsidered pursuant to section 62 of the Act.
I understand that your Claims Services Officer, has addressed the deemed date of injury in her letter of 4 September 2013. I have referred your correspondence to [the delegate] for her perusal.
…” (T52)
By letter dated 27 September 2013 the delegate who made the abovementioned determination of 4 September 2013 wrote to the applicant as follows:
“ …
I refer to your claim for major depressive disorder and post traumatic stress disorder.
I note your accepted primary condition is major depressive disorder and Comcare recently accepted a secondary condition of post traumatic stress disorder.
Your treating psychologist Dr Brendon Dellar advises the following in his report dated 28 May 2013:
‘The previous diagnosis of Major Depressive Disorder is an apt description of Ms Hutchinson’s mood disturbance however in my clinical judgement this mood disturbance is secondary to PTSD.’
‘I consider Posttraumatic Stress Disorder to be the original injury, and that the Major Depressive Disorder to be the original injury [sic], and that the Major Depressive Disorder is Secondary.’
‘PTSD was the initial result of the death threat, and Major Depressive Disorder developed as the result of prolonged anxiety and ongoing deficits in perceived control.’
Based on the report by Dr Brendon Dellar I am satisfied that your primary condition is post traumatic stress disorder with a secondary condition of major depressive disorder.
Date of injury is deemed under section 7(4) of the SRC Act. The evidence held on file indicates you first sought medical treatment for your claimed condition on 31 January 2011. Whilst I acknowledge the incident that lead to your diagnosis of Post-Traumatic stress disorder occurred 5 March 2010 I have no medical evidence to suggest you were suffering from a diagnosable psychiatric condition outside the bounds of normal mental behaviour and functioning prior to 31 January 2011 and therefore deem your date of injury to be 31 January 2011.
If you have any questions, please don’t hesitate to call me on …, or write to me quoting your claim reference number which appears at the top of this letter.
…” (T53)
The Applicant’s Evidence
The applicant confirmed that she had prepared a statement, dated 30 March 2011, in support of her claim for compensation dated 8 February 2011, and that its contents are true and correct. That statement is as follows:
“ I relocated from WA to Melbourne in 1998 and commenced working for Comcare a couple of weeks after arriving.
I began working as a claims services officer in 2002 after spending more than three years as an administration officer.
In 2006 I was diagnosed with leukaemia and was absent from my place of work from September of that year until July 2007.
Returning to work after such a traumatic life event was difficult, but I loved my job and couldn’t wait to return. It was, in fact, an enormous motivation for my recovery. My social network was almost exclusively made up of friends I had made through Comcare and these friends and work colleagues from the Melbourne and Canberra offices had been incredibly supportive throughout my illness.
I was on half pay for almost the entire time I was on sick leave, so it had also been a difficult time for me financially. This was further motivation for me to take up any additional challenges and act on any promotional opportunities as I may be able to perform in the course of my recovery. Within a few weeks of my return to work, APS 5 higher duties were offered to me once more.
During my absence the Melbourne office had welcomed a new director, [MW]. [MW] proved to be a very sensitive, supportive and generous manager, facilitating a smooth and comfortable return to the workplace for me. During the initial return to my claims team, a very serious situation developed involving one of our high profile pre-premium agencies. At my request, [MW] gave me full responsibility for the strategic management of this ‘crisis’ event, allowing me a month offline as a claims services officer to dedicate myself solely to developing and implementing a positive resolution for the issues that arose for Comcare and the agency involved. It proved to be the most challenging and satisfying work I had ever undertaken in my time at Comcare.
[MW] left at the end of that year and on 21/1/08 the new director, [X] commenced.
On 7/1/08 I was ‘told’ by the operations manager, [Y] that I was expected to be a participant and contributing author in the production of a claims policy and procedures manual (CPPM) for Comcare.
Work on the manual was undertaken initially with the understanding that the contributing authors were to be taken offline and removed from their current roles to work exclusively on the project. That did not happen and instead we were forced to schedule time away from our portfolios to produce assigned chapters of the manual and expect other members of our team to pick up our workloads. This proved to be a dismal failure, as when we returned to our portfolios there were so many major fix ups required we ended up having to redo all the work. It was an enormously stressful time as we struggled to meet the project deadlines.
It was hardly surprising that after about four months, when it became apparent that the majority of authors (there were about 20 of us from across Comcare) were not able to adhere to the deadlines for submitting chapters, the project folded.
A couple of APS 5 positions became available in the Melbourne office in April 2008. As I had been performing duties at the 5 level again (after my illness) for 9 months I had a reasonable expectation that my application would be considered favourably.
[X] and the operations manager, [Y] were both on the interview panel. My impression of both these panel members throughout my interview was that they had no genuine interest in me as a prospective candidate.
I was advised several weeks later of the outcome of my application and interview with all panel members in attendance. I was handed my assessment report. I had been found ‘unsuitable’ for the position. [X] stated; ‘I haven’t worked with you, but everyone I’ve spoken to who [sic] has said you were pretty good, so what happened?’ I became quite upset at being confronted like that and told the panel that I’d thought they had been hostile and disinterested in me throughout my interview.
I was told sometime later by the third panel member that she had not been consulted in determining the outcome of the recruitment or even deciding on the order of merit.
The successful applicants were both from external agencies.
I was returned to my substantive APS 4 position from 16 June 2008.
In July 2008 it was announced that the policy and procedures manual would be revisited, but this time with a dedicated project team consisting of four of the previous authors with one of those authors coming from the Melbourne office. [Y] sent an invitation to me and one of the other Melbourne authors asking which of us would like to participate.
[Y] advised me that I would be the Melbourne representative and that I would be required to work out of the Canberra office a few days every couple of weeks.
The project commenced in August 2008 and a few weeks in I submitted a written request to [Y], asking if APS 5 higher duties might be considered for the duration of my involvement in the project (initially estimated to be of six months duration).
My request for higher duties was declined in an email from [X] explaining that there was no imperative to pay me at a higher level to perform the work.
I then met with [Y] and presented a case for why I believed higher duties should be favourably considered based on Comcare’s Leadership Capability Framework for APS 5/6 level and my belief that I should be remunerated commensurate with my skills and experience. I had worked professionally as an editor, researcher and proof reader for years before I was ever employed by Comcare.
I was then asked to meet with [X] and [Y] to again be told that there was no possibility of being considered for higher duties. At that juncture I respectfully advised them that I would then request a ‘review of action’ through the general manager and project owner, [SE]. [X] became very animated at that point, smiling broadly and nodding his head saying that he would support me completely in that undertaking and would do everything he could to help me. It wasn’t until I had left his office that I realised he’d misunderstood my request and had taken it as a direct challenge to his authority.
In a panic to try and get myself out of the situation I then requested, in writing, to withdraw from the project and be returned to a claims team.
I was asked to meet once more with [X] and [Y].
This time [X] could barely contain his anger as he sat glaring at me from across the table, constantly flicking and adjusting his tie. He told me; ‘There will be serious repercussions if you pursue this course of action,’ and then said; ‘You do realise that I can force you to undertake these ‘reasonable’ duties, but I hope that will not be necessary because we should all get along and keep things friendly, shouldn’t we?’
He also told me that if I agreed to continue on the project he would ‘sort me out’ with higher duties doing something else, some other time. He then asked me if I didn’t continue with the project how I would be able to face my work colleagues, how would I explain myself? He suggested that I should be embarrassed and humiliated by my actions. He then cautioned me that it would also seriously damage my reputation.
I felt so intimated and overwhelmed by this barrage of threats I stood up to leave the office. [Y], who had sat with his head down staring at the floor throughout the exchange, looked at me and asked if there was anything that could be done to put things right? I think I shook my head and said I didn’t know and then left the office.
I immediately emailed the project manager, [RF] in Canberra and told her what had happened. She considered that it was entirely an oversight on her part that she hadn’t ensured and insisted that all project members were engaged at the 5/6 level to work on the project.
It was my understanding that at that point [RF] went to discuss the issue further with [SE] and he in turn directed [X] to approve higher duties for me for as long as I was involved in the project.
The Melbourne office paid for my first two trips to Canberra. This initial visit was intended for me to meet and get to know the project team, workshop ideas and receive training in the MySource editing/publishing software that we were required to use.
I went to Canberra again a couple of weeks later to continue working with the project team.
Soon after that, while I was sitting at my desk in the Melbourne office, [X] appeared and standing over me angrily barked; ‘You can tell them that’s it! The Melbourne office is not paying any more travel expenses for you to go to Canberra.’ With that he turned on his heel and walked off.
In the more than 12 months I was involved in the project I travelled to Canberra a total of three times.
It was at this time I started to feel completely isolated and unsupported in the workplace. Now that I had only very limited opportunity to work with the project team, the quality of my work began to suffer noticeably. I became disinterested and demoralized, even coming to work became a chore. I do not consider I made any meaningful contribution to the policy and procedures manual whatsoever.
I was told by a project member sometime after our involvement with the project concluded that they had heard the Melbourne office had refused to pay for my travel to work on the project because they had been forced to pay for me to be on higher duties.
Although I was aware I was becoming increasingly more depressed, I was determined to push through it. My long service leave having recently become due, I booked a long overseas trip for the following year (2010) so I would have something to look forward to.
After the whole ‘higher duties’ debacle I was determined to keep my head down, be uncomplaining and work as hard as I possibly could in the hope that [X] would become disinterested in me or feel that he had sufficiently chastened me for my behavior and would find something or someone else to target. My hopes very quickly disintegrated.
Just before my involvement with the project concluded and I was due to be returned to my APS 4 role, an expression of interest was sent out for a project leader (APS 6) position for 12 months. I submitted an application for the position.
I was advised in person by [X] that my application was unsuccessful and that he was giving the position to a substantive APS 5, (a fact he delighted in repeating to me several times) but that I would commence work on a discrete project that would involve the management of a specified agency to assess and address the reasons for their escalating costs and explore the potential to recover some of those costs. I was expected to perform this work at the APS 4 level.
Shortly after this an expression of interest for an APS 5 claims services officer (CSO) was issued. I was not successful in gaining this position either but was instead offered a role of office ‘floater’, ostensibly to perform APS 5 CSO’s duties while they were away on leave.
I was expected to manage a full APS 5 portfolio over three days a week and then work solely on the project for two days per week. My pay rate was changed by the operations managers, sometimes mid pay week of the CSO’s leave commencement just to ensure that I was not paid at the 5 rate for performing work on the project.
During one of the regularly held project update meetings with [Y], a project leader and a team leader present, [X] enquired of me with feigned concern; ‘How are you coping with managing the project? I would hate this to be an unpleasant experience for you.’
I was moved into the pre-premium team in my ‘floater’ capacity where I was asked by the team leader to investigate and report on possible inappropriate work practices being conducted by the APS 5 officer on leave.
I think it was the first or second day managing the portfolio when I had to deal with a genuine suicide threat by a claimant brought about as a direct consequence of the aforementioned APS 5’s threatening behaviour over the phone and in writing to this particular claimant.
Over the next week or so I had several more female claimants confide to me that this CSO had been regularly threatening them over the phone saying to them that he would remove their services and force them to attend medical reviews or have home assessments if he thought their requests were frivolous or an annoyance to him. I checked their written determinations and PRACSYS comments and confirmed a great deal of what the claimants were telling me. The CSO had even left written instructions and details on how to continue reprimanding and punishing the claimants while he was on leave.
I advised the team leader and operations manager, [L] of the seriousness of the situation being, as I believed, actions that were undertaken in direct violation of the Code of Conduct and APS Values.
The operations manager advised me at a later date that he had referred the matter for consideration to the Canberra office and it had been decided that the CSO had not contravened the Code of Conduct or the APS Values and that no disciplinary action would be taken.
I took this advice very hard, and my stress levels throughout this experience had become very pronounced, but again no one appeared to be particularly interested in my wellbeing.
The cumulative effect of all these events and of being singled out for ongoing cruel, intentional and unusual treatment, I changed from being a highly competent, reliable, diligent and well respected employee and work colleague to accepting that I was of no value to my employer or to the claimant’s [sic] I had a responsibility to care for. I had become totally incapable of performing my duties to an acceptable standard.
Another APS 5 recruitment was held in November 2009. When I enquired of one of the project leaders if they knew who the panel was going to be I was told that [X] and [Y] would both be on the panel again. The project leader laughed when they noticed my apparent distress and said; ‘you should probably just withdraw your application now.’
My interview was held on 2/12/09 and at an early juncture one of the panel members asked me a question about my contribution to the policy and procedures manual. At my attempted serious and considered response, [X] suddenly burst into a fit of uncontrollable laughter. It took several minutes for him to regain his composure. I was so humiliated, but I managed to recover myself enough to get through the rest of the interview.
It was perhaps a week or so later that I received an email from [X] thanking me for a recent update I’d provided in relation to the exit agency project. He then went on to imply that my work on the project may not be to a standard that met his expectation and would like to ‘check that things had been done correctly’ on his return from leave.
The week before Christmas I was advised of the outcome of the recruitment. [X] was on leave at this point and so I was invited to meet with [Y] who informed me that while I had not been successful in gaining an APS 5 position, I had been found suitable and would be on higher duties until February 15 2010. He also advised me that I would not be continuing work on the project because, as he explained, it had been decided that the project leader needed a ‘project’ to do.
It wasn’t until mid February that feedback and assessment was provided in relation to the APS 5 recruitment. I was invited to meet with [X] and [Y] once more.
[X] was highly animated and almost effusive with praise for my performance at interview, saying; ‘Oh, you did so well in the interview, so much better than last time,’ and then; ‘But just a friendly word of advice, don’t provide written examples of your work. I just don’t have time to read them’. I asked him if he had attempted to read my written application in full and he confirmed that he had not.
I was then handed my assessment sheet and the first thing I noticed was that no referee reports had been taken. I was a little confused by what I was seeing until I read the summary which stated I had not been ranked on the order of merit.
I looked back to [X] who could hardly contain his delight, almost to the point that he was on the verge of laughing. I asked how my exclusion from the order of merit had been decided. He responded; ‘I can’t recall just now. [Y], can you remember what we decided on?’ [Y] didn’t respond to the question, just continued to stare at the floor as he had throughout the entire meeting. [X] looked back to me and with a wave of his hand dismissed me saying; ‘Come back and ask me some other time.’
Shortly after this I told one of the team leaders what had happened and admitted that I was absolutely terrified of [X]. The team leader said they used to be scared of him as well but had managed to get over it and I really needed to find a way to do the same thing. I told the team leader I was planning to take my long service leave at the end of May but was afraid that once [X] found out he would make my working conditions even more unbearable. The team leader promised me they would not say anything about my plans to go on leave.
It was perhaps a couple of weeks after this when the operations manager, [L] came to me and said that he’d been told I was planning to take my long service leave and go overseas and that I should put my leave application in for approval as soon as possible.
I was then moved back into the pre-premium team again, this time to backfill an APS 4 position. An urgent team meeting was held the day I came into the team. In attendance was, [X], [L] and a project leader, [M]. [X] addressed the team and made the point that he wasn’t going to single out any one person being at fault but noted that the whole team was struggling and having some major difficulties, so he had decided to bring the project leader in to assist the team leader identify what those difficulties were and how to remedy them.
As the meeting was concluding and we were just about to get up to leave [X] stopped everyone and leaned down the table and smiling at me said; ‘I’d like to take this opportunity to thank ‘Hutch’ for volunteering to come into this team at this difficult time.’ Everyone laughed uncomfortably when I stammered; ‘Is that what you call it, volunteering?’
I was so offended and upset that he had referred to me in such a familiar way, but more so because he had given everyone the impression that I was somehow involved in the ‘performance management’ of the team.
The team was then subjected to what I could only describe as a systematic and relentless program of the most puerile bonding exercises, interrogations, dob in sessions etc all exacerbating the ever increasing workload that the team was already impossibly overloaded with.
Many members of the team took up personal leave options at this time and other team members lodged incident notifications.
I was still in this team when on the 5/3/2010 I attended a ‘Respect and Diversity Training’ workshop (anti bullying and harassment training). The trainer was [SR] from the Canberra office.
The workshop was just about to start when [X] arrived. [SR] asked that we move the tables around to have a ‘café style’ seating arrangement. [X] was seated next to me with his chair placed slightly behind mine so he was not directly in my line of sight. I was very uncomfortable but tried to keep focused entirely on the trainer’s presentation.
The session proceeded with a number of group exercises. The participants were highly engaged and contributed openly and there was a great deal of discussion regarding the various types of bullying and harassment that sometimes occurs in the workplace.
At one point [SR] asked the group; ‘What might you say to someone you wanted to threaten in the workplace.’ [X] leaned toward me and said in a very quiet voice; ‘I’m going to fucking kill you.’ I turned to face him and said loudly; ‘Yep, that’d do it!’. My sudden outburst got the trainer’s attention and she came over and asked [X] to repeat his example to contribute to the group discussion. After a lengthy pause he repeated the statement he’d made to me. The trainer didn’t make any comment in response, just moved on and asked if anyone else had something further to add.
When the workshop concluded I really didn’t know what to do. I think I was in shock. I went back to my desk and told a couple of my work colleagues what had happened. I think I may have even said that I should probably call the police. I remember someone was quite insistent that I put in an incident notification immediately.
It was a long weekend so I thought I’d just calm down and decide what to do the following week after I’d had a talk with the harassment contact office (HCO), [LB].
I spent nearly three hours with the HCO detailing most of the incidents contained in this statement. The HCO offered to contact another member of staff, who had put in an incident notification that required a full investigation and resultant disciplinary action, to talk through the process. The HCO also suggested that I might consider an ‘appeal’ against the next promotion that resulted from the recent APS5 recruitment because the Public Service Commission would likely find in my favour.
I could only begin to imagine the kind of retaliation that might result if I were to pursue that course of action.
A few days later, on relaying various events that had transpired, an executive level manager from one of the other areas within Comcare advised me that if I did put in an incident report to just make sure I had another job to go to first because Comcare’s internal processes would not support me because I was targeting a senior manager.
I knew I had to remove myself from the workplace as it was no longer a safe environment for me to continue in.
I went to the operations manager, [L] and told him that I wanted to go on leave as soon as possible. I asked him if he thought there was any possibility that [X] might leave Comcare in the near future. He said he thought he would be a permanent fixture for quite some time yet. When I recounted a number of the events that I’d been through, he responded with; ‘I wondered why you hadn’t been your usual happy self. I thought you might be sick again.’ I then relayed in detail the incident of the 5/3/2010. He was quite nonplussed in response saying; ‘Oh, that’s no good. I wish you’d told me about this before.’ ‘Why, what would you have done?’ I asked. He just smiled and shrugged his shoulders.
On 16/4/10 I went on annual leave and was due to return to work on 6 September. While I was away I became anxious at the prospect of returning to the workplace so in July I contacted HR and I took what remained of my annual leave and converted it to ½ pay so I wouldn’t have to go back to Comcare until 4/1/2011.
It was only when I was due to return to work that I really faced the truth that I was not capable of returning to the workplace because of depression and anxiety and sought medical treatment for my condition.
I certify this summary is an honest and accurate account of events that occurred between 2008 to the date I left the workplace on 16/4/2010.
I think the worst thing has not necessarily been about being set up to fail, the humiliation, the threats and mistreatment by [X] and the obvious enjoyment it seemed to give him. It has been that all my work colleagues, peers and managers alike have stood by and done nothing to help me when they could see first hand the terrible impact this was having on me.
That this continuous, insidious and systematic intimidation and bullying could be so deliberately levelled at someone trying to recover from a long and arduous battle with cancer is further evidence of a wholly unconscionable and shameful act on the part of Comcare.
Where was Comcare’s duty of care towards me? Why was there a complete failure to protect me and provide me with a safe, harmonious, productive, rewarding workplace?” (T14, pp 77–85)

The applicant also confirmed that she had prepared a Statement of Facts, Issues and Contentions for the purpose of this proceeding, which was filed on 27 June 2014. That Statement contained a statement of “key facts” (paras 2.1–2.90) which the applicant confirmed was true and correct. That statement is (relevantly) as follows:
“2.1 Just prior to finishing up work on the Claims Policy and Procedures Manual an Expression of Interest (EOI) was issued for a 12 month Project Manager position (APS 6) in the Melbourne office.
2.2This was to fill the position that would be vacated by [LB], who would be taking leave for at least a 12 month period.
2.3Having made herself available to [LB] throughout the performance of her project management work, the Applicant was very familiar with her work and knew that she would be able to fulfil the inherent requirements of the role and so she submitted an application for the position.
2.4The Applicant was asked to meet with the Director, [X] to discuss the outcome of her application. No-one else was present during this 'discussion.'
2.5The Applicant recalls in detail that he was smiling excessively as he told her that she was not successful in gaining the Project Manager position and that he was giving the role to a substantive APS 5 officer.
2.6He made a point of telling the Applicant that both his Operations Managers had said that her application was of an exceptionally high standard but that he had decided a substantive APS 5 would be given the role. He repeated that the position had been offered to a substantive APS 5 officer several times. The Applicant maintains that she was sure it was just to remind her, if she was in any doubt, that she was not a substantive APS 5.
'But guess what you are going to do? You're going to project manage the Exit Agency project for me.'
2.7He explained to the Applicant that according to information provided by Comcare's actuary there was an issue regarding unexpected and substantial escalating costs involving a particular Exit Agency (the Agency exited the SRC scheme in 1996).
2.8[X] told the Applicant, very specifically, that she would not be paid as an APS 6 to undertake this work, but continue to be paid at her substantive APS 4 level.
2.9The Applicant didn't say anything in response to that, just sat there in stunned silence while he continued to glare at her, smiling, waiting expectantly for some reaction. When it became apparent she wasn't going to respond, but before she was permitted to leave the office, he volunteered information that because a substantive APS 5 was being moved into an APS 6 role, a HDA 5 EOI would be sent out in the next couple of weeks and that the Applicant should make sure she put in an application. He chuckled menacingly as he added;
'I'm not making you any promises you'll get it though!'
2.10It was hardly surprising given this 'caution' the Applicant took it to mean that she had no possibility of being awarded the upcoming APS 5 acting position. The Applicant knew there would be no likelihood her application would receive impartial, unbiased assessment, as [X] had made it implicitly understood that he had a plan laid out for her.
2.11When the Project Manager announcement was made, [X] had awarded the role to the very same applicant he had ‘transferred at level’ to Comcare from Centrelink during the May 2008 recruitment, most notably, someone who had no project management experience.
2.12This speaks to the real purpose of assigning meaningless duties to the Applicant as a Project Manager, while the 'real' Project Manager was relegated to ‘taking minutes’ for the fortnightly Exit Agency progress report meetings that were held.
2.13On 24 August 2009 [X] issued an office wide, all Team Manager and Claims Services Branch Leadership Team email announcing [LH’s] success at being awarded the Project Manager role. This was a completely inappropriate and ingenuous announcement and was just an opportunity to publicly humiliate and belittle the Applicant by broadcasting to all and sundry that she had been unsuccessful in securing the Project Manager position.
2.14He went further to ensure that everyone knew exactly what he had done to the Applicant and what his intentions towards her were by offering a patronising and gratuitous ‘thank you’ to her for the work she performed on the Claims Policy and Procedures Manual, and then telling everyone the Applicant was taking a week’s leave and that on her return he was going to put her to work doing some ‘claims management’ work on a problematic Exit Agency. This information was issued publicly to serve as a warning to others of what might occur to them if they challenged him or his authority in the same way the Applicant had.
2.15On 1 September 2009 the Applicant commenced as the Project Manager of the Qantas Investigation and Review Project (the Exit Agency Project).
2.16[LB] had already commenced work on this Exit Agency Project and provided the Applicant with all the electronic spreadsheets and requisite approvals needed for the special report runs necessary to evaluate the comparative data prior to her progressing onto maternity leave.
2.17As [X] had foreshadowed, the EOI for the APS 5 position came up very soon after the Applicant had commenced working on the Exit Agency Project. The Applicant submitted an EOI application for the APS 5 Claims Services Officer position (12 months).
2.18Although the Applicant was performing the role of Project Manager she was being remunerated at her substantive APS 4 salary while an APS 6 salary was paid to [LH]. Naturally, when the EOI for the HDA APS 5 came up the Applicant applied for the position in the hope that she might receive remuneration that was appropriate to work she was actually performing.
2.19The Applicant received a phone call at home from Operations Manager, [L] to advise her of the outcome of the EOI application she had submitted for the APS 5 position.
2.20[L] told the Applicant she was not the successful candidate for the position. The Applicant asked him about the reasons why and he said that although her application was of a high standard, she had been doing very different work to that of Claims Management for the past year, referring to her project work, and even implying that the Applicant was better suited to doing that sort of work.
2.21Not surprisingly, the Applicant thought she was hearing things when he quite unexpectedly offered her an APS 5 'floater' role instead of the EOI APS 5.
2.22He explained that the offer was solely contingent on the Applicant being willing to back fill for APS 5's while they were away on leave for three days per week and then continue to work two days a week on the Exit Agency project.
2.23If the Applicant was back filling an APS 5 officer who was on leave during that week, she would be paid as an APS 5, but if the Applicant was not back filling she would work on the Exit Agency project, full time and be paid as an APS 4.
2.24 [L] was very explicit about the requirements and the Applicant was left in no doubt that he, together with [X] had crafted this unfair and ridiculous work and pay schedule.
2.25The Applicant was also advised during the course of the conversation that this arrangement would, of course, only be in place until the next recruitment process was undertaken and finalised.
2.26An APS 5 recruitment campaign was subsequently held in November 2009 and the Applicant was once again found 'unsuitable.' The Applicant was, therefore, not permitted to perform any more work at the APS 5 level while the active 'order of merit' was viable for higher duties opportunities.
2.27Surprisingly however, the Applicant was awarded an APS 5 assignment until 26 February 2010.
2.28The moment [X] left the office on his Annual leave, the Operations Manager [Y] instructed the Applicant to hand over the 'Exit Agency Project' to [LH], the official Project Manager.
2.29This likely resulted because the Applicant had been found ‘unsuitable’ and could not perform APS 5 duties. If the Applicant were to continue working full time on the Exit Agency project it would be a certainty that someone would start asking some difficult and uncomfortable questions of Melbourne's Management team. [Y] instigated this action at this particular time as a risk management strategy because he was worried that [X], [L] and himself were about to get caught out waging their abuse and victimisation campaign against the Applicant.
2.30Almost immediately upon [X’s] return from Annual leave, the Applicant was unceremoniously dumped into the MC4 Team for the express purpose of being targeted and bullied by [M] under direction from [L] and [X].
2.31Four members of the MC4 Team submitted 'incident notifications' directly related to the bullying impact that [M] had on them during March 2010.
2.32The Applicant's injury occurred on 5 March 2010 when; 'The Director, [X] leaned towards me and said in a very quiet voice, I'm going to fucking kill you.'
2.33The Applicant had previously arranged long service leave from 19 May 2010 – 5 September 2010, during which she planned to travel overseas on a 3½ month cruise.
2.34Immediately on returning to work after the 'death threat' incident, on the 9 March 2010, the Applicant sent an urgent query to Comcare's HR and Payroll services (HRG) to ask if she had sufficient leave entitlements available to be able to leave the workplace at the end of the current week.
2.35HR and Payroll services confirmed by email that the Applicant had sufficient leave for that purpose.
2.36On 12 March 2010 the Applicant met with the Harassment Contact Officer (HCO), [LB] who advised the Applicant not to report to police, not to report to the Comcare Workplace Health and Safety Manager, [SR] but instead suggested she speak to another employee who had just finished the 'grievance' process making a bullying complaint against her own EL1 manager. [LB] then attempted to coerce the Applicant into keeping quiet about the 'death threat' and encouraged her instead into appealing against the next internal promotion to offset her being found 'unsuitable' for the November 2009 recruitment process that the Applicant had participated in.
2.37The Applicant travelled to Western Australia on 18 March 2010 for three days, ostensibly to talk to her family about the 'death threat' and what she should do. The Applicant had become increasingly concerned for their well being also.
2.38On return from WA the Applicant reported the 'death threat' to Operations Manager, [L] asking to be allowed to go on immediate leave. The Applicant advised him that she had confirmation from HRG of ample leave availability to be able to do that. He refused the request, telling her it was not a convenient time for her to be taking leave and that after he had made the necessary enquiries he would get back to her and tell her if and when she could take leave.
2.39The following day the Team Leader of MC3, [KS] asked the Applicant to come into his team to backfill for an APS 5 officer who was going on two weeks leave from 22/3/2010 - 9/4/2010.
2.40On 7 April 2010 [L] asked the Applicant if she would consider staying until the week beginning 19 May 2010 because he couldn't find anyone suitable to backfill her position. The Applicant begged him to let her go on immediate leave because she was only hanging on by a thread. He almost spat his acceptance at her saying: 'Okay, okay you can go at the end of next week then.' That was the week ending 16 April 2010.
2.41The Applicant signed the leave form on 8 April 2010 and [L] signed it on 9 April 2010.
2.42It is reasonable to conclude that if management could manipulate the situation into giving all appearances that the Applicant was progressing on a period of normal pre-arranged leave no investigation would need to be conducted into the 'death threat' incident.
2.43It can only be surmised that this was the real reason why two weeks of APS 5 HDA magically appeared and why [L] seemed to be so reluctant to permit the Applicant to go on immediate leave.
2.44To the best of the Applicant's knowledge [L] failed to report the matter to Comcare's Human Resources Group (HRG) or to the OHS regulator which was his primary responsibility as his duty of care to the Applicant and to all other Comcare employees that were at foreseeable risk of incurring injury by [X]. Instead he chose to manipulate the Applicant, in concert with others, to injure her, to prejudice her and remove her from her employment.
2.45Shortly after the Applicant left the workplace a colleague, [KW] rang and advised the Applicant that a cursory investigation had occurred and that [JK], [KD] and [KW] herself had been interviewed by someone from the Human Resources area about [X] and his bullying and abuse of Comcare employees under his management and supervision.
2.46FOI documents the Applicant requested from Comcare were provided to her on 9 May 2013 and denied her access to copies of the aforementioned investigation by stating that it was only an informal investigation and none of the witness statements had been signed and that there were other privacy concerns with providing the release of the information that meant the information could not be released to her.
2.47[KW] contacted the Applicant once again, just before she was due to go overseas, and advised her that [X] had announced in a staff meeting that it was highly likely that his employment with Comcare would be concluding by the end of the financial year.
2.48Whilst overseas the Applicant contacted [KW] to check that [X] had indeed left his Comcare employment only to be told that he was still there but had been moved out of his Director position and into a Project Management role.
2.49This was devastating news to the Applicant and in a panic prompted her to write to [DD], Payroll Manager of HRG on 3 August 2010 and request that her leave be converted to half pay and extended out for as long as possible. Consequently, she would not be required to return to the workplace until 4 January 2011.
2.50So consumed with fear and terror at the prospect of returning, not only to the workplace but even to Australia, the Applicant seriously contemplated suicide and to that end the Applicant left the cruise and arrived back in Victoria on 15 August 2010.
2.51The Applicant is of the belief that work colleagues were misled into believing that [X]was being investigated and that even his own announcement that he was going to be leaving Comcare was articulated in the hope that someone would advise the Applicant of this potentiality.
2.52This would give the Applicant the false sense that she might be able to return to a safe place of work and perhaps encourage her to feel that perhaps she would not have to pursue any further action in ensuring that [X] was removed from Comcare.
2.53And so no investigation was ever conducted. Even when the Applicant's compensation claim was submitted, no investigation was undertaken, nothing was referred onto the OHS section to investigate the Applicant's claims of a failed duty of care or a dangerous occurrence. Even [DT], the Rehabilitation Case Manager & Ag/ Assistant Director, Comcare People and Property had assured the Applicant that [SC], the Director of People and Place had conducted a full investigation into the Applicant's claims against [X]. Sadly, however, that claim made by [DT] proved to be just another lie and denial perpetrated by Comcare agents in their ceaseless efforts to deny and cover-up the Applicant's claim.
2.54In October, again on the advice of [KW], the Applicant was told that [X] had resumed his role as Director of Comcare's Melbourne office.
2.55On 11 February 2011 the Applicant received a phone call from Comcare's Harassment Officer, [LB] after she had been advised the Applicant had submitted a compensation claim.
2.56[LB] threatened the Applicant, telling her that Comcare would do everything it could to prevent her having her compensation claim accepted, would 'aggressively' defend their position and would endeavour to make her claimed condition entirely about her cancer and therefore non-compensable.
2.57As a result of this threat the Applicant chose to leave Victoria, which had been her home since 1998, and fled back to Western Australia where her family and few remaining friends resided.
…” (original emphasis) (ExhibtA1)
In her oral evidence-in-chief the applicant said that, immediately as the relevant statement threatening death was made to her by the Director on 5 March 2010, she was “made incapable of functioning basically”. She said that she nevertheless attended for work on 9 March 2010 (following a long weekend) because she felt that it was “important” for her to “behave as normally as [she] possibly could” because, if she did not, it “would draw attention to the situation” and that was “the last thing [she] wanted to happen”. She said that she then enquired of Human Resources regarding her leave entitlements as she wished to take immediate leave, but that her Operations Manager refused her request to take immediate leave but approved her taking leave from 16 April 2010. She said that as she was leaving the workplace in a lift on 16 April 2010 she had a “massive panic attack”, explaining that it had been a “crippling experience trying to maintain a façade of normality” at work during the period since the incident of 5 March 2010, and that “the whole experience of leaving on 16 April 2010 was about escape”. She added that, after leaving on 16 April 2010, she “would never have been able to return to that place of work ever again”, and she has not since returned to that workplace.
The applicant explained that she did not seek medical treatment at the time because that was “the last thing [she] was going to do because accepting that you have suffered a psychological injury is, in many respects, terminal for a career”; nor did she contemplate applying for sick leave to cover her absence because she “believed that the retaliation would be so swift” and she “did not want to draw any attention to the situation”.
In cross-examination it was put to the applicant that a statement she had made in a letter to the respondent, dated 28 January 2013, in relation to the reviewable decision of 21 July 2011, namely:
“ … on the 5/3/2010 when [X] threatened to kill me everything came to a crashing halt” (T37, p 272)
was inaccurate. The applicant acknowledged that she had continued to work on that day but that her “psychological integrity came to a crashing halt the moment he threatened to kill [her]”. She acknowledged that she worked on 9 March 2010, took a day’s leave on 10 March 2010 for “nausea”, and a day’s annual leave on 18 March 2010 for the purpose of a visit to Perth. She acknowledged that she returned to work on 22 March 2010 and undertook “higher duties” from that date until 9 April 2010, and then returned to her normal duties the following week (12–16 April 2010) during which she had one day off work (13 April 2010) for a “gastric complaint”. The applicant acknowledged that her reference to “everything coming to a crashing halt” on 5 March 2010 did not refer to her capacity for work. She said that she attributed her incapacity for work to “the events of the day [she] left Comcare” on 16 April 2010, when she had a panic attack in the lift while leaving Comcare. She said that that panic attack only lasted for the period she was in the lift and that, by the time she reached the ground floor, it had “subsided”.

The applicant was referred to the following statement made in her abovementioned letter of 28 January 2013 to the respondent:
“ I was incapacitated for work on and from 5/3/2010 because I ceased to be able to function within the boundaries of normal mental behaviour from that date onward, even though it took until 16/4/2010 to remove myself from the workplace proper.” (T37, p 231)
She said that she should have stated that she was “injured” on 5 March 2010 and became incapacitated for work from 16 April 2010. She reiterated that she had ceased to be able to function within the boundaries of normal mental behaviour from 5 March 2010 until 16 April 2010 even though, during that period, she was able to work and she performed higher duties without any complaint about her performance.
The applicant confirmed that she took annual leave and long service leave from 16 April 2010 and embarked on a planned overseas cruise on 21 May 2010 which was scheduled to return on 3 September 2010, but that, in August 2010, she arranged with her payroll manager and operations manager to extend her leave from 6 September 2010 until 4 January 2011.
The applicant confirmed that she left the cruise early, in mid August 2010, and returned to Australia because of the state of her mental health. She acknowledged, however, that she did not seek medical treatment for her mental health at that time.
The applicant was referred to documents produced by St Vincent’s Hospital, Melbourne under summons (Exhibit R3). She was first referred to a note of Dr Lee, Haematology Clinic, dated 4 February 2010, which refers, inter alia, to her “not feeling well ?due to depression → GP”. She said she had no recollection of that but accepted that it was an accurate record. She acknowledged that she did not consult her general practitioner about depression at that time. She also acknowledged that subsequent notes of Dr Lee on 13 May 2010 and 14 October 2010 do not refer to depression. She was next referred to a note of Dr Lee, dated 13 January 2011, and she confirmed that (as that note indicated) she saw him on that date for headaches, abdominal pain and nausea. She said that she had commenced to experience those symptoms when the time for her return to work (namely, on 4 January 2011) was approaching. She confirmed that, at that consultation, Dr Lee referred her for a CT scan of her abdomen and pelvis. Finally, the applicant was referred to Dr Lee’s note of 27 January 2011 and she said that, at that consultation, Dr Lee had recommended that she see a psychiatrist. She confirmed that she then saw her general practitioner, Dr Dunne, on 31 January 2011 who referred her to a psychiatrist and a psychologist.
The Medical Evidence
Various medical reports are included in the T Documents. These are set out below. The Tribunal notes that none of the authors of these reports was called as a witness in this proceeding.
Dr Kathryn Dunne
By letter dated 10 March 2011 the respondent requested a medical report from Dr Dunne, in relation to the applicant’s compensation claim for depression and anxiety, addressing the following questions:
“ Schedule of Questions
History:
1.How long has Ms Hutchinson been a patient at the surgery?
2.With regard to Ms Hutchinson’s claimed condition, please provide her patient history as reported by Ms Hutchinson during each consultation, including the date of when she first consulted you/the surgery for the claimed condition.
3.Please provide copies of relevant clinical notes along with copies of any relevant reports, held on Ms Hutchinson’s patient medical file as this will further assist Comcare in the consideration of her compensation claim.
Medical Questions
4.In your opinion, what is the specific diagnosis of the condition from which Ms Hutchinson suffers? Please provide a description of the diagnostic criteria used, along with the symptoms she presented with, that assisted you in reaching the diagnosis.
5.In your opinion, when did Ms Hutchinson first suffer from clinically identifiable symptoms of a psychological condition? Please provide details in respect of clinical signs and symptoms which support your opinion.
6.Please provide details of any relevant history, pre-existing or underlying condition suffered by Ms Hutchinson including any predisposition to stressors.
7.In your opinion, is Ms Hutchinson’s claimed condition an aggravation, acceleration or recurrence of a pre-existing or underlying condition? If so; what is the nature of the aggravation:
a.   a worsening of the diagnostic indicators?
b.   a worsening of her experience of the symptoms?
c.   a continued experience of her symptoms which would have been present in any event?
d.   what diagnostic indicators for the condition exist?
8.In your opinion, what treatment, if any, would you recommend to therapeutically assist Ms Hutchinson with her condition/s as diagnosed at question 4. Please provide a clinical explanation to support your opinion along with an outline of the proposed treatment plan, including time frames and frequency.
9.Comcare’s records currently indicate you have certified Ms Hutchinson totally unfit for work from 7 February to 7 March 2011.
a.   In regards to the condition/s as noted at question 4 please provide details of the specific incapacitating factors that led you to certify Ms Hutchinson unfit for work.
b.   Has Ms Hutchinson been certified unfit for work prior to 7 February 2011? If yes please provide details including the date Ms Hutchison [sic] was first certified unfit for work.
c.   Please provide details of subsequent capacity for work certifications from 7 March 2011 to current.
d.   If Ms Hutchinson is still certified unfit for work, when do you consider she will be fit to return to work in some capacity.
10.Ms Hutchinson has provided a medical certificate from St Vincent’s Hospital, Fitzroy, noting that she attended outpatients on 13 January 2011 and was certified as totally unit [sic] for work for 2 weeks from that date. If this period of certification relates to the condition/s as noted at question 4 please provide details.
Causation and Employment Relationship
Please provide your medial opinion addressing the following:
11.In your opinion is there a relationship between Ms Hutchinson’s claimed condition and her Commonwealth employment? If yes, please specify what you consider the employment factors to be and how they have contributed to, caused or aggravated the claimed condition?
a.   Please individually list the work factors, and specify the level of contribution for [sic]
12.Are there any other factors outside the scope of her employment that have contributed to, caused or aggravated Ms Hutchinson’s claimed condition? If yes, please specify what you consider the factors to be and how they have contributed to, caused or aggravated the claimed condition?
a.   Please individually list the factors, and specify the level of contribution for each.
13.In your opinion, does Ms Hutchinson continue to suffer the effect/s of the condition/s as noted at question 4?
a.   If yes please provide details of the clinical signs and symptoms she currently presents with
b.   If no, when it is reasonable to assume the effect/s of the condition/s to have resolved.
14.If there are other factors or comments that you feel are relevant to this matter which have not been addressed in the list of questions, please include these in your reply.” (original emphasis) (T8, pp 53–54)
In response Dr Dunne, the applicant’s former general practitioner, provided a report, dated 23 April 2011, to the respondent as follows:
“ Firstly I would like to apologise for the delay in this letter. I will now answer your questions in your letter dated 10 March 2011 in the order of your ‘Schedule of Questions’.
History:
1.Ms Hutchinson has been a patient here since 31.01/11.
2.I include my all [sic] the consultation notes held at this clinic as requested.
As can be seen from the notes her history was erratic so I will summarise.
First Consultation 31/01/11:
She has been employed as a Claims Manager with Comcare since 1998. In 2007 a new ‘director/general manager’ began working there. She feels that from 2008 there has been a ‘work issue’ and ‘conflict between them’.
From very early on in their relationship he was ‘bullying and harassing me and ridiculing me’. In a meeting about bullying when asked what phrases would constitute bullying he, sitting next to her, said ‘he would fucking kill you’. She felt he said this directly to you. [sic]
She has not been happy about not getting promotions, being underpaid for higher duties performed and not being supported by him. She feels he has deliberately separated her from colleagues and given her more junior duties to her qualifications and experience. She began to experience increasingly severe symptoms of depression and anxiety (‘where once I was confident and assertive’). She was teary a lot of the time, felt exhausted and was not experiencing joy. Ms Hutchinson stated that she was not sleeping and putting on weight – which further exacerbated how she was feeling. She knows she was highly anxious and ruminating about work but ‘couldn’t stop it’. She stated the situation at work was ‘controlling my whole life’.
On April 16 2010 she went on annual and long service leave. Though she was due back to [sic] work in September she extended her leave as she felt she could not handle being back at work. She again further extended her leave in January 2011.
Consultation 7/02/11:
We discussed her symptoms further and I wrote a referral to Ms Debbie Buesnal [sic], a counsellor, whom she was seeing later that day (I had already faxed over a referral to a psychiatrist Dr Lorelle Drew). Ms Hutchinson had decided to put in a Workcover Claim. She felt a sense of relief that she had made this decision and there was a plan of action now. We had set up a time for a full examination and blood tests due to her other medical issues.
Consultation 14/02/11:
We discussed her blood results and other non workcover related issues.

She had put the workcover claim in so I referred her to a psychologist working with Debbie Buesnal [sic].
During the Consultation on 24/02/11 I referred her to Brendan Spence a psychiatrist as Dr Lorelle Drew couldn’t see her.
Last Consultation 7/03/11:
The psychiatrist had started her on Pristiq, an anti-depressant. She was having side effects but was persuaded to continue. I have not seen her since.
Medical Questions:
4.I believe she presents with Depression with Anxiety due to alleged bullying in the workforce. Her symptoms of depression, anxiety, teariness, lack of sleep, increasing fatigue, lack of joy, loss of her own sense of ‘confidence and assertiveness’ all began at the time of the ‘conflict’ with this director. There is no prior history of depression or anxiety and at no time did Ms Hutchinson state there were significant issues at work before this situation.
5/6. As above in Q4.
7.    I do not know of any pre-existing or underlying condition.
8.I have referred her to see both a psychiatrist and a psychologist. She has started on Pristiq, an anti-depressant. Currently it is too soon to predict ‘time frames’.
9.Ms Hutchinson in her present state of health – both mental and physical would not be able to sustain working to the level of her qualifications and her work ethics. When anyone experiences depression and anxiety their cognitive functions can decrease significantly. As I have not seen Ms Hutchinson since 7/03/11 I cannot answer any further questions pertaining to Q9.
10.I do not know about this certification period.
Causation and Employment Relationship.
11.As already stated her symptoms began at the time of the alleged bullying and harassment in 2008. Her symptoms are consistent with the alleged bullying and harassment as stated by herself (see my consultation notes and the summary in this letter). She denies that she had the symptoms of depression and anxiety before 2008.
12.Ms Hutchinson has had a serious medical problem before this time. I however did not know her then and as our consultations have predominately [sic] been about this Workcover Claim I have not gone back into her past in detail as yet. Thus do not feel competent to answer this question fully.
13.Up until when I last consulted with Ms Hutchinson she was still experiencing depression and anxiety relating directly to this issue.
…”(T19, pp 123-125)
Dr Brendan Spence
Dr Spence, Consultant Psychiatrist, provided the following report, dated 4 March 2011, regarding the applicant to Dr Dunne:
“ Thank you for referring Karen Hutchinson for a psychiatric assessment. As you know she is a fifty year old single lady living alone in a rental property in East Melbourne and working as a claims manager with Comcare. She is not currently in a relationship and does not have any children.
Karen was referred in the setting of a major depressive episode that has occurred as a result of an ongoing dispute in her workplace. Karen informed me that her job has been a pivotal part of her identity for many years and that a lot of her socializing occurs in the work place. She has been employed as a claims manager with Comcare since 1998. In 2007 the Comcare organization had a new director. Following his appointment Karen was disappointed that she didn’t get a number of promotions that had come up. She complained to the director’s superior, the general manager, that she was not put on to a job for higher duties and was granted these duties by him. She felt that this had upset the director who was her immediate superior. Since this time she has felt undermined by him in the workplace. She says she was moved to an isolated part of the floor away from other people. She was refused payment for reasonable travel allowances as her job entailed frequent trips to Canberra. She felt that he humiliated and ridiculed her in group situations. She felt that jobs that she was given included an impossible work load. At one point in an harassment and bullying workshop she was seated next to the director of the organization. The facilitator asked for examples of threats or bullying and he leaned across and whispered in her ear ‘I am going to fucking kill you’. Karen felt extremely anxious and agitated about this perceived threat. She felt there was an unsupportive harassment complaint process within her work. Subsequently she took long service leave in April 2010 for three and a half months. She supplemented this with annual leave at half pay and was due for return to work upon January the 4^th. She felt too distressed and agitated about the prospect of having to return to the workplace and has been on sick leave. She is in the process of applying for a Workcover claim.
Karen says that she has been obsessing about events at the workplace since April last year. She feels depressed and rates her mood as three out of ten. She is frequently tearful. She is exhausted all day long and has decreased enjoyment of activities. She has lost interest in her other usual activities. Her sleep is disturbed with an initial delay and frequent wakening during the night. She says that she is ruminating a lot and wishing that she had done things differently in the workplace. She has felt very fatalistic about her life and the possibility of her cancer returning and has had passive suicidal ideation. She has been very anxious around groups of people and crowds. She finds it hard to wind down at the end of the day and has very poor concentration. She notes problems with muscular tension for quite some time. She had not had any panic attacks nor was she feeling restless.
Past Psychiatric History
Karen has no significant past psychiatric history. She has seen Psychologist Debbie Busnel [sic] for four sessions over the last four weeks.
Family History
Karen’s parents are alive and well and living in Western Australia. She has three younger siblings. Her youngest sister died in 1992 of an asthma attack. There is no family history of any mental illness.
Karen is a non drinker who only occasionally has social alcohol. She does not use any illicit substances.
Mental Status Examination
Karen was a larger lady who attended the appointment upon time. She sat still throughout the appointment and engaged well maintaining good eye contact. She had a very contained manner. Her affect was mildly dysphoric, reactive and appropriate. Thought stream and form were normal. Content included perceived harassment and bullying in the workplace, obsessive rumination about the workplace and the difficulties she has faced. There was some typical depressive cognitions of regrets and passive suicidal ideation with no current plan or intent. There were themes of anxiety including difficulty winding down and trouble with concentration. Karen was insightful to the symptoms she was experiencing and could relate them back to the workplace harassment and bullying that she has experienced.” (T6, pp 38–39)
In response to a request by the respondent, by letter dated 16 March 2011 (T11), for a medical report regarding the applicant, Dr Spence provided the following report, dated 23 March 2011, to the respondent:
“ Karen Hutchinson has seen me on three occasions since her General Practitioner Katherine [sic] Dunne referred her on the 24/2/11. As you know she is a fifty year old single lady living alone in a rental property in East Melbourne and working as a claims manager with Comcare. She is not currently in a relationship and does not have any children. Karen was referred in the setting of a major depressive episode that has occurred as a result of an ongoing dispute in her workplace.
Karen informed me that her job has been a pivotal part of her identity for many years. A lot of her socializing occurs in the work place. She has been employed as a claims manager with Comcare since 1998. In 2007 the Comcare organization had a new director. There was a review of the structure and he was very critical of the institution. Karen was disappointed that she didn’t get a number of promotions along the way. She complained to the general manager that she was not put on to a job for higher duties and was granted these duties by him. She felt that this had upset the director who was her immediate superior. Since this time she has felt undermined by him in the workplace. She says she was moved to an isolated part of the floor away from other people. She was refused payment for reasonable travel allowances as her job entailed frequent trips to Canberra. She felt that he humiliated and ridiculed her in group situations. Jobs that she was given included an impossible work load. At one point in an harassment and bullying workshop the director of the organization whispered to her that a threat to an employee that could entail bullying would include ‘I am going to fucking kill you’. Karen felt extremely anxious and agitated about this perceived threat. She felt there was an unsupportive harassment complaint process within her work. Subsequently she took long service leave in April 2010 for three and a half months. She supplemented this with annual leave at half pay and was due for return to work upon January the 4^th. She felt too distressed and agitated about the prospect of having to return to the workplace and has been on sick leave. She has applied for a Workcover claim.
Karen says that she has been obsessing about events at the workplace since April last year. She feels depressed and rates her mood as three out of ten. She is frequently tearful. She is exhausted all day long and has decreased enjoyment of activities. She has lost interest in other usual activities. Her sleep is disturbed with an initial delay and frequent wakening during the night. She says that she is ruminating a lot and wishing that she had done things differently in the workplace. She has felt very fatalistic about her life and the possibility of her cancer returning and has had passive suicidal ideation. She has been very anxious around groups of people and crowds. She finds it hard to wind down at the end of the day and has very poor concentration. She has noted problems with muscular tension for quite some time. She had not had any panic attacks nor was she feeling restless.
Past Psychiatric History
Karen has no significant past psychiatric history. She has seen the Psychologist Debbie Busnel [sic] for four sessions over the last four weeks.
Medical History
Karen was diagnosed with Leukaemia in September of 2006 and underwent chemotherapy treatment for eight months. She successfully returned to work after this treatment.
Family History
Karen’s parents are alive and well and living in Western Australia. She has three younger siblings. One of her youngest sisters died in 1992 of an asthma attack. There is no family history of any mental illness.
Karen is a non drinker who only occasionally has social alcohol. She does not use any illicit substances.
Mental Status Examination
Karen was a larger lady who attended the appointment upon time. She sat still throughout the appointment and engaged well maintaining good eye contact. She had a very contained manner. Her affect was dysphoric, reactive and appropriate. Thought stream and form were normal. Content included perceived harassment and bullying in the workplace, obsessive rumination about the workplace and the difficulties she has faced. There was some typical depressive cognitions of regrets and passive suicidal ideation with no current plan or intent. There were themes of anxiety including difficulty winding down and trouble with concentration. Karen was insightful to the symptoms she was experiencing and could relate them back to the workplace harassment and bullying that she has experienced.
Personal History
Karen was born in Western Australia to a mother who was a house wife and a father who was an architect. When she was two years old the family left Australia to travel around Europe for a number of years. They did not return until she was seven years old. Her father ran a successful business in architecture. She says she felt like she had a lot of attention from her father when she was growing up. The marriage was happy until Karen was eleven years old when it became apparent that her father had had an affair with his secretary. Her parents separated and there was quite an acrimonious custody battle following this. Both her parents remarried and Karen can recall her early pubertal years as quite traumatic times with a lot of changes. Nevertheless she bonded well with her new step father and describes him and his family as very warm and generous. At primary school Karen said she was a bit of a loner who was independent but creative. She says she was the teacher’s pet but could also be quite forthright. She was a hard worker who was diligent and quite a perfectionist. At secondary school she says she had an interesting group of friends who were quite alternative. She went through to year twelve and passed and made friends and fitted in. During her childhood Karen studied music and Latin American ballroom dancing but gave this up when she was thirteen after her parents’ divorce. Karen worked a number of jobs in creative industries including as a fashion agent, retail and importing. She did a number of studies in film and worked as a freelance producer for ABC radio. Because these professions were contract jobs and it was difficult to maintain a steady wage she decided to move to a more traditional job. Karen moved to Melbourne in 1998 from Perth. Karen has had a number of relationships over the years but has been single for some years since she has been in Melbourne. At the moment she says that she feels lonely and would like a closer relationship.
Summary
In summary Karen Hutchinson is a single fifty year old lady who was working as a claims manager with Comcare. She presents with a moderate episode of Major Depression in the setting of workplace bullying and stress. Karen does not have a past psychiatric history of note and there is no family history of mental illness. She is however quite a perfectionist and a hard worker. I can see no other clear precipitants to this episode of major depression.
History
1.How long has Ms Hutchinson been a patient at the surgery? –
Ms Hutchinson first attended my surgery on the 4^th March 2011, she had a second appointment the next week on the 10^th March 2001 [sic] and a final consult on the 23^rd of March 2011.
2.With regard to Ms Hutchinson’s claimed condition please provide her patient history as reported by Ms Hutchinson during each consultation, including the date of when [sic] she first consulted you/the surgery for the claimed condition –
Please refer to the above report. Subsequent consultations will be included in the medical records provided to you from our clinic.
3.Please provide copies of relevant clinical notes along with copies of any relevant reports, held on Ms Hutchinson’s patient medical file as this will further assist Comcare in the consideration of her compensation claim –
Please find these enclosed.
Medical Questions
4.In your opinion what is the specific diagnosis of the condition from which Ms Hutchinson suffers? Please provide a description of the diagnostic criteria used, along with the symptoms she presented with that assisted you in reaching the diagnosis –
Please refer to the above report. Ms Hutchinson is suffering from DSM IV, moderate episode of Major Depressive Disorder. The symptoms are listed within the above report.
5.In your opinion when did Ms Hutchinson first suffer from clinical identifiable symptoms of a psychological condition? Please provide details in respect of clinical signs and symptoms which support your opinion –
From her description is [sic] sounds as if Ms Hutchinson was suffering from depressive and anxiety symptoms from 2008 onwards. These became more severe as her perceived harassment and bullying increased.
6.Please provide details and [sic] any relevant history, pre-existing or underlying condition suffered by Ms Hutchinson including any predisposition to stressors.
As noted in my report, Ms Hutchinson has no significant past psychiatric history. She managed to endure her diagnosis of leukemia and the treatment without suffering a diagnosable mental condition. I don’t believe she has any predisposing factors that would make her more likely to suffer with a depressive disorder.
7.In your opinion is Ms Hutchinson’s claimed condition an aggravation, acceleration or recurrence of a pre-existing or underlying condition? If so; what is the nature of the aggravation? –
I do not believe Ms Hutchinson’s claimed condition is an aggravation, acceleration or recurrence of a pre-existing or underlying condition.
8.In your opinion what treatment, if any, would you recommend to therapeutically assist Ms Hutchinson with her condition as diagnosed at question 4. Please provide a clinical explanation to support your opinion along with an outline of the proposed treatment plan including time frames and frequency –
As Ms Hutchinson is suffering with a moderate episode of Major Depression, she requires both antidepressant medication and psychological therapy. I have commenced her on the antidepressant medication desvenlafaxine and I am hoping that she will respond to this medication over the next few months. She is continuing to engage with the Clinical Psychologist Debbie Buesnel who also works at our clinic. I anticipate that she will require two to three weekly appointments with me in the initial phase and that the frequency may be reduced if she responds to medication over the next few months.
9.Comcare records currently indicate Dr Dunne has certified Ms Hutchinson totally unfit to work from the 7^th of February to the 7^th March 2011.
a.   In your opinion do you opine that Ms Hutchinson is totally unfit for work as a result of the condition as noted at question 4? If yes please provide details of the specific incapacitating factors to support your opinion.
I agree with Dr Dunne that Ms Hutchinson was totally unfit for the period 7^th February to 7^th March 2011. I anticipate she will be totally unfit for work for another few months. If we see a response to the antidepressant medication then this may well change. Karen remains significantly depressed. She is frequently tearful. She is exhausted all day long and is not enjoying activities. She has lost interest in other activities. Her sleep remains disturbed and she has a number of depressive cognitions. I do believe her concentration is impaired and she has marked anxiety when around groups of people and crowds. It is these symptoms that make her totally unfit to work at this stage.
b.   Please provide your opinion in relation to Ms Hutchinson’s capacity for work from 7^th March 2011 to current.
Ms Hutchinson remains totally unfit for work for the period of 7^th of March to today the 23^rd of March.
c.   If Ms Hutchinson is still certified unfit for work, when do you consider she will be fit to return to work in some capacity?
I anticipate that Ms Hutchinson will improve over the next few months. Further treatment and consultation will inform us of this. I believe she will be unfit for at least another two months from now.
Causation and Employment Relationship, please provide your medical opinion addressing the following
10.In your opinion is there a relationship between Ms Hutchinson’s claimed condition and her Commonwealth employment? If yes please specify what you consider the employment factors to be and how they have contributed to, caused or aggravated the claim [sic] condition.
a.   Please individually list the work factors and specify the level of contribution for each.
In my opinion there is a clear relationship between Ms Hutchinson’s Major Depression and her Commonwealth employment. Employment factors would include bullying and harassment by an immediate superior, unreasonable work load in employment and an unsupportive work environment. I think the bullying and harassment is the main contributor to her claimed condition of Major Depression.
11.Are there any other factors outside the scope of her employment that have contributed to, caused or aggravated Ms Hutchinson’s claimed condition?
I do not believe that there are other factors outside of the scope of her employment that have contributed to cause [sic] or aggravated Ms Hutchinson’s Major Depression.
12.In your opinion does Ms Hutchinson continue to suffer the effects of the condition as noted at question 4?
At my last appointment Ms Hutchinson was improving. Her sleep was better. She was feeling more motivated. Nevertheless she was anxious a lot of the time especially if out and about. She felt overwhelmed by Melbourne and said that she felt hopeless about the prospect of returning to her workplace at Comcare. She was extremely preoccupied about the ongoing Workcover claim.
…” (T13)
Dr Dielle Felman

Dr Felman, Consultant Psychiatrist, examined the applicant, at the request of the respondent, on 29 March 2011 and provided the following report, dated 1 April 2011, to the respondent:
“ …
1.2     INTRODUCTION
Ms Hutchinson is a 50-year-old single woman who is currently living alone in a private rental property in East Melbourne. She has been employed with Comcare since 1998 and has been on leave continuously since 16 April 2010. Prior to her leave she was working as a Claims Service Officer, APS 4.
Ms Hutchinson has recently lodged a Comcare claim citing mental health difficulties secondary to workplace bullying and harassment. No formal determinations have been advised by the Insurer. Today’s assessment was for the purpose of assessing Ms Hutchinson’s appropriateness for rehabilitation. Ms Hutchinson attended the interview on time and alone.
2.0PSYCHIATRIC HISTORY
2.1      Present Psychiatric History
Ms Hutchinson described her mental state deteriorating gradually after returning back to work after a year of sick leave secondary to leukaemia in 2007. On return to the workplace, she stated ‘there was a change in management and everything changed’. She described her new director as ‘hostile’ and ‘disinterested’ in her. Ms Hutchinson went on to describe numerous examples of difficulties with her director. She outlined in great detail, specific incidents of perceived negative interactions between them. She alleged that he ‘humiliated, bullied and harassed’ her and ‘gained great satisfaction from the process’. She described feeling threatened by him.
Concurrently, Ms Hutchinson described being an author for a policies and procedures project. She described this job as stressful secondary to a perceived lack of support and isolation from the rest of team [sic]. She felt that her director ‘was setting [her] up to fail’.
In the context of workplace stress and perceived difficulties with her director, Ms Hutchinson described a gradual deterioration in her mental state. In particular she described the emergence of depressive symptoms including lowered mood, feeling flat and lacking self esteem. She described significant sleep difficulties secondary to ruminations about her director and work keeping her up at night. She described comfort eating and putting on approximately 30 kilograms in weight. She also described reduced enjoyment for activities, reduced motivation, poor concentration and reduced energy levels. She described the emergence of depressive cognitions including feelings of guilt, worthlessness and hopelessness although she denied any suicidal ideation. Over time, Ms Hutchinson also noticed the emergence of anxiety symptoms and these escalated in the context of an alleged ‘death threat’ made by her director to her at a training session on bullying and harassment. From that time, Ms Hutchinson described feeling keyed up, on edge and pervasively anxious. She stated that she felt wary for her safety.
Ms Hutchinson stated that she had a pre-arranged period of leave that was due to commence one month after the alleged threat and so soldiered through the remaining few weeks of work albeit with difficulty. She commenced long service leave in April 2010. She stated that she did not inform her workplace of her mental health difficulties. Ms Hutchinson stated that she struggled through her leave and found little enjoyment in her planned holiday.   She extended her leave with recreational leave which she took at half pay. She stated that she hoped her mental state would improve with this prolonged leave but this was not the case.
Ms Hutchinson described ongoing symptoms of depression and anxiety despite extended leave. She described a reduced quality of life whereby she spends her days doing very little; she is withdrawn and spends her days watching TV and listening to music. She is still able to attend to her personal and domestic care needs though. She described herself as no longer the person she used to be. ‘I’ve lost my bubbly, outgoing and confident nature’. Mr [sic] Hutchinson stated that she has lost her circle of friends which had mainly consisted of other employees from within Comcare.
Ms Hutchinson stated she first sought medical attention for her anxiety and depressive symptoms at the end of January 2011 when her leave entitlements had run out. At that time she stated she was referred to a psychiatrist and psychotherapist and was started on anti-depressant medication. She stated that she started Pristiq 50 mg mane approximately one month ago and initially experienced significant side effects including constipation and diarrhoea, headaches, and jaw clenching. These side effects ceased approximately two weeks ago and since that time Ms Hutchinson has noticed improved sleep but little other change to her mental state. She has recently made a decision to return to Perth, where her family is located, and described this decision as resulting in relief as well as improved hopefulness regarding her future.
Impact on work:
In terms of Ms Hutchinson’s work performance, she described a gradual deterioration in her work performance secondary to her depressive symptoms. In particular she stated that the quality of her work deteriorated as did her timeliness of completing work. She denied any problems with absenteeism prior to leaving work in April 2010.
Ms Hutchinson stated that on various occasions she spoke to management staff about her difficulties with the director and felt that ‘no-one stood up [for her] or tried to help [her] out’. She felt that her ‘concerns were dismissed’ and described feeling ‘completely ashamed and let down’ by how she was treated there. She described irreconcilable feelings of ‘lost faith’ for Comcare. As a result, she stated that she would never be able to return to work within any Comcare Department secondary to her ‘hostile feelings’ towards the organisation.
2.2     Past Psychiatric History
Ms Hutchinson denied prior difficulties with depression or anxiety. She stated that she experienced prolonged grief in 1992 after the unexpected death of one of her siblings. She has never required any psychiatric hospitalisations or psychotropic mediations [sic] in the past.
3.0     PAST HISTORY
3.1      Medical History
Ms Hutchinson had a diagnosis of leukaemia in 2006 at which point in time she required nearly a year off work. She was hospitalised for several months and required eight rounds of chemotherapy. She stated that her leukaemia is currently in remission. Ms Hutchinson also has a history of haemochromatosis but her blood counts are now in the normal range. She has had a ruptured ovarian cyst. She experienced menopausal symptoms at the time of leukaemia treatment.
3.2      Family/Developmental History
Ms Hutchinson denied a family history of mental health difficulties. With respect to her developmental history, she described an uneventful childhood. She completed secondary school and worked in various jobs before going back to university and completing a Degree in Arts. She moved to Melbourne in 1998 and joined Comcare at that time, initially as an APS Level Two. Ms Hutchinson denied a history of conflict in the workplace, negative performance reviews or significant absenteeism prior to the last few years.
3.3      Pre-morbid Personality
Ms Hutchinson described herself as someone who was previously adaptable, flexible, happy, easygoing and assertive. She stated that she is no longer any of these things.
3.4      Drug and Alcohol History
Ms Hutchinson denied a history of substance misuse.
4.0MENTAL STATUS EXAMINATION
On mental state examination Ms Hutchinson presented as an overweight middle-aged woman who wore no make up although was neatly groomed. There was no evidence of psycho-motor disturbance although her gait was somewhat slow. She displayed good eye contact throughout the interview process. Her affect was somewhat dysphoric in quality but appropriate and well communicated. Her speech was spontaneous and of normal rate. She was softly spoken. She was circumstantial and over-inclusive and there were prominent themes regarding the behaviour of her director. She described feeling betrayed and let down by Comcare in general and humiliated by her previous director. She expressed some home [sic] regarding the future and there was no evidence of suicidal ideation. There was no perceptual disturbance. Her cognition was grossly intact but her thought processes were at times slowed. She was insightful into her situation.
5.0     DIAGNOSIS
Ms Hutchinson currently meets the diagnosis for a Major Depressive Episode with anxiety features.
6.0     DISCUSSION
Ms Hutchinson is a 50-year-old woman who has been off work for almost a year and is experiencing ongoing symptoms of depression and anxiety secondary to alleged workplace harassment and bullying by her director in addition to working in a perceived stressful and unsupportive work role. Her depressive symptoms emerged in the post menopausal period, a time of increased risk for mental health difficulties in women. Ms Hutchinson denied a genetic predisposition to mental illness.
Ms Hutchinson did not seek treatment for her mental health difficulties until the last few weeks, in part due to a belief that ‘things would sort themselves out’. Prior to going on leave in April 2010, Ms Hutchinson reported that her depressive and anxiety symptoms impaired her work performance secondary to symptoms of reduced motivation, poor concentration and reduced ability to focus.
Ms Hutchinson currently describes irreconcilable relationship difficulties between her and Comcare. She sates that she has lost all faith in the organisation and is unwilling to return to work there.
Ms Hutchinson is currently engaged in appropriate treatment and is hopeful for a brighter future. She does however, continue to experience depressive and anxiety symptoms that impact on her quality of life and ability to work. She is planning on moving to Perth in April 2011 and will not be returning to work at Comcare in Victoria.
7.0     PROGNOSTIC ASSESSMENT
The prognosis for Ms Hutchinson’s depression and anxiety should be considered fairly favourable. She has only recently started treatment and is already feeling more hopeful regarding her future. She also has clear plans to move back to Perth secondary to financial strains and a desire to be closer to her family. In terms of getting back to work, it is unlikely that Ms Hutchinson will return to Comcare due to her fixed mindset regarding her treatment there and feeling like she has lost all faith and trust in the system. With appropriate treatment, she should however, be able to return to gainful employment in the not too distant future.
8.0     SPECIFIC QUESTIONS
…
1.What is the primary diagnosis of any current medical conditions?
Ms Hutchinson currently suffers from a Major Depressive Episode.
2.What are the employee’s presenting symptoms?
Ms Hutchinson currently presents with symptoms of lowered mood, reduced enjoyment for activities, social withdrawal, comfort eating, reduced energy, drive and motivation, poor concentration and depressive cognitions including low self-esteem.
Ms Hutchinson is also of the mindset that she has been ‘betrayed and humiliated’ by Comcare and she is unwilling to return to work there. In fact she wants to get ‘as far away from there as possible’.
3.       Are these present symptoms due to a diagnosable psychiatric disorder?
Ms Hutchinson’s presenting symptoms are due to both her diagnosable psychiatric disorder in addition to her perception of bullying, harassment and lack of action taken by Comcare.
4.Do you think the employee’s current difficulties in progressing a return to work are due to a psychiatric disorder or another issue, eg in the former workplace or in the home situation?
Ms Hutchinson’s difficulties in returning back to work are due to both symptoms of her psychiatric disorder in addition to her fixed mindset regarding the perceived difficulties in the workplace and her refusal to return to work there.
5.Do you think there has been a medicalisation of the employee’s behaviour or difficulties?
No. Ms Hutchinson does suffer from Major Depression. Her refusal to return to work at Comcare may be impacted upon by depressive cognitions including hopelessness regarding the possibility of reconciliation.
Ms Hutchinson is moving to Perth for psychosocial reasons (financial and to be closer to the support of her family). These psychosocial needs appear to have arisen as a result of her mental illness.
6.In your opinion does the condition(s) have any effect on the employee’s ability to act on her own behalf?
Ms Hutchinson is currently insightful into her situation and is in control of her actions.
If yes, in what way?
Not applicable.
7.What effect do any conditions have on the employee’s ability to efficiently perform her pre-injury duties?
Currently Ms Hutchinson’s depression prevents her from performing her pre-injury duties in that she has reduced concentration, reduced ability to attend to tasks and reduced drive to get started on work. In addition, her mindset regarding her perceived treatment at Comcare has resulted in her feeling that the workplace is hostile and unsafe and she is unwilling to work there. This mindset might be in part due to her depressive cognitions.
8.Does the employee have any attitudinal or motivational issues that may affect her capacity to return to her pre-injury workplace? If so, please provide the information that was considered to form this opinion?
Yes, Ms Hutchinson does have attitudinal and motivational issues that would affect her capacity to return to work. Currently she is very angry at her director in particular. She also perceives that other Comcare staff did not ‘step in and help out’ and feels ‘betrayed by the system’. She is unwilling to return to work there. To this end, she is planning to move back to Perth in mid April and is currently packing up her house . Her cited reasons for doing this include to be closer to her family for support and financial assistance. She also expressed a desire to be ‘as far away from Comcare as possible’.
9.Please describe the current treatment regime?
Ms Hutchinson has recently commenced antidepressant medication – Pristiq 50 mg per day. She is engaged with a psychiatrist and is receiving weekly psychotherapy which at this stage is supportive in nature.
10.Do you believe that this is suitable for the management of the conditions?
Yes, this is appropriate treatment.
As an adjunct treatment, Ms Hutchinson may like to explore the use of Hormone Replacement Therapies such as Tibilone with her treating doctors. This may be useful for her given her depression arose in the post menopausal period, (with no history of prior depression despite the experience of major life stressors). Risks and benefits of this treatment would need to be discussed and thought through.
11.What is your opinion as to the suitability and appropriateness of the past and current treatments?
Ms Hutchinson’s current treatment is appropriate. Unfortunately however she has experienced two to three years of depressive and anxiety symptoms which she did not seek treatment for.
12.What do you recommend as the most appropriate and potentially effective treatment and rehabilitation program to assist the employee’s return to remunerative employment?
Ms Hutchinson is currently receiving appropriate treatment. She is unlikely to be able to engage in a rehabilitation program at Comcare in Victoria. However, with appropriate treatment, she should be able to return to remunerative employment with another organisation.
In terms of steps that need to be taken to assist in her returning to remunerative employment, Ms Hutchinson will first need to optimise her mental health with ongoing treatment.   Her planned return to Perth may also be of benefit secondary to increased supports there.
As her mental state improves, a mediation process with Comcare whereby Ms Hutchinson can feel listened to and supported, may help her to reconcile her difficulties with Comcare. While this may not result in a return to employment within Comcare, it may enable her to engage in a more sustained return to work process within another organisation.
Ms Hutchinson would likely benefit from a repeat occupational psychiatric review in three to six months, to reassess her depressive symptoms and mindset regarding working with Comcare. It is possible that as her mental state improves, she may be more willing to work within the Comcare system, albeit in Perth. If this is the case, then a rehabilitation consultant may be needed to help her get back to work. Discussions regarding this however, are at this stage premature.
13.Is the employee fit to resume any employment at her nominal workplace? If so, please provide specific guidance on the medical restrictions and support that may be necessary for this to be implemented?
Currently Ms Hutchinson is not fit to return to any form of employment with Comcare. This could be re-assessed in approximately three to six months’ time with adequate treatment.
14.If no, is the employee considered permanently unfit for any return to work at her pre-injury workplace? If this is considered to be a temporary restriction only, please indicate what actions may be necessary to remedy any existing barriers to return to work at the pre-injury workplace?
Ms Hutchinson should not be considered permanently unfit to return to work at her pre-injury workplace. Whilst she currently vehemently states that she will not return to Comcare, it is unclear whether her depression is affecting her cognitions. An adequate trial of treatment in addition to time and potentially a mediation process or post-employment counselling may increase the chance of her being willing to return to Comcare. However, she will need to be relocated to a Perth office.
15.If the employee is not able to continue to perform her duties at her current nominal employment level, please provide specific information on the level of work that may be appropriate and the duration of such a reduction in classification?
Currently Ms Hutchinson is not fit for any work within Comcare. This should be re-assessed in three to six months with optimisation of her treatment and mental health.
16.If the employee is able to commence active formal vocational rehabilitation activities, what is considered to be the number of hours per week that can be attempted and over what period of time would be capable of resuming to a full time work capacity?
Ms Hutchinson is not currently fit to attend rehabilitation activities. This could be reassessed in approximately three months’ time.
17.If the employee is unfit to work, do you consider her to be or likely to become totally and permanently incapacitated for work? (Total and permanent incapacity means that because of physical and mental health condition the employee is unlikely to ever work again in a job for which she is reasonably qualified by education , training and experience or could be so qualified after re-training).
No. Ms Hutchinson should not be considered permanently incapacitated as her mental health condition is not stable or adequately treated at this point in time.
I recommend that a copy of this report be sent to Ms Hutchinson’s treating psychiatrist and GP. I have no problems with Ms Hutchinson accessing a copy of this report through her treating doctor.” (T17)
Debbie Buesnel
In response to a request by the respondent, by letter dated 16 March 2011, Ms Buesnel, Psychologist, provided a report, dated 29 April 2011, regarding the applicant to the respondent as follows:
“ Ms Karen Hutchinson has been a client of Victorian Counselling & Psychological Services for a period of 3 months, having commenced therapy on the 7^th February 2011. Her final session was conducted on the 5^th April shortly before she moved to Western Australia to live.
Karen is a 50 year old single woman who is not in a relationship, and does not have any children. She has been living and working in Melbourne for the past 12 years. She sought counselling to help her cope with distress related to an ongoing dispute in her workplace. Karen told me she had been employed by Comcare since 1998 as a claims manager. She described her work as being very important to her because it provided financial stability and security, and a sense of satisfaction and meaning in her life.
She told me that she had enjoyed her work and had good relationships with her colleagues until 2007, when a new director was installed. Karen said the director indicated there would be major changes in order to improve the effectiveness of their department’s work. One of these changes was the development of a Policies and Procedures Manual and Karen was asked to be involved in this project. However, Karen told me that she was not being paid at the appropriate rate for this level of work and, accordingly, sought a salary increase. Karen met with the director to discuss her request, which declined [sic]. Karen said she felt intimidated by his manner towards her at this time. She described his manner as threatening. She told me she left the meeting feeling like she had made a mistake and later began to feel that she should leave the project and return to her normal duties. However, she sought assistance from the Project Manager in Canberra, who told her that she would deal with the matter. This resulted in the director’s original decision regarding Karen’s salary being overturned. Karen was advised of this at another meeting with the director at which time he indicated that he was happy to now agree to the increase. Karen advised me that she left that meeting feeling fearful and anxious and felt that the director was unhappy with her despite what he had said.
Karen continued to work on this project for the next 12 months, but began to feel more and more isolated in the role. She indicated to me that she was not given the opportunity to travel to Canberra to meet with her colleagues because funding was not provided. She also said that she was located away from others in the office and that this made her feel isolation [sic]. Karen felt she was not given sufficient support for her to invest in the project work and continued to feel uneasy about the director and his demeanour towards her.
When the project concluded, Karen she [sic] returned to her work team but was not given her own case load, being required instead, to pick up overflow work when others were on leave. She told me she felt this was done deliberately because she challenged the director’s decision.
In 2009 Karen applied for a higher position and was interviewed by a panel headed by the director. Karen told me that she was unsuccessful in achieving the position although she was advised that she was deemed suitable by the operations manager. She sought feedback to help her understand the reason the decision was not made in her favour, but no feedback was provided to her. Karen felt that this was unjust as she should have been awarded the position based on merit.
In 2010 she attended a Respect and Diversity training workshop, which appeared to pertain to the topic of anti-bullying and harassment. Karen told me that because of the seating arrangements she was forced to sit next to the director during this workshop. She felt distressed and frightened because of his proximity. During the Training Session the leader asked the group to consider what would be the most effective thing to say if you wanted to threaten someone in the work place. Karen told me that the director announced very quietly, ‘I am going to f ----g kill you’. Karen told me she felt that this comment was directed at her and that it caused her much distress and left her unsure of what to do. She said that she did not put in a formal complaint because she felt too frightened to come to the attention of the director again. However, a week later she decided to put in a complaint through the Harassment Officer. Karen said she formed the impression from this officer that she should look for another job and that she was told that Comcare procedures would not support her in her complaint and that no one would stand up for her.
Due to the level of her distress, Karen told me that she was unable to return to work after the 16^th April 2010. She said that she took three and a half months long service leave and then recreational leave at half pay to extend her absence from the workplace. Karen said she was due to return to work on the 4^th January 2011 but because of her emotional state was unable to do so. She said she then realised that she had been deeply affected by her experience at work and that she recognised that she needed some medical and emotional assistance to help her overcome her feelings of depression and anxiety. As a result, Karen consulted a doctor who referred her to me for counselling.
During the three month period of therapy, a significant amount of time was spent in Karen telling and retelling the specific events that caused her distress in the work place. Each session was characterised in this way. Karen displayed signs of emotional upset as she described these events. These included sadness, fearfulness, anxiousness, anger, worry and frustration. It was also apparent that Karen had difficulty comprehending how these events could have occurred to her.
Karen’s life was devoid of interaction with others and she displayed little motivation in beginning to re-engage socially. Although she previously had a keen interest in music and drama, she lost interest in these activities and had no motivation to resume them. Karen wold often experience loss of energy and motivation or hopefulness about life and her future. She was often tired because of broken sleep patterns during the night. These symptoms are consistent with some of the symptoms of Adjustment Disorder with Mixed Anxiety and Depression.
I believe there is a relationship between Karen’s emotional and psychological well being and the experiences she had at Comcare and which she described to me in our sessions together. The factors that have contributed to her condition include:
1.The sense of being threatened by a person in authority in the workplace.
2.Fear that security, stability, future job prospects and respect for competence was being undermined by those in authority in the workplace.
3.Feelings of lack of support and of being judged and abandoned by those in authority and by systems that were meant to provide protection in the workplace.
4.A sense of powerlessness to make her concerns and fears regarding her experiences in the workplace known and responded to.
5.A sense of confusion and bewilderment about how such an experience could have occurred to her.
6.A sense of lost identity once she could no longer continue to work due to her psychological and emotional state.
Finally, Karen did not reveal to me any other factors outside the scope of her employment that may have contributed to, caused or aggravated her psychological condition. She did mention a life threatening illness in 2006 which required her to be hospitalised for eight months; however, she feels she received support and care from work colleagues during this time and was able to return to work in mid 2007. Karen spoke highly of the previous director at that time, indicating that she was supportive and facilitated Karen’s transition back into the workforce effectively. Upon her return to work, Karen was positive, satisfied and appreciative of the role that she fulfilled and described it as a time of enjoyment and satisfaction. I believe it is likely that this would have continued if the experiences that followed did not occur.
…” (T20)
Dr Jonathon Spear

The SRC Act relevantly provides as follows:
“ 4       Interpretation
(1)     In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
…
(9)   A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
5A   Definition of injury
(1)     In this Act:
injury means:
(a)     a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
5BDefinition of disease
(1)     In this Act:
disease means:
(a)     an ailment suffered by an employee; or
(b)     an aggravation of such ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
…
(3)   In this Act:
significant degree means a degree that is substantially more than material.
…
7     Provisions relating to diseases
…
(4)   For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
…
14Compensation 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.
…”
The Issue
The respondent has accepted liability under s 14(1) of the SRC Act to pay compensation to the applicant in respect of “major depressive disorder – single episode” and “post-traumatic stress disorder”. It is, however, now common ground that the former compensable injury should be described as “major depressive disorder”.
The sole issue for the Tribunal’s determination is the date on which the applicant first sustained either of those compensable mental injuries.
It is common ground that each of those mental injuries is a “disease” as defined in s 5B(1) of the SRC Act. That being the case, pursuant to s 7(4) of the SRC Act, the date on which, for the purposes of that Act, the applicant “shall be taken to have sustained [each] injury”, is the date on which (relevantly):
“ (a) the [applicant] first sought medical treatment for the disease, …; or
(b)the disease … first resulted in the incapacity for work, or impairment of the [applicant];
whichever happens first.”
Consideration and Findings
It is common ground that the applicant sought medical treatment for a relevant mental ailment on 31 January 2011 when she consulted her general practitioner, Dr Dunne, who described her presentation as involving depression and anxiety and referred her to a psychiatrist and to a psychologist.
Although the applicant initially submitted that she (relevantly) first sought medical treatment on 13 January 2011 when she consulted Dr Lee at St Vincent’s Hospital and was prescribed (inter alia) “temazepam”, she ultimately did not press that submission. As regards that consultation, the Tribunal, having considered Dr Lee’s contemporaneous clinical notes (part of Exhibit R3), is of the opinion that, on that occasion, the applicant sought treatment for a physical condition – in particular, abdominal discomfort – and, although she was then prescribed medication which may be appropriate for the treatment of insomnia (which may be related to a psychological condition), the Tribunal is not satisfied that she “sought medical treatment for” a mental ailment, within the meaning of s 7(4)(a) of the SRC Act, on that occasion.
Accordingly, the Tribunal is satisfied, and finds, that the applicant “first sought medical treatment for” a relevant mental ailment (being a “disease” as defined in s 5A(1) of the SRC Act), within the meaning of s 7(4)(a) of the SRC Act, on 31 January 2011.
For the purposes of the application of para (b) of s 7(4) of the SRC Act, the following questions arise:
·did either or both of the relevant diseases (namely, major depressive disorder and post-traumatic stress disorder) “result in the incapacity for work, or impairment of the [applicant]” before 31 January 2011? and, if so
·on which date did either of those relevant diseases “first result in the incapacity for work, or impairment of the [applicant]”?
The applicant’s case rested entirely on her submission that she suffered post-traumatic stress disorder on 5 March 2010 by reason of the Director [X], who was sitting next to her at a training workshop, leaning towards her and quietly saying to her “I’m going to fucking kill you” (“the perceived death threat incident”), and that she immediately suffered mental impairment as a result, and, in support of that submission, she primarily relied on the medical reports of Dr Dellar dated 31 January 2013 (T38) and 28 May 2013 (Exhibit R2) (set out in paragraphs 33 and 34 above).
Although there is a considerable number of expert psychiatric and psychological reports in evidence, unfortunately none of them directly addresses the question as to when the applicant first suffered a mental ailment and mental impairment as a result of the perceived death threat incident. Each of those reports, however, does contain an expression of opinion regarding the diagnosis or nature of the mental ailment suffered by the applicant at the time of the clinical examination of the applicant on which the relevant report was based.
Those reports have been set out at length in paragraphs 24-35 above. It appears from each of those reports that the relevant psychiatrist/psychologist took a detailed history from the applicant for the purpose of formulating the appropriate diagnosis of the applicant’s presenting psychiatric condition. Those psychiatric diagnoses may be summarised (in chronological order) as follows:
·Dr Brendan Spence, Consultant Psychiatrist, to whom the applicant was referred by her general practitioner, Dr Dunne, on 24 February 2011, saw the applicant on three occasions (4 March 2011, 10 March 2011, and 23 March 2011) and, in his report of 23 March 2011 (T13 – set out in paragraph 25 above), expressed the opinion that the applicant was suffering from “moderate episode of Major Depressive Disorder”;
·Dr Dielle Felman, Consultant Psychiatrist, examined the applicant on 29 March 2011 and, in a report dated 1 April 2011 (T17 – set out in paragraph 26 above), expressed the opinion that the applicant “currently meets the diagnosis for a Major Depressive Episode with anxiety features”;
·Ms Debbie Buesnel, Psychologist, saw the applicant on a number of occasions when she was a client of Victorian Counselling & Psychological Services from 7 February 2011 to 5 April 2011 and provided a report dated 26 April 2011 (T20 – set out in paragraph 27 above) in which she expressed the opinion that the symptoms reported by the applicant were “consistent with some of the symptoms of Adjustment Disorder with Mixed Anxiety and Depression”;
·Dr Jonathon Spear, Consultant Psychiatrist, assessed the applicant on 9 September 2011 and 30 March 2012 and, in a report of 15 September 2011 based on the first assessment (T25 – set out in paragraph 29 above), his stated psychiatric diagnosis was “Major Depressive Disorder, single episode, chronic, atypical features”, and, in a report of 3 April 2012 based on the second assessment (T29 – set out in paragraph 30 above), his stated psychiatric diagnoses were “Major Depressive Disorder in Partial Remission” and “Agoraphobia with Panic Disorder”;
·Dr Gemma Edwards-Smith, Consultant Psychiatrist, to whom the applicant had been referred by her general practitioner, Dr Pamela Thompson, first saw the applicant on 2 April 2012 and subsequently assessed the applicant at the request of the respondent (most recently on 20 November 2012) and provided two reports, dated 28 August 2012 and 21 November 2012 (T32 and T35 – set out in paragraphs 31 and 32 above), in which her stated psychiatric diagnoses were “Major Depressive Disorder, single episode, chronic in partial remission” and “Panic Disorder”;
·Dr Brendon Dellar, Specialist Clinical Psychologist, to whom the applicant was referred by Dr Thompson in February 2012 (T27), prepared a report dated 31 January 2013 (T38 – set out in paragraph 33 above), having seen the applicant “over 29 sessions”, in which he expressed the opinion that the applicant “meets the criteria for Major Depressive Disorder and Posttraumatic Stress Disorder”;
·Dr Dellar prepared a further report, dated 28 May 2013 (Exhibit R2 – set out in paragraph 34 above), at the request of the applicant, in which he expressed the opinion that the appropriate psychiatric diagnosis is “primarily PTSD with co-morbid Major Depressive Disorder” and stated that he considered “Posttraumatic Stress Disorder to be the original injury, and that the Major Depressive Disorder is secondary …”;
·Dr Lawrence Blumberg, Consultant Psychiatrist, assessed the applicant on 21 June 2013 and, in a report dated 25 June 2013 (T46 – set out in paragraph 35 above), his stated diagnosis was “a Major Depressive Disorder, recurrent without psychotic features and a co-morbid Chronic Post-Traumatic Stress Disorder”.
The Tribunal notes that all of the psychiatrists who examined the applicant in the period from March 2011 (when she was first referred for psychiatric assessment) to November 2012 – namely, Dr Spence, Dr Felman, Dr Spear and Dr Edwards-Smith - made a diagnosis of major depressive disorder in the applicant’s case, and none of them made a diagnosis of post-traumatic stress disorder in her case. The latter diagnosis was first made by Dr Brendan Dellar, Specialist Clinical Psychologist. The Tribunal notes that, in the evidence before it, the first reference to the applicant’s suffering from post-traumatic stress disorder is made in Dr Dellar’s report of 31 January 2013 (T38) but the Tribunal is unable to determine when Dr Dellar first made that diagnosis in the period from February 2012 when he commenced treating the applicant. The Tribunal notes, furthermore, that Dr Lawrence Blumberg, Consultant Psychiatrist, also made a diagnosis of chronic post-traumatic stress disorder in the applicant’s case upon his examination of her on 21 June 2013, as stated in his report of 25 June 2013 (T46).
Neither Dr Blumberg nor Dr Dellar, in their abovementioned reports, specifically addressed the timing of the applicant’s developing or contracting post-traumatic stress disorder. Certain passages in Dr Dellar’s report of 28 May 2013 (Exhibit R2) may, however, be indicative of the view that the applicant contracted or developed post-traumatic stress disorder immediately or shortly after the perceived death threat incident of 5 March 2010 – in particular, the following passages:
“ … I consider Posttraumatic Stress Disorder to be the original injury, and that the Major Depressive Disorder is secondary …
… The injury was the death threat incident which directly led to anxious-arousal, avoidance and re-experiencing symptoms. The prolonged anxiety and lack of control in my opinion led to the secondary development of Major Depressive Disorder.
… As mentioned above, the PTSD was the initial result of the death threat, and Major Depressive Disorder developed as the result of prolonged anxiety and ongoing deficits in perceived control. …”
However, even if it can reasonably be inferred from the abovementioned passages that Dr Dellar is of the opinion that the applicant contracted or developed post-traumatic stress disorder immediately or shortly after the perceived death threat incident of 5 March 2010, that opinion is inconsistent with the opinions expressed by the four abovementioned psychiatrists (namely, Dr Spence, Dr Felman, Dr Spear and Dr Edwards-Smith) who examined the applicant in the period from March 2011 to November 2012 and who each took a detailed history from the applicant, including the perceived death threat incident of 5 March 2010 and its impact on her. Each of those psychiatrists made a diagnosis of major depressive disorder, and none of them made a diagnosis of post-traumatic stress disorder, in the applicant’s case.
The Tribunal attaches great weight to the opinions of those four abovementioned psychiatrists and, having regard to that evidence, the Tribunal is not satisfied that the applicant was suffering from post-traumatic stress disorder, or any impairment resulting from post-traumatic stress disorder, before March 2011 or in the period from March 2011 to November 2012. The Tribunal is, however, satisfied, on the basis of Dr Dellar’s report of 31 January 2013, that the applicant was suffering from post-traumatic stress disorder as at that date.
As regards the applicant’s major depressive disorder, the Tribunal is satisfied, and finds, that the applicant “first sought medical treatment for [that] disease”, within the meaning of s 7(4)(a) of the SRC Act, on 31 January 2011. For the purposes of para (b) of s 7(4) of the SRC Act, however, the question arises as to whether the applicant’s major depressive disorder “resulted in the incapacity for work, or impairment of the [applicant]” before 31 January 2011, and, if so, the date on which it first did so.
As regards “incapacity for work”, the Tribunal notes that the earliest medical certificate certifying the applicant’s unfitness for work as a result of “depression and anxiety” was issued by Dr Dunne on 7 February 2011 and covered the period from 7 February 2011 to 7 March 2011 (T54, pp 376 – 377). As regards the period from March 2010 to January 2011, the applicant’s own evidence was that, in the period from 5 March 2010 to 16 April 2010, she continued to perform her normal employment duties and, indeed, performed higher duties for a period of three weeks, before commencing a period of annual/long service leave on 19 April 2010 (which was subsequently extended until January 2011).
Having regard to the evidence before it, the Tribunal is not satisfied that the applicant was incapacitated for work, within the meaning of s 4(9) of the SRC Act, as a result of her compensable injury (being a disease), namely, major depressive disorder, in the period from 5 March 2010 to 31 January 2011.
As regards “impairment” (as defined in s 4(1) of the SRC Act), the Tribunal notes the applicant’s evidence that, on 5 March 2010 following the perceived death threat incident on that day, her “psychological integrity came to a crashing halt”. The Tribunal also notes, in particular, the applicant’s statement regarding her state of mind while on the overseas cruise on which she had embarked on 21 May 2010 and from which she was scheduled to return to Australia on 3 September 2010:
“ 2.50 So consumed with fear and terror at the prospect of returning, not only to the workplace but even to Australia, the Applicant seriously contemplated suicide and to that end the Applicant left the cruise and arrived back in Victoria on 15 August 2010.” (part of Exhibit A1 – set out in paragraph 14 above)
There is, however, no contemporaneous medical evidence before the Tribunal regarding the applicant’s mental state in the period from 5 March 2010 to 30 January 2011.
The question as to when “impairment” of the applicant as a result of her compensable “injury, being a disease”, namely, major depressive disorder, first occurred is, in the Tribunal’s opinion, primarily a medical question, which is to be determined by the Tribunal primarily on the basis of the medical evidence before it. In the absence of contemporaneous medical evidence before the Tribunal regarding the applicant’s mental state in the period from 5 March 2010 to 30 January 2011, the Tribunal is not satisfied that the applicant had “impairment” (as defined in s 4(1) of the SRC Act) resulting from major depressive disorder in that period.
The Tribunal is, however, satisfied, on the basis of Dr Dunne’s report of 23 April 2011 (T19 – set out in paragraph 23 above), that the applicant presented with symptoms of major depressive disorder on 31 January 2011 when she consulted Dr Dunne on that date and that the applicant had “impairment” resulting from major depressive disorder on and from that date.
Having regard to the abovementioned considerations the Tribunal is satisfied, and finds, that:
·pursuant to s 7(4) of the SRC Act, for the purposes of that Act, the applicant is “taken to have sustained an injury, being a disease”, namely, major depressive disorder, on 31 January 2011;
·the applicant subsequently sustained a mental injury, being a “disease” (as defined in s 5B(1) of the SRC Act), namely, post-traumatic stress disorder.
Having regard to the abovementioned findings, it is unnecessary, for present purposes, for the Tribunal to determine the date (being a date after 31 January 2011) on which the applicant contracted or developed post-traumatic stress disorder. In any event, having regard to the whole of the evidence before it, the Tribunal is unable, on the basis of that evidence, to make findings, for the purpose of the application of s 7(4) of the SRC Act, as to the precise date on which:
·the applicant first sought medical treatment for post-traumatic stress disorder;
·the applicant’s post-traumatic stress disorder first resulted in incapacity for work in her case; or
·the applicant’s post-traumatic stress disorder first resulted in impairment in her case.
Suffice it to say that, in the Tribunal’s opinion, the medical evidence before it does not, on balance, support the proposition that the applicant was suffering from post-traumatic stress disorder before March 2011 or in the period from March 2011 to November 2012.
Finally, the Tribunal notes that, on 4 September 2013, a delegate of the respondent made a determination accepting liability under s 14 of the SRC Act to pay compensation to the applicant for “Post-Traumatic Stress Disorder”, the “deem(ed) date of injury”, pursuant to s 7(4) of the SRC Act, being 31 January 2011 (see paragraph 9 above). The Tribunal also notes that the same delegate, by letter dated 27 September 2013, notified the applicant that she was satisfied that the applicant’s “primary condition is post traumatic stress disorder with a secondary condition of major depressive disorder” (see paragraph 12 above). That determination, and the subsequent letter, however, are not (and could not validly be) the subject of the application for review in this proceeding.
Decision
For the above reasons, the decision under review, being the reviewable decision of the respondent made on 21 July 2011, is varied by amending the description of the compensable injury suffered by the applicant to “major depressive disorder”, but is otherwise affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
....(Sgd) D Brodie..........................
Administrative Assistant
Dated 22 August 2014

Date of hearing 28 July 2014

Applicant In person (unrepresented)

Counsel for the Respondent Ms C Dowsett

Solicitors for the Respondent Sparke Helmore

Division	General Administrative Division
File Number	2013/5565
Re	Karen Hutchinson
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	22 August 2014
Place	Perth

Date of hearing	28 July 2014
Applicant	In person (unrepresented)
Counsel for the Respondent	Ms C Dowsett
Solicitors for the Respondent	Sparke Helmore