Kucharski and Comcare (Compensation)

Kucharski and Comcare (Compensation) [2019] AATA 265 (25 February 2019)
Division:GENERAL DIVISION
File Numbers: 2017/1139 & 2017/6789
Re:Anna Kucharski
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:25 February 2019
Place:Brisbane

The Tribunal affirms the decisions under review.
........................[SGD]............................................
Member D K Grigg
CATCHWORDS
COMPENSATION — employees - whether applicant continues to suffer effects of compensable injury – whether permanent impairment - decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Power [2015] FCA 1502
Prain v Comcare [2017] FCAFC 143
REASONS FOR DECISION
Member D K Grigg
25 February 2019
INTRODUCTION & CLAIMS HISTORY

Between 1999 and 2012 Ms Anna Kucharski was employed by the Department of Defence in the contracts department.[1]
[1] Exhibit 3, Statement of Ms Kucharski, dated 28 March 2018, paragraph [2].
On 23 February 2012 Ms Kucharski lodged a workers’ compensation claim for “mixed anxiety and depression” which began in December 2009 as a result of being “bullied” by her supervisor.[2]
[2] Matter number 2017/1139; Exhibit 1, T Documents, T10, pages 58 - 84, Claim for workers compensation dated23 February 2012; Exhibit 3, Statement of Ms Kucharski, dated 28 March 2018, paragraph [3].
On 22 June 2012 Comcare agreed to accept Ms Kucharski’s compensation claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“Act”) for “major depression disorder” (“Compensable Condition”).[3] Ms Kucharski received incapacity benefits for the Compensable Condition between 27 September 2012 and
[3] Exhibit 1, T Documents, T12, pages 103-104, Determination Acceptance dated 22 June 2012.
[4] Exhibit 3, Statement of Ms Kucharski, dated 28 March 2018, paragraphs [70], [72], [75].
July 2016. In August 2016 Ms Kucharski returned to work as a contracts administrator at the Department of Defence and became a full time employee again in November 2016.[4]
In June 2016 Comcare commenced a review of Ms Kucharski’s current diagnosis and treatment requirements and obtained medical reports from Consultant Psychiatrists,
Dr Aleksandra Isailovic and Dr Eric De Leacy. A Comcare delegate advised
[5] Exhibit 1, T Documents, T29, pages 191-193, Letter from Comcare Delegate to Ms Kucharski dated
Ms Kucharski that the medical evidence suggested she did not presently suffer from the effects of her Compensable Condition and that her current condition is no longer related to her employment. On 26 July 2016 Comcare issued a notice of intention to determine no present liability and Ms Kucharski was invited to provide further medical evidence to support her claim.[5]
Ms Kucharski provided additional medical evidence to support her claim from
[6] Exhibit 1, T Documents, T35, pages 200-202, Report of Dr Shaw dated 20 September 2016.
Dr John (Andrew) Shaw, Consultant Psychiatrist.[6]
A Comcare delegate then considered the reports obtained from Dr Isailovic, Dr De Leacy, Dr Shaw, Ms Lesley Clarkson (Clinical Psychologist) and Dr Paul Bartels (General Practitioner) and determined that as at 1 December 2016 there was no present liability to pay Ms Kucharski compensation under sections 16 and 19 of the Act for medical expenses and incapacity payments in relation to Ms Kucharski’s previously accepted Compensable Condition.[7]
[7] Exhibit 1, T Documents, T 38, pages 209 – 210, Determination of no present liability dated 29 November 2016.
On 23 December 2016 Ms Kucharski lodged a request for reconsideration of the Comcare delegate decision dated 29 November 2016.[8]
[8] Exhibit 1, T Documents, T39, pages 212 – 213.
On 31 January 2017 a Comcare review officer concluded that the original determination on 29 November 2016 was correct on the grounds that Ms Kucharski’s current presentation was constitutional in nature and no longer related to her employment (“Reviewable Decision (2017/1139)”).[9]
[9] Exhibit 1, T Documents, T40, pages 214 – 219, Reconsideration of determination dated 31 January 2017; Exhibit 1, T Documents, T2, pages 6 – 10, Reviewable decision dated 31 January 2017.
On 4 September 2017 Ms Kucharski applied for compensation for permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Act in respect of her Compensable Condition sustained on 22 December 2009.[10]
[10] Matter number 2017/6789; Exhibit 2, T Documents, T35, pages 268 - 288, Compensation Claim dated
On 15 September 2017 Comcare advised Ms Kucharski that due to the decision of
[11] Exhibit 2, T Documents, T36, pages 289 - 290, Letter from Comcare to Ms Kucharski’s lawyers dated
29 November 2016, Comcare is also not responsible for paying compensation for permanent impairment under sections 24 and 27 of the Act.[11]
Ms Kucharski then requested a reconsideration of the 15 September 2017 decision.[12]
[12] Exhibit 2, T Documents, T37, page 294, Request for reconsideration.
The Department of Defence responded to Ms Kucharski’s request for reconsideration with Comcare and contended that no present liability existed. The Department of Defence referred Comcare to the independent assessment of Dr Isailovic, Consultant Psychiatrist, on 7 June 2016. Dr Isailovic reported that:[13]
“I believe her ongoing reported symptoms would be related to…a preexisting, congenital or constitutional personality vulnerability”.
[13] Exhibit 1, T Documents, T39, page 299, Letter from the Department of Defence dated 29 September 2017.
On 19 October 2017 Comcare determined that Ms Kucharski was not entitled to compensation for permanent impairment under sections 24 and 27 of the Act in relation to the Compensable Condition (“Reviewable Decision (2017/6789)”).[14]
[14] Exhibit 2, T Documents, T40, pages 300 – 302.
Ms Kucharski then applied to this Tribunal for a review of the Reviewable Decision (2017/1139) and Reviewable Decision (2017/6789).[15]
[15] Exhibit 1, T Documents, T2, pages 3 - 13, Application for Review of Decision dated 28 February 2017; Exhibit 2, T Documents, T2, pages 5 - 16, Application for Review of Decision dated 15 November 2017.
Ms Kucharski ceased employment with the Department of Defence on 12 July 2018 after her position was made redundant.[16]
[16] Transcript Day 1, page 12.
ISSUES FOR DETERMINATION
The issues for determination are whether Ms Kucharski is entitled to compensation for:
(a)a permanent impairment and non-economic loss under sections 24 and 27 of the Act; and
(b)for medical expenses and incapacity payments under sections 16 and 19 of the Act.
A consideration of whether Ms Kucharski is entitled to compensation under the Act involves determining whether:
(a)from 1 December 2016, she has continued to suffer from the Compensable Condition; and, if yes
(b)the Compensable Condition continues to be contributed to, to a significant degree, by her employment;
(c)Ms Kucharski’s suffers from a permanent impairment; and, if yes,
(d)the permanent impairment is a result of her Compensable Condition.
LEGISLATIVE REQUIREMENTS
The right to compensation for an employee under the Act is conferred by section 14(1) of the Act which provides that 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.
“Injury” is defined in section 5A(1)(b) of the Act to mean, so far as this case is concerned:
… 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.
“Disease” is defined in section 5B(1) of the Act to mean:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
“Impairment” is defined in section 4(1) of the Act to mean:
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.
“Permanent” is defined in section 4(1) of the Act to mean likely to continue indefinitely.
The right to compensation for an employee for injuries resulting in permanent impairment under the Act is conferred by section 24 of the Act which relevantly provides:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment … ; and
(b)Comcare determines that the degree of permanent impairment is less than 10%
an amount of compensation is not payable to the employee under this section.
…
[emphasis added]
If Comcare is liable to pay compensation to an employee for a permanent impairment under section 24 of the Act, Comcare is also liable to pay additional compensation in accordance with section 27 of the Act to the employee in respect of that injury for any non-economic loss suffered by the employee because of that injury or impairment.
Section 5B(2) of the Act sets out that in determining whether an ailment or aggravation is contributed to, to a significant degree, by an employee's employment, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
The Act defines “significant degree” in section 5B(3) to mean a degree that is substantially more than material.
The Full Federal Court in Prain v Comcare [2017] FCAFC 143, at [79]-[87], explained that the ‘significant degree’ contribution test as set out in section 5B of the Act would involve a consideration of whether Ms Kucharski’s employment, and the issues that gave rise to the Compensable Condition in 2012, still contribute in more than a material degree to any ongoing condition.
There is no such thing as a legal onus of proof in this matter.[17] The Tribunal’s role on review is established by section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) which provides that the Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. The Tribunal is not reviewing whether compensation should not have been awarded to begin with, but whether Ms Kucharski’s compensation entitlements arising from the Compensable Condition should be terminated on the basis that her employment is no longer contributing to her condition to a significant degree.[18]
[17] Re Carmel Elizabeth McDonald v Director-General of Social Security (1984) 1 FCR 354, at 357; [1984] FCA 57.
[18] Comcare v Power [2015] FCA 1502, at [63].
The issue is whether the Tribunal is persuaded that Ms Kucharski continues to suffer from the effects of the Compensable Condition.
In Comcare v Power [2015] FCA 1502 Katzmann J said, at [70]:
… I accept that is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made…
If the Tribunal is unable to decide, on the balance of probabilities, whether Ms Kucharski does or does not continue to suffer the effects of the Compensable Condition, the Tribunal is bound to find in Ms Kucharski’s favour.[19] There is no presumption that the reviewable decisions are correct.[20]
CONTENTIONS
[19] Comcare v Power [2015] FCA 1502, at [71].
[20] Re Carmel Elizabeth McDonald v Director-General of Social Security (1984) 1 FCR 354, at 357; [1984] FCA 57.
Ms Kucharski’s Contentions
Ms Kucharski contends that:[21]
[21] Applicant’s Statement of Facts, Issues and Contentions, dated 13 September 2018.
(a)her problems of hoarding and excessive shopping did not precede the work related stressors, but only developed since;
(b)her psychiatric condition has not resolved;
(c)her psychiatric condition continues to be attributed to the work related stressors;
(d)her work related stressors continue to be the cause of her complaints and disability;
(e)she continues to have an ongoing incapacity and need for treatment as a result of the accepted psychological injury sustained on 22 December 2009;
(f)there have been no intervening events that have caused her psychological injury;
(g)whilst she may have a vulnerable personality, the work related stressors have caused and continue to be the cause of her psychological injury;
(h)her current condition would not have arisen in the absence of her accepted psychological injury; and
(i)any enhanced susceptibility for recurrence of her psychological condition is due to the workplace stressors.
Comcare’s Contentions
Comcare contends that:[22]
(a)any condition presently suffered by Ms Kucharski is due to an underlying, constitutional condition and that the effects of any work-related conditions, have ceased; and
(b)any impairment suffered by Ms Kucharski is not a result of any accepted compensable condition and therefore no compensation under the Act is payable.
[22] Respondent’s Final Outline of Submissions, dated 14 December 2018, page 2.
DOES MS KUCHARSKI CONTINUE TO SUFFER THE EFFECTS OF HER COMPENSABLE INJURY?
A determination of whether Ms Kucharski continues to suffer from the effects of her Compensable Condition will be derived from an analysis of the medical evidence. The medical evidence before the Tribunal was substantial and complex. This complexity was identified by both Dr De Leacy and Dr Varghese. All of the medical experts relied on by the parties were appropriately qualified and no dispute or contentions were raised in this regard.
The experts are at variance with one another, in terms of whether Ms Kucharski continues to suffer from the Compensable Condition and the current applicable diagnosis of
Ms Kucharski’s condition.
There were numerous medical reports and clinical notes before the Tribunal. A number of medical specialists provided oral evidence in addition to their reports.
The Applicant called Dr Andrew Shaw, Psychiatrist, and Dr Eric De Leacy, Psychiatrist to give evidence.
The Respondent called Dr Aleksandra Isailovic, Psychiatrist and Dr Francis Varghese, Psychiatrist.
Ms Kucharski also gave evidence at the hearing. Her evidence is referred to throughout the discussion of the medical evidence below when relevant.
MEDICAL EVIDENCE
Dr Andrew Shaw, Consultant Psychiatrist
Report of Dr Shaw dated 13 July 2016[23]
[23] Exhibit 10, File record of Dr Shaw, Medical Report to Dr Bartels, dated 13 July 2016.
In July 2016 Dr Shaw diagnosed Ms Kucharski as suffering from Adjustment Disorder with anxiety and depressed mood and panic attacks in remission.
Report of Dr Shaw dated 20 September 2016[24]
[24] Exhibit 1, T Documents, T 35, pages 200 – 202, report of Dr Shaw dated 20 September 2016.
In September 2016 Dr Shaw reported that:
(a)Ms Kucharski had denied any episodes of depression prior to her experiences in 2009;
(b)he had only been able to see Ms Kucharski on a few limited occasions and did not have the same sense of her longitudinal history as her treating psychiatrist
Dr Calder-Potts;[25]
(c)he suspected her difficulties are related to anxiety; and
(d)despite Dr Isailovic’s opinion, he believed Ms Kucharski’s problems related to what happened in 2009 and he was unable to confirm whether there was a specific personality disorder.
Report of Dr Shaw dated 18 May 2017[26]
[25] Exhibit 19, Report of Dr Calder Potts dated 16 December 2014; Annexure A.
[26] Exhibit 6, Report of Dr Shaw dated 18 May 2017.
In May 2017 Dr Shaw reported that his diagnosis was adjustment disorder with mixed anxiety and depressed mood, hoarding disorder and cluster B personality vulnerabilities. At the hearing Dr Shaw explained that “cluster B personality traits are…the emotionally unstable personality disorders, like the borderline personality disorder, the histrionic personality disorder and the antisocial personality disorder”.[27]
[27] Transcript Day 1, page 72.
Dr Shaw acknowledged that Ms Kucharski was no longer in his clinical care but that he had met with her to discuss a summons he had received to provide a copy of her medical chart to the Tribunal.
Dr Shaw reported that Ms Kucharski revealed to him that she intended to take her life if she lost her job as a result of the restructure of the workplace which was due to occur in July 2017. In Dr Shaw’s opinion “Such statements, in the context of what was intended to be a brief, non-clinical interview with no further follow-up was most likely a reflection of her Cluster B personality traits”.
A clinical note Dr Shaw kept of his meeting with Ms Kucharski on 29 September 2016 provided that he “went through appeal of Comcare’s decision that [he] wrote 20^th September 2016, [and Ms Kucharski] felt that it accurately described her situation”.[28]
Oral Evidence of Dr Shaw
[28] Exhibit 7, Clinical notes of Dr Shaw dated 29 September 2016.
Dr Shaw said Ms Kucharski has “personality factors present which under cluster B mean [an] emotionally unstable type personality” but there is not enough data to diagnose a specific personality disorder within cluster B.[29] Dr Shaw gave examples of cluster B personality disorders including borderline personality disorder and histrionic personality disorder.
[29] Transcript Day 1, page 73.
At the hearing Dr Shaw explained that he disagreed with the opinion of Dr Isailovic because in his view:[30]
“there was insufficient evidence to diagnose a personality disorder and specifically there was no evidence suggesting long term personality dysfunction…”.
[30] Transcript Day 1, page 58.
In relation to his report of May 2017 Dr Shaw confirmed that he understood from

Ms Kucharski that the restructure and redundancy was the reason for her suicidal thoughts at that point in time.[31] Dr Shaw acknowledged that this reaction to the possibility of losing her job indicated that Ms Kucharski wished to continue working.[32]
[31] Transcript Day 1, page 60.
[32] Transcript Day 1, page 60.
Dr Shaw was informed by Ms Kate Slack, Counsel for Comcare, at the hearing that:[33]
(a)Dr Peter Wilkins, Occupational Physician, reported in 2010 that Ms Kucharski had told him that she suffered from recurrent depressive episodes since 1994;[34]
(b)Dr Yvonne Skinner, Psychiatrist, had identified from a review of Ms Kucharski’s medical records that a general practitioner had diagnosed Ms Kucharski with reactive depression or adjustment disorder in 2002;[35]
(c)Dr Wasim Shaikh, Consultant Psychiatrist, reported that Ms Kucharski had been diagnosed with post-traumatic stress disorder (“PTSD”) and adjustment disorder;[36] and
(d)Ms Kucharski stated in her written evidence that she had been in an emotionally abusive relationship in 1993/1994.[37]
[33]    Transcript Day 1, page 61.
[34]    Exhibit 9, Report of Dr Wilkins dated 7 December 2010; Annexure A.
[35]    Exhibit 8, Report of Dr Skinner dated 10 August 2010; Annexure A.
[36]    Exhibit 1, T Documents, T21, pages 135-147, Report of Dr Shaik dated 21 March 2014; Annexure A.
[37] Exhibit 3, Statement of Ms Kucharski, dated 28 March 2018, paragraph [17].

Dr Shaw said he had not been aware of the reports of Dr Wilkins, Dr Skinner or Dr Shaikh and had thought her psychological problems had begun in 2009 when the workplace issues arose.[38] Dr Shaw acknowledged this information was relevant to Ms Kucharski’s background history and accepted it indicates a relapsing or remitting depressive disorder. Dr Shaw also said he not aware Ms Kucharski had been with a person who was specifically emotionally abusive and that this was also relevant.
[38] Transcript Day 1, page 62.
Dr Shaw went on to say that it does not mean he would have found that her depression was not caused by workplace issues. However, he agreed that the natural history of major depressive disorder is that an episode of depression can just happen and does not need to be triggered by a specific event.[39]
[39] Transcript Day 1, page 66.
Dr Shaw has not examined Ms Kucharski since September 2016 and told the Tribunal that he could not “really give any meaningful assessment after” that time.[40]
[40] Transcript Day 1, page 66.
Dr Shaw confirmed at the hearing that his report was based exclusively on Ms Kucharski's self-reporting and his observations.[41]
[41] Transcript Day 1, page 68.
Dr Eric De Leacy, Consultant Psychiatrist and Pathologist
In his reports Dr De Leacy states that he obtained information for his reports from his interview with Ms Kucharski (unless otherwise specified).
Report of 5 July 2016[42]
[42] Exhibit 1, T Documents, T26, pages 178 - 186, Report of Dr De Leacy dated 5 July 2016.
Dr De Leacy reported on 5 July 2016 that he had assessed Ms Kucharski on
30 June 2016 and that in his opinion she was still suffering from Major Depressive Disorder.
Report of 15 August 2017[43]
[43] Exhibit 11, Report of Dr De Leacy dated 15 August 2017.
Dr De Leacy reported in August 2017 that Ms Kucharski:
·was 42 years old.
·lives with her mother.
·is back working with Defence in the Contracting Department.
·is working full time but is working in somewhat reduced duties.
·feels that she is still too stressed to do the full complement of hours although she was previously keen to get her hours up.
·had previously told him that:
o"…she originally joined the Department in 1999 and was based in Sydney and things started to go wrong. In 2009 a new supervisor came to the job."
o“there were very traumatic events that occurred with the supervisor harassing her and on one occasion she held a pair of scissors close to
Ms Kucharski's face. She said that she was always harassed by this particular woman.”
·       was already seeing a psychologist for Post Traumatic Stress Disorder in relation to a motor vehicle accident and then continued to see the psychologist in relation to these work related matters.
·       deteriorated significantly and did some self-harm and she eventually felt that she had to leave Sydney and came to Brisbane. This was in 2012.
·       had a chequered course with depression and has been seeing Dr Bartels, her General Practitioner, who referred her to Dr Calder-Potts from about 2012 onwards.
·       is no longer seeing Dr Calder-Potts. She now sees Dr Shaw on occasion. She also sees a psychologist.
·       was assessed by Dr Kovacevic in September 2013. He diagnosed her as suffering a depressive illness.
·       has undertaken treatment with a psychiatrist and psychologist and a return to work program was recommended by the Tribunal in 2014.
·       instructs her condition has plateaued.
·       Reported that currently:
oshe is still not happy.
oshe just feels suicidal at times.
oshe is still anxious.
oher sleep is poor.
oshe has a low appetite but has gained weight.
oher social life is poor.
oshe is not capable of forming relationships.
oshe has problems with concentration and short term memory.
oshe is capable of managing her housework with some assistance but worries about her memory and will not use the gas stove unless someone is present. She feels that she might leave this on.
oshe can drive a car but restricts herself.
oshe is fatigable.
oshe has headaches.
oshe has had irritability.
oshe tends to sleep during the day to make up for the loss of sleep during the night.
oshe is drinking less than she previously did.
·       takes Pristiq and overthe-counter painkillers.
·       was seeing Dr Shaw but is no longer seeing him because of funding issues.
·       sees her psychologist regularly and she sees her general practitioner.
·       was seeing a psychologist previous to her work related issues because of her PTSD from a motor vehicle accident but I am not certain that I would have diagnosed PTSD. Adjustment Disorder may have been a better diagnosis for the level of accident that was involved.
·       She denied having major problems in the past.
·       She has had a Comcare claim previously for a knee injury and has had a third party motor vehicle claim for a neck injury and back injury from a car accident that has been referred to. Her driving record is reasonable. She has no criminal record.
·       She met a man and went to Townsville with him. The relationship did not last for more than a year. She then went to Sydney in 2001 and was in a relationship there which lasted for about 1½ years and terminated because of stress.
·       She came to Brisbane in 2012.
·       She is no longer in a relationship and cannot imagine that she will form one now.
In Dr De Leacy’s opinion [emphasis added]:
·       Her diagnosis is Major Depressive Disorder and there is anxiety also present. She has some features of anxiety with panic but a separate diagnosis is not necessary.
·       On the balance of probabilities, I would consider that under the SRC Act,
Ms Kucharski did sustain an injury in the course of her employment with the Department of Defence.
·       I consider that the employment was a significant contributing factor to the onset of the injury and condition.
·       Ms Kucharski presently continues to suffer this condition which has been mentioned above which arose in the course of her employment with the Department of Defence.
·       Ms Kucharski's present and future capacity to work is somewhat limited. Although she is working full time, she is struggling to do this and work the full range of her duties. She said that although she was keen to build up her hours to full time, she feels now that the full time hours are too much of a strain for her and it would be better if she were working slightly lesser hours. Ms Kucharski could possibly work reduced hours with appropriate psychiatric support.
·       The prognosis of the condition is guarded. It is unlikely there will be a significant resolution of this condition. The condition has now plateaued and is thus stable and stationary. There is some permanent impairment which will be discussed below.
·       I disagree with the report of Dr lsailovic in the sense that I consider that too much emphasis is made on pre-existing psychological conditions and vulnerabilities. Dr lsailovic has made a diagnosis of a possible Personality Disorder. I believe there is little evidence for this.
·       In regard to the degree of permanent impairment, I consider that the degree of permanent impairment is 10%. I would consider that it would be difficult to assume that Ms Kucharski requires supervision if she is capable of working a reasonable number of hours. However, she does have reactions to stresses of daily living with minor loss of personal efficiency and has minor distortions of thinking. This justifies a 10% level of permanent impairment.
·       The impairments are likely to continue indefinitely.
Report of 27 July 2018[44]
[44]    Exhibit 12, Report of Dr De Leacy dated 27 July 2018.
In 2018 Ms Kucharski’s representatives provided Dr De Leacy with additional medical reports, including the report of Dr Varghese dated 18 August 2017.
Dr De Leacy reported that since his last assessment in June 2016 Ms Kucharski:
·had been made redundant and she said that this was supposedly due to the need of the Department to downscale and said that she will have to look for some form of work.
·continues to do hoarding.
·said that she was only working 20 hours a week and she said this is all she will be able to do. She does not know what kind of work she will be able to do and stated that it will have to be clerical work.
·said that she has not changed her lifestyle much. She still plays her online games. She does not socialise. She goes to Japanese classes.
·said she is depressed, anxious, feels suicidal in thought at times, is demotivated and lacks energy.
·said her sleep is still erratic.
·said her appetite is reduced.
·told him her social life is poor. She is not exercising. She has no meaningful relationship. She has problems with concentration and memory. She said she is afraid of the dark and definitely phone phobic.
In Dr De Leacy’s opinion [emphasis added]:
·Ms Kucharski was depressed and quite anxious.
·Ms Kucharski appears to have had pre-existing personality vulnerabilities however, based on reports from other examiners.
·I still considered that the circumstances and stressors of Ms Kucharski's employment still contribute to a significant degree to her condition despite her past history.
·The issue is whether other factors are responsible for her current condition. It has been suggested by Dr Varghese that your client had pre-existing vulnerabilities and past psychiatric illness, however it is suggested by
Dr Varghese that the work-related bullying factors were an influence to her current status. I believe that if it were not for the work-related issues that have been described previously, Ms Kucharski would not have developed the level of depression that she did and have the degree of difficulties and work impairment that she has suffered regardless of any vulnerability that she may have had. It is quite difficult to respond to the opinion of Dr Varghese in his report dated
18 August 2017. His report is extremely lengthy and deals with the opinions of many other assessors and then he summarises his views based on these opinions and his own assessment. There are numerous points made about past PTSD, past depression and personality vulnerabilities.
·I believe the most relevant portions of his report are on page 45 under paragraphs VII, VIII and IX, where pre-existing issues are summarised and two hypotheses are put forward, one where it might be accepted that a person bullied as she describes could develop Major Depression if predisposed by vulnerability. His alternative hypothesis is that her Major Depression insidiously developed from factors unrelated to work and she began to experience the workplace as hostile and unsupportive and under this construct it was not the workplace difficulties that led to her depression.
·… I would consider that there is enough reason to believe that your client did have vulnerabilities, the workplace factors were sufficient to cause a vulnerable person to develop Major Depression. Dr Varghese considers she had Major Depression in the past and there is some evidence for this but the bullying is likely to have caused whatever condition she previously suffered to become severe enough to cause impairment.
·I still considered that Ms Kucharski's employment-related factors are still contributing but I would concede that there is significant evidence that she had pre-existing vulnerability.
·I believe that she has marked disturbances of thinking and definite disturbances of behaviour. She is phobic of the dark, she is phobic of people, she keeps away from people and she is phobic of phones. She avoids contact with people and does not want to be close to anybody and keeps a bag as a barrier. Her behaviour is odd in that she keeps her distance and prefers to be isolative.
·The material that has been presented is complex and does present significant evidence of pre-existing disturbances that are not work-related and do suggest that there was pre-existing vulnerability, but despite this I would consider that the work-related aspects were still a significant contributing factor to her illness and still are.
·Overall, Dr Varghese tends to minimise the effects of her employment and, draws on other reports to support his view. He feels that employment no longer has any ongoing effect on her condition. I disagree with this contention, but I do concede that your client is a vulnerable person, but despite this, work-related factors were a significant contributing factor and still affect her.
Oral evidence of Dr De Leacy
Dr De Leacy disagreed with Dr Isailovic’s opinion that Ms Kucharski had a pre-existing personality disorder (see paragraph 99 below). However, he accepts that she had personality vulnerabilities.
Dr De Leacy told the Tribunal that in his opinion workplace issues are still a contributing factor to Ms Kucharski’s condition because she is “still disturbed by the workplace issues” and therefore he disagreed with Dr Varghese.[45]
[45] Transcript Day 1, pages 77 - 78.
Dr De Leacy accepted that major depressive disorder can relapse and remit over time, and that a relapse can just occur without a trigger event.[46]
[46] Transcript Day 1, pages 78 - 79.
At the hearing Ms Slack, Counsel for Comcare, informed Dr De Leacy that Ms Kucharski had given evidence to the Tribunal that:[47]
·in June 2017 she travelled to Canada for a wedding and stayed for a month;
·she travels by train to the Gold Coast and has been to Movie World to attend events approximately 3 times per year and attends events like Supanova twice a year which usually lasts 2.5 days and has in excess of 25,000 people in attendance;
·she attends Japanese classes on Mondays from 4 pm to 6 pm each week;
·she has also been an Avon representative at her previous workplace; and
·she engaged in weekly volunteer work at a high school and was currently volunteering at an opportunity shop five to six hours per week.
[47] Transcript Day 1, page 80.
Dr De Leacy said “I think she mentioned something about voluntary work, but not all those things, no. I was not told that extent of activity”.[48] In Dr De Leacy’s first report in July 2016 he noted that “The only activity she does is an online game”. Dr De Leacy told the Tribunal that this was substantially different from what she told the Tribunal and that it was clear Ms Kucharski had not provided him with a complete history of her functional and social abilities.[49]
[48] Transcript Day 1, page 80.
[49] Transcript Day 1, page 81.
Dr De Leacy agreed that this information was relevant to a determination of a person’s level of impairment and said it was “pretty unlikely” that a person who was suffering from a serious major depressive disorder would be capable of going to large events where 25,000 people are attending, getting autographs and photographs with movie stars.[50]
[50] Transcript Day 1, page 81.
Dr De Leacy said his opinion on diagnosis was based on the level of activity that
[51] Transcript Day 1, page 81.
Ms Kucharski reported to him.[51]
The only past history Dr De Leacy had been aware of was the diagnosis of PTSD following a motor vehicle accident.
At the hearing there was some confusion by Dr De Leacy about whether he had been provided with a copy of the reports of Drs Skinner, Synnott and Wilkins.[52]
[52] See Annexure A; Transcript Day 1, pages 82 - 83.
Dr De Leacy told the Tribunal that if had he been aware that:
(a)Ms Kucharski had been diagnosed with depression or adjustment disorder in 2002, this would have been a relevant factor to have considered;[53] and
(b)Dr Wilkins recorded that Ms Kucharski had reported to him recurrent depression since 1994, but then when she saw a psychiatrist on the very same day, she declined to provide any information about her psychotropic medication, her treatment, and denied a past history of depressive illness, this would have been of concern to him because he would wonder why she does not want to discuss these matters. He said “is there something - is she just frustrated or is she trying to hide something”.[54]
[53] Transcript Day 1, page 82.
[54] Transcript Day 1, page 84.
Dr De Leacy’s attention was drawn to the fact that Ms Kucharski states that she was in an abusive relationship in 1993/1994. He was asked by Ms Slack whether one would be able to draw any link between her report of being in an abusive relationship in 1993 and 1994, this extract from Dr Wilkins’ report, and the denial of any past history in Dr Synnott’s report? Dr De Leacy answered “one can certainly speculate that there’s a connection between the depressive illness that she doesn’t want to discuss and the…abuse”.
Dr De Leacy informed the Tribunal that if he had known the information contained in the reports of Drs Skinner, Synnott and Wilkins, his conclusion would have been that
Ms Kucharski:
“had a significant history of depression…prior to experiencing her workplace stressors.”
In relation to the comments made by Dr Isailovic and Dr Varghese that Ms Kucharski’s functioning appeared to be significantly higher than Ms Kucharski perceived it to be and was at variance with the psychiatric tests performed (Depression, Anxiety and Stress Scale (“DASS-21”) and Kessler Psychological Distress Scale (“K10”)) which indicated depression in the severe range, Dr De Leacy explained to the Tribunal that he did not conduct psychiatry tests as they were not intended to be diagnostic tests.
[55] Transcript Day 1, pages 85 – 86.
Dr De Leacy says that diagnostic tests are there to monitor progress not to diagnose the condition. Dr De Leacy also pointed out that one of the weaknesses of the DASS-21 and K10 tests is that they are based on self-reporting. Dr De Leacy acknowledged however that the use of the tests may indicate that there is a difference between someone’s self-reported symptoms and what a psychiatrist sees in a mental state examination.[55]
Ms Slack informed Dr De Leacy that a couple of months after he had prepared his
July 2016 report Ms Kucharski had returned to work full-time. Dr De Leacy had reported that Ms Kucharski was incapable of working five days per week. Ms Slack asked
Dr De Leacy the following:[56]
[56] Transcript Day 1, page 89.
Ms Slack:
If you accept that Ms Kucharski worked - returned to work full time in November 2016. In April 2017 there’s a note from her general practitioner that says she was coping at work, and that employment she continued until July 2018 when she was made redundant because there was a restructure in her workplace, not because of the effects of the condition. So if you accept that she has returned to work full time, and she has a higher level of functioning than what was reported to you, it’s possible, isn’t it, that she has in fact suffered a complete [r]emission of the episode that she suffered that was related to the bullying?
Dr De Leacy:
It’s possible, or certainly partial.
Ms Slack:
Well, it’s more than that. It’s probable, isn’t it, because they’re the factors that you would heavily rely on in determining whether or not a person does still suffer from a psychiatric condition?
De Dr Leacy:
Yes, okay. We will say probable
Ms Slack:
And her continuing - her return to work, on a graduated program, then to work full time and her being able to manage on that full time basis, also demonstrates your trajectory of continuous improvement of her condition, doesn’t it?
Dr De Leacy:
Yes.
Ms Slack:
And it also demonstrates her ability to work full time?
Dr De Leacy:
Yes.
Dr De Leacy told the Tribunal he had also not been aware that Ms Kucharski had obtained a Certificate in English Language Teaching in 2018 and agreed that this was a factor that weighed against her having an ongoing major depressive disorder. Dr De Leacy told the Tribunal that having regard to the information that he had now become aware of it was “very likely” that the major depressive episode that she had suffered as a result of the bullying incident, that is the Compensable Condition, had been fully remitted at some point since that time.[57]
[57] Transcript Day 1, page 90.

Dr De Leacy also accepted that psychiatric symptoms that Ms Kucharski may currently be experiencing may be the result of personality vulnerabilities.[58]
[58] Transcript Day 1, page 90.
During re-examination by Ms Laura Neil, Counsel for Ms Kucharski, Dr De Leacy then said “it’s likely that her condition fluctuates from time to time, and I haven’t been happy to say that her condition would have fully remitted...It may have improved some point”.[59]
[59] Transcript Day 1, page 96.
Ms Neil asked Dr De Leacy the following concluding question:[60]
Ms Neil:
And, Doctor, based on all of the information that has been put to you during your evidence this afternoon, do you still consider that Ms Kucharski’s employment and the bullying and harassment that occurred back in - from 2009 to 2012, do you still consider that her condition - that those employment factors remain significant in terms of her condition?
Dr De Leacy:
I think so.
[60] Transcript Day 1, page 97.
Dr Francis Varghese
Report of Dr Varghese dated 18 August 2017[61]
[61] Exhibit 17, Report of Dr Varghese, dated 18 August 2017.
Dr Varghese evaluated Ms Kucharski on 5 June 2017 and provided a report on
18 August 2017. Dr Varghese states that his report was “based on his interview with
Ms Kucharski and his observations at the interview, and that it was not his practice to read other medical reports and material until after he has formed some opinion as to the possible central clinical issues”.
Dr Varghese reported that [emphasis added]:
(a)Ms Kucharski told him:
·She began her current placement in September 2016 at which time she rated herself as “five out of ten”.
·Regarding her current work, she says she is on full time hours but on restricted duties. As to what is meant by this, she says she has “light duties” and “I’m not doing the same work load”. Currently she rates herself as “five out of ten”.
·She works from Monday to Friday, doing 7½ hours a day. On Tuesday she works as a volunteer at a high school doing craft activity. She enjoys this activity and also “it’s different from work”.
·As to what she does on a weekend, she plays computer games and watches TV. On Fridays she sometimes spends time with a male friend in the city. This is about once every month or so and “we chat”. He is not a boyfriend and it is “a platonic relationship”. There is also one other male friend with whom she has coffee. She reports that she helps this male friend with his study.
·On Monday she attends Japanese class as she has always been interested in the culture and after Japanese class she goes for coffee with some of the others in the class. It is three hours for Japanese class and coffee.
·As to recreation, she nominates going to the movies and she goes on her own. She also enjoys learning Japanese and craft and she enjoys going to Costco with her male friend.
·As to her social life, she reports she has no close female friends. She is friendly to others at work but not outside. She says she is cautious about people at work because of trust issues. On the other hand she does go out with them occasionally at lunch in a group but not with any individual.
·Ms Kucharski does not describe any problems with transport.
·At home she has a close relationship with her mother and she describes a good relationship with her brother. “We are a happy home.” Her brother is single.
·At home her mother does the cooking. “She insists.” Ms Kucharski says she would have difficulty because of concentration. The housework is done by her mother and brother and “I do some”.
·Regarding alcohol, Ms Kucharski states that she hardly drinks at all because it is too expensive. She may have one or two drinks on a social occasion. She does not smoke cigarettes and does not use marijuana.
(b)He noted there is no past history of psychiatric problems and no family history.
(c)Regarding relationships, I note Ms Kucharski has never been married. She states she dated a few times and then had a long relationship towards the end of 1997 and went to Townsville with the man. She was aged 23 at the time. The relationship lasted one and a half years and broke up because of “personality differences”.
(d)Subsequently she describes a four and a half year relationship with a man in Sydney. This was a live in relationship and ended in 2006 when she went to live on her own. As to the reasons for the break up, she says it was a “personality mismatch” and as to her feelings about the break up, she states “it was overdue”.
(e)Subsequently she dated a person she calls a “tall guy”. However this was when “work problems started” and they were arguing as a result and broke up after an argument after having been together for over one year. It was not a live in relationship and ended sometime in 2011.
(f)Since then there has been no relationship although she has had “coffee dates”. “I am not really interested.” The last time she went on a date was sometime in 2015 through a dating site.
(g)I asked Ms Kucharski as to her plans for the future and she says “I don’t know”. At times she “just lives for today”. She has no idea what she would like to be doing in five years. With respect to work, she says she is wondering about whether she will apply for AO6 at some stage.
(h)As to whether she has anything to add, Ms Kucharski says that “today is a good day”. She feels however that she is “in a state of limbo”. She reports she had a really good day last week. On the other hand she has what she describes as “bad days”. These are about once a week or every two weeks. She does not want to get out of bed or dress and “I weep at nothing and cry”. During these times she has plans for death by suicide. She talked at length about suicidal ideas and plans and Wills and where she would like to be buried. Sometimes the bad days can last two days. From time to time she takes days off work and as a result she does not have any sick leave left.
(i)She still has a problem with phones as a result of what happened and her dealings with Comcare. She generally avoids the phone and tends to communicate by email, even at work. She does have a mobile phone but will not answer if she does not recognise the number.
(j)When asked to describe her personality, Ms Kucharski describes herself as “withdrawn” and “I cope with sarcastic humour”. As to whether she has any positive qualities, she says “I think I can make people laugh” and “I use humour”. Other positive things are that she tries to listen to people but overall she does not like the way she is.
In Dr Varghese’s opinion Ms Kucharski [emphasis added]:
(a)Was keen to give her account and I note she sat in the chair with a large bag on her lap throughout the interview. I note significant obsessionality and a need to describe things and events in great detail. On the other hand I note that she is easy to engage and has good social skills. The obsessionality could be easily contained.
(b)…described being depressed, rating herself as five out of ten on a scale of naught to ten where ten is her normal self and zero is the worst she can image. On the other hand there was no evidence of depression in her affect which was reactive and warm. I note she was able to smile and from time to time showed some wry humour. There was no anxiety during the interview.
(c)With respect to her thought content, it was focussed on issues in the workplace starting in 2008 which she considers led to her developing depression such that she had to cease work towards the end of 2012 and move to Brisbane. She describes being “bullied” and “victimised” by a female supervisor including “surveillance” when she was talking on the phone and going to the toilet.
(d)She describes fairly typical symptoms of Major Depression including biological symptoms and depressive cognitions. Some of the depressive cognitions have a paranoid flavour including a feeling that she was being followed in Brisbane such that she would not leave her house.
(e)I note she reports hardly any improvement in her depression despite treatment in 2013 and 2014 and then gradual improvement after a return to work programme. I note her overall psychosocial functioning is reasonably good with the exception that she is not in a relationship. I note she describes good days and bad days and the bad days are accompanied by suicidal ideation and a preoccupation with death.
(f)In early 2013 she was referred to a psychiatrist and at the time of referral she describes symptoms very typical of Major Depression with secondary anxiety including depressive cognitions and biological symptoms. The depression appears to have been of more than moderate intensity.
(g)Despite psychiatric treatment and also psychological treatment in Brisbane
Ms Kucharski reports only marginal improvement such that she remained out of the workforce for around two years.
(h)More recently Ms Kucharski has reported some improvement and she has been able to return to work albeit in limited duties at the military barracks at Enoggera, however she continues to describe periods of depression and suicidality. I note moreover that there continues to be some ongoing psychosocial dysfunction although her functioning is not in keeping with a current Major Depression.
(i)On mental state examination although Ms Kucharski described herself being depressed there is no evidence of any pervasive depression. Her affect is reactive and warm and indeed she seemed in reasonably good spirits.
(j)In her thought content I note she describes short periods of being low during which she has suicidal ideation and plans but no psychotic symptoms although her description of her cognitions when she was depressed did have a paranoid flavour.
(k)The diagnostic issues are complex and uncertain. It seems likely on the data presented that at the time Ms Kucharski ceased work towards the end of 2012 she was suffering from Major Depression of more than moderate intensity. It is likely that this Major Depression had been developing insidiously over several months and may have been preceded by Dysthymic Disorder of varying intensity going back to 2008. If Ms Kucharski has had any previous episodes of depression such as when she was in Grade 11 and 12, then the appropriate diagnosis would be Recurrent Major Depression meaning there has been more than one episode.
(l)Alternatively she had an Adjustment Disorder following on the motor vehicle accident and this morphed into Major Depression although the time scale is quite long. The Major Depression appears to have been unusually prolonged such that Ms Kucharski remained out of the workforce for two years despite treatment. Nevertheless the Major Depression is now in remission as can be judged by the mental state and aspects of functioning.
(m)Ms Kucharski’s current emotional state could be understood as constituting a Dysthymic Disorder which may be the continuation of what was present previously. Her intermittent suicidality and periodic unhappiness may well be a reflection of personality as against a mood disorder.
(n)With respect to personality, Ms Kucharski does show some obsessional traits. I also note that there is a paucity of relationships. Moreover it is difficult to get a good account of her previous relationships and their role in her dysthymia/Major Depression.
(o)The cause of the previous Major Depression is multifactorial meaning that several factors are likely to be of importance. With this type of depression particularly where there is a recurrent pattern constitutional factors are of great importance. Other issues that can led [sic] to propensity to depression include developmental adversity and personality.
(p)Although episodes of Major Depression can occur for no apparent reason in line with the natural history or be a reflection of underlying medical illness, episodes can certainly be precipitated by adverse life events and circumstances.
(q)In Ms Kucharski’s case if one accepted her account of bullying and harassment including surveillance in the workplace by a supervisor, then over a period of time such a state of affairs may well have led to the development of Major Depression in somebody who was predisposed to this condition. An alternate construct is that as Ms Kucharski developed depression insidiously for whatever reason, perhaps as a reflection of social isolation and a recent broken relationship in Sydney as well as residual issues from a motor vehicle accident, then she began to experience the workplace as hostile and unsupportive, and moreover as a result of cognitive distortions secondary to depression she came to perceive certain behaviours on the part of her supervisors as constituting bullying and harassment. Moreover a developing depression may well have brought about issues of performance bringing her to the attention of her supervisors in an adverse manner.
(r)Thus deciding on the direction of causality requires a judgement of the facts of the case which is not the role of a medical evaluator. Whatever the case the Major Depression is now in remission whether as a result of treatment or natural history or both. It should also be noted that by definition Major Depression is an episodic condition and not a chronic condition such that there is eventual remission. I note that it is now some five years since Ms Kucharski originally ceased work in Sydney. It is most unlikely that any major depressive episode could continue over this period of time unless there has been more than one episode.
(s)If Ms Kucharski’s current condition is conceptualised as a Dysthymic Disorder, then it is unlikely that issues from 2012 could be impacting on her current emotional state which is more likely to be a reflection of her psychosocial circumstances and personality.
Dr Varghese then provided a thorough medical history for Ms Kucharski based on the medical reports and other documents provided to him by Comcare. A summary of that evidence is annexed to this decision as Annexure A.
In relation to Dr Isailovic’s report of 14 June 2016 Dr Varghese commented:
It seems clear from the description that at the time Ms Kucharski was assessed by Dr Isailovic her previous Major Depression was in remission as evidenced by the mental state examination and reported aspects of functioning despite reported symptoms. This is indeed what one would expect with Major Depression given that it is an episodic condition with a natural tendency to remission even without treatment. It is most unlikely that Ms Kucharski’s Major Depression present in 2012 and apparently developing for several months prior to this could still be present in 2016. I note that Dr Isailovic does not make a diagnosis of ongoing dysthymia to account for the depressive symptoms reported.
I also note that Dr Isailovic does not make an additional diagnosis of OCD or “hoarding” or “excoriation”. Does she consider these to be a manifestation of personality as against OCD?
I note the diagnosis of Personality Disorder which the doctor considers is playing a significant role in her current difficulties.
In relation to the report of Dr De Leacy dated 5 July 2016 Dr Varghese comments [emphasis added]:
The diagnosis of Major Depression and the mental state examination is quite at odds with the observations of Dr Isailovic around the same time. Despite Major Depression being considered to be present the doctor supports return to work of 20 hours a week. Presumably he believes that the depression is mild and there has been remission from the more serious depression in 2012/2013. His reference to the relationship between current mood and issues in the workplace is confusing given the time scale. Is the doctor suggesting that Ms Kucharski has been in a state of Major Depression since 2009/2010, a period of six years? Major Depression is an episodic disorder and not a chronic condition.
In relation to the additional medical records of Dr Shaw of 13 July 2016 Dr Varghese comments [emphasis added]:
Dr Shaw does not diagnose Major Depression so presumably this was in remission.
With respect to the diagnosis of Adjustment Disorder it is difficult to see how there could be Adjustment Disorder in July 2016 in relation to events that occurred in 2010/2011. By definition any Adjustment Disorder should be in remission within six months of the event.
The nature of the symptom Dr Shaw describes of Ms Kucharski reporting that she could see a knife stabbing her forearms with a big knife and had blood everywhere as described is not clear. It seems that Ms Kucharski maybe describing obsessional thoughts as against hallucination. Alternatively they are fully formed mental images. Obsessional intrusive thoughts of this type are not uncommon when there is significant depression. It seems that this symptom responded to an antidepressant.
The hoarding behaviour as described by Dr Shaw cannot be accounted for under the construct of Adjustment Disorder. The other issue of note here is that it seems there was significant alcohol abuse for a period of two years. This may have been symptomatic of the depression but would certainly have contributed to the depression and impacted on response to treatment. This might account for why the depressive episode was so prolonged.
In relation to the report of Dr Shaw dated 20 September 2016 Dr Varghese comments:
Dr Shaw’s diagnosis is not entirely clear. He describes low mood which he considered occurred as a result of events in 2009 and continuing until 2016. This is grossly out of keeping with the natural history of Major Depression even without treatment. I note Ms Kucharski has had extensive treatment. If there is any persisting depressive symptoms beyond Major Depression this could be understood as constituting a dysthymia meaning a much lower grade of depression than Major Depression which is not disabling but which tends to be more chronic and closely related to psychosocial circumstances and personality. I note that in subsequent reports he diagnoses Adjustment Disorder.
In conclusion Dr Varghese reported that:
The extensive documentation clarifies issues particularly with respect to the longitudinal history and I note that there is significant new and important information that did not emerge at the interview.
Overall this is a very complex case with several intersecting and interacting elements such that attempting to understand the issues within one or two standard psychiatric categories may not be helpful. A significant problem is disentangling what is Mood Disorder from other disorders which could be called “neurotic” using an older nomenclature and disentangling this in turn from personality. Another challenge is to disentangle what is occurring with respect to Mood Disorder from Mood Disorder related to non-workplace issues as against putative work issues.
Despite these challenges I trust that the following points are useful to the Tribunal.
(i)An important clinical issue although not necessarily the principal clinical issue is that Ms Kucharski suffers from primary Mood Disorder and there are two aspects here.
(ii)In the first place there is Recurrent Major Depression meaning that there has probably been more than one depressive episode over her lifetime although the previous episodes may not have been diagnosed or treated. I would suggest that the first episode occurred after the death of
Ms Kucharski’s father when she was in high school and this had a significant impact on her academic performance such that she did not qualify for university while previously having been a good student. Ms Kucharski also reported to Dr Wilkins that she had recurrent depression since 1994 when she would have been 20 years old.
(iii)The cause of the Recurrent Major Depression is multifactorial meaning that several factors are likely to be of importance. With this type of depression particularly where there is a recurrent pattern constitutional factors are of great importance. Other factors that can increase propensity to depression include developmental adversity and personality. With respect to personality the principal risk factor in Ms Kucharski is her obsessionality and social sensitivity which is discussed below.
(iv)Although episodes of depression in Recurrent Major Depression can occur for no apparent reason in line with the natural history or be a reflection of underlying medical illness, episodes can certainly be precipitated by adverse life events or circumstances and in this respect each episode needs to be considered separately.
(v)Importantly Recurrent Major Depression is episodic and thus each episode of Major Depression is self-limiting. Episodes of Major Depression are eminently treatable as the condition responds well to pharmacological management combined with appropriate psychotherapeutic support and the natural tendency is towards remission. Thus there is no such entity as “chronic” Major Depression and such a category cannot be coded on the DSM system or ICD 10.
(vi)Sometimes there is less than complete remission of symptoms and where there are such persisting depressive symptoms these are best understood as constituting Dysthymia or Dysthymic Disorder, meaning a lower grade of depression which is not as disabling as Major Depression but which tends to be more chronic and a reflection of both psychosocial circumstances and personality.
(vii)It is possible and indeed probable that Ms Kucharski has been suffering from Dysthymia for many years going back to her 20’s however the intensity would have varied depending on psychosocial circumstances and there may well have been periods of remission. Thus Ms Kucharski’s mood disorder could be understood as constituting so called “double depression” meaning episodes of Major Depression grafted on to chronic Dysthymia.
(viii)Returning to the episode of depression present when Ms Kucharski ceased work in Sydney in 2012 and its relationship to work, if the Tribunal were to accept Ms Kucharski’s account of issues in the workplace as related to myself and other evaluators and as per her written submissions, and that she was indeed bullied and harassed and treated unfairly and put under surveillance, then such a state of affairs occurring over a period of time could well have precipitated the Major Depression in someone who was predisposed.
(ix)An alternate construct of the data is that as Ms Kucharski was insidiously developing Major Depression from factors unrelated to work she began to experience the workplace as hostile, unsupportive and discriminatory and in line with factors in her personality interpreted events in the workplace in a persecutory manner with heightened social sensitivity. Under this construct it is not the workplace difficulties that have led to depression as against depression bringing about a situation where the workplace is experienced as stressful.
(x)Thus deciding on the direction of causality requires a judgement of fact as to what was occurring in the workplace which is not the role of a medical evaluator.
(xi)On the data available I am not inclined to any particular view as to the direction of causality as there is data to support both propositions.
(xii)If the view is taken that workplace issues did not significantly contribute to the Major Depression, then it seems to me that the most significant factors in the genesis of the depression were problems in her then relationship leading eventually to breakup and residual effects from the motor vehicle accident, although it is also probable that Ms Kucharski’s physical symptoms from the motor vehicle accident were amplified by depression whether from Dysthymia or developing Major Depression.
(xiii)Whatever the issues with respect to causality with respect to this episode of depression, which was accepted by Comcare as being work related, it is clear that the episode is now in remission as can be judged by the mental state and aspects of Ms Kucharski’s psychosocial functioning. Indeed this is what one would expect in Major Depression given that it responds well to treatment and the natural history is one of eventual recovery. If Ms Kucharski’s Major Depression was considered to have had its onset in 2010/2011 and intensifying in 2012, it is most unlikely indeed that this episode of depression could still be present in 2017.
(xiv)At the time of the evaluation Ms Kucharski could be said to be suffering from a Dysthymic Disorder which can be considered to be a continuation of what had been present previously or a reflection of her current psychosocial circumstances and other psychiatric conditions or both.
(xv)In addition to the mood disorders of Recurrent Major Depression and Dysthymic Disorder, Ms Kucharski has other significant psychiatric problems as follows.
(xvi)It is not clear if Ms Kucharski has classical Obsessive Compulsive Disorder (OCD) however she does seem to suffer from conditions which are regarded as related to OCD (in DSM-V) namely “hoarding” disorder and “excoriating” disorder. As to whether these two disorders or behaviours are indeed related to OCD is debatable. The hoarding disorder appears to be having a significant impact on her psychosocial functioning. These disorders are unrelated to Mood Disorder except that they are likely to be exacerbated during periods of depression or Dysthymia. The cause is unknown and likely to reflect neuro-developmental issues. I note that there is a significant history of head injury in the past and Ms Kucharski should have an MRI if she has not had one done.
(xvii)In addition Ms Kucharski can be conceptualised as suffering from any Anxiety Disorder which has been of varying intensity with some phobic elements and panic attacks and also generalised. This appears to be independent of the Mood Disorder although it is likely to be exacerbated during periods of Major Depression. There is also social anxiety and social sensitivity but it is debatable as to whether these are conceptualised as “primary” anxiety disorders as against being a reflection of personality.
(xviii)In addition to the above problems which could be considered to be manifestations of psychiatric “illness” there is the issue of personality and Ms Kucharski could be considered to be suffering from significant personality vulnerabilities perhaps to the extent of constituting Personality Disorder. The personality configuration is complex and cannot be understood within any particular category. I note difficulties in sustaining relationships, problems with self-esteem, significant social anxiety and social sensitivity, significant obsessionality and difficulties with tolerating uncomfortable affect leading to suicidal ideation even in the absence of depression. Of particular importance is an external locus of control.
The problematic aspects of personality are likely to be accentuated during periods of depression. It should also be added that although there are personality vulnerabilities this does not mean there are no personality strengths.
Ms Kucharski’s previous Major Depression is now in remission as indeed one would expect given the natural history of Major Depression. A condition of chronic Major Depression cannot be coded on the DSM system or ICD 10.
There is an “underlying” anxiety depressive diathesis of “constitutional” origin. It seems that the Major Depression had its first episode several years earlier but was not as severe and thus in that sense it was “pre-existing”, but I assume that the previous episodes were in remission. There is also likely to be a pre-existing Dysthymia and moreover following the motor vehicle accident there was some intensification of the Dysthymia and the emergence of some phobic anxiety symptoms which are also pre-existing. The personality vulnerability is also “pre-existing” and “underlying”.
The previous Major Depression may have been contributed to by employment depending on a judgement of fact. I have provided an alternate construct as to the relationship between the Major Depression and employment.
The Major Depression may have been contributed to by residual effects of the motor vehicle accident in 2008. I also note that Ms Kucharski was in a relationship which broke up in 2011.
The applicant no longer suffers from Major Depression. It seems from the report of Dr Shaikh dated 21 March 2014 that Ms Kucharski was still in a state of Major Depression when she was assessed by him.
It is likely that Ms Kucharski was in partial remission at the time she had a return to work programme in 2014. She reported to Dr Isailovic that she enjoyed her placement. It seems clear that Ms Kucharski was in remission at the time of the report of Dr Isailovic of 14 June 2016 and when she first saw Dr Shaw also in 2016.
There is no Major Depression.
It seems to me that any current difficulties in work are due to circumstances other than the previous Major Depression.
The applicant does not continue to suffer the effects of any employment related psychiatric condition.
There is no permanent impairment from the previous Major Depression. There is impairment from other psychiatric conditions which are not employment related.
It seems to me that the permanent impairment from non-work related issues when put together is in the order of 10% to 15%.
It needs to be stated that Ms Kucharski is a vulnerable individual who has significant psychiatric difficulties impacting on her functioning and enjoyment of life notwithstanding that the previous Major Depression is in remission. She has a significant degree of emotional suffering which should not be under-estimated.
Supplementary Report of Dr Varghese dated 5 November 2018[62]
[62] Exhibit 18, Report of Dr Varghese, dated 5 November 2018.

[97]    Exhibit 9, Report of Dr Wilkins, dated 7 December 2010.
[98]    Exhibit 8, Report of Dr Skinner dated 10 August 2010.
[99]    Exhibit 15, Report of Sandy Green, dated 30 November 2009.
[100] Exhibit 1, T Documents, T4, pages 15 - 25, Report of Dr Synnott dated 29 November 2010.
[101] Exhibit 9, Report of Dr Wilkins dated 7 December 2010.
[102] Exhibit 1, T Documents, T 6, pages 31 - 41, Report of Dr Synnott dated 30 December 2011.
[103] Exhibit 1, T Documents, T 7, pages 42 - 43, Report of Dr Friend dated 17 January 2012.
[104] Exhibit 1, T Documents, T 9, pages 55 - 57, Report dated 22 February 2012.
[105] Exhibit 1, T Documents, T 14, pages 90 - 117, Report of Dr Cipriani dated 14 November 2012.
[106] Exhibit 17, Medical Report of Dr Varghese dated 18 August 2017, page 33.
[107] Exhibit 17, Medical Report of Dr Varghese dated 18 August 2017, page 33.
[108] Exhibit 1, T Documents, T19, pages 127 – 132, Report of Dr George dated 11 April 2013.
[109] Exhibit 17, Medical Report of Dr Varghese dated 18 August 2017, page 34.
[110] Exhibit 17, Medical Report of Dr Varghese dated 18 August 2017, page 34.
[111] Exhibit 1, T Documents, T 21, pages 135 - 147, Report of Dr Shaikh dated 21 March 2014.
[112] Exhibit 17, Medical Report of Dr Varghese, dated 18 August 2017, page 34.
[113] Exhibit 17, Medical Report of Dr Varghese, dated 18 August 2017, page 34.
[114] Exhibit 19, Report of Dr Calder-Potts, dated 16 December 2014.
[115] Exhibit 17, Medical Report of Dr Varghese, dated 18 August 2017, page 34.
[116] Exhibit 17, Medical Report of Dr Varghese, dated 18 August 2017, page 34.
[117] Exhibit 17, Medical Report of Dr Varghese, dated 18 August 2017, page 34.
[118] Exhibit 17, Medical Report of Dr Varghese, dated 18 August 2017, page 34.

26 July 2016.

4 September 2017.

15 September 2017.

27 March 2013.

[2019] AATA 265

25 February 2019

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