McNaught and K & S Freighters Pty Ltd (Compensation) - [2023] AATA 3183

McNaught and K & S Freighters Pty Ltd (Compensation) [2023] AATA 3183 (9 October 2023)
Division:GENERAL DIVISION
File Number(s): 2022/4467
Re:Anne McNaught
APPLICANT

AndK & S Freighters Pty Ltd
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:9 October 2023
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
.......................[SGD].....................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – section 14 of the Safety, Rehabilitation and Compensation Act 1988 – where liability denied – psychological injury – Adjustment Disorder – where evidence of one expert more compelling – where prior history not taken into account – no ‘injury’ or ‘disease’ suffered – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 43(1)
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14
Cases
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Dean v Australian Postal Corporation (2010) AAR 54
Jones and Comcare [2023] AATA 2476
Wiegand v Comcare [2002] FCA 1464
WNBR and Comcare [2021] AATA 32
Other Materials
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision, Washington, DC, American Psychiatric Association, 2022.
REASONS FOR DECISION
Member W Frost
9 October 2023
INTRODUCTION

The Applicant, Ms Anne McNaught, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision by her employer, the Respondent, K & S Freighters Pty Ltd (K & S Freighters), affirming its determination denying liability to pay her compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for what was described as an ‘Adjustment Disorder’.[1]
[1] Exhibit 1, pages 33 and 177-179.
Ms McNaught claimed to have suffered an ‘Adjustment Disorder – alleged stressors at work, anxiety disorder, shingles, Cronic [sic] fatigue’ due to, among other things, an extensive workload, a lack of clarity and communication, discrimination, denial of access to work documents, unreasonable work demands, intimidating and belittling conduct and harassing and aggressive conduct.[2] In an initial determination, and following a subsequent reconsideration, K & S Freighters declined liability under the SRC Act, because it found that Ms McNaught did not suffer an ‘injury’ for the purposes of the SRC Act; it was not satisfied that the condition was contributed to, to a significant degree, by her employment.[3]
[2] Ibid., pages 33 and 36.
[3] Ibid., pages 165-170 and 177-179.
The Tribunal has considered all documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and those additional documents taken into evidence in this proceeding, together with the parties’ submissions.[4] For the following reasons, the Tribunal affirms K & S Freighters’ reviewable decision because Ms McNaught’s application fails to meet the requirements of the SRC Act. K & S Freighters is therefore not liable to pay compensation to Ms McNaught under section 14 of the SRC Act.
[4] Exhibits 1 to 7.
ISSUES
To establish whether Ms McNaught suffered an ‘injury’ giving rise to K & S Freighters being liable to pay her compensation pursuant to section 14 of the SRC Act, the issues for the Tribunal to decide in this proceeding were:
(a)did Ms McNaught suffer an ‘ailment’ or an ‘aggravation of an ailment’ within the meaning of those terms under the SRC Act?;
(b)was any such ailment or aggravation ‘contributed to, to a significant degree’, by Ms McNaught’s employment so as to constitute a ‘disease’ under section 5B of the SRC Act?;
(c)if so, were any such contributing employment factors ‘reasonable administrative action taken in a reasonable manner’ in respect of Ms McNaught’s employment, pursuant to section 5A of the SRC Act?; and
(d)did Ms McNaught make a ‘wilful and false representation’, pursuant to subsection 7(7) of the SRC Act, that she had not previously suffered from such a ‘disease’, so that it shall not be taken to be an ‘injury’ for the purposes of the SRC Act?
BACKGROUND
Ms McNaught is 66 years old.[5]
[5] Exhibit 2.
On 30 April 2002, Ms McNaught was prescribed and supplied Sertraline (also known as Zoloft) and Diazepam (also known as Valium), with no repeats.[6]
[6] Exhibit 7, page 74. The terms ‘Sertraline’ and ‘Zoloft’ are used interchangeably throughout the documentary evidence and therefore are also referred to in both terms in the Tribunal’s written reasons.
In May 2003, Ms McNaught was prescribed and supplied Sertraline with five repeats, which were filled in June, July, August, September and October 2003.[7]
[7] Exhibit 7, page 74.
In July 2003, Dr Rosie Brewer, General Practitioner, recorded that Ms McNaught ‘had lost quite a bit of weight…followed by stress and marital split…was on zoloft – off for 6/12’.[8]
[8] Exhibit 7, page 21.
In 2004, Dr Angela Ramsay, General Practitioner, recorded that Ms McNaught took ‘2mg’ of Valium for ‘6/12 [severe stress]’ and ceased this medication in 2002.[9]
[9] Ibid., page 23.
In March 2006, Dr Ramsay recorded that Ms McNaught had ‘many personal stresses’, she has ‘needed zoloft in the past’ and ‘[w]ill restsrt [sic]’ on ‘Zoloft 50 mg and increase to 100 mg in 1/12 if needed’.[10] Dr Ramsay prescribed one 50 milligram Zoloft tablet daily to be reviewed in two months.[11] In March and April 2006, Ms McNaught was supplied Sertraline from this prescription.[12]
[10] Ibid., page 25.
[11] Ibid.
[12] Ibid., page 74.
In May 2006, Ms McNaught was prescribed and supplied Sertraline.[13]
[13] Ibid.
On 30 June 2006, Dr Ramsay prescribed Ms McNaught one 100 milligram Zoloft tablet daily.[14]
[14] Ibid., page 26.
For each month from July to November 2006, Ms McNaught was supplied Sertraline.[15]
[15] Ibid., page 74.
In October 2006, Dr Ramsay printed Ms McNaught a prescription for one 100 milligram Zoloft tablet daily.[16]
[16] Ibid., page 27.
In May 2007, Dr Ruth Mitchell, General Practitioner, prescribed Ms McNaught one 100 milligram Zoloft tablet daily.[17]
[17] Ibid., pages 27-28.
On 5 June 2007, Ms McNaught attended on Dr Ramsay who recorded the following:[18]
[18] Ibid., page 28.
Feeling depressed, tearful, let down, anxious, angry. She has had conflict at work associated with restructuring at work. A process in which she says there has been no negotiation and she fells belittled.
She has been depressed for 2 years and has been on zoloft for about 15/12. Work has been an issue in her depression for about 2 years.
Other issues contributing to her depression are issues with her father [moved into a nursing home 2 years ago and she is his principal carer, does not feel helped much by her brother], marriage breakup of daughter [she has been emotionally and financially supportive].
Symptoms;
Depressed mood
Mild anxiety
Tearfulness
Sleeping problems
Over or under eating at different times
Not suicidal
Can look to the future and be optimistic, but some difficulty making decisions.
She has good friends and has spoken to a psychologist informally and may see one formally.
Increase zoloft to 100 mg is on 50 mg
On 6 June 2007, Dr Ramsay created a ‘Better Access Mental Health Care Plan’ for Ms McNaught, which recorded the ‘Problem/Diagnosis’ as ‘Depression’, being ‘secondary mainly to life stresses’.[19]
[19] Ibid and pages 68-70.
On 26 June 2007, Dr Ramsay relevantly recorded that Ms McNaught was feeling ‘much better, making some decisions about her work life and that is helping her’ and that she has ‘increased zoloft as suggested and this is helping’.[20]
[20] Ibid., page 29.
In January 2008, Dr Ludmila Kraft, General Practitioner, recorded that ‘depression symptoms under good control’ and prescribed Ms McNaught one 100 milligram Zoloft tablet daily.[21]
[21] Ibid.
In August 2008, Dr Patrick Farrell, General Practitioner, prescribed Ms McNaught one 100 milligram Zoloft tablet daily.[22]
[22] Ibid., page 30.
In February 2009, Dr Farrell recorded under ‘Actions’ that Ms McNaught’s daily 100 milligrams of Zoloft was ‘ceased’.[23]
[23] Ibid.
On 1 November 2012, Dr Michael Thomas, General Practitioner, recorded that Ms McNaught had a ‘[r]ecent situational crisis’ and prescribed one 50 milligram Zoloft tablet for mornings and half a 2.5 milligram Neulactil tablet ‘p.r.n. [pro re nata]’ at night.[24] On the same date, Ms McNaught was supplied Sertraline.[25]
[24] Ibid., page 34.
[25] Ibid., page 74.
On 2 November 2012, reviewed Ms McNaught and recorded that she had no side effects after commencing Zoloft the day before, but had a dry mouth with Neulactil.[26] The latter dosage was ‘changed from 0.5 nocte [nightly] p.r.n.’ to ‘2 nocte p.r.n.’.[27]
[26] Ibid., page 35.
[27] Ibid.
On 9 November 2012, Ms McNaught attended on Dr Thomas who changed her Neulactil dosage from ‘2 nocte p.r.n.’ to ‘1 nocte p.r.n.’ and recorded the following:[28]
Review on Zoloft and neulactil.
Moods – “pretty good”.
No anxiety/panic attacks.
Will be getting paid out by Banksia all her entitlements – 18 years [sic] service.
[28] Ibid.
On 26 November 2012, Dr Thomas changed Ms McNaught’s Zoloft prescription from 50 milligrams to 100 milligrams, he again prescribed ‘2.5mg 1 nocte p.r.n.’ for Neulactil and recorded the following:[29]
Moods variable.
Has gotten worse than when I last saw her.
Some very down days.
Denies thoughts of harming self or others.
Worried about her payout money not lasting until new job.
[29] Ibid.
Has only approached two people so far for more employment.
On 30 November 2012, Ms McNaught was supplied Sertraline.[30]
[30] Ibid., page 74.
On 3 January 2013, Dr Thomas recorded that Ms McNaught was ‘managing well with mood post situational crisis’.[31] The following day, Ms McNaught was supplied Sertraline.[32]
[31] Ibid., page 36.
[32] Ibid., page 74.
For each month from February to May 2013, Ms McNaught was supplied Sertraline.[33]
[33] Ibid.
On 18 June 2013, Dr Bai Xiao, General Practitioner, recorded that Ms McNaught had been ‘lookiing [sic] for jobs and a bit stressed at the moment’.[34] She was prescribed one 100 milligram Zoloft tablet in the morning.[35] On 20 June 2013, Ms McNaught was supplied Sertraline.[36]
[34] Ibid., page 36.
[35] Ibid.
[36] Ibid., page 75.
In July, August and October 2013, Ms McNaught was supplied Sertraline.[37]
[37] Ibid.
On 11 October 2013, Dr Julia Khaled, General Practitioner, recorded that Ms McNaught ‘came to get a repeat script’ and was ‘doing well’.[38]
[38] Ibid., page 36.
In November and December 2013, Ms McNaught was supplied Sertraline.[39]
[39] Ibid., page 75.
On 20 January 2014, Dr Farrell recorded the reason for Ms McNaught’s contact as being ‘[d]epression’ and that she was the ‘manager of collapsed financial group’.[40] He prescribed one 100 milligram Zoloft tablet in the morning.[41] On this date, Ms McNaught was supplied Sertraline.[42]
[40] Ibid., page 37.
[41] Ibid.
[42] Ibid., page 75.
In February, April, May, June and July 2014, Ms McNaught was supplied Sertraline.[43]
[43] Ibid.
On 4 August 2014, Ms McNaught commenced full-time employment as an Administration Officer with ‘Aero Refuellers’, a division of the Respondent, K & S Freighters.[44]
[44] Exhibit 2.
On 3 September 2014, Dr Mengxing Xiao, General Practitioner, prescribed Ms McNaught one 100 milligram Zoloft tablet in the morning and recorded the following:[45]
Request repeat script of Zoloft.
Doing well while on 100mg daily.
Stable for last year +.
[45] Exhibit 7, page 38.
Hasnt [sic] seen psychologist but think she doesnt [sic] need to as life is much improved.
In September, October and November 2014, Ms McNaught was supplied Sertraline.[46]
[46] Ibid., page 75.
On 3 December 2014, Dr Xiao relevantly recorded that Ms McNaught had a past history of depression ‘in setting of significant life stressors – managed with Zoloft’.[47] In an accompanying ‘Care Plan’ prepared by Dr Xiao, the condition of depression was listed next to the date ‘2006’ with the last script for Zoloft (or Sertraline) listed as 3 September 2014.[48]
[47] Ibid.
[48] Ibid., pages 71-73.
On 7 December 2014, Ms McNaught was supplied Sertraline.[49]
[49] Ibid., page 75.
In January and February 2015, Ms McNaught was supplied Sertraline.[50]
[50] Ibid.
On 17 March 2015, Dr Thomas prescribed Ms McNaught one 100 milligram Zoloft tablet in the morning, but recorded her management as being to ‘[i]ncrease zoloft to 150mg/d’ and noted the following:[51]
Wants a new script for Zoloft.
Moods 5/10 today, but says 7/10 over the past fortnight.
Has withdrawn from social contacts.
Father died last year.
[51] Ibid., page 39.
Teary during consult.
Also on 17 March 2015, Ms McNaught was supplied Sertraline.[52]
[52] Ibid., page 76.
In April, June, July and September 2015, Ms McNaught was supplied Sertraline.[53]
[53] Ibid., page 76.
On 8 October 2015, Dr Thomas recorded that Ms McNaught’s Zoloft dosage ‘changed from 1 mane [morning]’ to ‘1.5 mane’ and issued a Zoloft prescription for ‘100mg 1.5 mane’.[54]
[54] Ibid., page 40.
On 20 October and 5 December 2015, Ms McNaught was supplied Sertraline.[55]
[55] Ibid., page 76.
In January, March, May and June 2016, Ms McNaught was supplied Sertraline.[56]
[56] Ibid., page 76.
On 11 August 2016, Dr Thomas prescribed Ms McNaught with Zoloft ‘100mg 1.5 mane’ and relevantly recorded the following:[57]
[57] Ibid., page 41.
Moods 6-7/10.
…
Worried about “enormous pressures at work”.
Says there are things that are being “covered up”. Says she was told to move her desk recently, and that “it’s about control”.
Management:
Continue Zoloft
I’ve recommended talking to confidential counselling service [emphasis in original]
In August, September, November and December 2016, Ms McNaught was supplied Sertraline.[58]
[58] Ibid., page 76.
In February 2017, Ms McNaught was supplied Sertraline.[59]
[59] Ibid.
On 13 April 2017, Dr Thomas relevantly reported that Ms McNaught ‘mentioned about a lot of stressors at the moment – work, daughter getting married, buying a house’ and printed a prescription for ‘100mg 1.5 mane’ of Zoloft.[60]
[60] Ibid., page 41.
In April, June, July, September and November 2017, Ms McNaught was supplied Sertraline.[61]
[61] Ibid., page 76.
On 18 December 2017, Dr Thomas printed a prescription for ‘100mg 1.5 mane’ of Zoloft and recorded ‘[c]ontinue Zoloft’ under the heading ‘Management’.[62] On the same date, Ms McNaught was supplied Sertraline.[63]
[62] Ibid., page 42.
[63] Ibid., page 76.
In February 2018, Ms McNaught was supplied Sertraline.[64]
[64] Ibid.
On 14 March 2018, Dr Mohammed Quazi, General Practitioner, reviewed Ms McNaught following a ‘likely viral illness’ for which she had presented to Dr Thomas on 8 March 2018, and relevantly recorded that she ‘says lot better but feels rundown’.[65]
[65] Ibid., pages 42-43.
On 28 March 2018, Ms McNaught was supplied Sertraline.[66]
[66] Ibid., page 76.
In May, July, September, October, November and December 2018, Ms McNaught was supplied Sertraline.[67]
[67] Ibid., page 77.
On 5 January 2019, Dr Rubina Mirza, General Practitioner, recorded that the reason for Ms McNaught’s contact was ‘[d]epression’ and prescribed Sertraline at ‘100mg 1 daily m.d.u. [more dicto utendus]’.[68] On the same date, Ms McNaught was supplied Sertraline.[69]
[68] Ibid., page 4.
[69] Ibid., page 77.
In each month from February to April 2019, Ms McNaught was supplied Sertraline.[70]
[70] Ibid.
In May 2019, Dr Celestine Ezekwe, General Practitioner, recorded that Ms McNaught presented due to ‘[m]igraine’ and prescribed Sertraline at ‘100mg 1 daily m.d.u.’.[71] In this month, Ms McNaught was twice supplied Sertraline.[72]
[71] Ibid., page 5.
[72] Ibid., page 77.
In each month from June to September 2019, Ms McNaught was supplied Sertraline.[73]
[73] Ibid.
On 17 October 2019, Dr Ezekwe recorded that Ms McNaught attended ‘for renewal of scripts for antidepressants’ and Sertraline at ‘100mg 1 daily m.d.u.’ was again prescribed.[74] On the same date, Ms McNaught was supplied Sertraline.[75]
[74] Ibid., page 5.
[75] Ibid., page 77.
In November and December 2019, Ms McNaught was supplied Sertraline.[76]
[76] Ibid., page 77.
In January and February 2020, Ms McNaught was supplied Sertraline.[77]
[77] Ibid.
On 31 March 2020, Dr Ezekwe recorded that Ms McNaught attended ‘for script for sertraline’, she was doing well, had no side effects and had a background of ‘anxiety/[d]epression’.[78] Under the headings ‘Diagnosis’ and ‘Reason for visit’, Dr Ezekwe recorded ‘Anxiety/Depression’ and, under the heading ‘Management’, it was noted that ‘Sertraline script given’ for ‘100mg Tablet 1 Daily m.d.u.’ and ‘[p]sychoeducation provided’.[79] Also on 31 March 2020, Ms McNaught was supplied Sertraline.[80]
[78] Ibid., pages 5-6.
[79] Ibid., page 6.
[80] Ibid., page 77.
In each month from May to September 2020, Ms McNaught was supplied Sertraline.[81]
[81] Ibid., page 78.
On 21 October 2020, Dr Ezekwe provided a prescription to Ms McNaught for Sertraline ‘100mg Tablet 1 Daily m.d.u.’.[82] On the same date, Ms McNaught was supplied Sertraline.[83]
[82] Ibid., page 6.
[83] Ibid., page 78.
In November and December 2020, Ms McNaught was supplied Sertraline.[84]
[84] Ibid.
In February and March 2021, Ms McNaught was supplied Sertraline.[85]
[85] Ibid.
On 30 April 2021, Dr Ezekwe recorded the reason for Ms McNaught’s visit to be ‘[h]ypertension’ and ‘[s]tress’.[86] It was further noted that Ms McNaught was ‘[e]xtremely stressed at work’, ‘[g]etting migraine’, her ‘glands are all enlarged’, she ‘feels run down’, ‘20 years ago she had glandular fever following breakdown of her marriage’ and ‘feels that the situation right now is similar’.[87] Dr Ezekwe provided a script for Sertraline at ‘100mg Tablet 1 Daily m.d.u.’ and provided a medical certificate that Ms McNaught was ‘receiving medical treatment for the period 29/04/2021 to 30/4/2021 inclusive’ and was unfit for work during that period.[88]
[86] Ibid., page 7.
[87] Ibid.
[88] Exhibit 7, page 7 and Exhibit 1, page 78.
On 1 May 2021, Ms McNaught was supplied Sertraline.[89]
[89] Exhibit 7, page 78.
On 7 May 2021, Dr Ezekwe relevantly noted that Ms McNaught ‘has had a chat with her boss at work’ and they ‘have reduced the stress on her’.[90]
[90] Exhibit 7, page 7.
In each month from June to October 2021, Ms McNaught was supplied Sertraline.[91]
[91] Ibid., page 78.
On 5 November 2021, Dr Mirza diagnosed Ms McNaught with ‘Herpes zoster’, ‘Shingles’, following her presentation with a rash on her face, ‘pain’, ‘some flu like symptoms’, but ‘no other complain[ts]’.[92] Dr Mirza provided a medical certificate stating that Ms McNaught was ‘receiving medical treatment’ from that date until 9 November 2021, inclusive, and was unfit for work during that period.[93] Dr Mirza also printed prescriptions for various medication, including ‘Sertraline 100mg Tablet 1 Daily m.d.u.’.[94] On the same date, Ms McNaught was supplied Sertraline.[95]
[92] Ibid., page 8.
[93] Exhibit 1, pages 10 and 79.
[94] Exhibit 7, page 8.
[95] Ibid., page 78.
On 11 November 2021, Dr Mirza recorded that Ms McNaught ‘had shingles, periorbital’, ‘no blurring of vision’, ‘no other complain [sic]’, ‘her rash is drying up’, ‘feels on and off tingling’, ‘she feels tired and lethargic which is better after resting’, ‘she is unable to go to work’ and ‘need[s] MC [medical certificate]’.[96] Dr Mirza certified that Ms McNaught ‘stated their illness commenced on 10/11/2021’ and ‘the history as stated is consistent with the above and would have necessitated leave from work’ from that date until 12 November 2021, inclusive.[97]
[96] Ibid., page 9.
[97] Exhibit 1, pages 11 and 80.
On 3 December 2021, Dr Mirza recorded that Ms Naught had shingles three weeks before and ‘2 days she noticed some rash around her right eyes [sic]’, with no blurred vision or other complaints, but ‘feel pain’.[98] Dr Mirza also recorded that Ms McNaught ‘was having some flu like symptoms few days ago’, ‘same rash like before’ and ‘feels very tired’.[99] She was again diagnosed with shingles.[100] Dr Mirza provided a medical certificate stating that Ms McNaught was ‘receiving medical treatment for the period 6/12/2021 to 10/12/2021 inclusive’ and was unfit for work during that period.[101]
[98] Exhibit 7, page 9.
[99] Ibid., page 10.
[100] Ibid.
[101] Exhibit 1, pages 12 and 81.

On 11 December 2021, Ms McNaught was supplied Sertraline.[102]
[102] Ibid., page 78.
In January 2022, Ms McNaught was supplied Sertraline.[103]
[103] Ibid.
On 14 February 2022, Ms Rachael Szakal, who is Ms McNaught’s direct supervisor at K & S Freighters, emailed the human resources section, and copied to the Divisional Manager, Mr Paul Goddard, relevantly as follows:[104]
[104] Ibid., pages 155-156.
Can you please give me some advice on how to manage an employee who I think may try to claim she is unwell due to workplace stress and who is not performing her full time role as expected. She is 65 and I don’t think she wants to be here but probably has to continue working.
She has used up all of her sick leave due to getting migraines and having a bout of shingles last year and from the conversations I have heard, it sounds like she is claiming the cause of her shingles is stress. I don’t believe her role would be the cause of all of her stress as the workload has significantly reduced in the last 2 years due to the lack of fire season and she plods along at a fairly slow speed with month end being the only time I see any sense of urgency to complete tasks.
Her attitude it not the best towards me and I am really careful in my conversations with her to not upset her when querying her work or asking her to do anything. I’m reluctant to discuss her performance with her as I believe it will upset her and give her more to complain about.
My concerns are the
·     Potential stress claim – how do I avoid?
·     Her ability to perform her current role and complete the work when things pick up
·     Her negative attitude
·     Personal mobile phone usage in work hours
·     Lateness to work which I’ve been told about but am not here to see myself, and timesheet recording
I really need to have a conversation with her about the work but need some tips on how to approach.
Also on 14 February 2022, Ms McNaught was supplied Sertraline.[105]
[105] Ibid., page 79.
On 15 February 2022, Dr Mirza certified that Ms McNaught ‘stated their illness commenced on 14/02/2022’ and ‘the history as stated is consistent with the above and would have necessitated leave from work from 14/02/2022 until 15/02/2022 inclusive’.[106] Dr Mirza diagnosed hypertension and relevantly recorded that:[107]
[106] Ibid., page 82.
[107] Exhibit 7, page 10.
she has had shingle
she is under lot of pressure at work.
she feels she is
financial issues at all.
lot of issues relayed [sic] to family, work and financial issues.
she is unable to cope
asking for stress leave.
C/O [complaining of] headache which is different from her migraine
? flare up of her shingle due to stress.
…
explained his [sic] BP [blood pressure] is high
…
explained her symptoms might be related to stress.
…
advised her to discuss with her superior at work about work related issues.
explained I do not do work cover, she is planning to do work cover she need to find a work cover DR
On 17 February 2022, Ms Szakal again emailed the human resources section of K & S Freighters, and copied Mr Goddard, relevantly stating that:[108]
[108] Exhibit 1, page 154.
Anne has returned to work today although she is still not 100% and we have had a discussion this afternoon. I’ve documented for my records and to give you an update.
She mentioned that she was not satisfied with the outcome of the doctor visit on Tuesday so is going to seek a second opinion. She is still suffering from exhaustion and tingling nerve sensation through her hair and head believed to be from the shingles which could last for months and her blood pressure was raised. The doctor has given her some medication to help. There was no mention of it being caused by stress from her work and I didn’t ask about the cause.
We talked about her role and also how I could support her while she is recovering and not feeling 100%.
·     She asked to start at 10am for a week or so which will allow her more sleep in the morning. I’ve agreed and she will use 1.5hour of AL [Annual Leave] each day for the next week or so as she has no sick leave.
·     She will complete AL requests in MY HR for the days she has taken and she has given me a certificate for these days not that I need it but has been filed.
·     She finds the chasing of missing paperwork to be very frustrating (this is part of her role)
·     When she spends time highlighting incorrect paperwork and gives to Ops manager to follow up she doesn’t hear anything back and doesn’t think he is doing anything with it as nothing improves so this causes her frustration
·     Not happy with communication, wants to know about everything going on (monthly admin team meetings are commencing next week so hopefully this will help. I also try to communicate as things happen but will try to put more in writing)
·     We spoke about working full time and she asked if I would help her work out the financial impact to her of dropping 1 day as it is something she has been thinking about and her family and friends have talked to her about. I support and will encourage her to drop her hours if she can which would then allow me to recruit and get someone trained up to cover the critical parts of her role.
·     She seems to be in a more positive mood but I haven’t addressed the other performance issues as yet. Thought I’d wait until she is feeling better.
·     I will raise the mobile phone usage & timesheet recording issues in our team meeting and then address individually if needed. Will also remined team of EAP [Employee Assistance Program].
I will keep you updated and let you know if there is any further mention of workplace stress. I’m planning on discussing again with her in a couple of weeks when she has hopefully recovered.
On 22 February 2022, Ms Szakal emailed Ms McNaught and noted their discussion ‘about an option to reduce your work hours and you asked me to provide you with the impact of potentially dropping 1 day’.[109] Ms Szakal provided information from payroll regarding such a change and noted that it ‘may also be worth you speaking to a financial advisor’ due to rules regarding ‘transitioning to retirement’ and accessing superannuation ‘as you drop your hours from the age of 65’, noting that Ms McNaught had reached the age of 65 on 9 January 2022.[110]
[109] Ibid., page 149.
[110] Ibid. See also Exhibit 1, page 5.
On Thursday, 24 February 2022, while Ms McNaught was at her desk in the office, Ms Szakal asked her about one of the company’s trucks. This discussion was immediately followed by a meeting between Ms McNaught, Ms Szakal and Mr Goddard.[111]
[111] Exhibits 2, 4 and 5.
On Friday, 25 February 2022, Ms McNaught attended a staff meeting at the office. She did not return to work after this date.[112] Ms McNaught remains employed by K & S Freighters, although she is on personal leave without pay.[113]
[112] Exhibit 2.
[113] Ibid.
On Monday, 28 February 2022, following her previous medical appointment with Dr Mirza on 15 February 2022, Ms McNaught attended a different medical practice and saw Dr Thomas who certified Ms McNaught as being ‘unfit for work from 28/02/2022 to 02/03/2022 inclusive’.[114] Under the heading ‘Management’ in the clinical notes, Dr Thomas recorded ‘[i]ncrease Zoloft to 150mg/d’ and ‘[a]dd Neulactil 1/2 tab nocte’ and also relevantly recorded that:[115]
[114] Ibid., page 13.
[115] Exhibit 7, page 46.
She has moved out to [residential address]. Mortgage till she is 90 she tells me!
She had shingles in 1/11/21. Now severe headaches at the top of her head. Also fatigue. Had two full weeks off work at the time, then later some smaller amounts of leave.
Apparently she is stressed as she says her boss thought it was due to COVID vaccine.
She says she had a rather horrific day on Thursday at work. Works at Aero Refuellers at the airport.
The business also has two fuel trucks in Ballarat for a flying school.
There was a younger person (Harry) at work who she felt was doing something wrong, but she couldn’t tell what. Later found a whole bucket of invoices that weren’t processed. She was asked to do a complete audit. By the time she “finished” the audit there was 400,000L of fuel not invoiced. Anne was apparently told to stop prior to completing the audit. Apparently there was still a thick pile of dockets she hadn’t audited. Apparently Harry verbally abused Anne. Harry was managed out of the organization. Then Anne was given Harry’s role. Anne says the accountant is not capable of the role.
There was also another Avgas truck that she hadn’t had any previous knowledge about, which she was expected to know all the details about.
Chest pains.
Governed by K&S Freighters.
Mood score – 2/10
Anxiety – high; panic attacks
Sleep – exceptionally well due to the fatigue from shingles
Also on 28 February 2022, Ms McNaught was supplied Periciazine (known as Neulactil).[116]
[116] Exhibit 7, page 79.
On 10 March 2022, Dr Thomas certified that Ms McNaught ‘will be unfit for work from 10/03/2022 to 17/03/2022 inclusive’.[117] Dr Thomas increased Ms McNaught’s Zoloft to ‘200mg mane’ and her Neulactil ‘from ½ tab [b]efore bed to 1 tab [b]efore bed’ and relevantly recorded as follows:[118]
Review. Situational crisis at work.
Mood score 5/10.
Anxiety severe. One panic this morning.
Sleep “a bit patchy”. Difficulty getting to sleep (take up to an hour).
Energy levels fair.
She has decided to make a formal complaint, but not yet notified her employer.
?Psychology
[117] Exhibit 1, page 14.
[118] Exhibit 7, page 47.
On 12 March 2022, Ms McNaught was supplied Sertraline.[119]
[119] Exhibit 7, page 79.
On 15 March 2022, Ms McNaught completed a ‘Workplace Bullying and Inappropriate Conduct Report Form’.[120] Ms McNaught alleged that she had experienced: unreasonable and ongoing work demands; unreasonable lack of job control and lack of clarity; being denied access to information and resources to her detriment; discrimination; aggressive, intimidating or harassing conduct; and belittling comments.[121] In relation to the interaction on 24 February 2022, Ms McNaught submitted that Ms Szakal was ‘standing over the top of me making ridiculous statements and when I asked her to stop she continued to rant aggressively’, Ms McNaught refused to go to Ms Szakal’s office and said if she went anywhere it would be to the Divisional Manager’s office.[122] Ms McNaught further stated that Mr Goddard ‘agreed with everything’ said by Ms Szakal and ‘after a time I felt that this had been rehearsed…it didn’t matter what I said it was ignored or dismissed’.[123] Ms McNaught had ‘expected that he would mediate in a fair manner’, but this ‘did not occur…so I had two of them attacking me in a way that I felt like to whole situation had been rehearsed’.[124] Ms McNaught ‘felt thoroughly bullied and belittled by their actions’ and concluded that she was ‘being squeezed out’ of the company.[125]
[120] Exhibit 1, pages 15-27.
[121] Ibid.
[122] Ibid., page 25.
[123] Ibid.
[124] Ibid.
[125] Ibid., pages 25-26.
Also on 15 March 2022, an ‘Incident Report’ was completed following Ms McNaught submitting the aforementioned ‘Workplace Bullying and Inappropriate Conduct Report Form’.[126] The Incident Report recorded the date of the incident as being 24 February 2022 and noted that Ms McNaught alleged that the ‘increased workload has been severely detrimental to my health causing regular severe migraines, panic attacks, back pain, chronic fatigue and Shingles’.[127]
[126] Ibid., pages 28-29.
[127] Ibid., page 29.
On 17 March 2022, Dr Thomas recorded that Ms McNaught had ‘completed a formal complaint for K&S Human Resources’ and this process ‘was stressful’.[128] Her mood score was said to be ‘6-7/10’ and the last panic attack was ‘Tuesday this week’.[129] Ms McNaught was sleeping ‘well’, although ‘says she could probably sleep half the day’.[130] The management was relevantly recorded to be continuation of ‘current psychotropic doses’.[131]
[128] Exhibit 7, page 48.
[129] Ibid.
[130] Ibid.
[131] Ibid.
On 24 March 2022, Dr Thomas relevantly recorded that Ms McNaught ‘had a “flat shocking week”’ and noted that she was ‘going to be interviewed soon’ in relation to her ‘complaint’.[132] Dr Thomas also noted that ‘I have realized I should be able to do a W/C certificate for Adjustment Disorder’.[133] Dr Thomas recorded that Ms McNaught’s mood score was ‘4/10’, her anxiety was high and she had panic attacks ‘every couple of days’ with spasmodic energy levels.[134] Dr Thomas also completed a ‘Certificate of Capacity’ and diagnosed Ms McNaught with ‘Adjustment Disorder – alleged stressors at work’, with no capacity for employment from 28 February 2022 to 7 April 2022, and noted that the estimated timeframe for her return to work was ‘2-3’ weeks.[135] The treatment was listed as medication and Ms McNaught’s dose of 100 milligrams of Zoloft was ‘changed from 2 tabs [i]n the morning to 2.5 tabs [i]n the morning’.[136]
[132] Ibid.
[133] Ibid.
[134] Ibid.
[135] Exhibit 1, pages 30-31.
[136] Exhibit 1, page 31 and Exhibit 7, page 48.
On 25 March 2022, Dr Thomas recorded that Ms McNaught had requested a letter ‘to state that she is medically fit to undertake workplace investigator interview’, she ‘is happy to proceed and wants to get it “done with”’, and Dr Thomas was ‘encouraged by this’.[137] Dr Thomas noted under ‘Management’ that Ms McNaught was ‘[f]it to interview’.[138] The requested letter for Ms McNaught stated that ‘[s]he is medically able to undertake Investigor [sic] Interview’.[139]
[137] Exhibit 7, page 49.
[138] Ibid.
[139] Exhibit 1, page 44.
Also on 25 March 2022, Ms McNaught submitted a ‘Claim for Workers’ Compensation’ to K & S Freighters.[140] In that form, Ms McNaught was asked what was the injury or illness for which she was claiming compensation and it also noted that ‘[y]ou need to state the precise diagnosis as stated on a medical certificate’.[141] In response, Ms McNaught stated that the injury or illness was an ‘Adjustment Disorder – alleged stressors at work, anxiety disorder, shingles, Cronic [sic] Fatigue’.[142] Ms McNaught further stated that she was injured or first noticed she was ill in ‘early Nov 2021’ and referred to ‘[s]hingles’.[143] She also recorded having first sought medical treatment for this condition on ‘5/11/2021’.[144] In response to the question, ‘[h]ave you ever had a similar symptom, injury or illness before – work-related or otherwise?’, Ms McNaught ticked the box marked ‘No’.[145] In response to the question ‘[h]ave you ever received medical treatment for a similar injury or illness?’, Ms McNaught ticked the box marked ‘No’.[146]
[140] Ibid., pages 32-43.
[141] Ibid., page 33.
[142] Ibid.
[143] Ibid., page 34.
[144] Ibid.
[145] Ibid.
[146] Ibid.
Under the heading, ‘Authorisation and Consent Declaration’, Ms McNaught relevantly declared, by way of her signing and dating the ‘Claim for Workers’ Compensation’ document on 25 March 2022, that:[147]
The information I have supplied on this form and any other attachment is true and correct;
…
I am aware that the making of a false or misleading claim or false or misleading statement in support of that claim is punishable by law under the Criminal Code Act 1995 and that I may be prosecuted;…
[147] Ibid., page 40.
Also detailed in Ms McNaught’s ‘Claim for Workers’ Compensation’ form dated 25 March 2022 was the start of the chain of events that she reported led to her injury or illness: extensive workload; unreasonable and ongoing work demands; unreasonable lack of job control and lack of clarity in the workplace; discrimination and denial of access to information to allow daily workflow; constant belittling, intimidating, harassing and then aggressive conduct from management; and document compliance issues.[148] In response to the question, ‘[w]hat action, exposure or event happened to cause your injury or illness?’, Ms McNaught stated as follows:[149]
Long term and ongoing occurrences as set out below –
Extensive work load, lack of clarity and communication, discrimination, denial to access work documents, unreasonable work demands, lack of document compliance, intimidating and belittling conduct, harassing and aggressive conduct.
Actions taken on the 24^th February, 2022 as set out in my Workplace Bullying and Inappropriate Conduct Report Form dated 15/03/2022.
[148] Ibid., page 36.
[149] Ibid.
On 28 March 2022, Ms McNaught was supplied Sertraline.[150]
[150] Exhibit 7, page 79.
On 31 March 2022, Dr Thomas recorded that Ms McNaught was scheduled to see the workplace investigator at ‘11.30am’, her mood score was ‘6/10’, her anxiety was ‘high’, she had a panic attack ‘yesterday’, her sleep was ‘OK’, but energy levels ‘slow’.[151] Under the heading ‘Management’, Dr Thomas noted ‘[c]ontinue same medication doses’ and for Ms McNaught to return ‘next week before W/C Cert runs out’.[152]
[151] Ibid., page 49.
[152] Ibid.
On 6 April 2022, Dr Thomas recorded that Ms McNaught ‘was stressed+++ during and after the investigators [sic] interview’, she had low blood pressure ‘after’ and felt ‘washed-out and tired’, but ‘[c]ame good the next day’.[153] He also recorded that Ms McNaught felt ‘unable to work while the investigation is continuing’, which ‘is apparently going to be finished 1-2 weeks’.[154] Dr Thomas completed a ‘Certificate of Capacity’ for Ms McNaught’s diagnosed ‘Adjustment Disorder – alleged stressors at work’, and stated that she had no capacity for employment from that date to 20 April 2022, and also noted that the estimated timeframe for her return to work was ‘1-2’ weeks.[155]
[153] Ibid., page 50.
[154] Ibid.
[155] Ibid., page 46.
On 22 April 2022, Dr Thomas recorded that Ms McNaught ‘doesn’t feel mentally well enough to work whilst the investigation is occurring’, her mood score was ‘6.5/10’, she had ‘high’ anxiety, but no ‘panic attacks this week’ and was sleeping ‘well with the sedatives’.[156] Under the heading ‘Management’, Dr Thomas stated: ‘Certificate – off work another 2/52 (hopefully the investigation will be complete then)’.[157] Dr Thomas completed a ‘Certificate of Capacity’ for Ms McNaught and stated that she had no capacity for employment from 21 April 2022 to 6 May 2022.[158]
[156] Ibid., page 51.
[157] Ibid.
[158] Exhibit 1, pages 84-85.
On 27 April 2022, an independent Investigation Report determined, on the balance of probabilities, that the allegations made by Ms McNaught against various other employees of K & S Freighters were ‘unfounded and not substantiated’.[159] Most relevantly, the external Investigator determined as follows:[160]
(a)the allegation that Ms Szakal ‘acted inappropriately toward Mrs McNaught during an incident on the 24^th of February 2022’ was ‘unfounded’ based on: the evidence showing ‘that the discussion between Mrs McNaught and Mrs Szakal, escalated to a level of frustration, but there was no inappropriate behaviour displayed by Mrs Szakal’; the ‘contradictory statements’ of Ms McNaught ‘between her written incident and verbal account’; and the ‘supporting evidence from other staff’;
(b)the allegation that Ms McNaught was discriminated against in not being allowed access to the driver’s hut because she was female was ‘unfounded’ based on: the ‘supporting evidence from other staff’; the ‘contradictory statements’ from Ms McNaught; and because the ‘evidence suggests that it is more likely than not that the conduct did not happen’, noting that other female staff members gave accounts of accessing this area of the business’ premises;
(c)the allegation that unreasonable work demands were placed on Ms McNaught when another employee left their employment was ‘not substantiated’ because the ‘majority of the evidence gathered and analysed indicates the allegation is not true’; there ‘is evidence that suggests that the workload was not unreasonable and was divided across a number of employees’; and the ‘overall workload of the organisation was down due to external environmental and social factors’.
[159] Ibid., pages 94-160.
[160] Ibid., pages 97-101.
On 29 April 2022, Ms McNaught was supplied Sertraline.[161]
[161] Exhibit 7, page 79.

On 2 May 2022, K & S Freighters informed Ms McNaught of the outcome of the independent investigation into her allegations and set out the summary of the findings.[162] K & S Freighters also listed the recommendations made by the investigator, and steps the entity would take, in relation to Ms McNaught, including her undertaking certain training regarding its bullying policy, grievance procedure and resilience and wellbeing in the workplace.[163]
[162] Exhibit 1, pages 161-164.
[163] Ibid., pages 161-162.
On 10 May 2022, K & S Freighters made a determination declining liability under section 14 of the SRC Act in relation to Ms McNaught’s claim for compensation in respect of a condition described therein as an ‘Adjustment Disorder’.[164]
[164] Ibid., pages 165-170.
On 11 May 2022, Dr Michael Seymour, General Practitioner, recorded that Ms McNaught ‘advised me she has been subjecting [sic] to bullying and intimidation and harassment at work’ and ‘needs a workcover certificate today’.[165] Dr Seymour completed a ‘Certificate of Capacity’ for Ms McNaught’s diagnosed ‘Adjustment Disorder – alleged stressors at work’, and stated that she had no capacity for employment from 6 May 2022 to 3 June 2022.[166]
[165] Exhibit 7, page 52.
[166] Exhibit 1, pages 171-172.
On 29 May 2022, Ms McNaught was supplied Sertraline.[167]
[167] Exhibit 7, page 79.
On 2 June 2022, following a request by Ms McNaught for reconsideration, K & S Freighters affirmed its determination declining liability to pay her compensation under section 14 of the SRC Act in respect of an ‘Adjustment Disorder’.[168]
[168] Exhibit 1, pages 173-179.
On 2 June 2022, Ms McNaught applied to the Tribunal for review of K & S Freighters’ decision.[169]
[169] Ibid., pages 4-8.
On 3 June 2022, Dr Seymour recorded that Ms McNaught ‘needs another workcover certificate’ and he completed a ‘Certificate of Capacity’ stating that she had no capacity for employment from 3 June 2022 to 1 July 2022.[170]
[170] Ibid., pages 180-181 and Exhibit 7, page 52.
On 17 June 2022, Dr Thomas recorded that Ms McNaught ‘has had an unfavourable report by the K&S investigator’ and they ‘have not accepted any of her complaints’.[171] Under the heading ‘Management’, Dr Thomas referred to Ms McNaught seeing him again around ‘1 July for W/C cert’.[172]
[171] Exhibit 7, page 52.
[172] Ibid.
On 22 June 2022, Ms McNaught was supplied Periciazine (known as Neulactil).[173]
[173] Exhibit 7, page 79.
On 23 June 2022, Ms McNaught was supplied Sertraline.[174]
[174] Ibid., page 79.
On 1 July 2022, Dr Thomas recorded that Ms McNaught was ‘[j]ust here for certificate & script’.[175] He completed a ‘Certificate of Capacity’ stating that she had no capacity for employment from that date to 29 July 2022 and printed a prescription for ‘Zoloft 100mg Tablet 2.5 tabs in the morning’.[176]
[175] Exhibit 7, pages 52-53.
[176] Exhibit 1, pages 182-183 and Exhibit 7, page 53.
On 15 July 2022, Ms McNaught was supplied Sertraline.[177]
[177] Exhibit 7, page 79.
On 29 July 2022, Dr Thomas recorded that Ms McNaught had a Tribunal ‘hearing’ in September, her relationship was ‘on hold’, her mood score was ‘5/10’ and she ‘[f]eels she has no work capacity until conflict resolved’.[178]
[178] Ibid., page 53.
On 4 August 2022, Ms McNaught was supplied Sertraline.[179]
[179] Exhibit 7, page 79.
On 22 August 2022, Dr Thomas relevantly recorded that Ms McNaught: ‘[n]eeds an updated Workcover certificate. No capacity for work. Employer denied W/C liability. Still pursuing legal advice regarding this’.[180] A ‘Certificate of Capacity’ was provided to Ms McNaught.[181]
[180] Ibid., page 53.
[181] Ibid.
LEGISLATION
Subsection 14(1) of the SRC Act 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.
An ‘injury’ is defined in subsection 5A(1) of the SRC Act 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.
Subsection 5A(2) of the SRC Act provides that, for the purposes of subsection (1) above, and without limiting that subsection, ‘reasonable administrative action’ is taken to include the following:
(a)   a reasonable appraisal of the employee’s performance;
(b)   a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)   a reasonable suspension action in respect of the employee’s employment;
(d)   a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)   anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)    anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
For the purposes of applying subsection 5A(1)(a) of the SRC Act in relation to a ‘disease suffered by an employee’, section 5B of the SRC Act sets out the definition of ‘disease’ as follows:
(1)   In this Act:
disease means:
(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.
(2)   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.
This subsection does not limit the matters that may be taken into account.
(3)   In this Act:
significant degree means a degree that is substantially more than material. [emphasis in original]
Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also provides that ‘aggravation’ includes ‘acceleration or recurrence’.
Subsection 7(7) of the SRC Act provides that:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
EVIDENCE
Lay evidence
Ms McNaught
The Tribunal has considered the written statement dated 20 October 2022 made by Ms McNaught in this proceeding, which relevantly stated that:[182]
[182] Exhibit 2.
Prior to suffering my condition, I had never suffered from adjustment disorder. I suffered from Anxiety/Depression in 2019 and was on Sertraline 100mg.
…
In September 2020…I was assigned to handle the bulk fuel invoicing and balancing of all trucks as I had developed a full understanding of the requirements during the audit.
…
On 17 February 2022, I had a meeting with Ms Szakal in the office. I had just returned to work after 3 days of sick leave. I explained that I am suffering from chronic fatigue with my illness and it would be helpful if I could come in a little later on days that I was not feeling as well. She agreed to this. I came in later on 2 occasions, once at 10:00am and another on 24 February 2022 when I arrived at 8:55am. My normal start time is 8:30am. Ms Szakal suggested that due to my health, I may consider working 4 days a week and asked if I could manage my workload in the 4 days. I was confused why she thought I could do 5 days work in 4 when all of my days are already extremely busy. She also suggested that I could work the difference of time with my daughter in her new store ‘Feather & Drum Hat Co’ and use my creativity skills. I was also asked if there was any of my work, I could give to another staff member. I suggested that maybe Ms Linda Knight could do the log checker entries which are done once a week; however, Ms Szakal did not think that was suitable.
On Thursday, 24 February 2022, Ms Szakal approached me regarding a Credit note for a return of fuel from Jet A1 truck. Ms Szakal stated that she received the Jet A1 credit but had not received one for Avgas. I informed her that I knew nothing about this and had not received paperwork from the Operations manager, Mr Paul Lefoe. Ms Szakal raised her voice, and whilst standing over me stated that it was my job to find out and that I need to be proactive. I stated that it was not my job to ‘find out’, it was the Operations Manager’s job as I had no record of this truck ever as it had been in Ballarat for years prior to me commencing with Aero Refuellers with no hire fees.
Ms Szakal kept repeating the same questions. I asked her to stop and listen, however, she continued. I asked her again to stop. She asked me to come into her office to discuss the matter and I refused as I knew that she would close the door and repeat the same conversation. I said words to the effect of ‘No I will not go into your office, if I go anywhere it will be into the Division Managers office.’ This discussion was witnessed by Ms Narelle Murray and Ms Linda Knight.
Ms Szakal and I walked to Mr Goddard’s office and stood in the doorway and said words to the effect of ‘We need to see you now, apparently I am not good enough.’ Ms Szakal reiterated the conversation we had, and he agreed with her without hesitation. I was shocked as he repeated the exact same lines and would not listen to my explanation. The issue with the truck remained unresolved. Mr Goddard raised that I had come in late that day, and Ms Szakal did not mention our agreement which made be me feel confused and disappointed about the lack of support. Ms Szakal stated that I had a negative attitude towards her and asked what I had against her. I said something to the effect of I could not answer that question as I was not aware there was an issue. She then stated that one day when I was leaving her room one day, she heard me say under my breath ‘that was a waste of time’. I felt intimidated by both her and Mr Goddard’s attitude and felt very uncomfortable. It was as though it had all been rehearsed. This was the precipitating event and what made me feel unwell.
When I arrived home that afternoon, I was completely devasted and was a ‘total mess’ and visibly distraught.
On 25 February 2022, I attended the office for an Administration meeting but have not returned to the office since this date.
On 28 February 2022, I saw Dr Michael Thomas, General Practitioner. It is noted that I had a rather horrific day at work on Thursday. My anxiety was extremely high, mood was low and had panic attacks. This occurred as I felt my future was at stake and I had worked so hard for the business. I was provided a medical certificate which stated that I would be unfit for work from 28 February 2022 until 2 March 2022.
…
On 25 March 2022, I submitted a Claim for Workers’ Compensation form for my conditions of , anxiety, depression, stress, shingles, chronic fatigue, panic attacks and migraines. I noted that I first noticed I was ill when I had shingles in early November 2021 and sought medical treatment on 5 November 2021.
On the same day, Dr Thomas provided a medical certificate stating that I am medically able to undertake investigator review.
Ms McNaught gave evidence at the Tribunal hearing and confirmed adherence to her written statement in this proceeding.
Ms McNaught told the Tribunal that she was first prescribed Sertraline (or Zoloft) in 2002, when she was undergoing a marriage separation, her father, for whom she was the primary carer, was unwell and she had also moved to Albury for work. She sought medical attention when ‘all of those things were getting on top of me’. Ms McNaught described herself at that time as being ‘anxious’, ‘very concerned’ and ‘dealing with matters as they were happening, but with a great deal of anxiety’. She would ‘break down into tears’ when trying to communicate about these experiences. Ms McNaught said the Sertraline ‘eased’ her condition at the time ‘so that I was able to cope’; it ‘just relaxed me’. She took this medication for some months, but was unable to recall the specific length of time.
Ms McNaught further told the Tribunal that, ‘around 2006’, she resumed taking Zoloft; her father had experienced ‘a massive stroke’, he was ‘in rehabilitation’ and ‘then he needed to go into a nursing home’. Additionally, Ms McNaught was supporting her daughters, one of whom was ‘also undergoing a marriage breakup’ and Ms McNaught was assisting her to moving from one state to another. Ms McNaught also said she ‘had a few issues’ at work which she ‘was dealing with’ at the time; these matters were ‘rectified…in due course’ following her discussion with a manager. Her symptoms at that time were ‘anxiety’, ‘tearfulness’ and ‘sleep deprivation’. The Zoloft medication assisted with these symptoms and she ceased taking it at some point thereafter.
In 2012, Ms McNaught again received a prescription for Sertraline ‘following the collapse of the Banksia financial group’, of which she was the Branch Manager in Albury. As a result of this event, Ms McNaught’s employment ‘was finished’ and her receipt of employee entitlements was uncertain. She was ‘out in the public a lot’ through her work and was ‘finding it difficult to certainly cope with that’. Ms McNaught described symptoms of anxiety and tearfulness and said that her symptoms were ‘very similar to the previous times’. She was also again having issues sleeping and was prescribed medication to assist. Ms McNaught told the Tribunal the issues with her employment ‘took probably 20 months’ to resolve and she received her entitlements, which lasted ‘about seven or eight months and then I was looking for work’. Ms McNaught agreed that she continued to take Sertraline between 2012 and 2014. She described her symptoms during this time to be ‘tearfulness’, ‘anxiety’ and ‘general nervousness’. The Sertraline was said to assist with these symptoms.
In August 2014, Ms McNaught commenced employment with Aero Refuellers, a division of K & S Freighters.
During this employment, Ms McNaught told the Tribunal, she took on the role of ‘bulk fuel invoicing’; she had previously undertaken an ‘audit’ of bulk fuel for ‘2019/2020’ and ‘had a full understanding of the procedures that had to be undertaken for that role’. Ms McNaught said that she was assigned this role, it was an additional responsibility and her workload increased at that time; her regular duties were those of an ‘administration officer’ and ‘on top of that’ she had ‘all the bulk transport work to do as well’. Ms McNaught agreed that some of her duties were at that time removed from her workload, such as ‘vehicle invoicing’, but she maintained that her workload significantly increased.
Ms McNaught was referred to the meeting she had with Ms Szakal on 17 February 2022, following her return to work after three days sick leave due to ‘chronic fatigue’ and shingles.[183] She said Ms Szakal initiated this meeting and they discussed her sick leave over the previous three months due to being ‘considerably ill’. They also discussed Ms McNaught’s workload and whether any duties could be allocated to another employee, which Ms Szakal did not think could occur, and the status of her illness, to which Ms McNaught told her that she was having ‘serious issues with my sleep, with pain’ and wondered whether she could attend the office at a later than usual time of 8.30am and ‘make up the time accordingly’. Ms Szakal agreed to this proposal. Ms McNaught also told the Tribunal that Ms Szakal asked Ms McNaught whether she had considered reducing her workdays to four days per week, but ‘I certainly hadn’t even thought about that because I had so much work to do that I needed five days without any hesitation’. However, Ms McNaught requested Ms Szakal ‘work out the figures for that’ in relation to the impact on her earnings. Ms Szakal later provided this information to Ms McNaught, but ‘I’d never considered working part-time at all, ever and it was a surprise that she brought that up’. Counsel asked Ms McNaught whether she was upset after this meeting; she said it ‘gave me food for thought, I was quite bewildered by why they’d want me to cut back to four days a week when I had such an extensive workload, so I just…yeah, was very bewildered by that.’ Ms McNaught agreed that she was distressed by the meeting because of the suggestion that she reduce her work days at K & S Freighters.
[183] Ibid.
Ms McNaught was referred to the events of 24 February 2022. Ms McNaught told the Tribunal that Ms Szakal walked past her desk and asked whether she had ‘done the credit yet for the Jet A1 truck coming out of Ballarat’; this truck had been at that location ‘for a lot of years’ and was ‘never a truck that was registered under my documentation’. Ms McNaught said she had ‘no idea of that truck’, but knew that there were two vehicles at that location and that the other truck, a ‘Jet truck’, had ‘been returned’ but another, the ‘Avgas truck’ had not. Ms McNaught had ‘already done the credit for the Jet truck’. Ms McNaught told the Tribunal Ms Szakal informed her that ‘it’s your job to find out what’s going on’. Ms McNaught replied that ‘No, it’s not my job, it’s the Operations Manager’s job’. Ms Szakal again said it was Ms McNaught’s job and that she should be ‘proactive’, which ‘was very offending’. Ms McNaught told Ms Szakal that ‘truck movement is no business of mine’; when it is returned to the site, a fuel ‘dip’ is performed and the paperwork provided to her to arrange a credit. Ms McNaught agreed that this truck was being used as a form of fuel storage facility at another business’ premises in Ballarat. Ms McNaught told the Tribunal that this truck ‘was part of the bulk fuel’, but it was being ‘bridged by the trucks’.
Ms McNaught said she asked Ms Szakal to stop repeating herself regarding the credit for this truck, which was still in Ballarat. Ms Szakal asked Ms McNaught to go into her office to discuss the matter. She refused, ‘because we were in the open office space, I thought, well everyone here has heard what was going on’, and said to Ms Szakal ‘if we go anywhere, we’ll be going to the Division Manager’s office’. This apparently caught Ms Szakal by surprise, she ‘walked off’ past Ms McNaught’s desk to the door of Mr Goddard’s office and asked for them to speak with him because ‘apparently I’m not good enough’. They entered Mr Goddard’s office and sat down. Ms Szakal relayed their discussion to him ‘very promptly’, which surprised Ms McNaught, and he said ‘yes, well that is your job, Anne’. Ms Szakal then began ‘starting on other subjects’.
One topic, which ‘bewildered’ Ms McNaught, was a request for an employee to be responsible for a key to the ‘truck yard’ near the work premises. Ms McNaught had declined to take responsibility when asked by Ms Szakal. During the meeting with Mr Goddard, Ms Szakal said she considered other employees would not volunteer for this duty because Ms McNaught had not done so and they would then think there was something wrong with doing so. Ms McNaught was ‘absolutely taken aback and I couldn’t believe what she was talking about’. She had not had ‘any definite discussion’ with Ms Szakal regarding why she did not want this responsibility and did not think it was required, because her personal reasons for not wanting to be responsible for ‘any security issues’ had previously been discussed during occupational health and safety committee meetings, which Ms Szakal attended.

Ms McNaught also told the Tribunal the three attendees at the meeting on 24 February 2022 discussed issues with the telephone system in the office. She had ‘no idea’ why this issue was raised, Ms Szakal was ‘just bringing up all these matters’. Ms Szakal also raised mobile phone usage by employees. She also ‘brought up the fact that she felt I had an attitude toward her of which I had never heard anything about before and I was not aware of’; Ms McNaught said ‘apparently’ Ms Szakal ‘took offence’ to the manner of her greeting in the morning when she arrived at the office. Mr Goddard also raised the issue of staff attendance at the workplace and commented that ‘people are just coming and going, wandering in at any old time’. That particular morning, Ms McNaught had attended the office ‘20 minutes later’, as previously arranged with Ms Szakal. There was no reference to this arrangement; it was a ‘general’ comment regarding staff, but ‘I felt like it was about me and my illness’. The meeting lasted approximately one and a half hours. At the end, Ms Szakal suggested that she should perhaps get some staff management training.
Counsel for Ms McNaught referred her to the attendance of 28 February 2022 on her general practitioner, Dr Thomas. She agreed relaying to the doctor having extremely high anxiety, low mood and panic attacks. The characteristics of a panic attack for Ms McNaught were said to entail ‘severe’ chest pains, ‘shortage of breath’, ‘general tension’, ‘nervousness’ an inability to communicate through that episode, and becoming ‘absolutely hot’ from the ‘top of my head down’, which was alleviated by ‘drinking cold water’. She told the Tribunal she had ‘never’ before had these types of experiences, including in 2001, 2006 and 2012.
Ms McNaught told the Tribunal that her other symptoms after 24 February 2022 were ‘sleeplessness’, difficulty leaving the house, she ‘couldn’t be bothered’ maintaining a tidy home and garden, although she was ‘physically’ looking after herself.
Ms McNaught was referred to the Claim for Workers’ Compensation she completed on 25 March 2022.[184] She recalled completing this document. Ms McNaught was taken to the question in that claim form, ‘Have you ever had a similar symptom, injury or illness before – work-related or otherwise?’.[185] She told the Tribunal that she ticked the box marked ‘No’ because ‘my thoughts at that particular time were on the, um, on the illnesses that I had at that particular time. I wasn’t, um, wasn’t in a fit state really’. Ms McNaught was referred by Counsel to her previously mentioning to the Tribunal her shingles and she said ‘it wasn’t just that’, the other ‘problems’ were ‘panic attacks’, ‘sleep deprivation’, ‘a number of things that I had that at that time that were most, um, most definite, I hadn’t thought of, um, what was noted on here, has been raised since’. Counsel put to Ms McNaught that she answered ‘No’ to the question in the claim form because she did not feel that she had previously had those conditions. She replied, ‘Absolutely’. Ms McNaught also told the Tribunal that her aforementioned answer was the same in relation to why she responded ‘No’ to the subsequent question in the claim form, ‘Have you ever received medical treatment for a similar injury or illness?’
[184] Exhibit 1, pages 32-43.
[185] Ibid., page 34.
By way of cross-examination, Ms McNaught agreed that she was first prescribed Sertraline in 2002, she had been prescribed and filled scripts of Sertraline from that time, as detailed in the medical records up until August 2022, she had been prescribed Sertraline after that time, and she has filled those scripts and was currently using Sertraline.[186]
[186] Exhibit 7, pages 74-79.
Counsel took Ms McNaught through some of the relevant entries from the medical records from the past 20 years.[187] She agreed to reporting in July 2003 experiencing ‘stress’ following a ‘marital split’.[188] Ms McNaught could not recall whether she had been off Zoloft for six months at that time.[189] However, she agreed reporting stress and anxiety.[190]
[187] Ibid., pages 1-67.
[188] Ibid., page 21.
[189] Ibid.
[190] Ibid.
Ms McNaught agreed she presented to Dr Ramsay, her then general practitioner, in March 2006 complaining of ‘many personal stresses’.[191] She was prescribed an increased dose of Zoloft and told the Tribunal she believed this medication was an antidepressant.[192] Ms McNaught agreed that, in June 2006, she again attended Dr Ramsay for a prescription of Zoloft.[193]
[191] Ibid., page 25.
[192] Ibid.
[193] Ibid., page 26.
Ms McNaught was asked whether she presented to Dr Ramsay in June 2007 complaining of a range of psychological symptoms.[194] She replied that this was ‘once again stress’. Ms McNaught agreed that she reported feeling ‘depressed’, ‘tearful’, ‘let down’ and ‘angry’.[195] She also agreed to having ‘had conflict at work associated with restructuring at work’.[196] To this end, Ms McNaught agreed with Counsel that, in the context of a work situation, she felt depressed, tearful, let down, anxious and angry.[197] Ms McNaught also agreed with the entry regarding there having been a ‘process in which she says there has been no negotiation and she feels belittled’.[198] Ms McNaught further agreed that she had been depressed for two years at that time in 2007, she had been on Zoloft for about 15 months and work was an issue in her depression for ‘about 2 years’, although she noted in her evidence that there were ‘many other issues’.[199] These were ‘issues with her father’ and her emotional and financial assistance to her daughter following a ‘marriage breakup’, which she agreed took a psychological toll on her and contributed to the depression.[200] Ms McNaught agreed that, at the time, her reported symptoms were depressed mood, mild anxiety, tearfulness, sleeping problems and over or under eating at different times.[201] She denied speaking informally to a psychologist at the time, but subsequently agreed that such discussions did ‘often’ occur, although these were not formal psychological sessions.[202] Ms McNaught agreed that the circumstances referred to in June 2007 were so overwhelming that her Zoloft dosage was increased from 50 milligrams to 100 milligrams and she was referred for testing to rule out Epstein Barr virus (or glandular fever).[203]
[194] Ibid., page 28.
[195] Ibid.
[196] Ibid.
[197] Ibid.
[198] Ibid.
[199] Ibid.
[200] Ibid.
[201] Ibid.
[202] Ibid.
[203] Ibid.
Ms McNaught believed that Dr Ramsay prepared a Better Access Mental Health Care Plan for her on 6 June 2007, but did not recall receiving such a document.[204] Ms McNaught did agree that the ‘Personal History/Lifestyle Issues’ recorded in the Plan were accurate, being that she was widowed ‘when she had small children, suffered hardship ++, elderly father in care causing her distress, daughter’s marital breakdown stressful for her and ongoing work pressures’.[205] She also agreed to experiencing depression ‘secondary mainly to life stresses’ at that time.[206]
[204] Ibid., pages 28 and 68-70.
[205] Ibid., page 69.
[206] Ibid.
Ms McNaught agreed that she saw Dr Ramsay on 26 June 2007 and was feeling ‘much better’, having made ‘some decisions about her work life’ and the increased Zoloft was ‘helping’.[207]
[207] Ibid., page 29.
Ms McNaught agreed with the entry in the medical records from 9 January 2008, that her ‘depression symptoms were under good control’ on a Zoloft dosage of 100 milligrams daily and that, on 20 February 2009 this medication was ‘ceased’ until she resumed taking Zoloft in subsequent years.[208]
[208] Ibid., pages 29-30
Ms McNaught agreed that, on 1 November 2012, she presented to Dr Thomas following a recent ‘situational crisis’, being the collapse of her then employer the Banksia Financial Group, and was prescribed 50 milligrams of Zoloft daily.[209] The following day, Ms McNaught reported having no side effects to Zoloft.[210] She was reviewed by Dr Thomas on 9 November 2012, and accepted that she reported being in a ‘pretty good’ mood at the time. In relation to the note that she was experiencing ‘[n]o anxiety/panic attacks’, Ms McNaught told the Tribunal that she ‘certainly would have been having anxiety’, but agreed that she was, as recorded, ‘getting paid out by Banksia all her entitlements’.[211]
[209] Ibid., page 34.
[210] Ibid., page 35.
[211] Ibid.
Ms McNaught agreed that she saw Dr Thomas on 26 November 2012 and reported that her mood was ‘variable’, she had ‘gotten worse’ and had some ‘very down days’, despite the fact the she was going to receive all of her entitlements from Banksia.[212] As reported, Ms McNaught agreed that she was worried about her ‘payout money not lasting until new job’.[213] Her Zoloft dosage was increased from 50 milligrams to 100 milligrams.[214]
[212] Ibid.
[213] Ibid.
[214] Ibid.
On 3 January 2013, Ms McNaught presented to Dr Thomas requesting a script and agreed with the report that she was ‘managing well with mood post situational crisis’, being the Banksia collapse.[215] On 18 June 2013, Ms McNaught presented for a script and was ‘a bit stressed’ having been looking for work.[216] Her Zoloft prescription was for 100 milligrams.[217] Ms McNaught agreed that, on 11 October 2013, she had reported ‘doing well’ at the time.[218] However, Ms McNaught also agreed that, on 20 January 2014, she presented to a general practitioner in relation to depression and was prescribed 100 milligrams of Zoloft.[219] Ms McNaught also agreed that, on 3 September 2014, she requested a repeat script for Zoloft, she reported ‘[d]oing well while on 100mg daily’, she had been ‘[s]table for last year +’ and did not need to see a psychologist ‘as life is much improved’.[220] Ms McNaught agreed that her Zoloft dosage was maintained at that time.
[215] Ibid., page 36.
[216] Ibid.
[217] Ibid.
[218] Ibid.
[219] Ibid., page 37.
[220] Ibid., page 38.
Ms McNaught agreed with Counsel that, in December 2014, she reported a past history of depression in the setting of ‘significant life stressors’, which was ‘managed with Zoloft’.[221] However, she did not recall seeing a ‘Care Plan’ prepared for her at that time.[222]
[221] Ibid.
[222] Ibid., pages 71-73.
Ms McNaught agreed that she saw Dr Thomas on 17 March 2015 and told the Tribunal she would have told him that she ‘required’ a script for Zoloft, but the dose was ‘up to him’.[223] In this regard, Ms McNaught said that she knew ‘Zoloft worked for me’. She accepted that her mood was, as reported, ‘5/10’, that it had been ‘7/10 over the past fortnight’, she had ‘withdrawn from social contacts’, her father had ‘died last year’, and she was teary.[224] Ms McNaught was prescribed 100 milligrams of Zoloft.[225]
[223] Ibid., page 39.
[224] Ibid.
[225] Ibid.
Ms McNaught agreed that, on 11 August 2016, she presented to Dr Thomas in the context of some issues with her mood, among other things and that she was worried about ‘enormous pressures at work’.[226] Ms McNaught agreed that she reported there ‘are things that are being “covered up”’, she had been ‘told to move her desk recently’ and perceived that this was ‘about control’.[227] She agreed with Counsel’s proposition that she perceived that someone at work was controlling her, the pressures devalued her and it made her feel belittled. Ms McNaught agreed that her Zoloft dose was increased to one and a half 100 milligram tablets daily and accepted that it was recommended she talk to a confidential counselling service.[228]
[226] Ibid., pages 40-41.
[227] Ibid., page 41.
[228] Ibid.
Ms McNaught agreed that, on 13 April 2017, she presented to Dr Thomas for a script, had described her moods as ‘8/10’, where her understanding was that a larger number represented ‘feeling a bit better’, despite at the time mentioning ‘a lot of stressors at the moment’, comprising ‘work’, ‘daughter getting married’ and ‘buying a house’. Her daily Zoloft medication was maintained at ‘100mg 1.5’.[229]
[229] Ibid.
Ms McNaught agreed that, on 14 March 2018, she reported feeling a ‘lot better but feels rundown’.[230] She agreed that, on 30 May 2019, she was prescribed Zoloft at 100 milligrams daily.[231] Ms McNaught also agreed that, on 17 October 2019, she sought a reported ‘renewal of scripts for antidepressants’ and again on 31 March 2020, where a background of anxiety and depression was recorded.[232]
[230] Ibid., page 43.
[231] Ibid., page 5.
[232] Ibid.
Ms McNaught also agreed that, on 30 April 2021, she reported being extremely ‘stressed at work’, was getting a ‘migraine’, her glands were ‘all enlarged’ and she felt ‘run down’.[233] However, she disputed the entry that ‘20 years ago she had glandular fever following breakdown of her marriage’ and told the Tribunal ‘it wasn’t following it’, but ‘prior to’, although she agreed this recorded history was that she provided to the doctor at the time. Counsel put to Ms McNaught that the symptoms recorded in April 2021, being stress, migraine, feeling rundown and symptoms similar to glandular fever, were the kinds of problems involved in the context of the claim she made the subject of this proceeding. Ms McNaught agreed. Counsel further put to Ms McNaught that she reported at the time ‘that the situation right now is similar’ to 20 years ago.[234] She agreed it was similar to ‘how I was feeling’. That is, Ms McNaught agreed that the way she was feeling in April 2021 was similar to how she was feeling following the breakdown of her marriage 20 years ago. In April 2021, Ms McNaught agreed, she complained of hypertension and stress and was prescribed 100 milligrams of Sertraline daily.[235]
[233] Ibid., page 7.
[234] Ibid.
[235] Ibid.
Ms McNaught agreed that, on 7 May 2021, she reported having a ‘chat with her boss at work’ and they ‘have reduced the stress on her’.[236] She disagreed that work duties had been removed from her, but it was ‘sorting out some of those duties in the context of the complexity of them’. Ms McNaught agreed that, at that time, she had some problems with work and her employer made adjustments to help her to remove some stress.
[236] Ibid.
Ms McNaught agreed that, on 5 November 2021, she received a diagnosis of Herpes zoster, or shingles.[237] She continued on Sertraline at ‘100mg Tablet 1 Daily’.[238] Ms McNaught also agreed that, on 11 November 2021, she reported feeling ‘tired and lethargic which is better after resting’ and was ‘unable to go to work’.[239] She agreed that the reason for her visit was recorded to be post herpetic neuralgia, being a consequence of the shingles.[240] On 3 December 2021, Ms McNaught agreed, she reported having shingles ‘3 weeks ago’.[241]
[237] Ibid., page 8.
[238] Ibid.
[239] Ibid., page 9.
[240] Ibid.
[241] Ibid.
Ms McNaught agreed that, on 15 February 2022, she reported being under a ‘lot of pressure at work’ and there being a lot of issues related to family, work and financial issues.[242] She also agreed that she was asking for stress leave and was complaining of a headache, which was ‘different from her migraine’.[243] Ms McNaught also agreed that, at the time, Dr Mirza advised her to discuss work-related issues ‘with her superior at work’.[244] Ms McNaught further agreed that she did have a discussion with Ms Szakal on 17 February 2022 regarding her workload in the context of her shingles. She did not inform Ms Szakal that she considered the shingles were work-related, however Ms McNaught agreed that she indicated to Ms Szakal that at the time she had several health issues and was experiencing a range of personal matters that were very upsetting to her and her partner’s family. In or about January 2022, the brother of Ms McNaught’s partner had died ‘extremely suddenly’ and unexpectedly. She supported her partner during this tragic time and agreed that these circumstances were taking a psychological toll on her.
[242] Ibid., page 10.
[243] Ibid.
[244] Ibid.
Ms McNaught disagreed with the proposition that Ms Szakal tried to explore what could be done in the workplace to help while she dealt with her health and personal matters. However, she acknowledged having informed Ms Szakal of her health and personal issues and that she had discussed a change to Ms McNaught’s work regime, but this was ‘quite to my surprise, there was nothing ever stated about my workload or any of the other things that were actually in issue’. Despite this, Ms McNaught agreed that she had discussed with Ms Szakal finding it difficult to arrive at work on time and this ‘was my illness’ and to enable her to manage this, Ms Szakal had provided her with some additional time in the morning, ‘if required’. Accordingly, Ms McNaught agreed with Counsel that Ms Szakal adopted a flexible approach in relation to Ms McNaught’s hours so as to permit her to get to work at a time she could manage. Ms McNaught also agreed that she had no issue with this arrangement and that ‘it was helpful’.
Counsel for K & S Freighters referred Ms McNaught to discussions regarding the possibility of reducing her work days to four per week. It was put to Ms McNaught that, at no point, did Ms Szakal suggest that she would have to perform five days’ worth of work in four days each week. Ms McNaught told the Tribunal Ms Szakal ‘didn’t say it in that context’. She agreed that Ms Szakal herself works part-time on reduced hours each day.
Ms McNaught disagreed that the workload at the time was not extremely busy. She said ‘it was’. Ms McNaught agreed that the required fuel loads had been substantially reduced in the 2019-20 financial year during the COVID-19 pandemic due to, among other things, less pilot training and flying generally. She also agreed that there were fewer fuel trucks for which she was responsible and therefore less fuel for her to account for due to these circumstances. Ms McNaught further agreed that, in contrast to earlier years, there was much less demand for fuel in February 2022. Her job was to account for, or manage, ‘bulk fuel’ in returning fuel trucks and often during a truck’s ‘run’ if it was not returning.
There were two trucks that formed the foundation of Ms McNaught’s discussion with Ms Szakal on 24 February 2022, before they subsequently met with Mr Goddard. One truck carried ‘Jet fuel’ and the other ‘Avgas’. Counsel put to Ms McNaught that both of the trucks were carrying bulk fuel. She agreed. Ms McNaught also agreed that it was her job to look after bulk fuel. Despite these concessions, Ms McNaught disagreed that, because she was responsible for bulk fuel, both trucks were part of her job. It was put to Ms McNaught that her evidence had been that she was responsible for bulk fuel. She told the Tribunal it was not her job ‘to communicate with the customer’. It was again put to Ms McNaught that her job required her to undertake administrative tasks in relation to bulk fuel. She agreed. It was put to Ms McNaught that this required her to account for the bulk fuel on trucks. She agreed. Counsel put to Ms McNaught that both of the trucks were carrying bulk fuel. She agreed. It was therefore put to Ms McNaught that her job was to account for the fuel on both trucks. She said it ‘was a different situation, because those trucks were leased…so that fuel was not in my documentation’. Counsel put to Ms McNaught that it was still part of her responsibility for bulk fuel. She told the Tribunal that it was ‘not as far as K & S was concerned…they were customers of ours’. Ms McNaught agreed that she considered the relevant truck was not part of her responsibility because it had been in Ballarat for several years. Counsel put to Ms McNaught that this had nothing to do with the scope of her job description. She disagreed, ‘because they were being leased to the customer, so we don’t have the balances of what the customer has’. Ms McNaught told the Tribunal that she presently does not accept, despite her employer explaining to her on 24 February 2022, that the truck was part of her responsibility in accounting for bulk fuel.

Having given careful consideration to the terms of section 5B of the SRC Act, the relevant authorities, and the medical evidence in this proceeding, the Tribunal is not satisfied that Ms McNaught’s psychological condition was contributed to, to a significant degree, by her employment. Therefore, the Tribunal finds that Ms McNaught did not suffer a ‘disease’ under the SRC Act.
Ms McNaught claimed to have suffered an Adjustment Disorder in 2022 as a result of her employment with K & S Freighters. On the ‘Claim for Workers’ Compensation’ form completed on 25 March 2022, which asked for the ‘precise diagnosis as stated on a medical certificate’, Ms McNaught stated that the ‘injury or illness’ for which she was claiming compensation was an ‘Adjustment Disorder – alleged stressors at work, anxiety disorder, shingles, Cronic [sic] Fatigue’.[298] However, the actual diagnosis made on 24 March 2022 by Dr Thomas, that led to the compensation claim was ‘Adjustment Disorder – alleged stressors at work’.[299] There was no reference made by this medical practitioner to an anxiety disorder, shingles or Chronic Fatigue Syndrome suffered by Ms McNaught.[300] Dr Thomas also did not record any information regarding the basis of such a diagnosis in the ‘Certificate of Capacity’ he completed for Ms McNaught on 24 March 2022, including in relation to her ‘Mental Health Function’.[301] The associated medical record from Dr Thomas of 24 March 2022, being approximately one month after Ms McNaught ceased attending work, noted her reported symptoms including high anxiety and panic attacks, that she had a ‘flat shocking week’, had submitted a formal complaint regarding the workplace for which she was soon to be interviewed and there was consideration of a workers’ compensation claim.[302] Ms McNaught’s dose of Zoloft was also increased by Dr Thomas.[303]
[298] Exhibit 1, page 33.
[299] Ibid., page 30.
[300] Ibid., pages 30-31.
[301] Ibid.
[302] Exhibit 7, page 48.
[303] Ibid.
In the compensation claim form submitted the following day on 25 March 2022, Ms McNaught stated that she was first injured or first noticed she was ill in early November 2021 and referred to shingles.[304] According to the medical records, Ms McNaught was diagnosed with shingles, or herpes zoster, by Dr Mirza on 5 November 2021.[305] However, the medical record does not refer to Ms McNaught’s employment, including it having any relation to her diagnosis of shingles.[306] At this time, Ms McNaught’s Zoloft dosage remained unchanged and had been since at least 2019.[307] On 11 November 2021, Ms McNaught attended on Dr Mirza for a medical certificate and was reported to have informed the doctor that she ‘is unable to go to work’.[308] Apart from stating that she was ‘tired and lethargic’, and having post ‘herpetic neuralgia’, there was no reference to the reason for Ms McNaught’s inability to attend work, including due to any psychological condition or any contribution from her employment.[309]
[304] Exhibit 1, page 34.
[305] Exhibit 7, page 8.
[306] Ibid.
[307] Ibid. page 4.
[308] Ibid., page 7.
[309] Ibid.
On 15 February 2022, Dr Mirza queried whether Ms McNaught was having a ‘flare up of her shingle [sic] due to stress’.[310] In this regard, Dr Mirza recorded that Ms McNaught had a ‘lot of issues’ related to ‘family’, ‘work’ and financial’ matters, she was ‘unable to cope’, was ‘asking for stress leave’ and ‘is planning to do work cover’.[311] To this end, Ms McNaught’s attendance on Dr Mirza was nine days before what she subsequently referred to in this proceeding as the ‘precipitating event’ for her condition, being the events at her workplace of 24 February 2022, which were ‘what made me feel unwell’.[312] At the attendance on Dr Mirza on 15 February 2022, Ms McNaught was advised that she would ‘need to find a work cover’ doctor.[313]
[310] Ibid., page 10.
[311] Ibid.
[312] Exhibit 2.
[313] Exhibit 7, page 10.
On 28 February 2022, Ms McNaught had an appointment with Dr Thomas.[314] He referred to Ms McNaught informing him that she had moved residence and would have a mortgage until she was 90 years old, and he then proceeded to note her reported symptoms and numerous work-related issues.[315] On the history before the Tribunal, these employment matters spanned a number of years. For example, it was recorded that Ms McNaught referred to outstanding invoices that had not been processed, undertaking an audit of fuel, being ‘verbally abused’ by a former colleague who was ‘managed out’, being given that person’s role in the company, another colleague being ‘not capable of the role’ and finally to the events of 24 February 2022, which she described as a ‘rather horrific day’ where ‘she was expected to know all the details about’ the truck returning from Ballarat.[316] Ms McNaught referred to her shingles, having ‘severe headaches’ and ‘fatigue’ and feeling ‘stressed’ because ‘her boss thought it was due to COVID vaccine’.[317] She reportedly had high anxiety and panic attacks.[318] There was no diagnosis of a psychological condition at this time or the origin of any such condition, although Ms McNaught’s Zoloft dosage was increased, with Neulactil added.[319]
[314] Ibid., page 46.
[315] Exhibit 7, page 46.
[316] Ibid.
[317] Ibid.
[318] Ibid.
[319] Ibid.
Dr Thomas later diagnosed Ms McNaught with Adjustment Disorder on 24 March 2022 and the following day she made her workers’ compensation claim.[320] In that claim form, Ms McNaught stated that long term and ‘ongoing occurrences’ at work caused her injury or illness, including an extensive workload, lack of clarity and communication, discrimination, unreasonable demands, intimidating and belittling conduct and harassing and aggressive conduct.[321] She also referred to the ‘[a]ctions taken’ on 24 February 2022.[322] Again, this recitation of the long history of the purported actions, exposures or events that caused the claimed injury or illness was different to that claimed by Ms McNaught in this proceeding to have been the ‘precipitating event and what made me feel unwell’, being the events of 24 February 2022.[323]
[320] Exhibit 1, pages 30-43.
[321] Ibid., page 36.
[322] Ibid.
[323] Exhibit 2.
In April 2022, following Ms McNaught completing a ‘Workplace Bullying and Inappropriate Conduct Report Form’ in mid-March 2022, an independent Investigation Report found, on the balance of probabilities, that her allegations were ‘unfounded and not substantiated’.[324]
[324] Exhibit 1, pages 94-160.
The Tribunal has set out above in this decision a detailed background to this proceeding, including Ms McNaught’s relevant medical history. In her evidence to the Tribunal, Ms McNaught agreed that she has been prescribed Zoloft, or Sertraline, for various periods of time since 2002.[325] She described, or agreed to, experiencing a range of symptoms at one or more points over the course of this history, including anxiety, stress, feeling depressed, let down, angry, tearfulness, sleep deprivation, nervousness, over or under eating, withdrawn from social contacts, migraines or headaches, enlarged glands, feeling run down and hypertension.
[325] See also Exhibit 7, pages 74-79.
In this regard, Ms McNaught agreed that, in 2016, she presented to Dr Thomas in the context of issues with her mood, among other things, and she was worried about ‘enormous pressures at work’.[326] She agreed to reporting that certain things were being ‘covered up’, she had been ‘told to move her desk recently’ and perceived that this was ‘about control’.[327] To this end, Ms McNaught agreed with the proposition that she perceived that someone at work was controlling her, the pressures devalued her and it made her feel belittled.
[326] Exhibit 7, pages 40-41.
[327] Ibid., page 41.
Additionally, Ms McNaught agreed that the symptoms recorded by her general practitioner in April 2021, being stress, migraine, feeling rundown and symptoms similar to glandular fever, were the kinds of problems involved in the context of her workers’ compensation claim made in March 2022 and the subject of this proceeding.[328]
[328] Exhibit 1, pages 32-43 and Exhibit 7, page 7.
Furthermore, in her evidence to the Tribunal Ms McNaught agreed that, on 15 February 2022, she reported being under a lot of pressure at work and to her having a lot of issues related to family, work and finances.[329] Ms McNaught also agreed that, on 17 February 2022, she discussed her workload with Ms Szakal in the context of her shingles, she did not inform Ms Szakal that she considered this condition to be work-related, but indicated to her that at the time she had several health issues and was experiencing a range of personal matters that were very upsetting to her and her partner’s family. Ms McNaught agreed in cross-examination that these personal circumstances were, understandably, taking a psychological toll on her at the time. This discussion with her supervisor was one week before what was later claimed to be the ‘precipitating event’ at work for her psychological condition.[330]
[329] Exhibit 7, page 10.
[330] Exhibit 2.
Ms McNaught told the Tribunal that her view of the meeting with Ms Szakal and Mr Goddard on 24 February 2022 was that it was ‘rehearsed’. However, she agreed that this was her perception of events and that there was no time for the meeting to be rehearsed from when she moved from her desk, with Ms Szakal, to when they both attended on Mr Goddard at his office.
Turning to consider the expert evidence in this proceeding, as previously set out in these reasons, Associate Professor Mendelson diagnosed Ms McNaught with Recurrent Depressive Disorder. Following a close consideration of the evidence, including the medical history of Ms McNaught, the Tribunal finds that the opinion of Associate Professor Mendelson is compelling, and it accepts his evidence in this proceeding. For the following reasons, the Tribunal finds that Associate Professor Mendelson’s opinion accords with the weight of other medical evidence before the Tribunal.
Associate Professor Mendelson considered and gave due weight to Ms McNaught’s long medical history. When it was put to Associate Professor Mendelson in cross-examination that the symptoms he recorded in his report following his examination in December 2022 where all symptoms of an Adjustment Disorder, he told the Tribunal that they were symptoms of a depressed mood and, importantly, that ‘a longitudinal history’ is required in making an assessment of a person’s mental state. He further noted that, in the absence of such a history, or ignoring that medical history, these symptoms were not inconsistent with an Adjustment Disorder. However, Associate Professor Mendelson’s view, with which the Tribunal agrees, was that this is ‘not a correct way of reaching the psychiatric diagnosis when one has access to her history’. As a result, when taking a comprehensive longitudinal approach, as was undertaken by Associate Professor Mendelson, the Tribunal finds that the diagnosis of Recurrent Depressive Disorder was the most appropriate for Ms McNaught, including having regard to her treatment with anti-depressant medication over the preceding 20 years, augmented by tranquilisers, and the associated medical records.
In this regard, Associate Professor Mendelson’s opinion was supported by the available clinical records and despite the incomplete medical history provided to him by Ms McNaught at his examination.[331] As set out above in these reasons, Ms McNaught’s psychological history is extensive. Based on the medical records before the Tribunal, Ms McNaught’s psychological condition commenced over 20 years ago in or around 2002. Over these years, there were multiple references in the medical records to Ms McNaught having depression, feeling depressed or having a depressed mood. Having regard to the medical history detailed above, the Tribunal agrees with Associate Professor Mendelson’s opinion that Ms McNaught had an underlying psychological disorder which became manifest in 2002, she experienced subsequent psychological episodes over many years, there were periods of time when she was not prescribed psychotropic medication and did not experience symptoms, but when she did require such medication after various episodes over the last 20 years it was prescribed for a prolonged period of time. For example, Ms McNaught has been prescribed Zoloft on an ongoing basis since approximately 2012, a period of over 10 years. Associate Professor Mendelson opined that this requirement for anti-depressant medication at various times for a significant period of time over 20 years, together with all of these other factors, demonstrated Ms McNaught had Recurrent Depressive Disorder. Additionally, Associate Professor Mendelson disagreed that Ms McNaught suffered an ‘aggravation’ of her underlying condition because her symptoms at the time were consistent with her pre-existing condition. The Tribunal also accepts Associate Professor Mendelson’s opinion in relation to this matter. As he told the Tribunal, and which opinion accorded with the medical records set out above, Ms McNaught’s Recurrent Depressive Disorder was present before 2021, continued through that year and up until his assessment of her in late 2022.
[331] Exhibit 6.
More specifically, based on Associate Professor Mendelson’s opinion, the Tribunal finds that the events of 24 February 2022 did not cause any new or superimposed diagnosable psychiatric disorder in Ms McNaught; her pre-existing Recurrent Depressive Disorder continued and persisted through this period of time. That is, Ms McNaught’s symptoms experienced from time-to-time are an expression of her underlying psychological condition and people with Recurrent Depressive Disorder can interpret certain environmental stressors in such a way so as to feel underappreciated, taken for granted or treated unfairly. In this way, Ms McNaught’s documented negative feelings towards her managers, the development of a sense of grievance and resentment towards her employer over a period of time before 24 February 2022 and her experiencing feelings of being belittled and distraught were all consistent with her underlying condition of Recurrent Depressive Disorder. As Associate Professor Mendelson opined, as a result of Ms McNaught’s pre-existing Recurrent Depressive Disorder, the particular events of 24 February 2022 did not ‘de novo lead to any superimposed mental disorder’. Based on Associate Professor Mendelson’s opinion, and the available medical records, the Tribunal finds that Ms McNaught’s symptoms in and around February 2022 were consistent with her feeling emotional distress and distraught in relation to her employment. However, these symptoms were experienced against a background of her Recurrent Depressive Disorder and the Tribunal finds that it was this pre-existing condition which caused her symptoms rather than the events at work themselves. Accordingly, the Tribunal is satisfied that Ms McNaught did not suffer an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by her employment with K & S Freighters.[332]
[332] Comcare v Mooi (1996) 69 FCR 439 at [443]-[444].
Finally, the Tribunal considers that Associate Professor Mendelson provided an independent expert opinion to the Tribunal in this proceeding by way of a thorough review of Ms McNaught’s medical history in the clinical records, an examination of her and an appropriate consideration of the range of mental disorders that may be diagnosable. On this latter point, Associate Professor Mendelson told the Tribunal that a psychiatrist must consider a hierarchy of diagnoses when assessing a person who appears to have a mental illness and that this should be done in order from the most severe disorders to the least severe disorders. The Tribunal agrees with Associate Professor Mendelson’s opinion that an Adjustment Disorder lies at the lower end of such a hierarchy, noting that it is a psychological response to a stressor that exceeds what would normally be expected to an environmental stressor or physical illness. For example, one of the accepted criterion for an Adjustment Disorder is that the ‘stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder’.[333] Additionally, Associate Professor Mendelson made appropriate concessions in his evidence to the Tribunal, such as acknowledging that, while certain negative feelings towards an employer can be consistent with Ms McNaught’s underlying condition, they can also be held by people that do not have a diagnosable condition. He also agreed that he could not opine on what Dr Thomas had contemplated when he completed a medical certificate for Ms McNaught, diagnosing her with ‘Adjustment Disorder – alleged stressor at work’, but did not indicate on that document how her mental health function was affected.[334] For all of these reasons, the Tribunal considers that Associate Professor Mendelson’s methods in formulating his opinion were appropriate and impartial.
[333] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision, Washington, DC, American Psychiatric Association, 2022, page 319.
[334] Exhibit 1, pages 30-31.
Based on the above findings, it follows that the Tribunal does not prefer or accept Dr Epstein’s evidence in this proceeding. To further elaborate, the Tribunal sets out below some additional reasons for not accepting Dr Epstein’s opinion.
Most starkly, and in contrast to Associate Professor Mendelson, Dr Epstein gave no weight to Ms McNaught’s longitudinal history and specifically to her longstanding psychological symptoms and treatment in response to a range of life and other work events before 2022 and including other non-work related factors that she had reported as late as 15 February 2022, being nine days before the purported ‘precipitating event’.[335] He acknowledged to the Tribunal that he gave no weight to the numerous episodes over a period of 20 years in which Ms McNaught had experienced psychological symptoms, environmental or life stressors and been prescribed with anti-depressant medication prior to 2022. While Dr Epstein agreed that a longitudinal psychological history was relevant to an assessment, he considered these earlier events irrelevant to Ms McNaught’s current presentation; they were ‘relatively minor’, occurred intermittently, and in the context of particular stressors. Accordingly, this led Dr Epstein to conclude that he could see ‘no other factors’ in Ms McNaught’s life that ‘could have contributed to her current situation’ other than her employment.[336]
[335] Exhibit 2 and Exhibit 7, page 10.
[336] Exhibit 3.
For all the previously stated reasons, the Tribunal does not consider that such a finding is open on all of the available medical evidence, and it does not accept this opinion of Dr Epstein. As a result, the Tribunal considers that Dr Epstein’s approach did not have due regard to the long psychological history that, in the Tribunal’s view, plainly indicates the existence of an underlying condition long before the events in Ms McNaught’s current employment in 2022. For example, Dr Epstein agreed in cross-examination that Ms McNaught had a recurrent psychological history, which included recurrent bouts of depression and that these have lasted for a minimum of two weeks on occasion and been separated by several months. The Tribunal notes that these factors contribute to a diagnosis of Recurrent Depressive Disorder under the relevant diagnostic instrument.[337] However, having acknowledged these factors, Dr Epstein disagreed that this was consistent with such a diagnosis.
[337] Exhibit 6.
Dr Epstein’s evidence was also inconsistent with his aforementioned evidence about giving no weight to Ms McNaught’s earlier employment matters, including during her employment with K & S Freighters. For example, when pressed in cross-examination about the scope of the employment matters he considered in forming his opinion of Ms McNaught’s psychological condition, Dr Epstein told the Tribunal that he looked ‘at her employment in its totality’ and its impact, rather than solely at the events of 24 February 2022. The Tribunal finds that Dr Epstein’s opinion did not satisfactorily consider, evaluate and explain his position in relation to the possibility that Ms McNaught’s longstanding psychological symptoms may have predisposed her to suffering from the same psychological symptoms in 2022. This approach stands in contrast to that of Associate Professor Mendelson, as detailed above in these reasons.

Furthermore, while giving no weight to Ms McNaught’s psychological history, Dr Epstein considered irrelevant matters, such as his view of the outcome of investigations into complaints made by employees in relation to their workplace.[338] He conceded in cross-examination that it was not his role as an independent expert to start advocating about investigation reports, he had taken into account an irrelevant consideration and this opinion was said to have been provided in his report ‘as a person’ and not as a psychiatrist. Dr Epstein then later changed his evidence and told the Tribunal he did not consider it an irrelevant consideration. The Tribunal finds that the inclusion of this commentary by Dr Epstein was unnecessary and stands in contrast to his omission of any detailed evaluation of the import of Ms McNaught’s longstanding psychological history to her current presentation, which was relevant to this proceeding. Moreover, and despite his aforementioned evidence regarding the independent investigation report, Dr Epstein conceded that it was ‘a fair comment’ to suggest that he would conclude that Ms McNaught did not have a condition which was work-related if the matters she asserted that led to that investigation report were not established. To this end, the Tribunal again notes that the investigation report found Ms McNaught’s complaints were ‘unfounded and not substantiated’.[339] Those findings, to the extent that they cover matters before the Tribunal, are consistent with the weight of evidence in this proceeding. For all of the aforementioned reasons, the Tribunal prefers the evidence of Associate Professor Mendelson.
[338] Exhibit 3.
[339] Exhibit 1, page 95.
Accordingly, the Tribunal finds that Ms McNaught’s underlying or pre-existing psychological condition caused her to misinterpret workplace events in and around 2022, and earlier, as her being belittled or undervalued and the medical records demonstrate that this was not an isolated event, but had also previously occurred in 2007 and 2016.[340] That is, Ms McNaught’s pre-existing condition caused her to fix on events in the workplace and experience symptoms, rather than any workplace events themselves causing her to experience symptoms. In short, the accepted medical evidence leads to the conclusion that Ms McNaught’s psychological condition is ‘part and parcel’ of her and causes her to misinterpret situations; the condition leads to symptoms, rather than the employment circumstances causing any such condition or aggravation of the condition. In this way, Ms McNaught inaccurately attributed the symptoms of her condition to her employment, rather than being as a result of the condition itself. As set out above, and in accordance with Power, Dean and WNBR, the Tribunal’s findings mean that Ms McNaught cannot satisfy section 5B of the SRC Act.
[340] Exhibit 7, pages 28 and 40-41.
For the avoidance of doubt, and based on the Tribunal’s findings in relation to Ms McNaught’s ailment and the contribution from her employment in accordance with the opinion of Associate Professor Mendelson, together with the findings of the independent investigation report, the Tribunal is satisfied that her perceptions of events in the workplace were false and were the result of her condition and therefore did not contribute in a ‘material degree’ to that ailment or to an aggravation of the ailment, being the previous threshold discussed in Wiegand v Comcare [2002] FCA 1464 at [31], or to the current, and higher, ‘significant degree’ evaluative threshold, applicable following the aforementioned legislative amendments to the SRC Act which commenced in 2007. While certain matters occurred in the workplace, Ms McNaught’s perceptions of them led her to believe that they were rehearsed or designed to force her out of her employment. On the weight of evidence before the Tribunal, such a view was not based on matters that actually occurred or were being considered by her employer.
Based on the Tribunal’s findings in relation to the expert evidence in this proceeding, and its acceptance of Associate Professor Mendelson’s opinion, the Tribunal is satisfied that the correct diagnosis for Ms McNaught’s psychological condition is a pre-existing Recurrent Depressive Disorder. As a result, and for the above reasons, the Tribunal finds that Ms McNaught’s employment with K & S Freighters did not contribute to her Recurrent Depressive Disorder and it also did not cause an aggravation of this condition.
Therefore, the Tribunal finds that Ms McNaught cannot satisfy the test for a ‘disease’ in section 5B of the SRC Act and accordingly cannot be found to have suffered an ‘injury’ under section 5A of the SRC Act so as to make K & S Freighters liable to pay her compensation. As a result, the Tribunal does not make any findings in relation to the subsequent issues in this proceeding, being whether, if the test under section 5B of the SRC Act were satisfied, any contributing employment factors were ‘reasonable administrative action taken in a reasonable manner’, pursuant to section 5A, and whether Ms McNaught made a ‘wilful and false representation’, pursuant to subsection 7(7) of the SRC Act, that she had not previously suffered from such a ‘disease’.
For completeness, the Tribunal has considered the matters set out in subsection 5B(2) of the SRC Act that ‘may be taken into account’ in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment. These matters include: the duration of the employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; and any activities of the employee not related to the employment and any other matters affecting the employee’s health. Having regard to this provision, based on the evidence set out above in these reasons and the Tribunal’s findings, it is satisfied that Ms McNaught’s ailment was not contributed to, to a significant degree, by her employment with K & S Freighters. The Tribunal has accepted the comprehensive and detailed evidence of Associate Professor Mendelson that Ms McNaught’s ailment, Recurrent Depressive Disorder, was pre-existing and her employment with K & S Freighters made no contribution to this condition.
While it is accepted by the Tribunal that Ms McNaught experienced an emotional response to events in her employment, this is not sufficient to establish that her ailment was contributed to, to a significant degree, by her employment. For the avoidance of doubt, and for the reasons previously stated, this response also does not constitute an aggravation of an ailment. The weight of expert medical evidence does not establish that Ms McNaught’s employment with K & S Freighters contributed to her pre-existing ailment, including to the requisite significant degree under the SRC Act.
As a result, the Tribunal has found that Ms McNaught has not suffered a ‘disease’ under section 5B of the SRC Act and therefore has not suffered an ‘injury’ pursuant to section 5A of the SRC Act. For these reasons, Ms McNaught’s claim for compensation under the SRC Act is unsuccessful. Accordingly, K & S Freighters is not liable to pay compensation to Ms McNaught pursuant to section 14 of the SRC Act.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 305 (three-hundred and five) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

...........................[SGD].............................................
Associate
Dated: 9 October 2023

Date(s) of hearing:

7-9 August 2023

Date final submissions received:

16 June 2023

Counsel for Applicant:
Mr Brian Hilliard

Solicitor for Applicant:

Ms Gabrielle Giunta, Slater & Gordon Lawyers

Counsel for Respondent:

Mr Peter Woulfe

Solicitor for Respondent:

Mr Michael Snell, McInnes Wilson Lawyers

Date(s) of hearing:	7-9 August 2023
Date final submissions received:	16 June 2023
Counsel for Applicant:	Mr Brian Hilliard
Solicitor for Applicant:	Ms Gabrielle Giunta, Slater & Gordon Lawyers
Counsel for Respondent:	Mr Peter Woulfe
Solicitor for Respondent:	Mr Michael Snell, McInnes Wilson Lawyers