Mitchell and Comcare (Compensation)
[2021] AATA 3376
•17 September 2021
Mitchell and Comcare (Compensation) [2021] AATA 3376 (17 September 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4342; 2020/2610
Re:Albertus Mitchell
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:17 September 2021
Place:Sydney
In accordance with s 43 of the Administrative Appeals Tribunal Act 1975 (Cth):
(a)The reviewable decision dated 1 July 2019 is affirmed.
(b)The reviewable decision dated 23 April 2020 is set aside and in substitution find that as at 5 December 2019, the applicant did not suffer a ‘disease’ in accordance with s 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Therefore, the pre-requisites, specified under s 37(1) for making any determination, are not fulfilled.
(c)There is no order as to costs.
..................................[sgd]......................................
Senior Member A Poljak
CATCHWORDS
COMPENSATION – applicant previously employed by Department of Defence – adjustment disorder – anxiety – depression – adult attention deficit disorder – hepatitis B – post traumatic stress disorder – renal failure – back pain – claim for boxing classes to be compensated under s 16 – claim for law degree to be included as part of rehabilitation program under s 37 – whether applicant continued to suffer from aggravation of compensable injury during relevant period – whether applicant still suffered a ‘disease’ as defined in ss 4 and 5B – reviewable decision related to boxing classes claim affirmed – reviewable decision related to law degree claim set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Safety, Rehabilitation and Compensation Act 1988(Cth) ss 4, 5A, 5B, 14, 16, 19, 37
CASES
Albertus Mitchell and Comcare [2016] AATA 871
Kirkpatrick v Commonwealth (1985) 9 FCR 36
Pedersen and Comcare [2016] AATA 449
Prain v Comcare (2017) 256 FCR 65; [2017] FCAFC 143
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Senior Member A Poljak
17 September 2021
Mr Mitchell, the applicant, has a Bachelor of Electrical Engineering and a Master of Technology Management from the University of NSW. He has also obtained a Certificate IV in Accounting, a Master of Business Administration, and a Certificate II in Security Operations.
The applicant commenced employment with the Department of Defence (Defence) on 23 October 2006. After 28 October 2009, the applicant’s employment with Defence was terminated.
On 10 October 2007, the applicant claimed that he suffered a psychiatric injury which he alleged was caused by several workplace factors including harassment and interactions with his supervisor. On 9 February 2008, the respondent accepted liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for adjustment reaction with mixed emotional features with a deemed date of injury of 13 June 2007 (compensable injury).
On 3 January 2008, the applicant reportedly stated to Anita Boettger, rehabilitation consultant, that he would kill himself and take other people (Defence personnel) with him. The applicant denied making these threats. On 9 December 2009, the applicant lodged a further claim for compensation for ‘generalised anxiety disorder and depression’. The applicant stated his injury occurred on 3 January 2008 ‘after telephone conversation with rehabilitation provider, Ms Anita Boettger, the Crisis Assessment Treatment Team (CATT) arrived at my home’. On 25 March 2010, the respondent denied liability for the claimed conditions of ‘generalised anxiety disorder and depression’, which it affirmed on 21 May 2010.
On 8 April 2011, by a consent decision, the Tribunal determined that the applicant suffered an ‘aggravation of adjustment disorder with anxious and depressed mood’ that was significantly contributed to by his employment, with a deemed injury date of 11 July 2009 (the 2009 aggravation). It was also determined that the applicant had not suffered a compensable injury on any date between 3 January 2008 and 29 June 2009.
On 27 January 2016, the respondent determined that the applicant was no longer suffering from the effects of the compensable injury, which it affirmed on 2 March 2016. On 4 November 2016, the Tribunal set aside the reviewable decision dated 2 March 2016, and decided that the applicant continued to be entitled to compensation under sections 16 and 19 of the Act.
On 2 March 2018, the applicant claimed, inter alia, ‘[a]pproval for re training part time (and funding) Legal Studies for a Legal career (Section 37 (3) SRA (sic) Act, 1988)’. On 12 April 2018, the respondent denied the claim for legal course fees. This was affirmed on 3 May 2018.
On 18 June 2018, Defence closed the applicant’s rehabilitation program on the basis that the applicant ‘declined rehab and GP has deemed unfit to RTW’.
On 27 February 2019, the applicant provided the respondent with various documents including invoices relevant to his university degree and a report of his treating psychiatrist, Dr Lee, dated 15 February 2019 which recommended the applicant continue with personal training 3-4 times per week.
On 18 March 2019, the respondent informed the applicant that it was unable to reimburse the expenses for boxing classes because he needed to provide medical evidence to show how the boxing classes related to his compensable condition, and invited him to submit evidence to that effect. On 23 April 2019, having received no evidence from the applicant, the respondent made a determination refusing liability for the boxing classes under section 16 of the Act. On 30 May 2019, the applicant sought a reconsideration of this decision.
On 5 March 2019, Defence wrote to the applicant and advised that it was unable to approve retraining for part-time attendance at university to complete a legal degree. The applicant sought a review this decision.
On 1 July 2019, the respondent affirmed the determination dated 23 April 2019, denying the applicant’s claim under s 16 of the Act that boxing-type classes for the period 10 September 2018 to 30 February 2019 constituted medical treatment which was reasonable to treat the current compensable effects of the 2009 aggravation. This is the decision under review in proceeding no. 2019/4342 (Gym Claim).
On 23 April 2020, the respondent affirmed the determination dated 5 December 2019, in which Defence denied the inclusion of a law degree as part of a rehabilitation program under s 37 of the Act. This is the decision under review in proceeding no. 2020/2610 (Law Degree Claim).
Issues
The issues regarding the gym claim are as follows:
(a)Whether the applicant has suffered from the 2009 aggravation since 10 September 2018 and if so, whether it is still a ‘disease’ as defined in s 5B of the Act;
(b)Whether the applicant is entitled to compensation under s 16 of the Act, which will require consideration of:
(i)whether the boxing classes are ‘medical treatment’ as defined under s 4 of the Act, including sub-paragraphs (a) or (b) of the definition
(ii)whether boxing classes are obtained in relation to the effects, in the period 10/9/18 – 30/2/19, of the 2009 aggravation.
(iii)whether boxing classes are reasonable in the circumstances.
The issues regarding the law degree claim are as follows:
(a)Whether the applicant suffered from the 2009 aggravation on 5 December 2019 and if so, whether it was still a ‘disease’ as defined in s 5B of the Act;
(b)Whether, having regard to s 37(1) of the Act, any rehabilitation program should be provided from 5 December 2019;
(c)If providing a rehabilitation program, whether it is the preferable decision for the program to include undertaking a law degree, after having regard to the factors under s 37(3) of the Act.
Applicant’s Evidence
The applicant claims that boxing classes help him to feel better, help him manage his stress, have social benefits, and provide him with greater self-esteem. He claims that these benefits enable him to undertake his university studies. At hearing, the applicant advised that the boxing classes consisted of some pad work, a little bit of fighting, weights, and general fitness.
In cross examination, the applicant was asked about a previous diagnosis of Dr Larsen for post traumatic stress disorder and prior back issues. Dr Larsen suggested in 2013 that the applicant be restricted to a 2.5kg weight limit and limited bending and twisting. The applicant said he did not recall any issues with his back but agreed that he was told to be careful. He reiterated that he needed to do exercise for his mental health and that he found kickboxing worked for him.
At present the applicant said he was paying for his university studies and his gym classes out of his own pocket. At hearing he expressed that he was ‘trying to move on’ and was seeking to expand his vocational options because there are ‘no jobs available for [him]’ in his previous profession that don’t require security clearance.
At hearing the applicant confirmed that he did not complete his MBA but discontinued the course in 2013 to complete a Graduate Certificate IV in Accounting, which he completed in 2015. Since 2014, the applicant did not make any job applications using this qualification. At hearing he said this was because he ‘required assistance’. The applicant said he last applied for a job in 2016 and has not updated his curriculum vitae since. When pressed in about how his law degree will be any different to his previous qualifications in enabling him to obtain work, the applicant said it would give him more opportunities and he hoped Comcare would help. He also said the university may help him get a job.
At the date of hearing, the applicant had completed 12 or 13 subjects and had another 12 more the complete. He started his law degree in 2017. The applicant said he expected to compete his studies and practical legal training by the end of 2022. He had not yet applied for any clerkships or paralegal jobs as he said ‘it’s the references that I’m having concern about… I’m trying to improve my GPA as well’. The applicant said his goal after completing his study and training was to go into legal practice. He said he had an interest in mental health and working for legal aid. The applicant said he was not intending to seek work unless assistance was given and unless he finished his study.
The applicant acknowledged that it was false to say that he had 16 years of continuous employment history. He accepted that between 1997 and 2006 he had up to six years of employment in private practice. During the period he worked multiple contracts, some as short as one month, in seven different jobs. At the hearing, the applicant was unable or unwilling to provide much detail about the reasons behind his inconsistent employment history.
Earlier medical evidence reports that the applicant suffered childhood trauma involving sexual and physical abuse. At hearing the applicant became extremely upset and agitated when questioned about his childhood and why he never reported the trauma to his current treating medical practitioners. The applicant said he did not discuss his childhood trauma with Dr Chow because he had ‘moved on’ and ‘that’s not the concern that [he has] and the issues that [he has]‘. He said he only gets upset about it when someone brings it up.
Relevant Aspects of Medical Evidence
Dr Lee
Dr Lee, the applicant’s current treating psychiatrist, provided several reports in these proceedings and gave evidence orally at hearing. In a report dated 27 January 2016, Dr Lee advised that she had been treating the applicant since 2014. On his initial presentation in March 2014, Dr Lee said the applicant was suffering from an adjustment disorder with anxious and depressed mood and adult Attention Deficit Disorder (ADD). Dr Lee opined that the applicant’s adjustment disorder ‘was clearly and significantly related to workplace difficulties he experienced in 2007 and the subsequent long term loss of employment and interruption to his career’. Dr Lee further noted the possible effects of Hepatitis B treatment on mood from 2007 although it was ‘unlikely to cause Mr Mitchells symptoms of anxiety and depressed mood as it did not coincide with the symptoms which he reported and experienced since 2006’.
Dr Lee reported that the applicant’s anxiety and depressive symptoms and overall functioning had improved significantly since 2014 but his symptoms had not completely subsided, and he still experienced anxiety when discussing previous workplace difficulties. Dr Lee considered the applicant was fit to return to part time work with a hope of building to full time within 12 months. Dr Lee further advised that the applicant ‘may well return to pre-injury functioning if he has the opportunity and specialised support to return to gainful employment and / or studies this year with psychiatric monitoring and treatment. If this is not able to be achieved in the next year or so it is likely that [the applicant] will continue to relapse with symptoms of anxiety and depression, loss of confidence and angry feelings about the significant interruption to his career’. Dr Lee also noted that it was ‘likely that [the applicant’s] psychiatric condition may worsen if there are ongoing disputes with insurance and/or workplace/employers in this regard’.
In a report dated 14 February 2018, Dr Lee noted that the applicant’s current symptoms were ‘particularly in regard to his future and work, chronic and angry feelings of injustice particularly in regards to his loss of career’.
On 18 April 2018, Dr Lee wrote a letter to the Deputy Dean of School of Law at the Western Sydney University in support of the applicant’s application for withdrawal from subjects without academic penalty. Dr Lee advised that the applicant’s pre-existing anxiety disorder had been worsened by the demands of studying two subjects and that he was not able to complete the requirements. As such, Dr Lee recommended that he withdraw from one subject to lighten his academic load to enable him to continue to study.
In a report dated 15 February 2019, Dr Lee reported that the applicant continued to attend for treatment. He was unemployed but was engaged in full time legal studies at Notre Dame University. Dr Lee stated that the applicant continued to suffer from chronic adjustment disorder with anxiety and depressive symptoms, but that these symptoms had lessened since her last report in February 2018. Dr Lee stated:
[The applicant] is feeling more hopeful in regards to his future employment… remains vulnerable to relapse in depression and anxious moods. He remains on medication including Abilify and Valdoxan and continues to use anxiety management strategies and attend for treatment to prevent his relapse… attends regularly for counselling and monitoring of his medication and is compliant with treatment. [The applicant] continues to benefit from personal training 3-4 times a week.
Dr Lee stated that the applicant showed significant motivation to retrain and re-establish his career and was motivated and compliant with his anxiety management and medication. The applicant had organised academic support for his studies due to difficulties he faced in concentration and at times low mood. Dr Lee advised that the applicant was unable to return to preinjury duties and engineering in the future as the ‘environment triggers past negative experiences and bullying’ which she says increases the applicant’s anxiety significantly.
At hearing, Dr Lee was asked about the significance of the applicant having the stable work history of 16 years she detailed in her reports. She agreed it was significant in forming her opinion about whether the applicant had a personality disorder because it related to his level of functioning. Dr Lee said that based on the applicant’s actual work history, it was possible he had a personality disorder. Despite this, Dr Lee said it was unlikely to change the applicant’s treatment, but it could affect likely outcomes. She said it would influence her opinion about causation and continuing symptoms. At hearing, Dr Lee said the law degree may enable the applicant to get some experience with study and to get some references however ‘totally’ agreed that given the applicant’s long period of unemployment, it was unrealistic to think he would be different once he obtained the qualification. Dr Lee agreed that the applicant’s long period of unemployment was a significant factor.
Dr Lee said it appeared to her that the applicant’s ongoing symptoms were all work related. She was unable to separate the applicant’s conditions including hepatitis B, renal failure, ADD and adjustment disorder in regard to their impact on his capacity such as his loss of confidence, ongoing symptoms and difficulty getting work. She said there was obviously a number of factors but thought work related issues such as the long period of unemployment, his lack of confidence, his triggering of his anxiety in returning to workplaces and his need to change careers because of his lack of security clearance were the dominant factors in his difficulty getting back into employment.
Dr Lee agreed that the applicant would be vulnerable to work stressors in the future. She readily accepted the assumption that working in a legal practice is quite stressful and that there are high levels of mental health issues among lawyers working in a legal practice. Dr Lee said she had discussed this with the applicant at length and said he was looking towards getting employment with his law degree and working in an area that was supportive. She said there would have to be modifications in his workplace for him to be successful long term. Namely, that the workplace would be able to support any relapses he has with his mental health and the possibility of working reduced hours.
Regarding the gym classes, Dr Lee accepted at hearing that if the applicant was at risk of head injury, it was not advisable, but this needed to be weighed up against the psychological benefits.
Dr Chow
In a report dated 16 March 2017, Dr Chow, consultant psychiatrist, reported that the applicant suffered from an ongoing chronic adjustment disorder. He opined that the applicant had ‘a number of underlying personality vulnerabilities which have affected his ongoing engagement within the rehabilitation process and his dealings with the Department of Defence. He has personality vulnerabilities with paranoia and interpersonal hypersensitivities. Apart from that he also has fixation and unrealistic expectations within his rehabilitation process and together with unconvinced commitment led to his recurrent failure’. Dr Chow reported the applicant had the capacity to work up to 25 hours per week however, noted ‘it is uncertain the jobs the rehabilitation can help him find will be up to his expectations’. He further stated:
He will need ongoing psychotherapy to gain strategies to help him contain his escalating personality difficulties in order to prevent any further interpersonal relationship difficulties with his rehabilitation officer or in a new workplace.
In my opinion his condition is largely perpetuated by his personality difficulties rather than the events that occurred in his previous employment with the Department of Defence.
The prognosis of his condition is unclear but appeared guarded especially with the number of years of unemployment and his ongoing interpersonal difficulties.
Dr Chow considered in a report dated 6 March 2020, that the applicant continued to suffer from an adjustment disorder but noted there had been ‘clear improvement’. Dr Chow noted that since his last assessment the applicant had gained significant improvements and despite some ongoing symptoms, his level of functioning has improved. He recommended ongoing medical treatment with his psychiatrist, Dr Lee and ‘ongoing exercise and vocational rehabilitation with study and job support’. Dr Chow considered the applicant had a partial incapacity for work, noting that he was studying part-time three days a week and that any form of exercise would provide the applicant with ‘some relief to depression as it provides routine and some temporary relief to mood’. Dr Chow further noted that the applicant found kickboxing and vault boxing to be more beneficial than other forms of exercise however, he was unaware of ‘any strong research’ which indicated that one form of exercise was better than another. Dr Chow considered that it was ‘reasonable for [the applicant] to engage in depending on his financial capability’. He further noted that exercise only provided temporary/short-lived relief and that it was an ‘adjunct support’ to help the applicant improve his tolerance, which provides an ‘indirect benefit helping him to improve his tolerance to engage in study and ultimately improve his outcome’. In regard to long-term benefits, Dr Chow stated that ‘as long as the individual is continuing the exercise they would be able to maintain the effects’ of improved energy, improved personal, physical and distress tolerance and ability to engage in routine and interact with people.
In a supplementary report dated 19 May 2020, Dr Chow noted that the applicant had been engaged in regular university studies in a law degree consistently for over two years and reported that in his view, the applicant’s psychological state and motivation had improved. Dr Chow stated that the applicant’s ‘chosen retraining path’ was reasonable from a medical perspective.
In a supplementary report dated 4 August 2020, Dr Chow stated ‘[a]fter reviewing the materials provided and based on my most recent assessment of the applicant on 24 February 2020, it is my view that the applicant continues to suffer from the aggravation of adjustment disorder with anxious and depressed mood he suffered in 2009’. He further stated:
[The applicant’s] psychological difficulties happened over his alleged difficulties with a manager and the subsequent events within the rehabilitation period.
Unfortunately, the experience then escalated his underlying personality vulnerabilities and he then displayed mood dysregulation, distress intolerance, escalated interpersonal hypersensitivities and paranoia.
A number of rehabilitation failures would have further affected his self-esteem, sense of self and also his relationship within the claims system.
Regarding exercise, Dr Chow stated personal training and boxing-type classes were a type of exercise and said that ‘[w]hile they are not a direct medical treatment, they would have a therapeutic effect on the individual’s mental health’.
Dr Chow said he considered the applicant currently fit to engage in returning to employment using one of his qualifications, at least starting from a part-time basis. From a psychiatric perspective, he said that it appeared the applicant had ‘been motivated and focusing on finishing the degree. Ultimately whether he will be successful in rehabilitating into a new occupation will depend on his upcoming engagement and motivation and also his ability to contain his personality vulnerabilities’.
At hearing, Dr Chow confirmed that the history given to him by the applicant was detailed in his reports. He advised that any past social or medical issues were relevant in determining the applicant’s psychological history and forming his opinion on recent issues as it helped to determine vulnerabilities and personality or developmental issues. Dr Chow also agreed that the disclosure of past treatment by a psychiatrist and a history of sexual childhood abuse would be relevant.
Dr Chow confirmed that the applicant reported having 16 years of work experience. Considering the applicant’s actual work history, Dr Chow advised that he needed to explore why the applicant had so many different jobs. He said this could reflect on later difficulties the applicant was having during the rehabilitation period and that with more information he would want to revise his opinion.
Further, Dr Chow had opined in his reports that a law degree was reasonable study for the applicant. He said that at the time this was based on sustainability and the applicant’s level of resilience to carry through and carry out job seeking. However, at that time he thought the applicant had a strong work history. Based on the new information, Dr Chow said he would like to review this opinion after obtaining more information from the applicant.
Dr Chow was then asked to assume that all of the events that occurred after the applicant left Defence in October 2009 did not constitute employment; events such as underlying vulnerabilities, personality factors, number of years out of the workforce, his medicolegal proceedings, other matters affecting his health, the Comcare claims management process, life stressors, and interpersonal relationships. Looking at the adjustment disorder in 2020, Dr Chow said the contribution of work events up to October 2009 would definitely be reduced and ‘perhaps we could use the words limited and not as significant when it’s already 10 years further’. He said the events 10 years ago, would have become much more limited. Dr Chow said that there would be more information that might be relevant about the applicant’s history prior to working at Defence, that might also influence that opinion as if the pre-employment history suggests an individual with significant personality structure problems, then that might explain the subsequent difficulty within the rehabilitation picture. And therefore, the ongoing difficulties might be more due to underlying psychiatric issues rather than ongoing contribution by the workplace.
Regarding the gym claim, Dr Chow could not comment about any physical aspects or medical restrictions on the applicant undertaking boxing classes. He was only able to comment on the impact to the applicant’s mental health and other aspects were not in the ‘forefront of [his] thinking’ when forming his opinion.
Additional relevant aspects of medical evidence
In a report dated 24 May 2007, Noel Eastwood, psychologist, recommended the applicant cease all contact sport on account of head injuries due to probable concussions from full contact head blows he sustained from karate. Mr Eastwood also reported that the applicant’s EEG results were suggestive of adult ADD.
On 9 August 2010, Dr Larsen noted ‘L45 + L5S1 disc degeneration (back pain)’ as a health issue for the applicant in a GP Mental Health Care Plan. Medical evidence also states that the applicant had a ‘L4,5 + L5,S1 intervertebral disc herniation’ prominent on the right ‘foramenal component at S1. Disc degeneration L3,4. Scoliosis; facet joint arthritis, spondylitic change sciatic pain’. Date of diagnosis 10 February 2010 by MRI with ‘wear and tear to spine over some years until acute onset of pain 2009’.
On 10 June 2011, the applicant was admitted to St John of God Health Service Richmond with ‘bipolar disorder- depressive episode with psychotic features’. He was discharged on 25 June 2011. The discharge summary recorded that the applicant reported ‘poor sleep, poor appetite and low mood in the context of being bullied by colleagues at work…he felt he was watched and spied upon… [he] disclosed intentions to [c]hang[e] his name and to “change his eyes as well” so he wouldn’t feel “targeted” as an Asian’.
On 3 October 2012, Professor Farrell, hepatologist, advised that the applicant was treated with Interferon in 2007 for hepatitis B. He reported that the applicant ‘became quite depressed during the interferon period and during the last few years there have been some substantive psychological health issues’.
Consideration
The decisions under review concern only s 16 compensation and a s 37 rehabilitation program. I cannot review the initial s 14 liability. However, I must determine the nature of the injury for the purpose of its present review, and in so doing can make findings inconsistent with the original s 14 decision to accept liability: Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253.
Section 16 of the Act relates to the ‘injury’ the employee has suffered and its effects as at the time treatment was sought. Section 37 of the Act provides that a rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
‘Injury’ is defined in s 5A(1) of the Act as follows:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
‘Disease’ is defined in s 5B of the Act as follows:
Definition of disease
(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.
I accept that in the relevant 2018 and 2019 period, the applicant continued to suffer from symptoms of an adjustment disorder however, the adjustment disorder no longer has a significant impact on the applicant’s functioning as opposed to the far greater impact of other contributing factors.
It is plain on the available medical evidence that the applicant had a history of anxiety and depression prior to joining Defence on 23 October 2006. At the time he started work at Defence, he had pre-existing personality vulnerabilities and interpersonal sensitivities as a result of childhood trauma and attachment disruptions. The applicant also suffered hepatitis B which had not been successfully treated when he started as a Defence employee. He commenced treatment with Interferon sometime in 2007 which had side effects including on his mood. In 2008, the applicant’s six-year relationship with his partner ended. The applicant agreed that events from 3 January 2008 to 29 June 2009 did not result in him suffering a compensable disease and I accept that he suffered an aggravation in July 2009. In 2011 the applicant suffered more severe psychological symptoms unrelated to his aggravation, being psychotic symptoms and paranoid delusions.
There have been numerous diagnoses attributed to the applicant by medical professionals including, but not limited to, anxiety, depression, ADD, panic disorder, post-traumatic stress disorder (PTSD) and bipolar disorder. The applicant also suffers from renal issues and has a history of some back pain and concussions.
Having specific regard to the medical evidence contemporaneous to the relevant 2018 and 2019 period in these proceedings, it is plain that the applicant minimised his psychiatric, social and interpersonal history and omitted important matters in his assessments. This is consistent with the variable information he has given other psychiatrists in the past. Neither Dr Chow nor Dr Lee have had a full history of the applicant, which is complicated and multi-faceted. Both were told by the applicant that he had 16 years of employment in the private sector before coming to Defence in October 2006. This gave the impression that the applicant had a long period of occupational stability which would tell strongly against the contribution of factors besides the Defence employment. When, in fact, between 1998 and 2006, the applicant worked multiple contracts, some as short as one month, in seven different jobs. The applicant did not complete his bachelor's degree in systems engineering until 1998 when he was 24 years old. Evidence has been filed in these proceedings that the applicant had approximately 6-7 years of employment after he finished that degree.
The applicant’s withholding of important information has directly led Dr Lee and Dr Chow to overestimate the employment contribution to his psychological condition. Additionally, Dr Lee was unable to separate the contribution of the applicant’s adjustment disorder on the applicant’s capacity and Dr Chow advised that he would like to revise his previous opinions to take into account new information he obtained during hearing in order to consider any underlying psychiatric issues. As such, I do not place much weight on the evidence of Dr Lee and Dr Chow regarding contribution.
I note that the Tribunal considered whether the aggravation suffered in 2009 was on going in 2016 in the decision Albertus Mitchell and Comcare [2016] AATA 871. However, among other things, the evidence before the Tribunal was that the applicant had 16 years of employment in systems engineering prior to coming to Defence. This is the same false premise accepted by Dr Lee and Dr Chow in arriving at their original opinions as to contribution. The 2016 tribunal decision was also made before the Full Federal Court made its decision in Prain v Comcare (2017) 256 FCR 65; [2017] FCAFC 143 (Prain). The question of what constitutes an employment contribution is canvassed in the Full Federal Court’s reasoning at [79]-[87].
Having specific regard to the evidence available in these proceedings, I am convinced that since 10 September 2018, the contribution of other factors had crowded out the contribution of employment events, which occurred over a decade ago. These include factors already identified above, which include pre-disposing factors such as the applicant’s personal history of anxiety and depression and personality vulnerabilities; childhood trauma and attachment issues and any effects this has had on the applicant’s personality structures. These factors are not ‘employment’ factors. It is also apparent that anxiety derived from the applicant’s litigation with Comcare has played a role in his condition, namely his enduring loss of employment, interruption to his career, and dealing with ongoing legal proceedings associated with his compensable injury. However, litigation with Comcare is not an employment factor for the purpose of determining whether the applicant still suffered from a disease; see Prain; Pedersen and Comcare [2016] AATA 449; and Kirkpatrick v Commonwealth (1985) 9 FCR 36.
For the above reasons, I am satisfied that the employment contribution of events at Defence up to October 2009 are now limited and ceased making a significant contribution by 10 September 2018.
Accordingly, during the period between 10 September 2018 and 30 February 2019, the applicant did not suffer a ‘disease’ as defined in s 4(1) and for the purpose of s 5B of the Act such that the applicant is no longer entitled to any medical treatment under s 16 of the Act. Additionally, as at 5 December 2019, the applicant did not suffer a ‘disease’ in accordance with s 5B of the Act and there was no need for any rehabilitation program under s 37 of the Act.
Decision
In accordance with s 43 of the Administrative Appeals Tribunal Act 1975 (Cth):
(a)The reviewable decision dated 1 July 2019 is affirmed.
(b)The reviewable decision dated 23 April 2020 is set aside and in substitution find that as at 5 December 2019, the applicant did not suffer a ‘disease’ in accordance with s 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Therefore, the pre-requisites, specified under s 37(1) of the Act for making any determination, are not fulfilled.
(c)There is no order as to costs.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 17 September 2021
Dates of hearing: 19-20 November 2020 Date final submissions received: 25 November 2020 Solicitors for the Applicant: Mr I Collins, Ian Collins Solicitor Counsel for the Respondent: Ms S Wright Solicitors for the Respondent: Ms N Donaghy, Australian Government Solicitor
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