KZBX and Comcare (Compensation) - [2024] AATA 1267

KZBX and Comcare (Compensation) [2024] AATA 1267 (22 May 2024)
Division:GENERAL DIVISION
File Number(s): 2021/5885
2022/3397
Re:KZBX
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Member R West
Date:22 May 2024
Place:Melbourne

In Matter 2021/5885:
The decision of the delegate of the Respondent dated 9 July 2021 affirming the determination dated 12 May 2021 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) in respect of head injury, loss of consciousness, seven fractured ribs, fractured left leg patella, fractured left wrist, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste is set aside and in its place the Tribunal determines that:
(a)on 25 November 2020, the Applicant suffered an injury, namely fractured ribs, fractured left leg patella and fractured left wrist, resulting in incapacity for work, which arose out of or in the course of her employment with Services Australia (Injury), and was the subject of a claim for compensation dated 6 April 2021;
(b)the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the Injury;
(c)the matter is remitted to the Respondent to determine the Applicant’s entitlements pursuant to ss 16 and 19 of the Act; and
(d)the Respondent is ordered to pay the Applicant's costs and disbursements in respect of Matter 2021/5885 in an amount agreed between the parties or, in default of agreement, as assessed by the Registrar or an officer of the Tribunal.

In Matter 2022/3397:
The decision of the delegate of the Respondent dated 20 April 2022 affirming the determination dated 14 March 2022 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) in respect of aggravation of post-traumatic stress disorder and aggravation of major depressive disorder with anxious distress, current episode moderate is set aside and in its place the Tribunal determines that:
(e)on and from 25 November 2020, the Applicant suffered an injury, namely post-traumatic stress disorder and aggravation of major depressive disorder with anxious distress resulting in an impairment to which her employment with Services Australia contributed to a significant degree, the subject of a claim for compensation dated 14 December 2021, (Injury);
(f)the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the Injury;
(g)the matter is remitted to the Respondent to determine the Applicant’s entitlements pursuant to ss 16 and 19 of the Act; and
(h)the Respondent is ordered to pay the Applicant's costs and disbursements in respect of Matter 2022/3397 in an amount agreed between the parties or, in default of agreement, as assessed by the Registrar or an officer of the Tribunal.

........[SGD]........
Member R West
Catchwords
WORKER COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – claim for fracture left radius (wrist), fracture left patella, fractured ribs, head injury, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste – employee working from home during COVID lockdown – injured while walking outside home listening to L&D podcast – further claim for aggravation of major depressive disorder with anxious distress and post traumatic stress disorder – refusal of both claims under s 14 – injuries not arising out of or in the course of employment – decisions set aside and matters remitted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Cases
Canute v Comcare (2006) 226 CLR 535
Charles R Davidson and Co v M’Robb (1918) AC 304
Comcare v PVYW [2013] HCA 41
Cutajar and Commonwealth (1985) AATA 152
Demasi v Comcare [2016] AATA 644
Gregory v Comcare [1997] FCA 4
Hatzimanolis v ANI Corporation (1992) 173 CLR 473
Humphrey Earl Ltd v Speechley (1951) 84 CLR 133
O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000
Re Halliday v Comcare [1994] AATA 77
Rye v Comcare [2020] AATA 4963
Tarry v Warringah Shire Council [1974] WCR 1
Secondary Materials
Peter Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 12^th ed, 2023) Explanatory Memorandum to Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Australian Government Department of Human Services, 2017-2020 Enterprise Agreement
REASONS FOR DECISION
Member R West
22 May 2024
Matter 2021/5885

This matter concerns an application for the review of a decision dated 9 July 2021 affirming a determination of 12 May 2021 to deny liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of fracture left radius (wrist), fracture left patella, fractured ribs, head injury, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste, or aggravation thereof.
Matter 2022/3397
This matter concerns an application for the review of a decision dated 20 April 2022, which affirmed a determination of 14 March 2022 to deny liability to pay compensation pursuant to s 14 of the SRC Act in respect of aggravation of post-traumatic stress disorder and aggravation of major depressive disorder with anxious distress, current episode moderate.
BACKGROUND
At all material times the Applicant was employed as an APS4 Service Liaison Officer with Services Australia.
The Applicant claims that when working from home she sustained injuries consistent with a high collision impact while out walking and listening to a learning and development podcast away from her home during learning and development (L&D) time between 1pm and 2pm on 25 November 2020 (Incident).
The Applicant submitted a claim for workers’ compensation dated 6 April 2021, in respect of the Incident claiming to have suffered: “head injury, loss of consciousness, seven fractured ribs, fractured left leg patella, fractured left wrist, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste”[1] (Claim A).
[1] T3.
By determination dated 12 May 2021,[2] a delegate of the Respondent denied liability to pay compensation under s 14 of the SRC Act in respect of Claim A on the basis that the delegate was not satisfied that the Applicant’s injuries arose out of, or in the course of her employment and while being satisfied that the Applicant had sustained injuries by way of a fractured left knee (patella), fractured left wrist and fractured ribs as a result of the Incident, was not satisfied that the Applicant sustained any head injuries, seizures or neuropathic pain as a result of the Incident (Initial Determination A).
[2] T18.
On, 9 June 2021 the Applicant requested reconsideration of the Initial Determination A.[3]
[3] T23.
On 9 July 2021 the Respondent affirmed the Initial Determination A[4] (Reviewable Decision A).
[4] T28.
On 24 August 2021 the Applicant applied to the Tribunal for review of the Reviewable Decision A[5] (Application 2021/5885).
[5] T1.
The Applicant submitted a further claim for workers’ compensation dated 14 December 2021,[6] in respect of “comorbidity involving the diagnose [sic] of two mental disorders: Major Depressive Disorder with Anxious Distress and Post Traumatic Stress Disorder” claimed to have been sustained “in the context of my injuries, and my employment with Services Australia” on 25 November 2020 (Claim B).
[6] PT3.
By determination dated 14 March 2022 a delegate of the Respondent denied liability to pay compensation pursuant to s 14 of the SRC Act in respect of Claim B on the basis that the Applicant’s employment had not significantly contributed to her psychological condition[7] (Initial Determination B).
[7] PT15.
On 21 March 2022 the Applicant requested reconsideration of Initial Determination B.[8]
[8] PT18.
On 20 April 2022 the Respondent affirmed the Initial Determination B[9] (Reviewable Decision B).
[9] PT20.
On 22 April 2022 the Applicant applied to the Tribunal for review of Reviewable Decision B[10] (Application 2022/3397).
[10] PT1.
HEARING
A hearing in relation to the applications for review was held on 9, 10, 11 and 12 October, and 15 April 2024. The Applicant was represented by Ms Cassie Serpell of counsel. The Respondent was represented by Mr Charles Clarke of counsel.
In conducting the review, the Tribunal has had regard to:
(a)the documents produced by the Respondent pursuant to s 37 and s 38AA of the AAT Act in relation to each of the matters (T Documents);[11]
[11] In this decision, T Documents for Matters 2021/5885 are identified as ‘T’ documents and supplementary documents as ‘ST’ documents and T Documents in Matter 2022/3397 are identified as ‘PT’ documents.
(b)an agreed bundle of relevant documents tendered jointly by both parties and numbered 1 to 493 (agreed bundle);
(c)documents tendered by the Applicant and listed in Appendix A;
(d)documents tendered by the Respondent and listed in Appendix A; and
(e)the oral evidence of:
(i)the Applicant;
(ii)Ms Rita Catena;
(iii)Ms Jennifer Rogers;
(iv)Ms Melissa Reihana;
(v)Ms Kristine Moulynox;
(vi)Ms Robyn Geyer;
(vii)Associate Professor Nick Paoletti, consultant psychiatrist;
(viii)Dr Rajiv Siotia, psychiatrist; and
(ix)Dr Reuban Phiri, general practitioner.
LEGISLATIVE PROVISIONS
Subsection 14(1) of the SRC Act provides:

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The term "injury" is defined in s 5A(1) to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
CONSIDERATION OF ISSUES
The Incident
Without setting out the evidence in detail the Tribunal is satisfied that there are certain factual matters concerning the Incident giving rise to the Applicant’s claims in matters 2021/5885 and 2022/3397 which are not in dispute and which justify the following factual findings:
(a)At all relevant times the Applicant was employed by Services Australia as a Services Liaison Officer. Her principal duties were to respond to customer telephone and email enquiries regarding human resources policies, employee entitlements and payroll matters.
(b)The Applicant’s usual place of work was Service Australia’s People Advisory Centre (PAC) located in Box Hill but from July 2020 and at the time of the Incident she was directed to work from home as a result of restrictions imposed by the Victorian government in response to the COVID-19 pandemic.[12]
(c)Her home was in Chirnside Park, Victoria in a gated estate incorporating the Heritage Golf Club off Heritage Road.
(d)On 25 November 2020 the Applicant’s work schedule provided for her to undertake a one hour Learning and Development (L&D) activity between 1.30 and 2.30 pm.
(e)At approximately 1.30 pm on 25 November 2020, in accordance with the approved process, the Applicant changed her auxiliary code on the online system to record that she was undertaking L&D and was not available to take calls. For the L&D activity she chose to listen to a podcast on leadership using the loudspeaker function on her mobile telephone.
(f)While listening to the podcast she left her home and walked along the footpath beside Heritage Road leading towards the Heritage Golf Club.
(g)At around 2pm on 25 November 2020 she was found by passers-by slumped on the grassed area next to Heritage Road.
(h)Ambulance Victoria attended the scene to provide medical assistance before taking the Applicant to Knox Private Hospital where the Applicant was diagnosed with multiple rib fractures and displaced fractures in her left wrist and left patella for which she subsequently underwent orthopaedic surgical intervention.
[12] Exhibit A13.
MATTER 2021/5885
The application for review[13] in this matter concerns the decision of the Respondent to deny the Applicant’s claim for workers’ compensation under s 14 of the SRC Act for injuries, namely “head injury, loss of consciousness, seven fractured ribs, fractured left leg patella, fractured left wrist, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste” arising out of the Incident.
[13] See Application for Review at PT3 at p.35-40 and Section 37 Statement at PT4 at p.41.
The issues for determination are:
(a)whether the Applicant sustained an injury in the Incident; and
(b)if so, whether the injury arose out of, or in the course of the Applicant’s employment with the Agency.
Did the Applicant sustain an injury in the Incident?
The Applicant’s initial claim[14] is that as a result of the Incident she sustained a head injury, loss of consciousness, seven fractured ribs, fractured left leg patella, fractured left wrist, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste.
[14] T3 at pp. 4-14.
The Respondent did not dispute that the Applicant had suffered fractures to her left knee, left wrist and her ribs in the Incident but otherwise disputed the Applicant’s claim. The Applicant maintained her claim that she suffered a head injury, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste in the Incident throughout the proceedings until final submissions when these claims were withdrawn.
The circumstances in this case are unusual in that neither party was able to identify the mechanism of injury. The Applicant claims to have been rendered unconscious in the Incident and has no recollection of how she sustained the injuries. The Applicant was found lying on the ground by passers-by but there were no witnesses to the events giving rise to the injuries.
The T Documents include a report from Detective Leading Senior Constable Van Den Heuvel dated 19 May 2021 which states that the Police reviewed CCTV footage from the Heritage Estate which showed the Applicant walking beside the road but the camera activation shut off for 40 seconds before it showed the Applicant lying on the ground. No tyre marks were observed and no witnesses identified. The Police concluded that ..no third party involvement is suspected and the matter is now being treated as a medical episode and no criminal or traffic offences have been identified.[15]
[15] T19 and T20 at p.373-380.
While in hospital, the possible medical cause of the Applicant’s injuries was investigated. She had a cardiac monitoring device inserted for diagnosing cardiac arrhythmia and was prescribed an anticonvulsant for the diagnosis of temporal lobe epilepsy.[16] No conclusive findings were made.
[16] Exhibit A3 at p.4.
The parties accept that the Applicant sustained injuries in the Incident and accept that in the circumstances the Tribunal is not required to identify the mechanism of injury for the purpose of assessing liability under s 14 on the review.
On the basis of the medical evidence including the records of the Knox Private Hospital[17] and the reports of Dr Mourad of 14 June 2022[18] and Dr Moaveni,[19] the Tribunal finds that as a result of the Incident the Applicant sustained the following injuries:
(a)multiple fractured ribs;
(b)fractured left wrist; and
(c)fractured left patella.
[17] Agreed bundle at pp.120-404.
[18] Exhibit R4.
[19] Exhibit A3.
The medical records confirm that the injuries resulted in an incapacity for work. The Applicant was admitted to Knox Private Hospital on 25 November 2020 and discharged on 3 December 2020.[20] She was certified as unfit for work from 25 November 2020 to 24 January 2021.[21] She was certified as having capacity to return to her job working from home from 25 January 2021.[22] Subsequently the Applicant was certified as having no capacity for employment from 23 February 2021 to 20 March 2021[23] and from 20 April 2021 to 18 May 2021.[24]
[20] Agreed Bundle at p.169.
[21] T30 at p.477.
[22] T30 at pp.479 and 481.
[23] T30 at p. 483.
[24] T30 at p.491.
Conclusion
The Tribunal is satisfied that on 25 November 2020 the Applicant sustained injuries as a result of the Incident, namely multiple fractured ribs, fractured left wrist and fractured left patella resulting in an incapacity for work.
Did the injury arise out of, or in the course of the Applicant’s employment with the Agency?
The starting point is s 5A(1)(b) which defines an injury as 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.
The definition of an injury in s 5A(1) is clarified by the provisions of s 6 of the Act which sets out circumstances which are deemed to have arisen out of, or in the course of an employee’s employment.
Subsection 6(1) of the Act relevantly provides:
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) ….; or
(b) while the employee was at the employee's place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
(c) while the employee was temporarily absent from the employee's place of work undertaking an activity:
(i) associated with the employee's employment; or
(ii) at the direction or request of the Commonwealth or a licensee;…
The Applicant relies on s 6(1)(c)(i) of the SRC Act and contends that when the Incident occurred on 25 November 2020 the Applicant was undertaking a L&D activity by listening to a podcast on leadership at the time she was rostered to undertake L&D and she was temporarily absent from her place of work. The activity was associated with her employment with Services Australia.
The Respondent accepts that the relevant consideration is s 6(1)(c)(i) of the SRC Act but contends that:
(a)The Applicant was temporarily absent from her place of work (her home) at the time of the Incident, but that temporary absence was not approved by her employer and the Applicant at no time sought approval to conduct her L&D time away from her place of work.
(b)The presence of the Applicant at the place at which she sustained her physical injuries was not associated with her employment. Her presence at that place was neither approved by her employer nor necessary in any way to undertake L&D activities.
The Respondent did not dispute that the Applicant listening to a podcast on leadership was a legitimate L&D activity. The Applicant documented extensively in her further witness statement of 16 November 2023[25] the degree of autonomy she had in selecting material for her L&D and the range of online resources she accessed for her L&D which were documented in her reports to management. Jennifer Rogers acknowledged in her evidence that listening to a leadership podcast was consistent with the L&D policy.[26] Melissa Reihana stated that she was aware the Applicant listened to podcasts and agreed that this was an appropriate use of her L&D time, depending on the content of the podcast.[27]. Ms Rita Catena, a senior manager, confirmed that listening to podcasts was an appropriate L&D activity.[28]
[25] Exhibit A11.
[26] Exhibit R1 see also Transcript at p.227 [36].
[27] Exhibit R2 see also Transcript at p.320 [39-41].
[28] Exhibit A12.

The Applicant stated in her written statement dated 17 March 2022[29] and supplementary statement of 22 November 2022[30] that:
(a)She was never required to get permission to leave her work area during L&D time, or at any other time throughout the working day, including any other scheduled working activities, or for her scheduled lunch breaks when working in the Box Hill office or at home.
(b)She never required any approval from her managers about how she was to use her L&D time and had never been required to inform her manager about how or where she was going to use her L&D time before she used it.
(c)When she was in the office at Box Hill during L&D time she would often go to other floors in the building to walk around to stretch her back and very regularly would also leave the building and go for walks, in her rostered tea breaks, lunch breaks, afternoon tea breaks, and L&D time. She never required permission from her managers to leave her desk or the building. Her managers were aware that she would often leave the building during these periods when working in Box Hill and when working from home.
(d)APS’ Health and Safety Risk Management Plan encouraged taking regular breaks from the seated position and getting outside to obtain natural light.
[29] Exhibit A1.
[30] Exhibit A2.
The Applicant stated in her further witness statement of 16 November 2023[31] that:
(a)Her performance review for the performance cycle period of 1 July 2015 – 30 June 2016 includes the following entry: “Note Employee “Researched the benefits of walking meetings for staff wellbeing that are sedentary during the day with health issues and high unplanned leave.”[32]
(b)Within a short space of time of her research as to the benefits of walking meetings for staff, Kylie Ryan’s team, of which she was a member, implemented that learning by taking walking meetings. Other staff like herself, Steve Smith, who suffered from Parkinson’s disease, Trent Morrison and Nicki (whose last name she could not recall) as well as Kylie herself, all started implementing not only walking meetings but also sometimes walking outside of the workplace during L&D periods and for other meetings.
(c)This practice was continued in that team with subsequent supervisors, both those working from the Box Hill office and those who managed the team from interstate from time to time. The Applicant said she found it was an excellent way of physically and mentally looking after herself whilst conducting L&D or participating in meetings.
(d)She said her team worked autonomously because they were performing Human Resources duties and were given greater freedom than many other teams in developing innovative strategies, and this was reflected in the freedom they were given to also find their our own L&D sources and topics.
[31] Exhibit A11.
[32] Attachment FK-A of Exhibit A11.
In her oral evidence the Applicant was unable to identify any specific L&D records which specifically informed her team leader that she undertook L&D while walking away from the workplace and when pressed in cross-examination to explain how she could say that Ms Geyer, her team leader, was aware that she undertook L&D away from the workplace she could only say that Ms Geyer was aware because when she did so she entered the L&D auxiliary code on her computer and was not at her desk.
The Applicant also called evidence from Ms Rita Catena, a Services Support Manager (EL 1) with Services Australia. She stated in her witness statement dated 15 November 2023[33] that:
[33] Exhibit A12.
(a)She had known the Applicant since around 2009 and worked with her at the Box Hill office although in separate teams. She mentored the Applicant for many years, from around 2010 to 2013 and in 2014 that mentoring role increased with the focus on assisting the Applicant to get back to the EL1 level she had previously held.
(b)She also knew Kylie Ryan, who later became the Applicant’s supervisor very well and had worked with her closely on staffing issues. In 2016, Ms Catena’s team leaders implemented walking coaching sessions, which became a popular manner of conducting coaching/mentoring sessions. This involved the Team Leader and team member leaving the building together and conducting their coaching session whilst walking outside in streets nearby or parks.
(c)She engaged in such coaching sessions with her manager throughout 2016 to 2019 and the National Manager, Paul McNae, promoted this activity as part of a Health and Wellbeing campaign. This was directly related to the sedentary nature of the work they all performed.
(d)She was aware that many employees, including the Applicant, Kylie Ryan and many others, attended to some of their L&D periods whilst walking outside of the work premises.
(e)She often accessed externally sourced podcasts to use in her leadership meetings. These included Ted talk videos that were used for training and development purposes. This was a wholly acceptable and commonly adopted approach within Services Australia. These were podcasts that were promoted by senior leaders and encouraged to use in support of leadership development of current and aspiring leaders.
(f)She knows that the Applicant sometimes left the work premises at the Box Hill office when carrying out some of her L&D periods and would walk outside and listen to podcasts and did this regularly during pre-Covid times.
(g)The Applicant would often let her know she was heading out for an L&D session, walking and listening to a podcast during her working from home period. There was nothing untoward about attending to an L&D session in that way. It was encouraged within the organisation.
(h)She is able to confirm that Kylie Ryan,[34] as the Applicant’s supervisor, had been well aware that the Applicant often used her L&D period by walking outside the workplace and listening to podcasts or going on walking coaching/mentoring sessions outside the workplace. Kylie encouraged L&D being carried out that way when possible.
(i)Kylie was certainly aware that she and the Applicant had such walking mentoring meetings during some of the Applicant’s L&D periods, because on occasions they advise Kylie that they were leaving the workplace for a walking mentoring session.
[34] It was accepted by the parties that Kylie Ryan had passed away prior to the Incident.
In her oral evidence Ms Catena stated that employees in her business area were encouraged to go outside during the COVID lockdown period, but she was not aware of what applied in the Applicant’s team.
The evidence of the Applicant and Ms Catena was contradicted by three managers, Jennifer Rogers, Melissa Reihana and Kristine Moulynox and the Applicant’s team leader Robyn Geyer.
Jennifer Rogers
In her written statement of 13 June 2022[35] Ms Rogers stated:
(a)She held the position of PAC Team Leader prior to April 2021 and managed the Brisbane PAC team but provided leadership oversight to the Box Hill team from Brisbane when their manager Robyn Geyer was on leave, including on 25 November 2020. She was based in Brisbane.
(b)She met the Applicant personally on approximately three occasions and otherwise did not have a substantial working relationship with her.
(c)The Applicant did not seek permission to leave her workstation or home for her L&D time during the short period she provided leadership oversight for her, including on 25 November 2020.
(d)All employees are required to get permission to leave their workspace and were advised not to leave the office or their workspace during their rostered tea breaks. It was not the usual practice to leave the workstation, home or office during L&D time. If an employee needed to leave their workstation, home or office during a break from their usual duties or for their rostered L&D time, then it was expected that they advise their team leader.
(e)When in the office, L&D time was typically undertaken at the employee’s desk, using Services Australia’s intranet or resources. The Applicant sometimes went to a private meeting room for her L&D time but she was not known to leave the office.
(f)When working from home, there was no need for the Applicant to leave her home during her rostered shift, because changing her telephone auxiliary code would prevent calls being directed to her.
[35] Exhibit R1.
In her oral evidence[36] Ms Rogers was unable to identify any specific policy or direction stating that an employee was not to leave the workplace to undertake L&D without permission other than the unauthorised leave policy.[37]
[36] See Transcript at p.227 [24-31].
[37] See Transcript at p.233, [43].
Melissa Reihana
In her witness statement dated 20 June 2022[38] Ms Reihana stated:
(a)She was the acting PAC Assistant Director based in the Brisbane office.
(b)Although the Applicant was encouraged to undertake her L&D time away from work duties, it was never permitted or an accepted practice for her or other employees to leave the workplace during that time. The Applicant was permitted to go to a meeting room for her L&D time, but never sought permission to leave her workplace or home during that time.
(c)The Applicant was not required to seek permission to leave her desk to make a coffee or use the restroom in the office but was expected to advise her Team Leader if she left the office during periods of work. It was her understanding that the Applicant never left the office or went for walks outside the office without permission.
(d)The Applicant was never encouraged by herself or the leadership team to obtain natural sunlight as suggested in her statement during work hours outside of the office or her home.
(e)When employees began to work from home, meetings were held at an individual level to clarify that the expectations which applied to the office applied at home. She said she sent an email to each staff member following these meetings.[39]
[38] Exhibit R2.
[39] Exhibit R2 [15].
In her written statement of 17 August 2022,[40] Ms Moulynox stated:
(a)She was the Acting Director of the PAC team from 10 June 2020 until 31 October 2021 and was based in the Brisbane office.
(b)She said she was aware that the Applicant sometimes used a small room in the Box Hill office next to where the team was located for her L&D time but she was otherwise required to be at her desk to respond to phone calls and emails. She was not aware that the Applicant left the office, her desk or her home for walks during her L&D time and she was not permitted or encouraged to do so.
[40] Exhibit R3.
In her oral evidence Ms Moulynox was asked to clarify the basis for asserting that the Applicant was not permitted to leave the workplace to undertake L&D. The transcript records:
Is there specific policy in respect of that …? It’s not policy that you go out for a walk in your L&D.
Can you explain why?---Because, you know, from a health and safety perspective? You know, you should be in the workplace because it is work time. You know, it’s not a break. It’s work time so, you know, you should be in the workplace and following workplace policy. It’s not – yes. Definitely from the workplace health and safety perspective. But it’s, you know, even if the person did go for a walk, you know, you would expect that there’d be some kind of approval to leave the building. And that wasn’t the case.[41]
[41] Transcript at p.260 [33-47].
Robyn Geyer
In her written statement 19 December 2023[42] Ms Geyer stated:
(a)She was the Applicant’s Team Leader at the time of the Incident but was away from work on the 25 November 2020.
(b)Between July 2015 and May 2016 she was in a different team and has no knowledge of Kylie Ryan implementing walking meetings.
(c)Since returning to the Applicant’s team in May 2016 she has never gone on a walking meeting.
(d)When Kylie Ryan was team leader members of the team were required to tell her whenever they were going to leave the office
(e)She is not aware of any practice of going for walks for meetings or any other purpose in the team at the Box Hill office and she has no recollection of anyone else in the team ever going off for walks.
(f)It is not correct that she was aware that the Applicant often took her L&D time outside the workplace where she would walk and listen to podcasts but she does recall one time where the Applicant was in the carers room and told her she was on L&D time.
(g)While she discussed the importance of taking mini breaks, moving regularly and changing positions while working she did not encourage the Applicant to take extended walks away from her desk.
(h)She was unaware that the Applicant was mentored by Ms Catena and did not recall ever being asked to go for a walk with them or being told they were going for a walk.
[42] Exhibit R6.
Policies
The Applicant referred the Tribunal to the Services Australia L&D Policy.[43] It provides for at least 5% of an employee’s working time to be used for L&D to be taken in dedicated L&D blocks of at least 30 minutes as required by the relevant industrial agreement.[44] Melissa Reihana acknowledged that the L&D Policy provides that opportunities for learning and development can be formal or informal.[45] The L&D Policy does not state that an employee can leave their place of work to take a walk, but equally it does not prohibit that practice or state that permission must be obtained to do so.
[43] ST1 at pp.1-5.
[44] Australian Government Department of Human Services, 2017-2020 Enterprise Agreement, H13.5 – H13.6.
[45] Transcript p.322 [20].
The Tribunal was referred to the Services Australia Work Health and Safety Risk Management Plan - Working From Home[46] which states that:
Employees takes (sic) regular breaks from the seated position and screen based activity by completing regular stretch/walking breaks each hour and consider taking outside breaks for opportunities to obtain natural light.
[46] Exhibit A5.
Ms Reihana was questioned about this Plan and acknowledged the provision for outside breaks. The transcript[47] records:
That refers to taking walks out side, doesn’t it? It doesn’t just talk about stretching in the office and staying at your workstation, does it?---It says taking outside breaks.
Stretching, walks, obtaining natural sunlight, correct?---It does talk about stretching and walking breaks. And then it speaks about outside breaks for opportunities for natural light.
[47] Transcript at p.324 [35-41].
The Unauthorised Absence Policy[48] refers to an absence from duty without approval which is deemed to be an unauthorised absence which is to be unpaid and does not count as service.
[48] ST2 at pp.6-7.
Conclusion on the evidence
On the basis of this evidence the Tribunal is satisfied that the Applicant did not specifically seek permission from her team leader or anyone in management on 25 November 2020 to go for a walk and listen to a podcast for L&D time. On the other hand there is no evidence that the Applicant was specifically directed not to leave her home to go for a walk and listen to a podcast for L&D time on 25 November 2020.
The Respondent has not shown on the evidence that there was a clear policy or general directive by Services Australia that employees were not permitted to leave their workplace during working hours to undertake L&D activity without permission or without first notifying their team leader. The Respondent acknowledged as much in final submissions.
The Tribunal is satisfied that the managers located in Brisbane had an expectation that employees would undertake L&D activity at the workplace but there is little to indicate that this expectation was communicated to employees in the Box Hill team. On the contrary, the evidence of Ms Catena indicates that this expectation was not reflected in the conduct of herself, Ms Ryan and the National Manager, Mr McNae[49] who all promoted walking meetings.
[49] Exhibit A12 at [6]-[7].
Relevant policies were imprecise and left room for an employee to conclude that undertaking L&D while walking outside was acceptable. The Unauthorised Absence Policy refers to an absence from duty not an absence from the workplace while performing duties. The L&D Policy as it is applied in practice provided a degree of autonomy to the employee to identify the L&D activity to be undertaken with the emphasis on reporting to management after the event rather than seeking permission before choosing the activity. The Work Health and Safety Risk Management Plan in place for working from home during the COVID lockdowns encouraged employees to consider taking outside breaks for opportunities to obtain natural light.
The actual practice in the Applicant’s team at the Box Hill office and during the COVID working from home arrangements is the subject of contradictory evidence. The three managers based in Brisbane gave evidence that the Applicant did not undertake L&D outside the workplace and had not been given permission to do so. The Applicant said she regularly listened to podcasts while going for a walk as an L&D activity and engaged in mentoring with Ms Catena while walking away from the workplace. She said she had been given permission to do so by her previous team leader Ms Ryan. Ms Ryan is now deceased.[50] Ms Catena’s evidence substantially corroborated the Applicant’s evidence. Ms Geyer on the other hand gave contrary evidence. She said she was not aware of any practice of going for walks for meetings or other purposes and she was not aware that the Applicant took her L&D time outside the workplace where she would walk and listen to podcasts. Ms Geyer did concede that she works in a separate pod to the Applicant but on the same floor. She said she was in another team from July 2015 to May 2016 and had no knowledge of Ms Ryan implementing walking meetings. She said she had only been introduced to Ms Catena once and claimed to be unaware that Ms Catena was mentoring the Applicant.
[50] Ms Geyer gave evidence that Ms Ryan passed away a few weeks before the Incident but had not been at work for around a year before that.
In final submissions the Respondent invited the Tribunal to conclude that the Applicant was not a credible witness. The Tribunal observes that the Applicant’s evidence evolved over time with the progressive introduction of aspects of her evidence through her witness statements and oral evidence. In addition, the Applicant maintained her claim to many alleged aspects of her injuries until the very final stages of the proceedings when she was pressed to identify the medical evidence upon which they were based. The Tribunal also notes the disparities between the Applicant’s description of her injuries[51] and the reports by ambulance officers[52] and her own treating doctor,[53] and the unconvincing explanation given by the Applicant in cross-examination for the disparity.[54] The Applicant was also evasive in seeking to justify her assertion that Ms Geyer was aware that she undertook L&D while walking outside the workplace in the face of Ms Geyer’s denials, ultimately offering the unconvincing explanation that Ms Geyer was aware because the Applicant had engaged the L&D auxiliary code and was not at her desk.
[51] Exhibit A1 at [47].
[52] T4 at pp.15-21.
[53] See cross-examination of Dr Phiri at Transcript p.161-164.
[54] See Transcript generally at pp.123-127.
Having regard to these matters the Tribunal has reservations about the truthfulness of the Applicant’s evidence generally, but it is not satisfied that her evidence regarding the taking of L&D activity away from the workplace can be disregarded entirely. The Applicant’s evidence on this matter was substantively affirmed by Ms Catena who presented as a credible witness. She is in a senior position as a manager at the EL 1 level and is an employee of Services Australia of long standing. The Tribunal gives limited weight to the evidence of the three Brisbane-based managers who were restricted in their ability to assess what was actually happening with the Box Hill team because they were geographically remote and were operating under different COVID rules at the time of the Incident. As for Ms Geyer, she acknowledged that she did not know about the mentoring arrangements between Ms Catena and the Applicant and was in another team for almost a year at the time Ms Ryan was said to have embraced the idea of walking meetings in her team. Her evidence was essentially that she was not aware of the arrangements claimed by the Applicant rather than stating definitively that they had not occurred.

On balance, the Tribunal is satisfied that prior to the 25 November 2020 the Applicant had been able to undertake some L&D activities including listening to podcasts while walking outside the workplace and that there had been at least tacit approval for her doing so. In addition, as a result of the COVID restrictions in place in Victoria at the time, the Applicant was isolated in her own home with a higher degree of autonomy than was usually the case in the workplace provided by her employer. In those circumstances the Tribunal accepts that it was reasonable for the Applicant to expect that she was acting within the scope of her employment by undertaking her scheduled L&D time by listening to a leadership podcast while walking outside her home on 25 November 2020. The Respondent has not established that the Applicant was in breach of a duty to comply with her employer’s directives such that listening to a podcast while walking outside her home would be dissociated from her employment.
The Applicant asserts that the issue for the Tribunal’s consideration is not whether the Applicant’s practice of undertaking her L&D activity away from the workplace complied with Service Australia’s formal procedures but rather the practical circumstances of the matter (see Re Demasi and Comcare (2016) AATA 644). The Applicant says she was engaged “in a state of activity called “employment” at the time the Incident occurred (see Commonwealth v Wright [1956] HCA 79). Accordingly, the Applicant’s injuries arose out of or in the course of her employment with the Respondent. The necessary nexus with employment activities exists on the facts of the matter. Thus, the incident occurred in compensable circumstances and her injuries were sustained and arose in the course of employment.
The Respondent’s principal assertion is that the incident on 25 November 2020 did not form part of the Applicant’s employment, as her leaving her place of work to undertake her L&D was not sanctioned by her employer.
The Respondent referred to the High Court decision in Comcare v PVYW[55] and the discussion by the majority in that case of the principles espoused in Hatzimanolis v ANI Corporation[56]. The Respondent contended that PVYW establishes the principle that for an injury to be suffered in the course of employment where it arises in the course of an activity or at a place it must be established that the employer induced or encouraged the employee to engage in that activity or to be at that place. The Respondent referred to the following statement by the majority in PVYW:
It may be accepted that the purpose and the effect of the principle stated in Hatzimanolis was to create an interval between periods of actual work, to better explain the connection that an injury suffered by an employee in certain circumstances has to the employment. It did so by reference to the fact that the employer induced or encouraged the employee to do something or be somewhere in particular and the fact that the employee did so and was injured. The two circumstances identified by Hatzimanolis were where an injury was suffered by an employee whilst engaged in an activity in which the employer had induced or encouraged the employee to engage; or where an injury was suffered at and by reference to a place where the employer had induced or encouraged the employee to be. An injury sustained in these circumstances may be regarded as sustained in the course of the employee's employment. Properly understood, whilst the inducement or encouragement by the employer may give rise to liability to compensation, it also operates as a limit on liability for injury sustained in an overall period of work.[57]
[55] [2013] HCA 41 ('PVYW').
[56] (1992) 173 CLR 473; [1992] HCA 21 (‘Hatzimanolis’).
[57] PVYW at [61].
The Respondent asserted that, while the employer sanctioned the Applicant undertaking L&D, it did not sanction this occurring outside the workplace and did not encourage or induce the Applicant to undertake her L&D activity while walking outside her place of work.
The Tribunal notes that the majority in PVYW made it clear that the principles in Hatzimanolis are to be approached with caution and that:
..a proper understanding of what was said in the joint reasons in Hatzimanolis and its application is not to be ascertained by construing its terms as if they were the words of a statute. The words of the principle articulated in Hatzimanolis are not to be applied literally to facts without further consideration of what is conveyed by the reasoning about the principle and without bearing in mind the terms of the SR&C Act and the limit it seeks to place upon an employer's liability for compensation.[58]
[58] PVYW at [15].
PVYW and Hatzimanolis were both cases where injury occurred during a break in employment. In PVYW the employee was injured while staying in a motel booked by her employer on a visit to a regional office. In Hatzimanolis the employee was accommodated in a camp while working at Mt Newman in Western Australia and was injured while travelling on a social outing organised by his employer outside work hours. The majority in PVYW stated that .. the starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work.[59]
[59] Ibid at [38].
The application of Hatzimanolis was discussed by Cooper J. in Gregory v Comcare[60] where His Honour stated:
The judgment of the majority in Hatzimanolis did not, in any view, affect the proposition that for an injury to be said to arise in the course of employment the connection which must be established between the occurrence of the injury and the employment is a temporal connection (see Commonwealth of Australia v Lyon 24 ALR at 303 - 304). What their Honours did in Hatzimanolis was provide to tribunals of fact reasoned guidance, by way of a "unifying principle", in determining whether that temporal connection exists in circumstances where the injury in question is sustained during an interval between periods of actual work.
[60] [1997] FCA 4 at p.10.
In this case the Applicant was not on a break in her employment of the kind considered in PVYW and Hatzimanolis. She was undertaking a legitimate L&D activity during a period of time specifically scheduled by her employer for that purpose. The principles in those cases are not determinative of the Applicant’s claim.[61]
[61] See O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 at [63].
The issue is whether the Applicant’s injury arose out of or in the course of her employment.
The oft-cited test for in the course of employment was stated in Humphrey Earl Ltd v Speechley[62] by Dixon J. as:
The question whether it occurs in the course of employment must depend upon the answer to the question whether the workman was doing something reasonably required, expected or authorised to do in order to carry out his duties.
[62] (1951) 84 CLR 126.
The 12th Edition of the Annotated SRC Act notes in respect of s 5A(1)(b) that the term “arising out of” denotes a causal relationship between the injury and the work to be performed whereas the term “in the course of employment” denotes a temporal relationship with the employment itself.[63]
[63] Peter Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 12^th ed, 2023) 100.
In Charles R Davidson and Co v M’Robb (1918) AC 304 Lord Finley LC stated:
“Arising out of the employment” obviously means arising out of the work which the man is employed to do and what is incidental to it – in other words, out of his service. “In the course of his employment” must mean, similarly, in the course of the work which the man is employed to do, and what is incidental to it – in other words, in the course of his service.
The Tribunal is required to consider whether there is anything in the nature or circumstances of the activity engaged in by the Applicant at the time of her injury to indicate a sufficient connection with her employment.[64]
[64] Per Cooper J. in Gregory v Comcare at p.10.
There is a clear connection of a temporal nature between the activities engaged in by the Applicant at the time of her injury and her employment. She was engaged in an activity encouraged and required by her employer under the L&D Policy during a period of time specifically scheduled by her employer for that purpose.
The Tribunal was referred to earlier decisions of the Tribunal in Demasi v Comcare[65] and Rye v Comcare.[66] Both cases can be distinguished. Rye v Comcare concerned an employee injured while playing in a netball competition. It was determined on the basis that the Applicant was not temporarily absent from her workplace as provided in
[65] [2016] AATA 644.
[66] [2020] AATA 4963.
s 6(1)(c) but applied the principles in PYVW and found that the Applicant was injured during a break between two discrete periods of employment undertaking an activity encouraged by her employer.
DemasI v Comcare did not consider s 6(1)(c) as the applicant was injured while going for a run during an ad hoc break while working from home. The Tribunal decided that the injury was not in the course of employment because it occurred during a break in an overall period of work and not during an ordinary recess in her employment.
The Applicant’s case falls squarely within s 6(1)(c)(i). At the time of the Incident the Applicant was temporarily absent from her place of work, namely her home, undertaking an activity directly associated with her employment. To the extent that there can be any doubt that the Applicant’s injuries meet the general definition of an injury in s 5A of the SRC Act it is answered by the plain language of s 6(1)(c)(i).
The facultative role of s 6 was explained by O’Callaghan J. in O’Loughlin v Linfox Australia Pty Ltd:[67]
When the High Court in Canute[68] described s 6 of the Act as a “facultative provision” which “indicate[s] (in a non-exhaustive fashion) when an injury may be treated as having arisen out of, or in the course of, employment for the purposes of the Act”, it is, in my respectful view, to be understood as having described s 6 as a “faculty” designed to “put at rest the disputes which may otherwise arise” about whether an injury to an employee in a given case does, or does not, arise out of, or in the course of, the employee’s employment within the meaning of s 14 of the Act: cf Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 227A per Kirby P. That follows because the non-exhaustive indication of the circumstances when an injury may be treated as having arisen out of, or in the course of, employment set out in s 6 self-evidently describes cases which, but for s 6, would or may, depending on the circumstances of the case, give rise to a dispute.
[67] (2017) FCA 1394 at [43].
[68] Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535.
The Respondent asserted that the Explanatory Memorandum to the SRC Act indicates an intention that the term ‘associated with the employee’s employment’ in s 6(1)(c) covers “employer sanctioned events”. Accordingly, only events that are sanctioned by an employer that are associated activities for the purpose of s 6(1)(c)(i) or specifically directed or requested by an employer for ss 6(1)(c)(ii).
Subsection 6(1)(c) was introduced as part of the amendment to the former s 6(1) in the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (2007 Act). The Explanatory Memorandum to the 2007 Act states:

These items amend section 6 of the SRC Act which deals with the circumstances in which an injury to an employee may be treated as having arisen out of, or in course of, his or her employment. Paragraph 6(1)(b) currently provides that injuries incurred by an employee during temporary absences from the workplace during an ordinary recess or while travelling may be treated as having arisen out of, or in the course of, the employee’s employment.
Item 12 repeals paragraph 6(1)(b) and substitutes new provisions which aim to clarify the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment.
Recesses and absences from the workplace
Currently, subparagraph 6(1)(b)(i) of the SRC Act provides that an injury sustained while the employee was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment , will be an injury ‘arising out of, or in the course of’, that employment.
In its March 2004 report on National Workers' Compensation and Occupational Health and Safety Frameworks , the Productivity Commission recommended that coverage for recess breaks and work-related events should be restricted, on the basis of lack of employer control, to those at workplaces and at employer sanctioned events. The amendments reflect this approach.
The amendments will provide that injuries incurred while an employee was temporarily absent from the workplace during an ordinary recess in employment will generally not be injuries arising out of, or in the course of, employment. For example, an employee who leaves his or her workplace at lunch time to buy a sandwich will not be covered by the SRC Act while he or she is absent from the workplace.
However, the amendments do not affect:
·injuries incurred by an employee during an ordinary recess at the workplace - new paragraph 6(1)(b); and
·injuries incurred by an employee while the employee is temporarily absent from his or her workplace undertaking an activity associated with the employment or at the direction or request of the employer - new paragraph 6(1)(c).
The Respondent’s submission does not have proper regard to the plain language of paragraphs 6(1)(c)(i) and (ii) which are stated in the alternative. Paragraph (ii) talks of activities undertaken at the direction or request of the employer. Paragraph (i) uses the more general expression ‘associated with’ and is to be distinguished from activities only undertaken in accordance with directions or requests.
Paragraph 6(1)(c)(i) requires only that the Applicant be undertaking an activity associated with their employment when temporarily absent from their workplace in order for their injury to be treated as having arisen out of, or in the course of their employment. It is not necessary for the Tribunal to be satisfied that the activity be an employer sanctioned event or that it be undertaken at the direction or request of the employer.
Clearly the Applicant had permission to listen to a podcast during her L&D time. The only question raised by the Respondent is whether she had permission to do so while walking outside her home. Even if it were accepted that the Applicant was in breach of an obligation to seek permission that breach goes only to the manner of performing a legitimate work activity.
It does not follow that an injury does not arise out of employment if the employee was doing acts which were not in accordance with their duties – see Tarry v Warringah Shire Council [1974] WCR 1 cited in Cutajar and Commonwealth (1985) AATA 152.
For these reasons the Tribunal finds that the injuries suffered by the Applicant in the Incident arose out of or in the course of her employment and are compensable under s 14 of the SRC Act. Accordingly, the decision under review should be set aside.
DECISION – MATTER 2021/5885
The decision of the delegate of the Respondent dated 9 July 2021 affirming the determination dated 12 May 2021 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) in respect of head injury, loss of consciousness, seven fractured ribs, fractured left leg patella, fractured left wrist, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste is set aside and in its place the Tribunal determines that:
(a)on 25 November 2020, the Applicant suffered an injury, namely fractured ribs, fractured left leg patella and fractured left wrist, resulting in incapacity for work, which arose out of or in the course of her employment with Services Australia (Injury), and was the subject of a claim for compensation dated 6 April 2021;
(b)the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the Injury;
(c)the matter is remitted to the Respondent to determine the Applicant’s entitlements pursuant to ss 16 and 19 of the Act; and
(d)the Respondent is ordered to pay the Applicant's costs and disbursements in respect of Matter 2021/5885 in an amount agreed between the parties or, in default of agreement, as assessed by the Registrar or an officer of the Tribunal.
MATTER 2022/3397
The application for review in this matter concerns the decision of the Respondent dated 20 April 2022[69] affirming the determination of 14 March 2022[70] to deny the Applicant’s claim dated 14 December 2021[71] for compensation pursuant to s 14 of the SRC Act in respect of aggravation of post-traumatic stress disorder and aggravation of major depressive disorder with anxious distress, current episode moderate.
[69] T20.
[70] PT15.
[71] PT3.
In a Claim for Workers’ Compensation submitted on 6 April 2021 in relation to injuries sustained in the Incident (Claim A) which became the subject of Matter 2021/5885 the Applicant stated that she was not claiming for a psychological injury.[72]
[72] T3 at p.7.
Subsequently, in a further Claim for Workers’ Compensation submitted on 14 December 2021[73] (Claim B) the Applicant claimed that ..on 25 November 2020 while working from home I sustained injuries during the course of my employment in learning and development time. I have developed a psychiatric condition which has arisen in the context of my injuries, and my employment with Services Australia.” She described the condition as “Comorbidity involving the diagnose (sic) of two mental disorder: Major Depressive Disorder with Anxious Distress and Post Traumatic Stress Disorder. She stated that she first noticed her symptoms on 25 November 2020 at 1.30 pm.
[73] PT3 at pp. 11-14.
Background
The Applicant gave evidence that in the past she had experienced family and domestic violence resulting in extreme stress involving multiple assaults including to the head. Despite this she worked for the APS full-time in a leadership position for an extended period. She said that in October 2011 she resigned her position with the APS due to personal circumstances involving family and domestic violence issues and claimed she was later diagnosed with post-traumatic stress disorder (PTSD) and major depression and was prescribed anti-depressant and anti-anxiety medication.[74] She claimed her pre-existing depression and PTSD were heightened due to mistreatment in the workplace prior to November 2020.
[74] Exhibit A1 at [10].
In April 2014 the Applicant was reinstated to the APS on a casual basis and from July 2015 she was employed as a level 4 Services Officer in the PAC on a full-time basis.
2015 Incident
She described an incident in 2015 when she was contacted by the Deputy Secretary for a chat about her personal circumstances and an interview was arranged for her with Rosie Batty a prominent campaigner against domestic violence. She said that at this time she suffered panic attacks in the workplace and her history of domestic violence became common knowledge and she struggled to maintain relationships and complete daily tasks. She described the 2015 Incident in her first statement of 22 November 2022 as follows:
In 2015, after returning to the APS through a merit-based process as an APS4, I was heavily micromanaged, scrutinised and critiqued. In September 2015, the agency Deputy Secretary contacted me directly asked about my experiences with family and domestic violence and the impact on my past career, which caught me off guard at my workstation. Once my story became public, I was subject to workplace gossip which was very upsetting. This sparked another episode of depression.[75]
[75] Exhibit A1 at [63].
2017 Incident

She described a further incident in 2017 in which she was spoken to by her manager Kris Moulynox in a quiet room in which she was asked unprofessional and intrusive questions and it was insinuated that she had a personal relationship with a DHS employee. She said the incident aggravated her PTSD and she attended Dr Garryz who prescribed benzodiazepine to treat her panic disorder and severe anxiety.
In her statement of 22 November 2022 she described this incident as follows:
In 2017, I was again asked inappropriate, invasive questions about my previous trauma by Ms Moulynox ..which triggered my mental health issues.
I wrote an email to the General Manager and he acknowledged that Ms Kris Moulynox’s conduct was unprofessional, and had a direct impact to my health my request to be redeployed or a compassionate transfer to a new team was denied. I began to experience nightmares, flashbacks, low mood and anxiety. I experienced panic attacks at work and struggled to focus.[76]
[76] Ibid at [64]-[65].
Pre-existing Condition
The Tribunal was not provided with any definitive evidence to corroborate the Applicant’s claim to have suffered domestic violence or to have been diagnosed with PTSD or anxiety and major depression prior to the Incident. However, both matters are referred to in contemporaneous documents included in materials before the Tribunal.
(a)A letter dated 1 April 2014 from the Applicant’s then solicitors seeking reinstatement of the Applicant to APS4 level identified the Applicant as being subjected to a history of domestic violence ..which was later diagnosed as post-traumatic stress and anxiety.[77]
[77] PT4.
(b)Dr Siotia noted in his history taken from the Applicant on 17 February 2022[78] that she reported that she was diagnosed with depression by her GP in January 2011 and with PTSD by her psychologist in 2011 after experiencing domestic violence in her marriage.
[78] PT13 at p.169.
(c)Documents produced by the Applicant to the Respondent’s insurer in 2022, including Comcare documents released under FOI,[79] refer to domestic violence and medical treatment for mental health issues:
[79] PT11 at pp.108-161.
(i)psychiatric consultations and group and individual therapy for the Applicant in the period 2011-2022;
(ii)the prescription of Desvenlafxine for the Applicant to treat the onset of major depression by Dr J Lim on 8 January 2011, Dr Wong on 4 February 2011, Dr Fremantle on 3 March 2011, Dr Lim on 16 July 2011 and Dr Edirisinghe on 15 August and 15 September 2011, Dr Morris on 20 March 2012, Dr Guiguis on 3 April 2012, Dr Banduwarene on 21 August 2014 and 16 October 2014 and Dr Taine on 17 November 2015;
(iii)lawyers having acted for the Applicant in family law and domestic violence issues for three years prior to 1 April 2014;
(iv)the Applicant’s interaction with Deputy Secretary Sandison over an interview with Rosie Batty an anti-domestic violence campaigner;
(v)a report of the Applicant suffering panic attacks in the workplace on 17 November 2011;
(vi)the prescription of diazepam to treat panic disorders by Dr Garryz on 24 November 2016, Dr Li on 17 January 2017, Dr Shafiei on unspecified date in 2017, Dr Ong on 6 March 2017, Dr Siddique on 3 April 2017, Dr Williams on 6 April 2017, Dr Ong on 3 May 2017, Dr Garryz on 28 May 2017, Dr Weerakoon on 22 June 2017, Dr Taheri on 12 August 2017, Dr Torabi on 9 and 30 June 2018; Dr Shafiei on 27 July 2018, Dr Torabi on 18 August 2018, 1 September 2018, 7 October 2018, 3 November 2018, Dr Lim on 1 January 2019, Dr Wang on 12 February 2019, Dr Sia on 25 February 2019, Dr Torabi on 20 March 2019, Dr Dinh on 16 May 2019, Dr Sia on 22 May 2019, Dr Torabi on 6 July 2019, Dr Siddique on 15 July 1019, Dr Sivapalan on 1 September 2019, Dr Shafiei on 11 October 2019, Dr Weerakoon on 7 January 2020, Dr Van Der Veer on 15 April 2020 and Dr Xie on 23 July 2020;
(vii)the prescription of Sertraline, an antidepressant, by Dr Xie on 24 July 2019 and 6 September 2019 and Dr Lim on 1 January 2020 and 11 June 2020;
(viii)a report of the Applicant having been treated for PTSD on 9 August 2017; and
(ix)reports of the Applicant experiencing disabling panic attacks on 15 September 2017, 1 February 2018, 17 April 2018, 2 August 2018, 11 December 2018, 16 January 2019, 20 May 2019, 18 September 2019, 11 May 2020, 26 May 2020 and 24 June 2020.
On the basis of this evidence the Tribunal accepts the Applicant’s assertion and finds that prior to 2011 she was the subject of domestic violence and that she had a pre-existing mental condition of PTSD, anxiety and depression resulting from it.
Medical Evidence
The Applicant’s treating general practitioner, Dr Reuben Phiri gave evidence that the Applicant had been treated at his clinic since 2014. He provided a standard medical certificate dated 18 October 2021 and reported that the Applicant suffered post traumatic amnesia for the incident in which she was injured and noting that she was referred to a psychologist to deal with the stress arising from this incident and from her workplace. It was not until 13 January 2022 that Dr Phiri included a reference to PTSD in his clinical notes.[80]
[80] Agreed Bundle at p.431.
Dr Rajiv Siotia, a consulting psychiatrist, examined the Applicant on 17 February 2022 and concluded in his report of 1 March 2022[81] that ..the Applicant was suffering from PTSD and major depressive disorder with anxiety distress, current episode moderate and that this was an exacerbation of a pre-existing condition which had deteriorated since November 2020.
[81] PT13 at pp.163-188.
He added that.. if I was to agree with what the Applicant tells me, then ..employment has contributed to a significant degree to her current symptoms and conditions. She has stated that while she was quite unwell and in hospital her manager called her and questioned her about the accident. She has further stated that it was the same manager who spoke to her in 2017 and caused her mental health to deteriorate significantly at that time. If I was to accept this version of events then yes the Applicant’s employment has contributed by a significant degree to her condition.
However, Dr Siotia noted that:
..On balance, I find there are many inconsistencies between the history provided and supplied documentation and the history provided also seems to have changed over time. These lead me to question the accuracy of the history provided during my assessment.[82]
[82] PT13 at p.176.
Dr Siotia was provided with further documentation including a statement by Ms Reihana regarding contact with the Applicant, her sister and her son following the Incident and the Applicant’s acknowledgement that Ms Moulynox had contacted her son because she had given her his number to keep her up to date as to her wellbeing. In his supplementary report of 16 February 2023[83] Dr Siotia confirmed his diagnoses that the Applicant was suffering from PTSD and a major depressive disorder and identified one of the significant causes of her mental health condition as the Applicant’s perception that her medical privacy was breached.
[83] Exhibit R5.
The Applicant’s treating psychologist Miguel Barreiro in a report dated 7 December 2021[84] diagnosed the Applicant as suffering from a ‘Major Depressive Disorder…with Anxious Distress and Post Traumatic Stress Disorder’. He stated in that report that ..the accident [the Applicant] suffered on 25 November 2020 had a significant negative impact on her physical and mental health. Furthermore the manner in which her work conducted an investigation of the incident had a compounding deleterious impact on [the Applicant’s] health.
[84] PT7.
Similarly in his report dated 20 October 2021 Mr Barreiro assessed that the Applicant’s PTSD symptoms had arisen from ..a traumatic event where she was found unconscious and displaying injuries typical of having been struck by a motor vehicle. The aftermath of the event also contributed to the emergence of trauma symptoms. [the Applicant] claims that she was interviewed by her manager while in a state of shock and while suffering from post traumatic amnesia. Moreover she believes that members of her family were also questioned by her manager. An action that caused her further distress.[85]
[85] PT6 at p.19.
Associate Professor Paoletti, a consultant psychiatrist, examined the Applicant on 9 March 2022 at the request of the Applicant’s solicitors and in his report of 31 October 2022[86] diagnosed the Applicant as suffering from an unspecified anxiety disorder (DSM-5 300.00) (ICD-10CM F41.9) and an unspecified depressive disorder (DSM-5 311)(ICD-10CM F32.8). He confirmed in his oral evidence that he did not disagree with Mr Barreiro’s diagnosis of PTSD but had just used a different way of describing it.
[86] Exhibit A4.
The history Mr Paoletti recorded in his report did not make mention of the alleged communication between management and the Applicant following the Incident other than briefly noting that the employer’s questioning of the Applicant’s son and sister was intrusive and highly irregular. He confirmed in his oral evidence that he had not otherwise been made aware of the alleged communications.
The evidence of Dr Siotia, Mr Barreiro and Associate Professor Paoletti is consistent in diagnosing the Applicant as exhibiting symptoms of PTSD, anxiety and major depressive disorder. Each attributed the condition at least in part to the effect of the Incident itself and the injuries the Applicant sustained. Mr Paoletti did not have regard to the Applicant’s alleged interaction with management after the Incident in making his diagnosis. Dr Siotia noted inconsistencies in the history given by the Applicant in his initial diagnosis and once provided with further information regarding the interaction between management and the Applicant modified his opinion to indicate that it was the Applicant’s perception that her medical privacy had been breached which was a contributing factor. Mr Barreiro confirmed in his oral evidence that he relied on the history given by the Applicant to conclude that her interaction with management was a contributing factor.
The Applicant’s treating psychologist did not discuss the Applicant’s prior exposure to domestic violence in his report of 7 December 2021.[87] Mr Paoletti described the Applicant’s exposure to domestic violence as a predisposing factor rather than a causative factor. He also noted that the Applicant had moved on from some depressive episodes associated with the team she had been working with.[88] Dr Siotia diagnosed that the Applicant’s condition of PTSD and major depressive disorder was pre-existing at the time of the Incident.[89]
[87] PT7 at pp.20-24.
[88] Exhibit A4 at p.16.
[89] Exhibit R5 at p.7.
Having regard to these matters the Tribunal is satisfied that the Applicant had been the victim of domestic violence in the past and she had a pre-existing mental health condition of PTSD anxiety and major depressive disorder at the time of the Incident on 25 November 2020 which was aggravated by the trauma associated with the Incident, the Applicant’s injuries and hospitalisation and subsequent medical treatment. However, the Applicant’s claim goes further than this by alleging that her PTSD anxiety and major depressive disorder was partly the result of mistreatment by management.
In her first witness statement the Applicant described the basis of this aspect of Claim B as follows:[90]
[90] Exhibit A1 at [66]-[79].
(a)Most notably, my psychological issues were also significantly aggravated following the 25 November 2020 Incident, following phone calls from managers received drilling me for incident information before being professionally psychologically assessed by my multidisciplinary medical team in hospital. At that time I was psychiatrically impaired. The physical incident itself was traumatic, it caused me significant distress and it was difficult to process the events.
(b)For weeks and months following, still not psychologically stable and assessed, I was repeatedly requested by Manager Ms Kris Moulynox and Ms Melissa Reihana to return to the office and treated differently to other colleagues still working from home. This was despite both managers being provided and having access to a medical certificate of capacity compliant with employment protocols, and providing suitable evidence of my injuries, including being unfit to drive a motor vehicle or access public transport.
(c)I was questioned a number of times by Manager Ms Kris Moulynox and Ms Melissa Reihana about the incidents in an intrusive and inappropriate manner normally reserved for a rehabilitation case manager.
(d)Despite my severely inhibited state, another manager Ms Jenny Rogers recorded an accident report with misleading details. I did not sign any such statement or incident report at this stage.
(e)Disturbingly, my managers also questioned my sister and son asking for details about my accident. I feel this was against the APS agency privacy policy principles that prohibit such action to protect the interests of employees. I feel that this process of questioning my family members lacked empathy and compassion given my hospitalisation following the accident, and that this was overarchingly disrespectful of my privacy. Further, my sister and son were not present at the accident and could not speak to me in person due to COVID-19, so questioning them in the first place was illogical and entirely inappropriate. It was clear to me that my managers’ focus was not on my health and wellbeing, and was not respectful, ethical or supportive.
(f)This intrusive questioning made me feel pressured and intimidated to provide details about the accident. Regardless, I attempted to provide answers, however my ability to recall details was hindered by my emotional state. In particular, I note that I was taking anti depression medications and suffering from post-traumatic amnesia at the time, as stated in Dr Reuben Phiri’s medical certificate dated 18 October 2021, and struggled to remember details of the accident. Psychologist Miguel Barreiro also said it was likely that my central executive functioning was impaired following the incident on 26 November 2020 taking to Manager Kris Moulynox and the catalyst which limited my ability to recall the details of the accident.
(g)I received a phone call from a person from Comcare requesting a Comcare report. Rather than acquiring information from my rehabilitation case manager provider, the woman on the phone was asking me questions that I felt breached my privacy.
(h)I felt pressured by my manager, Ms Reihana, to return to the workplace despite my physical and psychological injuries. I insisted that working from home was important for my rehabilitation and was an option available to employees with medical conditions under the flexible work policy.
(i)On 7 April 2021, I sent an email requesting a flexible working arrangement to accommodate for my physical injuries which was followed by further requests for medical documentation and ergonomic review.
(j)On 8 April 2021, I was advised that my request to work from home could not be supported until my rehabilitation assessment occurred, despite providing a medical certificate stating that I was fit to work from home for six months.
(k)In his report dated 1 June 2021, Dr Phillip Haynes said I was not fit to travel to and from work, but was otherwise fit to commence full-time duties while working from home. Despite this, APS insisted upon an ergonomic review and placed me on personal leave in the interim.
(l)My ergonomic set-up was assessed and given all clear on 7 June 2021.
(m)On 6 June 2021, Ms Robyn Geyer sent an email to all Melbourne staff which included a reprimand purely directed at me following the November 2020 Incident. I felt humiliated in front of my colleagues.
(n)Over the course of these various workplace incidents, I felt discriminated and harassed by my employer.
These matters were addressed in the evidence of Ms Moulynox and Ms Reihana. Ms Reihana and Ms Moulynox gave extensive evidence regarding their communication with the Applicant in the period from the Incident until June 2021 and denied that their communication was intrusive or inappropriate. The Respondent’s records show that the Applicant initiated telephone calls with management[91] that she described as intrusive. Ms Reihana gave evidence[92] that all employees in the Box Hill PAC team were required to return to the office following the lifting of COVID restrictions but the Applicant requested that she continue to work from home. Under Services Australia policy this required appropriate equipment to be provided and an ergonomic assessment to be made before the request could be granted. An ergonomic assessment was arranged and the Applicant was required to return the equipment provided to her during the COVID lockdowns because it was needed by the Emergency Response section.
[91] T16 at pp.116-118.
[92] Exhibit R2.
The Applicant addressed these issues in her supplementary witness statement[93] where she stated:
[93] Exhibit A2.
(a)Conversations I had with APS management after 25 November 2020 when in hospital and when released from hospital are conversations that I haven’t been able to independently recall.
(b)It was a long time after those conversations that I saw notations from APS management in relation to those discussions that I have had with them. I had, until very recently, harboured very real concerns about what had been recorded about those conversations.
(c)Even after I had seen the notations of those conversations with management my concerns about what had been written down were distorted by my feelings of being under attack by the APS in its allegation that I had breached the APS Code of Conduct. I was unable to properly process the allegation in my mind because I hadn’t been untruthful, and I couldn’t understand what it was that I was supposed to have done wrong.
(d)I can understand now, that as my ability to properly comprehend what had taken place in those conversations was extremely impaired, I made complaints to my treating psychologist and others about being inappropriately questioned by APS management after the 25 November 2020 incident.
(e)Now I can understand also that my thought processes were badly impacted by the 25 November 2020 incident, and I that I had little ability to differentiate between references to conversations I had had with APS management in dealing with day-to-day matters involving matters such as leave, or keeping my employer informed about my progress and recovery, and the matters that ultimately led to my employment being terminated for allegedly being untruthful.
(f)I have not been untruthful. I was not only in a physically and psychologically impaired state which impacted my ability to communicate well, I did not know precisely what had actually occurred having been rendered unconscious. I have also been in significant pain and heavily medicated. Management was aware of this.
(g)Katherine Marsh was my Rehabilitation Case Manager and Robyn Geyer was my Team Leader. Melissa Reihanna was then the Assistant Director. Kris Moulynox was my Manager.
(h)I realise now that Kris Moulynox spoke with my son Daniel around 26 November 2020 because I had given Daniel Kris’s number to keep her updated as to my well-being. Apparently, Daniel later explained that I was on a lot of medication and described me as being a bit loopy, or words to that effect.
(i)As I had not remembered the nature of the conversations with APS management that were later referred to in the investigation in my alleged breach of the APS Code of Conduct, I had felt that the recording of the conversations by APS management were both disrespectful and that this was an unwarranted invasion of my privacy to have me and my family treated in this way. I was also concerned about information being obtained by the APS via such means that could have very little direct value or worth. In short, I felt that my psychological vulnerability and impairment had been exploited by APS management in order to set me up for the alleged breach of the APS Code of Conduct.
(j)I was only made aware of the existence of the recorded notations through references made to Allianz in the Employers’ Response to my Claim for Compensation. I then sought and received copies through a request via the Comcare FOI process.

The Applicant claimed in cross-examination that she had no independent recollection of her interaction with management after the Incident and that it conveyed information about them to Mr Barriero and Dr Siotia she was ..relying on piecing together information from third parties that were observing during the time when I was unwell.[94] She further claimed to have no recollection of telephone conversations with Ms Rogers on the day of the Incident or of speaking to Ms Moulynox from hospital.[95] She claimed that her memory did not return until after she was discharged from hospital[96] but it was very vague as late as 16 December 2020.[97]
[94] Transcript at p.110 [40].
[95] Transcript at p.115.
[96] Transcript at p.115 [35].
[97] Transcript at p.119 [09].
The Tribunal has considered this evidence and the Applicant’s acknowledgements in her supplementary statement and in cross-examination that in effect she had misrepresented her interactions with management after the Incident in her initial statement and in the history she gave to Dr Siotia and her treating psychologist Mr Barreiro. The Tribunal accepts the evidence of Ms Reihana and Ms Moulynox regarding those matters. Viewed objectively the communication between the Applicant and management during the period following the Incident was not intrusive or inappropriate.
Clearly, the Applicant’s misrepresentation of this communication influenced the assessments made by Dr Siotia and Mr Barreiro.
The Tribunal can accept that in the period immediately after the Incident the Applicant was in a disrupted state. She had sustained significant injuries in circumstances that she did not fully understand. She was hospitalised and had to undergo surgery. She was in pain and was medicated for it. In those circumstances the Tribunal accepts that it is plausible the Applicant may have genuinely misconstrued aspects of her interaction with management in the period she was in hospital and this gave rise to a perception that she was being unfairly treated which contributed to her mental condition. However, the Applicant’s insistence in her oral evidence that she has no recollection of the interactions with management until at least 16 December 2020, is difficult to reconcile with her claim that these interactions exacerbated her mental condition. The fact that she expressly excluded psychological injury from her initial claim (Claim A) lodged on 6 April 2021 and did not press a claim for psychological injury until 14 December 2021 is inconsistent with her assertions that she commenced to experience the symptoms of the injury from 25 November 2020 prompting her treating psychologist, who relied entirely on the Applicant’s history, to note that ..psychologically, the manner in which the investigation of the accident was conducted had an immediate egregious impact on [the Applicant’s] psychological state.[98]
[98] PT7 at p.21.
The Applicant was an unconvincing witness generally and the Tribunal is unable to accept her evidence that she was subject to intrusive or inappropriate treatment by management in the period following the Incident or that her mental condition was exacerbated by such treatment. The acceptance by Dr Siotia and Mr Barreiro that the Applicant had been mistreated and that this had been a contributing factor to her condition was based almost entirely on the history provided by the Applicant. The Tribunal is not satisfied that this history properly reflected the nature of the interaction between the Applicant and management after the Incident and accordingly the Tribunal gives little weight to the conclusions of Dr Siotia and Mr Barreiro in this regard.
The Tribunal finds that the Applicant suffered the aggravation of a pre-existing condition of PTSD and major depression as a result of the trauma she suffered in the Incident, the injuries she sustained, her hospitalisation and subsequent medical treatment but it does not accept that it was due to mistreatment by her managers.
ISSUES
The relevant provisions of the SRC Act are:
Section 14(1) which provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5A which defines “injury" to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
Section 5B which defines “disease" 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.
The term “ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
The first question arising under s 14 is whether the Applicant’s injury, namely PTSD and anxiety and major depressive condition, was a mental injury which arose out of, or in the course of the Applicant’s employment or an aggravation of an ailment that was contributed to, to a significant degree, by the Applicant’s employment.
The Applicant’s claims that her physical injuries and the aggravations of her claimed psychological conditions have arisen in the course of her employment and her employment, has significantly contributed to those conditions. The Respondent says that as the physical injuries did not arise out of or in the course of the Applicant’s employment, the psychological injuries were not significantly contributed to by that employment.
The Respondent further asserted in its submissions that the Applicant did not suffer from any psychological condition, or aggravation of a pre-existing psychological condition, until after the investigation into her conduct commenced in or around August 2021. That investigation constituted reasonable disciplinary action, and so the Applicant is excluded from compensation pursuant to s 5A of the SRC Act. The Tribunal’s finding is that the aggravation of the Applicant’s pre-existing condition resulted from the trauma she suffered in the Incident, the injuries she sustained, her hospitalisation and subsequent medical treatment and not from the Applicant’s interaction with management following the Incident. Accordingly, it is not necessary to consider the Respondent’s claims in this regard.
The Tribunal is satisfied that the Applicant’s initial PTSD and anxiety and major depressive condition, was a mental injury the Applicant suffered prior to 2011 and it did not arise out of or in the course of her employment. Whether or not this mental injury may have been aggravated by the 2015 and 2017 incidents is not part of the current claim and no claim was made by the Applicant that this alleged aggravation is compensable under s 14 of the SRC Act.
For the purpose of this review the appropriate inquiry is whether the Applicant’s diagnosed condition is the aggravation of an ailment that was contributed to, to a significant degree, by the Applicant’s employment, and if so, whether it resulted in death, incapacity for work, or impairment .
Subsection 5B(2) of the SRC Act states that, in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
The subsection does not limit the matters that may be taken into account.
Under s 5B(3) significant degreemeans a degree that is substantially more than material.
On the basis of the medical evidence of Dr Siotia, Mr Barreiro and Mr Paoletti the Tribunal is satisfied that the Applicant’s condition of PTSD, anxiety and major depression is the aggravation of a pre-existing mental ailment resulting from the Incident, the Applicant’s resulting injuries, her hospitalisation and subsequent medical treatment. For the reasons previously discussed the Tribunal is satisfied that the Incident was in the course of the Applicant’s employment. The Tribunal is unable to determine the actual mechanism of injury and there is insufficient evidence upon which to base a finding that factors outside the employment contributed to the Applicant’s injury. The Tribunal accepts that the Applicant has demonstrated through the 2015 and 2017 incidents some predisposition to aggravating her pre-existing psychological condition. On the basis of the available evidence the Tribunal is satisfied that the aggravation of the Applicant’s pre-existing condition was contributed to, to a degree that is substantially more than material by the Applicant’s employment.
Did the injury result in death, incapacity for work, or impairment?
The medical evidence does not establish that the aggravation of the Applicant’s pre-existing psychological condition itself resulted in an incapacity for work. The Applicant was unable to work between the Incident and 25 January 2021 due to her physical injuries but was able to work from home on a full-time basis until the termination of her employment in September 2021.[99] She was restricted in being able to return to the Box Hill office during this period because her physical injuries prevented her from travelling to work.[100]
[99] See Exhibit A1 at [55].
[100] Ibid at [76].
The term "impairment" is defined in s 4(1) 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.
The term impairment was introduced by the SRC Act to broaden the scope of compensation including extending it to mental injuries.[101] The words of the definition are to be given their ordinary meaning. In Re Halliday v Comcare the Tribunal noted:
There does not appear to be any significant discrepancy between the various dictionaries as to the meanings of the words "damage" and "malfunction". In the context of the definition of "impairment" in which those words are used and in the context of the whole Act, there seems to be no reason why we should not adopt the ordinary meaning of those words. Consequently, there will be an impairment of a part of the body or a bodily system or function if it has been damaged in the sense that its usefulness or value has been diminished or if it malfunctions in the sense that it fails to perform normally or properly. We do not consider that we should "read down" the definition of an impairment so that it refers only to those limitations set out in the Guide.[102]
[101] Peter Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 12^th ed, 2023) at [24.02].
[102] [1994] AATA 77 at [48].
The reports of Dr Siotia, Dr Paoletti and Mr Barriero confirm that the aggravation of the Applicant’s pre-existing psychological condition had caused the Applicant’s mental function to fail to perform normally or properly. Dr Paoletti noted in his report of 30 October 2022 that there has been a pervasive impact on her quality of life and that her occupational outlook is uncertain.[103] Mr Barriero noted in January 2021 that the Applicant was experiencing multiple symptoms of anxiety and autonomic arousal and episodes of depersonalisation, derealisation and cognitive disengagement.[104] Dr Siotia noted in February 2022 that the Applicant reported high levels of anxiety, flashbacks quite regularly, hypervigilance, low mood and broken sleep.[105]
[103] Exhibit A4 at pp.17-18.
[104] PT7 at p.24.
[105] PT13 at p.168.
Conclusion
As a result of the injuries sustained by the Applicant in the Incident, her subsequent hospitalisation and medical treatment the Applicant suffered PTSD, anxiety and major depression which were aggravations of pre-existing mental ailments to which the Applicant’s employment contributed to a significant degree, resulting in impairment of her mental function.
For these reasons the Tribunal finds that the Applicant’s PTSD, anxiety and major depression are compensable under s 14 of the SRC Act. Accordingly, the decision under review in Matter 2022/3397 should be set aside.
DECISION – MATTER 2022/3397
The decision of the delegate of the Respondent dated 20 April 2022 affirming the determination dated 14 March 2022 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) in respect of aggravation of post-traumatic stress disorder and aggravation of major depressive disorder with anxious distress, current episode moderate is set aside and in its place the Tribunal determines that:
(a)on and from 25 November 2020, the Applicant suffered an injury, namely post-traumatic stress disorder and aggravation of major depressive disorder with anxious distress resulting in an impairment to which her employment with Services Australia contributed to a significant degree, the subject of a claim for compensation dated 14 December 2021, (Injury);
(b)the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the Injury;
(c)the matter is remitted to the Respondent to determine the Applicant’s entitlements pursuant to ss 16 and 19 of the Act; and
(d)the Respondent is ordered to pay the Applicant's costs and disbursements in respect of Matter 2022/3397 in an amount agreed between the parties or, in default of agreement, as assessed by the Registrar or an officer of the Tribunal.
APPENDIX A – LIST OF EXHIBITS

List of exhibits

A1

Witness statement of the Applicant dated 17 March 2022

A2

Supplementary statement of the Applicant dated 22 November 2022

A3

Report of Mr Ash Moaveni (orthopaedic surgeon) dated 20 December 2021 and briefing letter to Mr Moaveni dated 16 December 2021

A4

Report of Associate Professor Nick Paoletti (consultant psychiatrist) dated 31 October 2022 and briefing letter to Associate Professor Paoletti dated 7 March 2022

A5

Work Health and Safety Risk Management Plan – Working from Home, last updated 13 February 2020, Version Final V1 26 October 2020

A6

Bundle of 8 images of images and X-rays

A7

Screenshot of ‘ShowME’ extract

A8

4-page document headed ‘General observations’

A9

Photograph of email from Kris Moulynox to Alan Paul and Shelby Martin dated 17 May 2017

A10

Screenshot of Microsoft Teams messages with heading Friday,19 May 2017

A11

Witness statement of the Applicant dated 16 November 2023

A12

Witness statement of Ms Rita Catena dated 15 November 2023

A13

Victorian Government - Last step restrictions as at November 2020

R1

Witness statement of Ms Jennifer Rogers dated 13 June 2022

R2

Witness statement of Ms Melissa Reihana dated 20 June 2022

R3

Witness statement of Ms Kristine Moulynox dated 17 August 2022

R4

Report of Dr Mohamad Mourad (orthopaedic surgeon) dated 14 June 2022 and briefing letter to Dr Mourad dated 20 May 2022

R5

Report of Dr Rajiv Siotia (consultant psychiatrist) dated 16 February 2023 and briefing letter to Dr Siotia dated 13 January 2023

R6

Witness statement of Ms Robyn Geyer dated 19 December 2023

I certify that the preceding 132 (one hundred and thirty two) paragraphs are a true copy of the reasons for the decision herein of Member R West

...........[SGD].............
Associate
Dated: 22 May 2024

Date(s) of hearing: 9 - 12 October 2023, 15 April 2024

Date final submissions received: 21 December 2023

Counsel for the Applicant: Cassie Serpell

Solicitors for the Applicant: Angela Sdrinis Legal

Counsel for the Respondent: Charles Clarke

Solicitors for the Respondent: HBA Legal

List of exhibits
A1	Witness statement of the Applicant dated 17 March 2022
A2	Supplementary statement of the Applicant dated 22 November 2022
A3	Report of Mr Ash Moaveni (orthopaedic surgeon) dated 20 December 2021 and briefing letter to Mr Moaveni dated 16 December 2021
A4	Report of Associate Professor Nick Paoletti (consultant psychiatrist) dated 31 October 2022 and briefing letter to Associate Professor Paoletti dated 7 March 2022
A5	Work Health and Safety Risk Management Plan – Working from Home, last updated 13 February 2020, Version Final V1 26 October 2020
A6	Bundle of 8 images of images and X-rays
A7	Screenshot of ‘ShowME’ extract
A8	4-page document headed ‘General observations’
A9	Photograph of email from Kris Moulynox to Alan Paul and Shelby Martin dated 17 May 2017
A10	Screenshot of Microsoft Teams messages with heading Friday,19 May 2017
A11	Witness statement of the Applicant dated 16 November 2023
A12	Witness statement of Ms Rita Catena dated 15 November 2023
A13	Victorian Government - Last step restrictions as at November 2020
R1	Witness statement of Ms Jennifer Rogers dated 13 June 2022
R2	Witness statement of Ms Melissa Reihana dated 20 June 2022
R3	Witness statement of Ms Kristine Moulynox dated 17 August 2022
R4	Report of Dr Mohamad Mourad (orthopaedic surgeon) dated 14 June 2022 and briefing letter to Dr Mourad dated 20 May 2022
R5	Report of Dr Rajiv Siotia (consultant psychiatrist) dated 16 February 2023 and briefing letter to Dr Siotia dated 13 January 2023
R6	Witness statement of Ms Robyn Geyer dated 19 December 2023

Date(s) of hearing:	9 - 12 October 2023, 15 April 2024
Date final submissions received:	21 December 2023
Counsel for the Applicant:	Cassie Serpell
Solicitors for the Applicant:	Angela Sdrinis Legal
Counsel for the Respondent:	Charles Clarke
Solicitors for the Respondent:	HBA Legal