KBJP and Comcare (Compensation) - [2022] AATA 2466

KBJP and Comcare (Compensation) [2022] AATA 2466 (9 May 2022)
AppID:  KBJP and Comcare
MatterType:   Compensation
Division:GENERAL DIVISION
File Number(s):      2019/7963
Re:KBJP
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:9 May 2022
Place:Brisbane

It is therefore the decision of the Tribunal that the reviewable decision is affirmed.

.........................[SGD]...............................................
Senior Member P J Clauson AM

Catchwords
Worker’s Compensation - continues to suffer the effects of a condition caused by or significantly contributed to by her employment - aggravation of Major Depressive Disorder - ongoing psychological counselling - condition has not resolved – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 16(1), 16C,
Cases
Alamos and Comcare [2014] AATA 629
Durham and Comcare [2014] AATA 753
REASONS FOR DECISION
Senior Member P J Clauson AM
9 May 2022
INTRODUCTION

The applicant (KBJP) was employed by the Australian Taxation Office (ATO) between 1984 and her retirement in September 2012.[1]
[1] Exhibit 1, T Documents, T29, page 168.
The applicant has suffered from a long history of what has been variously described as “Adjustment reaction with depressive reaction”, “Acute Anxiety and Adjustment Disorder” and “Aggravation of Major Depressive Disorder, single episode.”
The applicant, on 8 May 2008, lodged a Workers’ Compensation claim for “Major Depressive Disorder and generalised anxiety and panic attacks” first noticed on
[2] Exhibit 1, T Documents, T4, pages 24 - 43.
9 October 2006.[2]
Liability was accepted as a result of this claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for “aggravation of Major Depressive Disorder”, with a date of injury of 11 January 2008.[3]
[3] Exhibit 1, T Documents, T18, pages 116 - 117.
Comcare has since 2007, compensated the applicant for 117 sessions of psychological treatment administered by the applicant’s main Psychologist; Dr D Robertson
(Dr Robertson), at a cost of $15,818.00.
A Medical Certificate provided by the applicant’s General Practitioner, Dr C Duffy
[4] Exhibit 1, T Documents, T40, page 274.
(Dr Duffy), on 28 June 2018, recommended that the applicant receive ongoing psychological counselling at ‘needs 10/year’. It is assumed by the respondent and the Tribunal that this equates to a shorthand description meaning 10 sessions per year.[4]
At the request of the respondent, Ms J Gierlicz (Ms Gierlicz), a Clinical Psychologist, conducted a Clinical Panel Review (CPR) on 3 September 2018.[5] Ms Gierlicz contacted
[5] Exhibit 3, Respondent’s Hearing Bundle, R2, pages 5 - 12.
Dr Robertson for the purposes of compiling the CPR to discuss the applicant’s case. During this process, Ms Gierlicz reported that Dr Robertson told her that the applicant suffered significant non-work-related trauma resulting from a now dissolved marriage and other family issues.
Ms Gierlicz recorded further, that Dr Robertson considered that she had always been clear with the applicant that Comcare’s liability was limited, and it was countertherapeutic for Comcare to be involved. It was too easy to say this was a workplace injury but was more difficult, and more accurate to say that the applicant’s condition is due to violence in marriage.
Dr Robertson is reported to have told Ms Gierlicz that the applicant could access the treatment she required through Medicare or through her private health insurance.
Ms Gierlicz reported that she put to the provider, (Dr Robertson) that the applicant should receive a further six sessions, over six months, from 1 October 2018 until 1 April 2019, when the treatment should cease.
Ms Gierlicz, according to her notes of the conversation with Dr Robertson, stated while she was sympathetic to the applicant, she; “had to be honest in terms of Comcare’s liability and my assessment was that Comcare had little, if any, liability in this situation”[6].
[6] Exhibit 3, Respondent’s Hearing Bundle, R2, page 7.
Ms Gierlicz also proceeded to note that Dr Robertson said that the plan was “totally reasonable” and that “she thought the Applicant was in a space where she could hear this[7]”.
[7] Ibid, page 9, [3.17] (i).
Ms Gierlicz also noted, Dr Robertson was able to fill in details of the applicant’s difficulties and went on to explain that the applicant had “significant trauma history from her family of origin, but also most significantly from a violent marriage.”[8] Ms Gierlicz, then went on to note that:
“While the situation in the workplace was very difficult for the Applicant it is these earlier difficulties in the Applicant’s life that are more important in terms of her clinical presentation. Therefore, in my opinion, a plan to wean and cease treatment was reasonable, and the provider agreed with this.”[9]
[8] Exhibit 3, Respondent’s hearing Bundle, R3, page 15.
[9] Ibid.
The respondent, in agreeance with the suggested approach by both the provider;
[10] Exhibit 1, T Documents, T33, page 184.
(Dr Robertson) and Ms Gierlicz, funded a further six sessions of psychology treatment up to 1 April 2019.[10]
The applicant advised Comcare on 25 June 2019 that she had a “falling out” with her treating Psychologist and was hoping to see “the Psychologist” that worked at Platinum.[11] The applicant drafted her Statement of Facts, Issues and Contentions (SFIC) document dated 4 May 2021, and indicated that she was about to consult her new Psychologist for the second session.[12] The applicant, at the date of the hearing, was being treated for a Post-Traumatic Stress Disorder (PTSD) condition by Ms C Daniels (Ms Daniels), a Psychologist at the Platinum Medical Centre, with Eye Movement Desensitisation and Reprocessing (EMDR).
[11] Exhibit 1, T Documents, T32, page 182.
[12] Exhibit 4, Applicant’s Hearing Material, Applicant’s Statement of Facts, Issues and Contentions (SFIC), page
21, [6.14].
Comcare, on 8 July 2019, determined that it was not then liable to pay compensation under section 16C of the SRC Act for psychological treatment sessions. The applicant sought a review of that decision.[13] That determination was affirmed on 4 October 2019 by way of a reviewable decision.
[13] Exhibit 1, T Documents, T35, pages 187 - 209.
The applicant then lodged an Application for Review with this Tribunal on
28 November 2019.
THE ISSUES
The issues for consideration by the Tribunal are:
(a)Is the applicant entitled to compensation under section 16 of the SRC Act for ongoing psychology sessions, from 8 July 2019 until the present?
(b)Whether the applicant continues to suffer the effects of a condition caused by or significantly contributed to by her employment and, if so, whether the claimed psychology sessions are:
(i)‘Medical treatment’;
(ii)Obtained in relation to the injury; and
(iii)That it is reasonable for the applicant to obtain as of 8 July 2019 until the present.
THE LEGISLATIVE FRAMEWORK
The Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) is the relevant Statute for consideration in this review.
Section 16(1) of the SRC Act provides:
“(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that treatment.”
THE EVIDENCE
The Tribunal heard the sworn oral evidence of the applicant and Ms Gierlicz, a Clinical Psychologist. The Tribunal also had access to extensive medical reports and written statements from the applicant to which the Tribunal was able to have recourse, where relevant, in reviewing this matter.
The applicant’s evidence to the Tribunal was effectively, that her condition was due solely to the effects of her work-related injury and was not related to any family issues external to her work situation with the ATO.
The applicant’s treating Psychologist, Dr Robertson, had concluded that the applicant’s condition, as of December 2019, was now solely rooted in traumatic family circumstances unrelated to the applicant’s employment. This opinion was relayed to
[14] Exhibit 1, T Documents, T29, page 167.
Ms Gierlicz, a Clinical Psychologist, on 3 September 2018, when Ms Gierlicz was conducting a Clinical Panel Review (CPR) at the respondent’s request.[14]
The applicant’s evidence to the Tribunal was that she disagreed with Dr Gierlicz’s report where it stated that the applicant was speaking to Dr Robertson in 2013 about family issues, in particular domestic violence. She told the Tribunal that she and Dr Robertson discussed her obsessional thoughts regarding her employment sometime around 2016 or 2017, and Dr Robertson advised her to not focus on work issues during their session.
The applicant, then told the Tribunal that during her early discussions/ sessions with
Dr Robertson, in relation to the Doctor’s notes regarding domestic violence, centred around a book that she was writing at the time.
The applicant told the Tribunal that after Dr Robertson had told her not to focus on work issues during their sessions, she then:-
Witness (KBJP): “… I spoke about my childhood, my adulthood, my marriage, my daughter, my family. I told her everything about me; my innermost thoughts, my values, my beliefs and how I felt about people.”[15]
[15] Transcript of Proceedings, page 13, lines 25 to 28.
The applicant’s evidence was that although she suffered domestic violence and had other issues in her domestic life, these had nothing to do with her illness. Her statement to the Tribunal was as follows:
Witness/ KBJP: “My injury was caused at work, and that’s why I’m having treatment. Not for domestic violence.”[16]
[16] Transcript of Proceedings, page 14, lines 19 and 20.
The applicant then stated that if she required treatment for domestic violence, she would not claim it under Comcare.
Under cross-examination, the applicant told the Tribunal that she had tried a different Psychologist since severing her relationship with Dr Robertson, due to the fact that she did not feel comfortable with her (Dr Robertson) and lacked rapport.
The applicant further stated that she had now had two or three sessions around May or June 2021 with a Psychologist, Ms Daniels, to whom she had been referred by
Dr Duffy, her General Practitioner. The applicant told the Tribunal that Ms Daniels had conducted some tests on her and she told the applicant she was suffering from PTSD and was going to treat the applicant using EMDR. This treatment was incorrectly referred to at times in the transcript as Eye Movement Decentralisation and Reprogramming. No report was available to the Tribunal from Ms Daniels at the hearing.
The applicant further contended that prior to the issues developing in the workplace in 2007, she had never suffered with depression, either major or chronic. She further stated that she had not suffered from chronic anxiety, Obsessive-compulsive disorder (OCD) thoughts, agoraphobia rendering her terrified in the morning of going to work and, had not seen a Psychologist or Psychiatrist or been prescribed anti-depressants or undergone psychiatric assessments prior to 2007.
The applicant contended that her treating Psychiatrist, Dr D Storer (Dr Storer), and her treating Psychologist, Dr Robertson, were both aware of the violence in her marriage. The applicant told the Tribunal that she relied upon Dr Storer’s report which stated:-
“In my opinion, her Major Depressive Disorder caused by workplace injury is unrelated to her past marriage or any other events occurring prior to or following her joining the Commonwealth Public Service. In my opinion, the workplace injury, as previously described, is the major significant contributing factor to her current condition.”
and that:-
“I trust this is of assistance in reviewing KBJP’s eligibility for further treatment for her work-related injuries.”[17]
[17] Exhibit 5, Two Page Document Authored by Jacquie Wicks filed with Tribunal 14/02/20, pages 1-2.
The applicant also told the Tribunal that she considered that Dr Robertson had breached a professional confidence by discussing her marital and family issues with Ms Gierlicz during the CPR conducted by Ms Gierlicz. However, under cross-examination by the respondent’s Representative, the applicant was shown the Consents that she had signed and agreed that she had signed them but had not read them. She continued to contend that
[18] Transcript of Proceedings, pages 19 – 21 and 22, lines 1 - 10.
Dr Robertson had still not complied with her ethical obligations not to discuss the marital and family issues with others, in particular Comcare.[18]
The respondent called Ms Gierlicz, a Clinical Psychologist. Ms Gierlicz confirmed that in about August 2018 she was retained by Comcare to conduct a CPR involves a review, conducted by a member of the Clinical Review Panel of Comcare, of the information held by Comcare relating to a Comcare participant and entails also engagement and discussion with the participant’s treating professional on a peer-to-peer basis. Ms Gierlicz’s CPR Report dated 3 September 2018 was before the Tribunal.[19]
[19] Exhibit 1, T Document, T29 and PT 29, pages 167 - 171.
Ms Gierlicz also told the Tribunal that when the Review and the CPR document had been completed, it and the Reviewer’s Recommendations was then provided to the Claims Manager for consideration. The Claims Manager then makes a Determination based upon the Reviwer’s recommendation and other relevant material in the Comcare file.
On 20 August 2020, Ms Gierlicz produced a further report based upon review of the applicant’s clinical records and the CPR Report of 3 September 2018.[20]
[20] Exhibit 3, Respondent’s hearing Bundle, R2, pages 5 - 12.
In her report of 20 August 2020, Ms Gierlicz stated that the material supplied to her for the preparation of the report was not of such a nature as to change any of her opinions as outlined in the CPR of 3 September 2018.
Ms Gierlicz acknowledged that the applicant was injured in 2006 and again in 2008, the accepted injuries being Major Depressive Disorder, single episode and aggravation of Major Depressive Disorder, single episode, respectively.
The material in Ms Gierlicz’s report, which was not challenged, indicated that the first Comcare Claim Number 222539/4 resulted in 41 treatment sessions and the second Comcare Claim Number 222539/5 resulted in 76 sessions. In all, a total of 117 sessions of psychology treatment in tranches, namely 2007 to 2009 and 2011 to 2019.
According to Ms Gierlicz’s report, the psychology treatment as administered to the applicant had not ever been scrutinised by the Clinical Panel prior to her involvement.[21]
[21] Ibid, page 6.
Ms Gierlicz’s report notes that when she read the 2013 report of Dr Papier, Psychiatrist, it was not apparent to her from that report that the applicant was suffering from any “non-compensable difficulties”.[22]
[22] Ibid, page 7.
Ms Gierlicz’s report further notes that when she had the discussion with Dr Robertson regarding the applicant’s issues and treatments:-
“… I became aware of the Applicant’s history of domestic violence, the difficulties in her family of origin and ongoing difficulties with her daughter, siblings and ex-husband. And further, that these difficulties were the subject of the treatment she was receiving from Dr Robertson.[23]”
[23] Ibid.
Ms Gierlicz’s report continues and then states:-
“In the discussion with Dr Robertson, I formed the opinion that the psychology treatment was addressing non-compensable issues. Dr Robertson agreed with me that these difficulties were non-compensable issues and were not Comcare’s liability.”[24]
[24] Ibid.
Ms Gierlicz, in her report, is clear that her views in this regard were strengthened upon review of Dr Robertson’s clinical notes. She states that from about 2013 it was clear that the psychology treatment was “noted to be addressing other difficulties and aspects of the applicant’s life.”[25]
[25] Exhibit 3, Respondent’s hearing Bundle, R2, page 8.
The report also notes that from 2013 discussions in the applicant’s sessions with
Dr Robertson were focused on difficulties with her family, namely, her brothers, daughter, ex-husband and selling her current then-home.
Ms Gierlicz’s report outlined her professional opinion of the situation relating to the applicant’s psychological condition and treatment as set out below:[26]-
[26] Exhibit 3, Respondent’s hearing Bundle, R2, page 8.
(a)The applicant was suffering from Major Depressive Disorder with anxiety and panic attacks and that the applicant received what was, in her opinion, Cognitive Behaviour Therapy (CBT) from Dr Robertson for that condition at intervals between 2007 to 2019, the total number of sessions being 117;
(b)That the Australian Psychological Society (APS), in a document titled ‘Evidence-Based Psychological Interventions in the Treatment of Mental Disorders’ stated that sound research existed to support CBT as an effective treatment for depression and that it was effective in reducing the severity of depressive symptoms post-treatment. Participants received on average 6 to 16 treatment sessions with a median number of 12 over a 6 to 26 week period;
(c)That Dr Robertson approached the applicant’s treatment on both cognitive and behavioural bases and that Dr Robertson was “aware of the importance of the applicant’s thinking, and encouraging behavioural activation as a treatment.”[27];
[27]    Ibid.
(d)That the applicant did respond to the treatment (CBT) and her mood improved when she was more active and engaged with her local community and that Dr Robertson was attempting to address the applicant’s thinking and her tendency to become over-focused with issues;
(e)Ms Gierlicz noted that Dr Robertson indicated in her clinical notes that by the end of 2012, the applicant had re-presented to Dr Robertson for 14 sessions of treatment and that; “Her mood had improved, and this was due to efforts, according to
Dr Robertson, to activate herself.”[28];
[28]    Ibid page 8.
(f)That between 2013 and 2019 (when Dr Robertson’s notes concluded), her session notes indicated discussions were about issues other than work issues. Her notes also recorded that the applicant’s mood and anxiety fluctuated and:
“… This largely seemed related to difficulties with her family including her brothers and daughter.[29]”
[29]    Ibid.
(g)Ms Gierlicz noted that
KBJP, in her response document dated

11 October 2019[30] to the findings in the CPR, indicated that she did not discuss the work injury as Dr Robertson had told her not to talk about work, found that statement to be:
[30]    Exhibit 4, Applicant’s Hearing Material, T39, page 221.
“… a little disingenuous to me.[31]”
[31]    Exhibit 3, Respondent’s Hearing Bundle, R2, page 8.
Ms Gierlicz considered that the matters about which the applicant was then speaking did, indeed, appear to be of genuine concern to her and genuine session topics rather than diversions away from the work issues;
(h)That Dr Robertson’s session notes indicate that at times the applicant spoke of a degree of violence and abuse in the marriage, some of which was extreme, over 20 years of matrimony; that the applicant had to hide from her spouse in a neighbour’s yard and in a friend’s house following a beating. It was noted that the ex-husband had, at that time, just recently returned from overseas, knew where she lived and had viewed her property on the internet and made comments about the garden;
(i)That the applicant’s daughter’s poor mental health, which included the experience of anxiety and panic attacks, and significant anger with the applicant due to her experience of the Applicant’s ex-husband and father’s active domestic violence when she was a child were discussed. On 22 September 2017, Dr Robertson recorded in her session note that:
“We were able to focus today on the underlying issues of her decline in her mood and mental health. Her daughter has been living with her and she has increased exposure to her anger and her blame regarding her exposure to the extreme domestic violence by her father towards her mum. Her father, KBJP’s ex-husband, also threw his duaghter [sic] out of home while still a teenager and she suffers from chronic anxiety and has psychological issues as an adult. KBPJ struggles with this and coping with her daughters [sic] anger towards her as she most likely as a victim of extreme trauma was in a dissociative state and her lack of memory for key assaults is consistent with this. I again went over this today to help KBPJ forgive self and find a way to engage with her daughter’s pain and suffering as well.[32]”
[32]    Ibid, page 9.
(j)
That the mental health issues of the applicant’s brothers and the effect this had on their mother was also canvassed within a session with Dr Robertson on

19 December 2016 and the notes contain the following overview:
KBPJ“ continues to display increase [sic] insight into her own vulnerabilities and the role of her complex family of origin issues as well as her significant trauma with her violent ex-husband into mental health issues. KBPJ is having increased contact with her elderley [sic] mother but also both her brothers who have significant mental health issues. One brother has had multiple suicide attempts and the other is an alcoholic who is very critical and abusive of KBPJ. KBPJ is very protective of her mother and is distressed today due to the impact of her brother [sic] difficulties on her as they both are in close contact. KBPJ herself can be quite judgemental and black and white and tends to over-idealise her mother. However, today I was able to work with her about her mothers [sic] difficulties in setting boundaries with all her children and the impact of this on the whole family.”[33]
(k)That the aggravation of Major Depressive Disorder, the accepted injury relating to Claim 2225394/5, had resolved by the end of 2012 and that the applicant did not require any further treatment for the condition past December 2012;
(l)It was noted by Dr Robertson in her last sessions with the applicant in 2018 and 2019, the applicant was having continued difficulties in her family and her daughter had punched a hole in a wall in their house following a fight. The applicant’s mother was elderly and Dr Robertson considered that the applicant was “significantly idealising of her mother”. As recorded in a session note dated 19 February 2016, and when her mother passes away, the applicant “would experience this profoundly”.
(m)Ms Gierlicz had noted the report of Dr Storer dated 24 January 2020[34] wherein he described the applicant’s condition as Major Depressive Disorder in partial remission. Ms Gierlicz considered that the term “in partial remission” indicated that the applicant no longer met criteria for Major Depressive Disorder, “… although there were still some aspects of that diagnosis that applied.”[35];
(n)Ms Gierlicz further surmised that Dr Storer’s qualifying words may have reflected an opinion on his part that her mental state had improved from when he had last seen KBJP as a patient in 2011, and consequently, her need for further psychology treatment was limited;
(o)Ms Gierlicz noted Dr Storer, in Medical Certificates from 2011 when he last saw the applicant, was “typically diagnosing her with Major Depression and Panic Disorders”;[36]
(p)Ms Gierlicz did not consider in light of her review that the applicant would benefit therapeutically from any ongoing psychological treatment for the accepted condition;
(q)By the end of 2012, the aggravation of Major Depressive Disorder associated with the 2008 January work incident, had resolved and the applicant’s mood had fluctuated for reasons other than the compensable injury; and
(r)Dr Storer’s 2020 report, in which he opined that the applicant’s diagnosis was Major Depressive Disorder, in partial remission, indicates an improvement in mood from 2011 when he last saw her.
[33]    Ibid.
[34]    Exhibit 4, Applicant’s Hearing Material, A5, pages 1-2.
[35]    Exhibit 3, Respondent’s Hearing Bundle, R2, page 9.
[36]    Ibid.

The report of Ms Gierlicz also considered the applicant’s applied treatment from
Dr Robertson and the efficacy of any further psychological therapies for the accepted injury within the ‘Clinical Framework for the Delivery of Health Services’ (the Framework).
The Framework relevantly sets out guiding principles for the delivery of health services that are supported by several compensable schemes including Comcare and the professional peak body, the APS.
The Framework purposes are:[37]
·Optimise participation at home, work and in the community, and to achieve the best possible health outcomes for injured people;
·Inform healthcare professionals of expectations for the management of injured people;
·Provide a set of guiding principles for the provision of healthcare services for injured people, healthcare professionals and decision-makers;
·Ensure the provision of healthcare services that are goal-oriented, evidence-based and clinically justified; and
·Assist in the resolution of disputes.
[37] Ibid, page 10.
The Framework sets out five principles designed to assist in the treatment of a patient and to provide guidance for the treating professional regarding, amongst other things, in assessing the effectiveness of treatment, a biopsychosocial approach which considers physical, psychological and social factors as impediments to recovery and independence, such “flags” being used to identify biological, mental health, psychological, social and other factors that create barriers to improvement.
Ms Gierlicz’s report outlines the five principles of the Framework and contemplates the applicant’s injury, treatment and results as considered by her within the Framework template.
The following is a summary outline of Ms Gierlicz’s assessment of the applicant’s situation:
Principle 1 – Measure and demonstrate the effectiveness of treatment.
Ms Gierlicz’s comments are that the key message of this principle is that treatment should result in a measurable benefit to the injured person. Standardised measures supplemented with measures of health or function relevant to the injured person are appropriate. In Ms Gierlicz’s commentary, she indicates that there were some indications that KBJP’s treatment with Dr Robertson had been effective and that
Dr Robertson’s notes indicated that by the end of 2012, the applicant’s mood had largely improved. Ms Gierlicz further notes that the applicant and Dr Robertson maintained contact, however, that contact was not of high frequency – for example, in 2011 there were two sessions; 2012 - 12 sessions; 2013 - 10 sessions; 2014 - seven sessions; 2015 -10 session; 2016 - nine sessions; 2017 - 14 sessions; 2018 - six sessions and 2019 - four sessions. Ms Gierlicz, however, observes that the provider, Dr Robertson, did not quantify the applicant’s improvement using either a standardised measuring system or measures of function and that
Dr Robertson used only the DASS method to assess the progress of the applicant, that is otherwise known as the Depression, Anxiety and Stress Scale. It is noted that this was applied on two occasions, once in 2011 and then in May 2019. However,
Ms Gierlicz notes that Dr Robertson’s notes do not reflect all that clearly that the applicant had function and goals that she was working towards. The goals, for example, it was noted to attend church on four occasions a month, walk for exercise five times per week, nor her progress towards attaining them. Therefore, Ms Gierlicz was not clear that the first principle of the clinical framework had been met.[38]
[38]    Exhibit 3, Respondent’s Hearing Bundle, R2, pages 10 – 11.
Principle 2 – Adopt a biopsychocial approach.
The purpose of this principle is that physical, psychological and social factors are considered as they influence a person’s health. The principle, according to
Ms Gierlicz, adopts the “flags model” for identifying risk factors that can impede recovery and independence. These flags identify biological, mental health, psychological, social and other factors that create barriers to improvement.
Ms Gierlicz notes that Dr Robertson was very aware of the physical, psychological and social factors as they influenced the applicant’s health. Dr Robertson identified the importance of a history of domestic violence from the very first session, and noted other issues with the applicant’s family. Dr Robertson also noted the importance of the applicant’s problem with sleep apnoea on her mental state. Accordingly,
Ms Gierlicz, in relation to principle 2 of the Framework, felt that the treatment met that principle.[39]
[39]    Ibid, page 11.
Principle 3: Empower the injured party to manage their injury.
Ms Gierlicz states that the key messages of this principle are:
1.Empower the injured person to manage their injury;
2.Main ways to empower an injured person are education, setting expectations, developing self-management strategies and promoting independence from treatment;
3.Healthcare professionals need to empower an injured person to actively participate in activities at home work and in the community as part of their rehabilitation.
Ms Gierlicz notes that the authors of the Framework note that setting expectations about discharge from treatment should:
“… commence early in the treatment phase …. It is important to inform the injured person that when recovery plateaus, their needs will be reassessed … .[40]”.
[40]    Ibid, page 11.
Ms Gierlicz further notes the authors of the Framework where they state:
“The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. The independence does not mean being symptom free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependence on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.[41]”
[41]    Exhibit 3, Respondent’s Hearing Bundle, R2, page 11.
Ms Gierlicz noted that Dr Robertson saw the applicant on a relatively infrequent basis, however, felt that she was encouraging the applicant to increase her level of activity, and did note that when the applicant was more active, her mood was better.
Ms Gierlicz, however, did not see in any of the notes of Dr Robertson any mention of a plan regarding discharge from treatment, nor any explicit mention of the importance of developing the ability to self-manage. Ms Gierlicz’s opinion in her report is that the provider (Dr Robertson) partially met the principle. However, to completely meet the principle, would have involved Dr Robertson detailing a plan for discharge and explicitly discussing this and the expectation of self-management with the applicant.
Principle 4 – Implement goals focused on optimising function, participation and return to work.
The message of this principle is that goals should be developed collaboratively with the worker, they should be functional and SMART, and progress towards goals should be regularly assessed. SMART goals are goals which are specific, measurable, achievable, relevant and timed. Ms Gierlicz notes that the goals of treatment noted by Dr Robertson in the Treatment Notification Plan and Review Treatment Plans were identified as follows:
·     TNP 27.10.15: Goals to reduce negative rumination, improve social functioning;
·     RTP 29.7.16: Goal is to reduce anxiety (Note: Handwriting is difficult to decipher); TP 17.6.17: Goal is to reduce worry and anxiety, improve sleep; and
·     RTP 1.8.18: Goal is to reduce GAD (Generalised Anxiety Disorder), improve mood.
Ms Gierlicz notes that these are not SMART goals as defined by the Framework. They are vague and not defined or specific and as such are not realistically measurable or achievable, nor are they timed. In Ms Gierlicz’s opinion, principle four of the Framework has not been met in the treatment of the applicant by

Dr Robertson.
Principle 5 – Base treatment on the best available research evidence
Ms Gierlicz notes that the key message of this principle is that healthcare professionals need to use the best available research evidence to inform their decision-making.
Ms Gierlicz states that Dr Robertson’s treatment was largely CBT and that this was clearly based on the best available research.
Ms Gierlicz, in summary, notes as follows:
“In important ways, Dr Robertson’s treatment was not consistent with the Clinical Framework. That is, while Dr Robertson was aware of the many compensable and non-compensable issues which impacted on the applicant’s mental health, and she was using an evidence-based approach to depression, her treatment wasn’t oriented by SMART goals, she was not clearly measuring the efficacy of her treatment, nor encouraging self-management because of an expectation of discharge to self-management.”
Ms Gierlicz continues to say that:
“… if Dr Robertson’s treatment had been more consistent with the Clinical Framework, she would have addressed discharge earlier in this episode of care, emphasised the importance of self-management, been clear on the goals of treatment, and moved to discharge by the end of 2012 with the applicant having skills to self-manage her condition.[42]”
In conclusion, Ms Gierlicz notes that the applicant, in her request to Comcare for reconsideration of the decision to cease psychology treatment dated 6 August 2019, made reference to Dr Papier’s opinion in her report of 10 May 2013, where Dr Papier opined that the applicant was likely to need psychology treatment indefinitely.
[42]    Ibid.
Ms Gierlicz notes that the purpose of Dr Papier’s report was to determine an impairment level in the applicant. Dr Papier had not been tasked with giving an opinion on KBJP’s psychology treatment and as such, she did not probe in detail the nature of the treatment received nor the consistency of that treatment with the principles of the Framework.
CONSIDERATION
The Tribunal has to consider the applicant’s claim for compensation based upon her contention that she is still suffering from a work-related injury against the respondent’s contentions that, whilst conceding the applicant still suffers the injury and that psychology treatment sessions do constitute medical treatment for the purpose of the SRC Act, it is no longer reasonable for the applicant to continue to receive the psychological treatments for that injury.
The applicant has reiterated in her contentions that the injury should still be compensable by Comcare because Dr Storer’s report from 2020 wherein he states that he had treated the applicant from 10 March 2008 and saw her regularly until 3 August 2010 supports this contention.
Dr Storer stated that he reviewed the applicant on 16 January 2020 and reported:
“Her condition is unchanged from when I had seen her in 2010. Her diagnosis is still consistent with a Major Depressive Disorder in partial remission.[43]
He concluded that the condition had not resolved and that in:
… approximately 25% to 30% of cases Major Depressive Disorder runs a chronic course and this unfortunately is the case with (KBJP).[44]”
[43] Exhibit 1, T Documents, page 83.
[44] Ibid.
Dr Storer opined further:
“In my opinion, her Major Depressive Disorder caused by the workplace injury, is unrelated to her past marriage or any other events occurring prior to, or following, her joining the Commonwealth Public Service. In my opinion, the workplace injury, as previously described, is the main significant contributing factor to her current condition.[45]”
[45] Ibid page 83.
Unfortunately, Dr Storer was not made available by either party for examination. The Tribunal knows only that Dr Storer states that he was aware of “her past marital difficulties.”[46] The Tribunal is therefore unable to ascertain from that statement the depth of knowledge he possessed about the applicant in this regard.
[46] Exhibit 1, T Documents, page 83.
Dr Storer from the statement in his 2020 report indicates that he found the applicant’s condition “unchanged” from his first encounter with her in 2010 and notes that she “described depressed mood and anxiety attacks.” He also relevantly notes “This condition has not resolved.”[47]
[47] Ibid.
The Tribunal, in the light of Dr Storer’s report, concludes that despite the applicant undergoing considerable psychological therapy (some 117 sessions of CBT no final resolution of the injury has been affected. Dr Storer, in his report, makes no observation of what psychological treatment would be reasonably appropriate to be recommended for the applicant.
The Tribunal has considered the evidence of the applicant’s history of psychological treatment over not an inconsiderable period with Dr Robertson and whilst agreeing that the material shows that perhaps not all the five principles of the Framework had been employed by Dr Robertson to the applicant’s treatment, both Dr Robinson and Ms Gierlicz reached the same conclusion that psychology treatment was no longer addressing the compensable issue.
Ms Gierlicz, in her report, indicated that her opinion of the treatment being provided by
[48] Exhibit 3, Respondent’s Hearing Bundle, R2, page 8.
Dr Robertson to the applicant was CBT and that Dr Robertson was aware of the importance of the applicant’s thinking and engaged behavioural activation as treatment. The Tribunal has noted this view of Ms Gierlicz’s as outlined in her report.[48]
Ms Gierlicz reported that Dr Robertson’s notes indicated an improvement after 14 sessions of therapy that the applicant’s mood had improved and this was due to efforts in self-activation.
The Tribunal notes in the period between 2013 and to when Dr Robertson’s sessions ended in 2019, discussions turned to other issues rather than those which had emanated from the applicant’s employment.
The applicant’s mood and anxiety fluctuated and this, according to Dr Robertson’s notes, related to family difficulties with family, namely her brothers and daughter, and the return of her violent ex-husband to Brisbane from overseas. The Tribunal has taken into account the applicant’s evidence around these issues that she was asked not to ruminate upon work issues and spoke about these issues to comply with this request from Dr Robertson.
The Tribunal has to respectfully disagree with this explanation by the applicant given the serious nature of the issues and the fact that they had been noted as early as 2013 by
Dr Robertson in her clinical notes from that time. The applicant’s evidence that she, as a survivor of domestic violence, was writing a book on the subject, would indicate a deep interest in the issue.
The evidence relating to the behaviours of her ex-husband, brothers, daughter and that of her late mother, was not challenged by the applicant. It was in relation to the question as to whether their behaviours had contributed to her psychological condition as it now presented that was contested by her.
The evidence is distilled down effectively to the reports of the two Psychiatrists,
Dr Papier and Dr Storer, and her treating Clinical Psychologist until 2019. Dr Robertson, and also the reviewing panel Psychologist, Ms Gierlicz, together with the written material and oral evidence of the applicant.
When the Tribunal considers the evidence of Dr Papier, it concludes that the purpose of the consultation with this practitioner was for the purpose of establishing the functional impact/impairment to the applicant of the accepted condition. Although Dr Papier made comment on the permanency of the applicant’s condition and that she would require treatment with Dr Robertson for “considerable time, if not indefinitely”[49], no enquiry was sought of Dr Papier as to the nature and type of treatment that should be administered nor how it should be monitored: for example, under the five principles of the Framework.
[49] Exhibit 1, T Documents, PT29, page 168.
Dr Papier notes in her report that although the applicant had ceased treatment with her Psychiatrist at the time of her report in 2013, she observed that the applicant’s frequency of visits to her treating Psychologist would vary depending on the state of the applicant’s health at the time.
Although observational, Dr Papier’s comments proved accurate as the applicant had recourse to Dr Robertson’s services until 2019 when she ended their professional relationship.
In assessing the level of the applicant’s impairment, Dr Papier observed that:
“Although her symptoms wax and wane depending on whether she is currently depressed and anxious or in between major episodes, there is always some level of symptomatology present. I believe this has now become a permanent condition from which overall recovery will not occur.”[50]
[50] Exhibit 1, T Documents, PT21, page 143.
Thus, Dr Papier’s report concludes that the applicant was suffering from a permanent impairment as at 2013 which would require ongoing psychological treatments as required from time to time.
The Tribunal has considered Dr Storer’s 2020 report in the context of its consideration. This report is broadly reflective of the conclusion drawn by Dr Papier in her report of 2013 discussed above. Dr Storer, in his report, states that her condition was unchanged since he last saw her in 2010 - that she was still suffering from what was diagnosed as Major Depressive Disorder in partial remission.
The Tribunal accepts Dr Storer’s diagnosis as a professional treating Psychiatrist, the applicant does continue to suffer the injury as accepted. The term “in partial remission” is, in the Tribunal’s opinion, that when Dr Storer last saw the applicant in 2010, it was indicative that at least some improvement had occurred in the applicant’s condition at that time. However, Dr Storer’s report of 2020 indicates that the applicant’s injury had, in a sense, been “static” between 2010 and 2020.
The Tribunal considers that this would indicate that at a point between 2010 and 2020, the accepted treatment for the applicant’s injury had reached a point where no further improvement could be achieved from any further treatment.
The Tribunal has decided that based upon the evidence of Ms Gierlicz’s report and her discussions with Dr Robertson, that this point was reached by the end of 2012.[51]
[51] Exhibit 3, Respondent’s Hearing Bundle, R2, page 9.
Ms Gierlicz’s opinion was that the applicant did not require any further treatment for her accepted condition past this time but did not rule out the possible requirement for psychological intervention for non-compensable issues.
It is the Tribunal’s view that past 2012, the applicant’s therapy sessions with Dr Robertson became centred around other issues which had beset her but which, however, the applicant contends are not the current cause of her issues. Her position remains that she is still suffering issues as a consequence of her compensable and accepted injury.
The Tribunal has noted the applicant’s contention that she should be entitled to further treatment for her compensable injury and has indicated that she has sought treatment from other Psychologists. However, she had difficulty establishing “rapport” with those to whom she was seeking treatment.
The applicant had recently consulted another Clinical Psychologist, Ms Daniels, for treatment. No reports were available from Ms Daniels and the applicant did not call her to give evidence. The applicant did, however, indicate that Ms Daniels had diagnosed her with PTSD, a condition different from that of Major Depressive Disorder in partial remission.
Under cross-examination the applicant told the Tribunal she was going to undertake EMDR with Ms Daniels to treat her PTSD.
The Tribunal did not have any medical opinion or referral notes from the applicant’s General Practitioner (Dr Duffy) relating to the applicant’s engagement with Ms Daniels. The applicant told the Tribunal that the diagnosis of PTSD was work-related. This was only the opinion of the applicant in this regard. The applicant had difficulty in differentiating the PTSD condition from the accepted condition of Major Depression and when asked continued to assert that PTSD was “… still a mental illness that relates to my work.”[52]
[52] Transcript of Proceedings, page 17, lines 25 -26.

The Tribunal, in the absence of any fulsome reports from Ms Daniels, can only accept the applicant’s evidence that she had been diagnosed by Ms Daniels with PTSD but can make no finding upon its causation or the efficacy of treatment, that may relate to the applicant. The Tribunal is unable to determine the reasonableness of this treatment.
The Tribunal has also had the benefit of Ms Gierlicz’s professional opinion during her evidence-in-chief regarding EMDR and its application in the practice of psychology to PTSD and the accepted condition of the applicant.
Ms Gierlicz is a practitioner trained in EMDR and its application in the treatment of her patients. She explained that:
Ms Gierlicz“… EMDR is a type of exposure treatment for symptoms of PTSD, trauma, and it is normally or usually undertaken when a person is experiencing intrusive symptoms of trauma. For example, flashbacks, or nightmares, or thoughts of the trauma coming into their mind when they don’t want to be thinking of that experience.”[53]
[53] Transcript of Proceedings, page 25, lines 39 - 44.
The Tribunal accepts Ms Gierlicz’s evidence as a professional expert practitioner of EMDR regarding its purpose and application. The Tribunal has considered Ms Gierlicz’s evidence with particular reference as to whether EMDR is an appropriate treatment for the applicant’s accepted condition. Given that Ms Gierlicz did not consider that the necessary criteria could be met for a “trauma-related PTSD diagnosis to be made with respect to the workplace issues” and that “the diagnosis of PTSD could not be warranted.”[54]
[54] Transcript of Proceedings, page 25, lines 45 – 46 and page 26, line 1.
The expert evidence indicated that for a diagnosis of PTSD, it is necessary for the person to meet the first criteria A of the PTSD diagnostic criteria. This would require the person to have experienced a life-threatening event. Thus, the Tribunal, based on the evidence before it, accepts these criteria would not be met in relation to the accepted work injury suffered by the applicant, namely, Major Depressive Disorder, in partial remission.
The Tribunal, however, does accept Ms Gierlicz’s expert opinion that, in reviewing the applicant’s medical records indicating certain traumatic events in her life and in particular the violence in her marriage, that this would be an event for which EMDR would be an appropriate treatment.
The evidence before the Tribunal regarding the treatment for her accepted work injury is sufficient to satisfy the Tribunal that Ms Robertson employed CBT in her treatment for the condition.
The applicant is now seeking a new type of treatment, EMDR, that on professional evidence is not indicated for the treatment of Major Depressive conditions for which CBT is the accepted therapy. Given the lack of medical evidence from the applicant’s treating General Practitioner (Dr Duffy) and her new Psychologist (Ms Daniels), the Tribunal is unable to determine that the proposed EMDR is to treat the accepted condition which on the available evidence would be counter-indicated. Further, the Tribunal is possessed of no evidence of a proposed EMDR treatment plan and its duration. The Tribunal has not been provided with any evidence as to whether such treatment is reasonable in the applicant’s situation. The Tribunal is thus unable to conclude that such treatment is a reasonable therapy to apply to the applicant.
In relation to the applicant’s accepted injury, there is consensus that for a long period of time, the therapy employed by the applicant’s treating Psychologist (Dr Robertson) was CBT. The Tribunal accepts the evidence before it that CBT was the appropriate treatment for the applicant’s accepted condition. The Tribunal accepts Ms Gierlicz’s explanation that CBT is a treatment designed to be administered in sessions of between 6 to 16 in number, with a median number of 12 sessions over a duration of 6 to 26 weeks.[55] The Tribunal accepts that the description of the application of CBT is sourced from the research documents of the APS in their document entitled ‘Evidence Based Psychological Interventions in the Treatment of Mental Disorders.’[56]
[55] Exhibit 3, Respondent’s Hearing Bundle, R2, page 7.
[56] Ibid.
The applicant received treatment in this regard in 117 sessions over a number of years between 2007 and 2019 and, 76 of these sessions occurred between
December 2011 and May 2019.
The Tribunal considers that to establish whether it is reasonable for the applicant to continue to receive psychological treatment past the last six sessions as agreed to by the respondent, depends upon the efficacy of the past treatments for the agreed injury and whether any proposed continuation of treatment continues to be “in relation to” under section 16 of the SRC Act, the accepted injury.
The Tribunal, in assessing the evidence before it, has decided that the treatment is no longer “in relation to” the accepted condition.
The applicant’s treating Psychologist, it is considered by the Tribunal, is the best-placed treating practitioner to opine on this issue. Up until she was dismissed by the applicant,
Dr Robertson had been treating the applicant for about 10 years.
Dr Robertson, when consulting with Ms Gierlicz, concurred that the applicant’s treatment from about 2013 was focused upon a non-compensable injury invoked by past events relating to her violent and unsatisfactory marriage and other family issues.
The Tribunal finds that the evidence of Ms Gierlicz’s report regarding Dr Robertson’s session notes indicated that at the end of 2012 following 14 sessions of treatment, the applicant’s mood had improved, and self-activation was the cause. In 2013,
[57] Ibid, page 8.
Dr Robertson observed that there was a fluctuation of mood “and this seemed related to difficulties with her family including her brothers and her daughter”.[57]
Dr Storer’s report of 2020 states that the condition is unchanged in his opinion since when he last saw the applicant in 2010. He also stated that he was aware “of her past history including past marital difficulties.” He also stated “… The workplace injury is unrelated to her past marriage or any other events prior to, or following, her joining the Commonwealth Public Service.”[58]
[58] Exhibit 1, T Documents, page 83.
The Tribunal finds that, the somewhat cursory observation of Dr Storer regarding the applicant’s history outline and its lack of detail and analysis renders it of little weight in assisting the Tribunal’s consideration of this matter. This is especially so as Dr Storer had not dealt with the applicant professionally since 2010.
The Tribunal, for the purposes of this review, prefers and accepts the evidence of
Dr Robertson and Ms Gierlicz as more up-to-date and analytically in-depth and hence more reliable than that of Dr Storer.
The Tribunal therefore considers that the CBT as applied to the applicant had reached its maximum effectiveness for the accepted condition in 2012 and that on the evidence provided by Dr Robertson and confirmed by Ms Gierlicz continued until 2019, being applied to a non-compensable issue.
Putting aside the question of whether the injury was compensable or not, Dr Storer’s comment that he found the applicant’s condition unchanged from 2020 when he last saw her would indicate that the treatment had not been at all efficacious.
This opinion, coupled with that of the applicant’s evidence that she had suffered breakdowns every year since 2012, the year of her retirement, and which have not ceased, indicates clearly that any treatment which is directed to the condition would be highly unlikely to invoke any meaningful improvement therein.
The Tribunal, looking objectively at the applicant’s circumstances, concludes that for the length of the treatment administered, the benefits to the applicant are, and indeed have been, very minimal. The treatment, in the applicant’s own evidence referred to above, has not prevented her breakdowns and, other than for a brief period in 2012, do not seem to have shown any tendency to lift her in any meaningful way from her condition.
The Tribunal accepts Ms Gierlicz’s opinion that while the applicant was receiving treatment from Dr Robertson, the Framework had not been utilised to assess the progress of the applicant’s treatment and to check the continuing reasonable effectiveness of such treatment.
The Tribunal accepts the proposition enunciated in Alamos and Comcare [2014] AATA 629 (Alamos) , by Deputy JW President Constance (Deputy President Constance) where he provided insight into the process of establishing the benefit to the applicant of treatment and its effectiveness by way of considering all the circumstances surrounding the person’s situation. Deputy President Constance stated at [23] that:
“In considering this requirement, it is necessary to consider all the circumstances, and not only the beneficial effects experienced by Mrs Alamos.”
Deputy President Constance at [24] also provided a list of the type of factors which may be relevant considerations in the circumstances around a matter. The Tribunal accepts that this was not an exhaustive list and that other considerations may be relevant:
·‘The benefit of treatment to the injured worker;
·The Long-term effect of treatment;
·Whether the treatment was likely to provide a cure or reduce the effects of the injury significantly;
·Whether treatment maintains the status quo; and
·The cost of the ongoing treatment.’
The Tribunal agrees with the professional views in previous Tribunal decisions, that the Framework is an accepted adjunctive tool with which to assist the assessment of a person’s treatment. The Framework was accepted in Alamos as “appropriate for consideration”[59] and in Durham and Comcare [2014] AATA 753 where the Tribunal considered the Framework to be “appropriate as a reference”[60] in this type of issue.
[59] Alamos and Comcare [2014] AATA 629 at [31].
[60] Durham and Comcare [2014] AATA 753 at [56].
Unfortunately, the evidence before this Tribunal does not indicate the efficacy of the lengthy treatments received by the applicant as tested against the Framework criteria. The treatment was not helping the applicant to self-manage her symptoms and this ensured dependency upon the treatment.
The Tribunal must have recourse to the oral evidence and documentary material before it to establish the effectiveness of the treatment received, the reasonableness of it continuing and its suitability and cost-effectiveness in relation to the applicant’s condition.
The applicant’s evidence corroborates the conclusion reached by Dr Storer that her condition in 2020 was unchanged from that in 2010. The applicant stated in her email to
Dr Robertson on 2 May 2019 that:
“I have been trying to deal with my health issues since June 2006, approximately 13 years now. After all this time I am still suffering with severe panic attacks, anxiety and bouts of depression, on and off. I have no life, don’t want to mix with people, very rarely go out on any social occasions. If this hasn’t affected my life permanently (13 years) I don’t know the medical definition of permanent.”[61]
[61] Exhibit 2, Supplementary T Documents, ST1, page 11.
The applicant in her material drawn in response to the report of Ms Gierlicz, stated that four Psychiatrists had diagnosed her condition as permanent, as had Dr Robertson. She stated that her condition had not resolved by 2012 and that she still suffered breakdowns since her retirement.
The Tribunal has considered that the above factors, coupled with the view of Dr Storer, can lead only to a conclusion that the lengthy treatment with psychology administered to the applicant, have had no meaningful effect on alleviating her compensable condition.
Based upon the report of Ms Gierlicz and her professional consideration of Dr Robertson’s clinical observations, the Tribunal accepts that the treatment being administered was not, after 2013, relevant to the applicant’s compensable injury.
The Tribunal bases this view upon the observation by Ms Gierlicz that Dr Robertson, after 2013, noted that session topics were focused upon discussions related to difficulties the applicant was having with her family, including her brother’s respective issues, her daughter, her ex-husband and the sale of her house. The applicant’s work-related issues were then not the paramount focus of these sessions.
Although the applicant attempted to explain this aspect of the evidence by claiming that this was because she had made a pact with Dr Robertson not to talk about work as she became obsessed with it, she claimed that they then only discussed her feelings and what caused it and personal matters.[62]
[62] Exhibit 1, T Documents, T35, page 190.
The Tribunal has considered the respondent’s submissions to it in relation to the applicant’s assertion that she did not speak to Dr Robertson from about 2016 or 2017 about her work issues because they had made a pact not to do so and agrees that this would be a most unusual approach by a mental health professional to a client under treatment.
The response to a question from the applicant to Ms Gierlicz under cross-examination places serious doubt upon the applicant’s assertion that this “pact” was to prevent her repetitive ruminations regarding work issues. Ms Gierlicz told the Tribunal her professional views in the following terms:
“First of all, I am not aware of any psychology treatment which involves telling a person not to talk about something. In my clinical experience, that is not a reasonable treatment approach. There was nothing noted in any of Dr Robertson’s notes, nor in her discussion with me to indicate that such a pact had been agreed to. And the second part is that the topics that were discussed in session would seem to be very serious topics which I have noted in my report, the return of your violent ex-husband to Brisbane from overseas, your daughter’s difficulties and difficulties that both of your brothers were experiencing.”[63]
[63] Transcript of Proceedings, page 35, lines 1 - 10. Exhibit 2, Supplementary T Documents, ST1, page 11.
The Tribunal has also noted the claim by the applicant that she:
“… specifically advised both my doctors not to discuss my personal life or my marriage with anyone, especially Comcare because I believed Comcare would use this information to end my case.”[64]
[64] Exhibit 4, Applicant’s Hearing Material, A3, page 66 – Document title “My response to Jane Gierlicz’s report dated 20/8/2020”, page 1.
The applicant repeated this sentiment several times throughout the material she had lodged with the Tribunal namely, in her email to Dr Robertson of 2 May 2019 where she stated:
“… I advised both of you that this is confidential and must never be reported to anyone, especially Comcare. I specifically requested this because I know Comcare will blame my breakdowns on my marriage when it was work-related due to bullying, harassment, and victimisation.”[65]
[65] Exhibit 2, Supplementary T Documents, ST1, page 11.
The applicant also made mention in her Statement of Facts, Issue and Contentions on three occasions throughout of this particular view.[66]
[66] Exhibit 4, Applicant’s Hearing Material, A1, Applicant’s ‘Statement of Facts, Issues & Contentions (SOFIC) – A: SFICs_4.5.21’, page 7, [3.17] (b), page 16 [4.21] and pages 9-10 [3.24].
Because of the repetitive insistence by the applicant regarding this aspect of the evidence, the Tribunal considers that a serious question of credibility is created. The Tribunal accepts that Dr Robertson may have attempted to pull the focus of the sessions back onto those serious issues she felt needed to be canvased by having the applicant not maintain ruminating upon the work issues. However, a professional person entering into a “pact” not to disclose or discuss those matters even when required to by operation of the law, takes credibility beyond its limits.
The oral evidence provided by Ms Gierlicz to the Tribunal reinforces the unreasonableness of such an approach.
Although the applicant was not managed through the Framework by Dr Robertson for her compensable conditions, the Tribunal accepts Dr Robertson’s expressed view that attempts to introduce a reduced engagement with Comcare should be made. Principle 3 of the Framework sets out the principles for the injured person to be empowered to manage their injury. A key goal of this principle is to achieve independence from treatment.
Dr Robertson’s treatment notes of 16 October 2015, alluded to in the respondent’s submissions, indicates Dr Robertson’s concern for the applicant in this regard where she noted that :
“Will liaise with Comcare as concerned being involved in this system keeps Applicant stuck and reinforces the need to continue to rehash the injustice of it all.”[67]
[67] Exhibit 4, Applicant’s Hearing Material, A3, Document title – ‘ Further Submissions to Medical Report of Dr Jane Gierlicz 30/11/2020’, page 9
The Tribunal accepts the Framework’s focus on assisting a person to manage their condition with the best possible level of independence, to allow them to participate in home, work and community activities. An injury may be permanent; however, the purpose of the treatment should be to reach a position of effective self-management by the person of their symptoms. Should this not occur, the risk arises that the person fails to be empowered to reach independent management and becomes dependent on continuing treatment which in turn reinforces illness behaviour, leading to long-term disability.
The Tribunal, given the evidence relating to the applicant’s condition as noted by
Dr Robertson above, coupled with the goals of the Framework outline, finds that the applicant was in 2015 in danger of becoming dependent upon ongoing psychology treatment and continuing her engagement with the Comcare regime was counterproductive to her best interests.
The Tribunal acknowledges the applicant’s engagement with Psychiatrists since the date of the injury, both treating and independent practitioners namely:
·Dr Jetnikoff – May 2008;
·Dr Richardson – July 2008;
·Dr Apel – June 2009;
·Dr Storer – March 2008 and reviewed in January 2020;
·Dr Papier – May 2013.
The Tribunal finds that Drs Jetnikoff, Richardson and Apel were addressing the applicant’s condition at a particular point in time and were endorsing psychology treatments for the applicant at that stage. The report of Dr Papier was, as has been noted previously, commissioned principally for the purpose of assessing the applicant’s degree of impairment and as submitted by the respondent, Dr Papier was not aware at that time of the applicant’s non-work-related stressors. The Tribunal agrees with the respondent’s contention that had Dr Papier been so briefed, her opinions on psychology treatments for the applicant may well have been different.
The Tribunal has taken into account the latest report of Dr Storer and accepts that his view is that the applicant’s injuries are related to the work injury and no other causational stressors. However, Dr Storer’s opinion that the “condition has not resolved”[68] and that “her condition is unchanged from when I had seen her in 2010”[69], indicates to the Tribunal that the psychology treatment which the applicant had received was of little or perhaps no efficacy.
[68] Exhibit 4, Applicant’s Hearing Material, A3, Document title – ‘ Further Submissions to Medical Report of Dr Jane Gierlicz 30/11/2020’, page 14.
[69] Ibid.
Given Dr Storer’s opinion, it stands to reason that continuing the treatment being administered past 8 July 2019 would be of no efficacy in alleviating the applicant’s condition and would not therefore be, taking into account the other matters discussed herein, reasonable for Comcare to continue therewith.
Further, given the applicant’s evidence that she has now been diagnosed with PTSD by her new treating Psychologist, Dr Daniels, and is embarking upon EMDR treatment for that condition, the Tribunal considers that the lack of evidence before it relating to this diagnosis cannot be considered in the context of this review as the applicant’s accepted injury.
DECISION

It is therefore the decision of the Tribunal that the reviewable decision is affirmed.

I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

.................[SGD].......................................................
Associate
Dated: 9 May 2022

Date(s) of hearing: 9 July 2021

Date final submissions received: 9 July 2021

Applicant: In person

Counsel for the Respondent: Ms Kate Slack

Solicitors for the Respondent: Ms Matylda Gostylla
Spark Helmore

Date(s) of hearing:	9 July 2021
Date final submissions received:	9 July 2021
Applicant:	In person
Counsel for the Respondent:	Ms Kate Slack
Solicitors for the Respondent:	Ms Matylda Gostylla Spark Helmore