Ofori and Australian Capital Territory (Compensation)
[2025] ARTA 2062
•10 October 2025
Ofori and Australian Capital Territory (Compensation) [2025] ARTA 2062 (10 October 2025)
ReviewNumber: 2023/8772, 2023/8773
Applicant/s: Carol Ofori
Respondent: Australian Capital Territory
Tribunal Number: 2023/8772, 2023/8773
Tribunal:General Member F Eylward
Place:Canberra
Date:10 October 2025
Application 2023/8772
Decision:The Tribunal sets aside the decision under review made on 5 October 2023 and in substitution decides:
1. That the Applicant suffered ‘soft tissue injuries to the left hip and thigh. Right knee stiffness’ (the Injury), being an injury arising out of, or in the course of her employment with Canberra Health Services on 5 July 2023.
2. As at 30 August 2023, the Applicant ceased to suffer the effects of the Injury.
3. In respect of the Injury, the Respondent is liable pursuant to section 14 of the Safety, Rehabilitation & Compensation Act 1988 (SRC Act) in accordance with this Act.
Application 2023/8773
Decision:The Tribunal affirms the decision under review.
..............................[SGD]....................................
General Member F Eylward
CATCHWORDS
COMPENSATION – claim for physical and psychological injuries arising from the same incident – assault in the workplace – personal protection order not granted – no police charges – section 14 of the Safety, Rehabilitation & Compensation Act 1988 – soft-tissue injury to left hip and thigh, right knee – whether injury or ailment – psychological claim – pre-existing injuries/conditions declined – wilful misrepresentation of no previous injury – whether significantly contributed to by employment – reasonable administrative action – assertions of mismanagement and misconduct by employer in reporting incident unfounded
LEGISLATION
Safety, Rehabilitation & Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential & Transitional Provisions No 1) Act 2024Personal Violence Act 2016 (ACT)
CASES
Lees v Comcare [1999] FCA 753
Plumb v Comcare (1992) 39 FCR 236
Liu and Comcare (2004) 79 ALD 119
Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Simeoni v Comcare [2025] 15 August 2025
Ofori v Comcare [2018] AATA 2113
In the Matter of an Application in the Estate of Thelma June Hanley [2007] ACTSC 70
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Sandland v Canberra Health Services [2023] FWC 3389
Comcare v Sahu-Khan (2007) 156 FCR 536
Comcare v Power (2015) 238 FCR 187
Szabo v Comcare (2012) 58 AAR 152
National Bank Ltd v Georgoulas (2013) 217 FCR 382
K&S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518Philip Jones v Comcare (2023) AATA (23 June 2023)
SECONDARY MATERIALS
Administrative Review Tribunal (Common Procedures) Practice Direction 2024
Administrative Review Tribunal (Expert Evidence) Practice Direction 2024
Statement of Reasons
These proceedings arise from an Application for Review, filed with the (former) Administrative Appeals Tribunal on 20 November 2023 under the Administrative Appeals Tribunal Act 1975 (AAT Act).[1] The Application seeks review of two separate reviewable decisions made by the claims manager for the Respondent affirming earlier decisions declining liability under section 14 of the Safety, Rehabilitation & Compensation Act 1988 (SRC Act) for injuries claimed to have arisen from the same incident on 5 July 2023.
[1] T-Documents filed by the Respondent T1.
2023/8772
The first reviewable decision dated 5 October 2023 affirms a determination made on 4 August 2023 by Employers Mutual Limited (EML), the claims manager for the Respondent, as a licensed self-insurer under the SRC Act. The decision declined liability for ‘soft tissue injury to left hip and thigh. Stiff right knee’ (the physical claim) in response to a claim for compensation submitted on 13 July 2023.[2] The injuries were claimed to have resulted from an assault by the mother of a patient with her wheelie walker frame during the course of the Applicant’s employment as a nurse at The Canberra Hospital on 5 July 2023 (the incident).
[2] T1.1B, T5 & T8.
2023/8773
The second reviewable decision dated 22 November 2023 affirms an earlier determination made on 26 October 2023 declining liability relating to the claim for compensation submitted on 23 July 2023 for ‘psychological trauma’ arising from the same incident as the physical claim (the psychological claim). It also refers to the threat of reporting the Applicant to her employer made by the patient’s mother just prior to the incident.[3]
[3] T1.1A, T7, T13.
In the interests of efficiency and minimising the costs and resources for both the parties and the Tribunal, the matters were joined and proceeded to be heard together, in accordance with the objectives set out in section 2A of the AAT Act.
In October 2024, the Administrative Review Tribunal was established, superseding the Administrative Appeals Tribunal. As at 14 October 2024, any active applications before the former Tribunal, including these proceedings, were deemed to be applications before this Tribunal with the transitional provisions prescribing the appropriate authority to continue and finalise any aspect of review not already completed.[4] Accordingly, these proceedings now fall within the jurisdiction of this Tribunal, and the Administrative Review Tribunal Act 2024 (ART Act) applies.
[4] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
On constitution of the matter at the first directions hearing before me on 4 March 2025, I properly disclosed previous employment with the law firm representing the Respondent in another area of law entirely to this jurisdiction, and with the ACT Magistrates Court including in the family and personal violence jurisdiction, the relevance of which will become evident. Neither party objected to me continuing to be constituted, and both expressed their consent to me proceeding with the matter notwithstanding the declarations.[5]
[5] Notation to the Orders of GM Eylward dated 4 March 2025.
The Hearing was conducted over three days with the Applicant representing herself with the assistance of her support person, Mr Richard Owen, on the last day. Mr Peter Woulfe of Counsel appeared for the Respondent, instructed by HWL Ebsworth Lawyers.
Given the nature of the matter, the Applicant was visibly distressed and emotionally heightened at times and was afforded a number of rest breaks throughout the Hearing to minimise, as much as is possible in this type of forum, the anxiety and distress that regrettably arises from litigation. It was also clear that there were ongoing tensions between the parties and directions were made that any communications between the parties outside of the Tribunal room were to be in the presence of at least three people in attendance for everyone’s reassurance and well-being to reduce those tensions.
The Applicant seeks a decision of the Tribunal to have both of the reviewable decisions set aside and substituted with a decision that the physical and the psychological claims were each caused by the incident that occurred on 5 July 2023 (and the Respondent’s mishandling and management of the claims), therefore entitling the Applicant to compensation under section 14 of the SRC Act.
The primary issues in dispute to consider in order to determine whether the Respondent is liable to pay compensation under section 14 of the SRC Act are as follows:
(a)The diagnosis of the physical symptoms and the psychological symptoms;[6]
(b)Whether the physical claim is characterised as an injury or an ailment;[7]
(c)If categorised as an injury, whether the physical injuries caused a physiological change resulting in incapacity for work or impairment;[8]
(d)If categorised as an ailment, whether the claimed conditions were contributed to, to a significant degree, by the Applicant’s employment;[9]
(e)If so, whether the psychological claim was the result of reasonable administrative action, taken in a reasonable manner to exclude her from compensation;[10] and
(f)Whether the Applicant made wilful or false representations that she had not previously suffered from either of the claimed injuries previously, thereby excluding the claimed conditions from the definition of injury for the purposes of the SRC Act.[11]
[6] Section 5A of the SRC Act.
[7] Section 5B of the SRC Act.
[8] Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468.
[9] Sub-section 5B(3) of the SRC Act.
[10] Section 5A(2) of the SRC Act.
[11] Section 7(7) of the SRC Act.
FACTS
The Applicant is a 55 year old registered nurse, level 1, at The Canberra Hospital, employed part-time by Canberra Health Services for approximately 10 years, having extensive nursing experience of many years prior to that. At the time of the incident, the Applicant was primarily working in the acute haemodialysis unit in the Renal Department on Ward 8A.[12]
[12] T5.
The Applicant has an accepted workers compensation claim relating to a previous neck injury requiring adjustments to her duties including reduced hours and ongoing massage and pain medication consumption.
A workers compensation claim was also filed by the Applicant in August 2016 for pain in the feet diagnosed as tendonitis, though this was rejected and proceeded to be reviewed by the AAT where the reviewable decision was affirmed.[13]
[13] Ofori v Comcare (Compensation) [2018] AATA 2113.
The Applicant also has a significant history of difficult and traumatic events in her life both before and subsequent to the subject incident, set out in more detail in this decision.
During the course of her duties as a registered nurse, the Applicant was providing care for a patient on 5 July 2023, when there was an incident with the mother of another patient on the ward, who was allocated to a different nurse on duty.
The Applicant describes in her claim form that she was threatened and assaulted by Ms Nola Cook on 5 July 2023 when Ms Cook initially approached her asking for water for her daughter. The precise accounts of what then occurred start to diverge from there, but in summary, it appears the Applicant responded that she was tending to another patient so could not get the water and to ask another nurse.[14]
[14] T4; T10.
Both the Applicant and Ms Cook each considered the other spoke rudely in the verbal exchange and each was upset by it.[15]Ms Cook purportedly then said she would be reporting the Applicant to her employer, presumably for what she considered to be the unprofessional and rude behaviour of the Applicant in her tone and refusal to assist her terminally ill daughter. The Applicant perceived this to be a threat and became upset, however proceeded to tend to her allocated patient who had observed the interaction.
[15] T4, T6, JHB 1.4, pg 384-394.
Shortly thereafter, the Applicant was washing her hands at a hygiene station located in a small spatial area near the administrative/ward clerk desk, when Ms Cook walked past with her wheelie walker. It seems to be accepted that there was contact between the wheelie walker and the Applicant before Ms Cook continued past, without saying anything further.
There is conjecture as to where the wheelie walker hit the Applicant, whether on her back or on her upper left thigh/hip area, and on whether this was a deliberate act by Ms Cook or accidental given the close proximity of the space they were in. There does not seem to be any dispute that the area between the hygiene station next to the administrative/ward clerk desk and the end of bed 4 is extremely narrow, making it difficult for two or more people to pass each other. I accept that it was a confined space and that there was contact between the wheelie walker and the Applicant.
The incident was again observed by the same patient, who later provided a statement to police on what she had witnessed.[16]
[16] JHB 3.2.
The contemporaneous notes of the Applicant, the Manager/Supervisor Statement, Riskman Incident report and the police statements overwhelmingly refer to the contact being on the upper left thigh/left hip[17] and I make a finding of fact the wheelie walker did hit the Applicant on her left thigh/hip area and not her back, as described in the treating GP letter dated 30 August 2023 departing from the other accounts provided.[18]
[17] JHB 1.1, pg 25, 33, 47.
[18] T11.
Following the incident, the Applicant was upset even more and teary, and reported to her manager, Ms Bonnie Chen, that she had been knocked on the left hip by Ms Cook’s wheelie walker. She was offered a break but continued to finish her shift. This is corroborated by the Riskman Incident Report completed by Ms Chen, and the Manager/Supervisor Statement on 14 July 2023.[19] Later that afternoon, the Applicant reported that Ms Cook’s daughter apologised on behalf of her mother for what had occurred.
[19] T4, T6.
It was the Applicant’s understanding and expectation that Ms Chen would enter a RiskMan Incident Report about what occurred on the day. It seems from the Applicant’s evidence that the delay in entering the Riskman Incident Report and commencing an investigation into what occurred until 12 July 2025 caused her to feel the incident was mishandled by her employer and in contravention of its own policies.
The Applicant gave oral evidence that she required Panadol during her shift for a headache due to the stress arising from the incident and also for her left thigh pain. She went swimming after her shift to try to ease her distress.
The Applicant then had a number of rostered days off work for her son’s birthday, to take delivery of a new car and undergo a minor medical procedure before she was due to return to work again on 10 July 2023. During this time, her evidence is that she required pain medication for her left thigh and hip and rested.
On 10 July 2023, the Applicant attended work for her rostered shift where Ms Cook was again visiting her daughter. There was no communication nor contact between them although the Applicant observed Ms Cook ‘death-staring’ at her.
The Applicant reported that she noticed continuing pain in her left upper thigh, hip and also her right knee due to altered gait, but despite this, she finished her shift, though she was extremely distressed to learn that no one had been advised of the incident and ‘it made me feel worthless that my colleagues were unaware I had been threatened and assaulted’.[20]
[20] T10.
The following day, the Applicant telephoned Ms Chen to advise that she could not work due to ongoing pain in her left thigh and hip from the bump to her left hip in the incident and difficulty walking as a result and that she would be attending her treating General Practitioner, Dr Andrew Morris, the next day.[21]
[21] T6.
The Applicant claims that as a result of the contact, she suffered from left thigh and hip pain, right knee stiffness and, in oral evidence and in her written submissions, a jarred back, though this is not listed in the claim forms or any of the contemporaneous documentation, other than a reference in the medical certificate (but not the associated clinical note).[22]
[22] T15.
The Applicant attended Dr Morris on 12 July 2023 where she was certified as unfit to work until 26 July 2023 but with good prognosis and recovery anticipated within 6-12 weeks.[23]
[23] Ibid.
Relevantly, in the patient consultation note for 12 July 2023, Dr Morris reports:
Presenting Problem: Workplace hip injury
Provider: Dr Andrew W Morris
History: Was assaulted verbally and physically on 5/7/2023 by the patient of a patience of the Renal ward. Not coping emotionally, and has some stiffness in R knee, pain in left thigh. Walks with altered gait. Wants some time off.
Treatment/Plan: ACT Workers Comp Panadeine Extra Caplets 15mg/500mg Caplets (free text) 2 cap tds As required (48, RNil)[24]
[24] T11, pg 44.
There is no reference to any injury to the back within the clinical note, nor the subsequent entries, notwithstanding the medical certificate dated 12 July 2023 from Dr Morris describing the injury/aetiology as ‘struck by wheelie walker in workplace to her back, with jarring to back. Resultant left thigh pain and right knee stiffness’ with a diagnosis of ‘soft tissue injuries’[25] and his letter ‘to whom it may concern’ dated 30 August 2023.[26]
[25] T15, pg 145.
[26] Ibid 23.
Dr Morris referred the Applicant to physiotherapy and recommended anti-inflammatory medication and massage.
The Applicant has not returned to work since 10 July 2023.
On 13 July 2023, the Applicant submitted a claim form for her physical claim, arising from ‘assault from patient’s mother’ and noting she now felt unsafe in her workplace.
Ms Chen finalised the Riskman Incident Report on 13 July 2023 after discussing the incident with the Applicant, the patient who observed the incident and Ms Cook. Ultimately, she concluded that the incident was an accident that had occurred in a confined space and put in place measures to try to avoid busy traffic in a small space area, reminding staff and visitors to be kind and respectful and suggesting staff attend workplace e-Learning modules.[27] It was apparent from the Applicant’s evidence that she considered this to be a mishandling of the incident, deliberate omission the truth in protection of the perpetrator and believed the incident was not taken seriously.
[27] T4.
The incident was reported to police by the Applicant on 20 July 2023 as an assault.
On 21 July 2023, ACT Police were called to the Applicant’s home for a welfare check by the Applicant. ACT Police report that on attendance, the Applicant presented ‘extremely hysterical making it difficult to understand everything she’s saying’.[28]
[28] JHB 1.3, pg 219-220.
The ACT Police noted that the Applicant disclosed a recent assault at work and that she was having trouble with her son, was concerned about his behaviour and she did not want him to be at the house (in the context of numerous ACT Police attendances for violence between the Applicant and her son previously). She was advised to take out a family violence order against her son, which she indicated she was willing to do.
Subsequently, the Applicant submitted a claim form on 23 July 2023 claiming psychological trauma arising from being assaulted and threatened during the work incident and, relevantly, ticked that she had not experienced a similar symptom, injury or illness, work-related or otherwise.[29]
[29] T7.
EML issued its decision relating to the physical claim on 4 August 2023 accepting the Applicant was an employee as defined by section 5 of the SRC Act and that her claim was compliant as required by sections 53 and 54 of the SRC Act but denying liability under section 14 of the SRC Act.[30]
[30] T8.
This was on the basis that while it was accepted that the incident did take place, it did not have the relevant nexus to when the Applicant first noticed the pain in her left thigh, hip and right knee 5 days after the incident. On the Applicant’s evidence, the denial of her physical claim significantly caused her psychological symptoms to escalate, feeling that EML was saying she was a liar and did not believe her. She believed that this called into question her integrity and damaged her reputation.
The Applicant attended Sportscare Physiotherapy on 7 August 2023 and 23 August 2023, where it was observed that the Applicant arrived flustered at the first appointment and ‘catastrophising around work claim’, also recording:
7/8/23
“Knee feeling better. Feeling mental health deteriorated due to knock back of claim. Expecting mental health to deteriorate as a result.”
23/8/23
“Feels 75% better overall. L thigh/hip pain is gone. Some ongoing restriction to R knee – feels it is going well. [The Applicant] still very focussed on her mental health and the perception that she is being bullied at work. Will not return to work until she feels aspects that caused her injury are addressed.”[31]
[31] JHB pgs 242, 267.
This accords with the emails sent by the Applicant to Victim Support on 8 August 2023 that she ‘[had] woken up so angry after yet again being accused of lying by TCH management’, and on 15 August 2023 stating that:
“[her] mental health was suffering under the pressures of the assault and how it effecting (sic) me financially. Since EML declined my claim I am having issues with anxiety… I cannot even consider returning to a workplace that is comfortable with making false statements around my assault and is siding with the perpetrator. It is a hostile workplace and I am not ready to go back until there is acknowledgment and some accountability around how I am being treated...”[32]
[32] JHB pg 262.
On 5 October 2023, EML provided its reconsideration affirming the original decision.
The Respondent issued its decision in relation to the psychological claim shortly thereafter, declining liability stating it was not satisfied the Applicant was suffering from an ailment for the purposes of section 4(1) of the SRC Act due to there being insufficient evidence to support the injury was due to the incident on 5 July 2023, and even if it had been, that it was due to the outcome of her physical injury claim and not contributed to, to a significant degree, by her employment.[33] This was subsequently affirmed on 5 November 2023.
[33] T13.
The Applicant attended the ACT Police and provided her statement on 28 October 2023 describing the incident as:
“About 11:35am that same day, I was stationary sanitising my hands to perform treatment for the patient I was treating, in the corridor next to the ward clerk desk and the manager’s office. When the female [Ms Cook] walked past me from behind striking me in the back/side of my left thigh with the top rail of her wheelie walker. My first instinct was to apologise to the female as I thought I may have been in the way. I would say the level of force was light to medium, enough for me to withdraw my leg inwards out of the way… She then continued down the corridor, not turning around to look at me or to apologise for striking me. I was already distressed from the threats she had made and trying not to cry. I then developed a headache from crying and the stress of the situation.
…
During my rostered days off from 5 July 2023 to 10 July 2023, I notice[d] some aching pain in my hip joint and tightness in my thigh to my groin on my left leg. I was treating this by resting and anti-inflammatory tablets. I never sustained any bruises from the incident.
…
During my shift [on 10 July 2023] I noticed I was limping and had stiffness in my right knee and pulling and aching in my left hip and thigh. I had an uneven gait.”[34]
[34] JHB 3.2.
In her police statement, the Applicant describes the impact of the wheelie walker as ‘light to medium’ and of enough force for her to withdraw her leg. She also states that she instinctively turned to apologise believing she had been in the way before realising it was Ms Cook who did not state anything further as she walked past.
Another patient who witnessed the incident also provided a statement to Police supporting the Applicant’s version of events, and noting that, ‘I noticed that whenever [the Applicant] turned she would wince indicating to me something was hurting her.’[35]
[35] JHB 3.1.
Notably, on enquiry by police, Ms Cook reported that the Applicant bumped into her wheelie walker as she was walking past and the impact was ‘at medium force jolting my walker. I don’t believe that it was deliberate.’[36]
[36] ST82.
Following investigation into the incident, ACT Police decided that the matter would not proceed and the matter was finalised without any charge. Having also spoken to the supervisor, Ms Chen, and Ms Cook, ACT Police reported as follows on 31 October 2023:
“Police have multiple versions of what occurred and have formed the opinion that it was an accident and the parties have just bumped into each other. This matter cannot be substantiated to get prima facie case due to lack of evidence and proof of intent.”[37]
[37] Supplementary T-Docs ST24.
The Applicant then commenced proceedings in the ACT Magistrates Court against Ms Cook on 8 November 2023 under the Personal Violence Act 2016 (ACT) (PV Act), seeking a personal protection order to prohibit Ms Cook from attending her home or workplace, being within 100 metres of her and/or engaging in personal violence towards the Applicant. The Applicant cited the incident of 5 July 2023 as the reason for her fearing for her safety; stating:
“5/7/23 threatened by respondent and than (sic) hit by the respondent with her wheely walker. I sustained a physical and psychological injury. Do not feel safe in workplace anymore.”[38]
[38] Applicant’s Application for Personal Protection Order dated 8 November 2023.
Ms Cook also applied to the ACT Magistrates Court on 8 December 2023 for a personal protection order under the PV Act on the basis that the Applicant’s behaviour caused her to fear for her safety when attending the hospital to visit her critically ill daughter.
Ultimately, Ms Cook filed a Notice of Discontinuance with the ACT Magistrates Court and her application was withdrawn and discontinued on 16 February 2024.
The Applicant’s matter proceeded to Hearing on 27 August 2024 before Magistrate Campbell where her Honour dismissed the application in its entirety.[39]
[39] ACT Magistrates Court files produced to the Tribunal; Exhibit B.
The Applicant has not been cleared medically fit to return to work since 10 July 2023 due primarily to her psychological symptoms.
EVIDENCE
The evidence before the Tribunal consisted primarily of the ‘Updated Joint Hearing Bundle’[40] (Exhibit A) containing the T-Documents and Supplementary T-Documents filed by the Respondent pursuant to section 37 of the ART Act, medical evidence and statements, together with relevant summons documents, ACT Magistrates Court Records (Exhibit B), and Riskman Facts Sheets (Exhibit C). The following witnesses gave oral evidence:
(g)The Applicant
(h)Professor Peter Youssef, rheumatologist, for the Respondent
(i)A/Professor Frank Varghese, psychiatrist, for the Respondent
[40] Updated Joint Hearing Book filed 21 March 2025.
Notably, neither the patient who witnessed the incident, nor Ms Cook, were called to give evidence. Helpfully included within Exhibit A is a statement from the patient to the ACT Police of 13 October 2023, together with comments made by Ms Cook to police as part of their investigation.[41]
[41] JHB 3.1.
The Applicant relied on two lay witness statements of Ms Josie Ares and Dr Zainab Wajih, tendered as part of the Joint Hearing Bundle, but neither was required for cross-examination by the Respondent. No medical experts were called by the Applicant.
The parties also provided closing written submissions following the conclusion of the Hearing, with the Respondent’s written submissions purporting to be an extension of its Statement of Facts, Issue & Contentions filed on 19 September 2024.
Applicant
Further to the information set out above, the Applicant’s evidence is that she was ‘assaulted and threatened within her workplace’ on 5 July 2023 when she was approached by the mother of a patient, Ms Cook, whilst she was tending to another patient, demanding water for her daughter. When she politely declined noting she was assisting another patient at that time, Ms Cook spoke rudely to her and threatened to report her, stating; ‘I’m going to report you’.
The Applicant did not respond but gave oral evidence that she was distressed by this threat commenting that ‘I was disrespected. I was threatened, and then I was subject to an unprovoked and witnessed assault’.
In her oral evidence, the Applicant was relatively consistent in her description of the incident when she was standing at the hygiene station near the administrative/ward clerk desk, being hit from behind in the left upper thigh area by the top rail of Mrs Cook’s wheelie walker. She reported it to Ms Chen and required Panadol for a headache that developed before finishing her shift.
She stated that she had Panadol and nurofen later that evening before bed acknowledging that it would have been for both her pre-existing neck pain and her left thigh and hip pain. Her evidence is that during her rostered days off work, she continued to require Panadol and nurofen due to a sore left thigh and hip and then later physiotherapy and massage before her physical injuries were fully resolved with full mobility 20 weeks after the incident.
In relation to the psychological claim, and further to what is already described above, the Applicant added in her oral evidence that returning to work on 10 July 2023 and seeing Ms Cook caused her to be shaken and intimidated. This was made worse by the knowledge that her colleagues had not been informed about what had happened. She reiterated that her mental health deteriorated due to a lack of support and being called a liar by EML. She did not feel that she could return to the workplace where her integrity was being questioned and she was threatened by management after she asked about a pay issue.
She conceded under cross-examination that jarring of the back was not mentioned in the claim form and did not provide a plausible reason for the omission.
The Applicant was cross-examined extensively on her reaction to the incident and that her perception that her employer had mishandled the incident in the delays in completing the Riskman Incident Report, wilfully withholding information from it and calling her a liar was unfounded.
Similarly, the Applicant was cross-examined considerably on her previous history and taken to a number of documents within Exhibit A noting psychological symptoms. The Applicant continued to deny that she had depression at that time, but rather was depressed.
Throughout the cross-examination, the Applicant’s perception of the claim being mishandled and that she had been subject to victimisation by her employer since the incident (and prior) was evident. It was clear that the Applicant was angry and upset with how her claim had been handled and that much of her psychological condition was as a result of the claims process and feeling like she had not been believed, asking, ‘if they believed me, they would have accepted the claim, wouldn’t they?’
The Respondent also raised the Applicant’s previous tendonitis claim and the ensuing litigation in the AAT, where it was noted that the Applicant’s evidence was ‘self-serving’ and this was consistent with how she was approaching this matter. The Applicant became argumentative during this time and a number of breaks were required particularly with respect to downplaying the previous reports of domestic violence and its impact upon her.
The Applicant continued to state that while she has felt (appropriately) depressed at times, she has never had depression until the incident on 5 July 2023, notwithstanding the significant trauma and police involvement prior to the incident for family violence.
Zainab Wajih and Josefa Ares
The Applicant tendered two statements as part of her evidence from Zainab Wajih and Josefa Ares dated 19 September 2024 and 9 December 2024, with no objection from the Respondent.[42] Neither lay witness was required for cross-examination by the Respondent.
[42] JHB 4.8 & 4.10; Exhibit A.
Ms Ares is a former patient the Applicant cared for during a particularly difficult time of kidney dialysis when Ms Ares’ family were not able to emotionally support or care for her at that time until she fortunately underwent a successful kidney transplant in 2018. She notes that the Applicant provided a sense of safety in a time of great distress and uncertainty and that since 2018, when she has occasionally seen the Applicant, it has been more as a caring friend with a kind heart.[43]
[43] JHB 4.10, pg 686.
Dr Wajih is a kidney specialist who has known the Applicant for the past 4-5 years, working closely with her as colleagues until January 2023. She provided a brief statement in her capacity as a lay witness as to the Applicant being ‘one of the most compassionate, conscientious and resilient nurses [she] has known’ who actively advocates for her patients. Dr Wajih notes that if the Applicant has suffered mental health issues, it has not impacted upon her professional role, nor has she appeared to have low confidence or self-esteem.[44]
[44] JHB 4.8, pg 683.
The Applicant sought to call Dr Wajih to adduce new evidence at the Hearing beyond that contained within her statement, relating to Dr Wajih’s knowledge of Ms Cook and her behaviour in the hospital towards other staff. This was opposed by the Respondent on the basis that section 66 of the SRC Act prohibits a claimant from adducing into evidence any matter that has not previously been disclosed without leave of the Tribunal.[45] Leave must not be granted unless a statement is provided as to why the new evidence was not provided earlier, and, if the Tribunal is satisfied there are special circumstances justifying the admission of the new evidence.
[45] Section 66(1) of the ART Act.
The Applicant contended that Dr Wajih’s knowledge of Ms Cook’s previous behaviour was important because it would refute the false allegations made by Ms Cook against her as part of the ACT Magistrates Court proceedings and in the police investigation, but also show that Ms Cook has a history of prior volatile behaviour towards staff that should have been addressed by her employer well before the incident.[46]
[46] Transcript pgs 152-154.
Noting that the Commonwealth workers compensation is a no-fault scheme, and that ultimately it matters not whether Ms Cook is of good or bad character, but only whether the Applicant was injured in the course of her duties, I formed the view that the behaviour of Ms Cook and whether the incident was due to accidental contact or deliberately by Ms Cook was not relevant to the issues in dispute to be determined. Accordingly, being of little assistance to the Tribunal and there being no special circumstances to justify its admission, leave was not granted for Dr Wajih to give new evidence regarding Ms Cook’s history. Notably also, Dr Wajih was not present on the day of the incident and the Applicant advised, had not worked closely with the Applicant since COVID – well before the incident. On that basis, Dr Wajih did not give oral evidence beyond her statement.
Both witness statements essentially go solely to the character of the Applicant being a professional, compassionate and caring nurse. That is not in dispute.
While these statements are clearly heartfelt with the intention of assisting the Applicant in her claim, the evidence does not address the primary issues in dispute, namely, whether the Applicant suffered either the physical or psychological injuries as a result of the incident in the workplace in order to be entitled to compensation under the SRC Act.
The relevance of this evidence is minimal, other than firstly to seemingly dispute the Respondent’s assertions that the Applicant’s credit is in issue in these proceedings and secondly, to negate Associate Professor Varghese’s expert opinion that the Applicant suffers from a pre-existing Major Depressive Disorder (MDD) with Dr Wajih never having observed the Applicant to have low self-esteem or confidence.
Again, it is important to emphasise that the Applicant’s character as a compassionate and caring nurse is not in question and the Respondent’s assertions as to her credibility relating to the claims should not be misinterpreted to mean that the Applicant is not a compassionate and caring nurse. The statements go no further than providing a character reference for the Applicant as a nurse and do not address the Respondent’s assertions on credit relating to the claims.
Professor Youssef, rheumatologist
Professor Youssef, rheumatologist, provided expert evidence by way of oral evidence and a medico-legal report on the Applicant’s physical injuries on 22 July 2024, a little over a year after the incident, having previously provided a report dated 15 June 2017 relating to the Applicant’s prior claim for tendonitis, which was declined. Prof Youssef assessed the Applicant based on the papers and, notably, did not examine the Applicant physically.[47]
[47] JHB 2.3.
As part of his assessment, Prof Youssef reviewed the T-Documents, and summons material. Prof Youssef provides a comprehensive summary of the T-Documents as the basis for his opinion, which I will not duplicate in detail.
Specifically, he notes that the documentation refers to the Applicant being bumped in the left hip while undertaking hygiene duties resulting in her left hip being uncomfortable but otherwise no other issues relating to the injury, and no clinical diagnosis being provided by her treating General Practitioner. Further, Prof Youssef cites that the Applicant was not aware that her injury was serious enough to require time off work until she worked a full shift on 10 July 2023 because the left hip and thigh were aching and causing her gait to be uneven, just prior to her ceasing work on 11 July 2023. This uneven gait and resultant limping caused the Applicant to experience right knee stiffness and soreness.
He also erroneously documents that the Applicant only reported the psychological issues after the physical claim was denied. The claim for psychological trauma was submitted to EML on 23 July 2023, but the physical claim was not denied until 4 August 2023.
In terms of similar pre-existing issues, Prof Youssef notes that it is documented the Applicant suffered from left sided hip and knee pain in December 2021 leading to her presenting at the Calvary Hospital Emergency Department with a four day history of pain with no preceding trauma and requiring physiotherapy.
There are numerous reports referred to in Prof Youssef’s evidence about the Applicant not coping well with her son’s behaviour, and police attendance for disturbances and welfare checks dating back to 2016, together with victimisation from work.
Prof Youssef states that the Applicant;
“possibly suffered a mild soft tissue injury to the left hip/thigh region at the time of incident on 5 July 2023. There is no indication of a serious injury… in particular there was no significant bruising and [the Applicant] was able to complete her shift. Furthermore, she had made a complete recovery by 23 August 2023... There was unlikely to be any significant physiological change as a result of the incident.. if there was a minor soft tissue injury, this would have resolved within two to six weeks of the injury.[48]
[48] Ibid, pg 616.
He did not consider that the Applicant sustained a physical injury from the incident that would have prevented her from continuing to work and that there were other factors that resulted in her taking days off work. This refers to the pre-arranged days in which the Applicant was not rostered to work between 6 July 2023 – 9 July 2023.
Prof Youssef confirmed his opinion in oral evidence stating that it would have been unlikely for soft tissue injuries to cause impairment without bruising or swelling and there was no reference in the documentation to the Applicant sustaining bruising or swelling from the incident.
The Applicant put to Prof Youssef that swelling may not have been evident given her body mass, which he had commented on as a plausible explanation for her pain on the background of a similar presentation in December 2021 and previously for her tendonitis. In response, Prof Youssef replied in the negative noting that he would still have expected there to be some form of reporting if there had been swelling and most certainly it would have been accompanied by bruising. He further recalled that the Applicant had specifically denied any bruising in the documentation, supporting his conclusion that the Applicant had not suffered any significant physical injury that resulted in a physiological change as a result of the incident.
Associate Professor Frank Varghese, psychiatrist
Associate Professor Varghese, psychiatrist, assessed the Applicant by video conference at the request of the Respondent on 11 June 2024 for medico-legal purposes and provided a report on 19 July 2024.[49]
[49] JHB 2.2.
A/Prof Varghese notes that the Applicant reported that she was ‘threatened and assaulted by a mother of a patient’ providing a detailed account, notwithstanding the incident had occurred almost 12 months prior. The account recorded is generally consistent with the contemporaneous reporting with some minor changes relating to the verbal exchange between the Applicant and Ms Cook in the lead up to the wheelie walker, to be expected with the passage of time.
With respect to the physical injuries, there was, however, a divergence from the initial reporting, including additional detail not previously noted:
“[The Applicant] reports the woman who was using the wheelie walker pushed the walker and struck [her] on the left side. “I didn’t know if it was deliberate then. I was already upset with the threat she had made [to report her] and quite emotional.”
…
“As to the injuries she suffered, [the Applicant] says she pulled a muscle on the left side when she jarred her back after she was hit. The muscle was in the groin and described as being “soft tissue injury” however it made her limp and this was noticeable when she went back to work the next day. Also her right knee was stiff and this was again diagnosed as “soft tissue injury”. As to treatment she has received, she had massage to the neck and also physiotherapy. She reports that any physical problems from the incident was over after eight weeks or so but she has not returned to work because of the “emotional effects””.[50]
[50] Ibid, pg 571.
A/Prof Varghese sets out a very detailed and lengthy summary of the Applicant’s history of both physical and psychological symptoms observed in the T-Documents, the supplementary T-Documents (including various ACT police reports) and medical documentation he was provided with in forming his opinion. I do not intend to reiterate that summary but note the considerable and extensive list of traumatic events and attendances with medical practitioners, counsellors and by police to her home for reports of violence where the Applicant was observed to be emotionally distressed and teary with difficulty coping with ‘multiple stressors’ and ‘multiple tragedies’, and reports of being victimised.
More specifically, A/Prof Varghese notes quite serious family violence against the Applicant in early childhood, psychological and verbal abuse in the Applicant’s first marriage by way of ‘gas-lighting’, and subsequent verbal and physical violence involving the Applicant and her son where ACT Police have intervened on a number of separate occasions, both before and after, the incident (at times on the Applicant’s request reporting assault by her son and his friends and at others, reported by another complainant regarding the Applicant’s verbal abuse of her son).[51]
[51] ACT Police Reports Exhibit A.
There is also reference to sexual harassment perpetrated against the Applicant in the workplace in the medical notes of Victim Support ACT Human Rights Commission and the Applicant ‘…being triggered by different things, has little trust in the hospital workplace and is exhausted from fighting the system. She is hypervigilant and feeling resentful’.[52]
[52] Ibid 34, pg 586.
On the basis of the Applicant’s history, A/Prof Varghese diagnoses the Applicant as suffering from Major Depressive Disorder (MDD) at the time of evaluation (almost 12 months after the incident) in the context of significant personality vulnerability that was pre-existing and present for some months before the incident, explaining the catastrophic reaction to the incident, and unchanged by the effects of the incident. Accordingly, he does not believe the MDD was contributed to, to a significant degree by the Applicant’s employment.
Prognosis is considered to be good with a full recovery from the current MDD with psychiatric treatment, though A/Prof Varghese states in his report that this treatment is not as a result of any work related condition and observes that:
“Ms Ofori’s Major Depression is such that she would be impaired with respect to work. I note [the Applicant] was working prior to the event of mid 2023 on a part time basis on account of an orthopaedic condition. It seems the depression has intensified since she ceased work and I would attribute this to ongoing problems with her son, financial compromise as a result of her claim for workers compensation not being accepted, involvement with the police regarding the incident, and a Court hearing which distressed her immensely.
He current incapacity is not permanent as [the Applicant] has a very treatable condition and moreover the natural history is towards remission... I expect [the Applicant] will make a full recovery from the current MDD if she has psychiatric treatment. Even without treatment there will be remission with time but the episode may be quite prolonged.”[53].
[53] Ibid, pg 591.
He further opines that the Applicant has an underlying mood disorder of chronic Dysthmia as in Persistent Depressive Disorder (PDD) over a long time with periods of remission or near remission with episode of MDD manifesting, precipitated by adverse life events and circumstances, of which sadly, the Applicant has experienced frequently in her life.
A/Prof Varghese gave evidence that in coming to his diagnosis, he particularly paid attention to the records preceding the incident citing at least four medical attendances in the months immediately prior to the incident where the Applicant had reported significant stress, feelings of being victimised and overwhelmed. He added that the records of Women’s Health Clinic and Marymead given to him as part of the Joint Hearing Bundle prior to the Hearing provided a more longitudinal picture that reaffirmed that diagnosis.
He extrapolated in examination and cross-examination that PDD doesn’t interfere with functioning until it ‘dips into’ MDD, potentially in response to adverse life events. Further symptoms of PDD were described as including a sense of victimhood, a tendency to project outwards and blame others as a protective mechanism with a distorted perception in stressful situations.
A/Prof Varghese made appropriate concessions but did not resile from his diagnosis that the Applicant was suffering from pre-existing MDD that did not change due to the incident and that employment did not contribute to the condition, or if it did only to a minor degree. Indeed, A/Prof Varghese’s oral evidence only strengthened the evidence in his report.
APPLICANT CONTENTIONS
The Applicant contends that she was threatened and assaulted in the workplace on 5 July 2023 when Ms Cook spoke rudely to her and threatened to report her and then, a short while later, assaulted her when she struck her wheelie walker into the Applicant’s left hip/thigh whilst she was undertaking hand hygiene before promptly walking away.
She further contends that she had never suffered depression until the incident and that she sustained both physical and psychological injuries as a result of the incident and the misconduct of her employer and the Respondent and she is rightfully entitled to compensation as a result under the SRC Act.
In support of her contentions, the Applicant refers to the Fair Work Commission case of Sandland v Canberra Health Services[54] in her written submissions asserting that this decision shows the conduct of Canberra Health Services management to be incompetent, anti-union, unconcerned with staff safety and fails to follow their own policies.[55] It is not entirely clear as to the relevance of this case to the primary issues in dispute before the Tribunal.
[54] [2023] FWC 3389.
[55] Applicant’s written closing submissions dated 9 April 2025.
Presumably, the Applicant seeks to rely on this case as an established or proven example of the unfair way in which her employer improperly treats its employees who are part of a union, as she is, and do not have any concern for staff safety, which she says amounts to ‘gross misconduct’ and goes to the heart of her psychological claim.
With the greatest respect to the Applicant, who understandably does not have the benefit of legal training in jurisdictional nuances, the conduct of the employer (or misconduct as it were) in the handling of the incident or the claim subsequently is not for this Tribunal to determine in this matter. Consideration of an employer’s conduct only falls within this jurisdiction of administrative review on the confined issue of whether an employer’s administrative action has been reasonable and taken in a reasonable manner in claims of a psychological nature, or, where the psychological injury is claimed to be one of bullying and harassment arising in the workplace.
That is not what has been claimed in this matter. What is claimed is that the ‘assault and threat’ caused the physical and psychological injuries[56]. That is what the Tribunal is required to determine. It cannot go beyond that. Any complaint regarding the conduct of an employer is for other specialised jurisdictions, including the Fair Work Commission. Accordingly, the case relied upon by the Applicant is not one that assists the Tribunal in determining the issues before it.
[56] T5, T7.
The Applicant further contends that neither of the expert witnesses should be accepted on the basis that they are biased and that her evidence far outweighs the experts. She asserts that the Respondent has provided theories, opinions and educated guesses that show inconsistencies and ‘weaponised them’ in order to deny the Applicant her rightful compensation, particularly in relation to their erroneous assertions that her psychological symptoms are due to her son. The Applicant did not provide any objective evidence in support of her contentions in this regard but rather relied upon her own presentation.
She does not deny feeling depressed and anxious at times in her life, but emphatically denies having depression, characterising feeling depressed as very distinct from having depression.
She submits that in the circumstances, the Tribunal should be find that her response to the assault was reasonable and that she has been victimised by the misconduct of her employer and the Respondent. In making these submissions, the Applicant relied on her observations regarding the delays to the Riskman Incident Report being completed and her employer not following its own policies and instead bullying her due to her being a union representative and making complaints about her pay.
RESPONDENT CONTENTIONS
The Respondent submits that this is a claim where the definitive and unrefuted medical evidence of Prof Youssef and A/Prof Varghese should be accepted, in the absence of any contrary evidence.
In relation to the physical claim, the Respondent contends that there is no consistent or reliable diagnosis of the Applicant’s conditions in her left hip/thigh and right knee and that without a firm diagnosis, the Tribunal ought to conclude the no relevant condition was suffered. The Respondent relies on the High Court case of Military Rehabilitation and Compensation Commission v May[57] that without ‘precise evidence of physiological change’ the Applicant’s condition cannot be a frank injury for the purposes of section 5A of the SRC Act and therefore must be assesses under the ‘disease’ definition.[58]
[57] [2016] HCA 19.
[58] Respondent’s Statement of Facts, Issues & Contentions, pg 899.
It is submitted that on the basis of Prof Youssef’s evidence, the Applicant does not satisfy the definition of ‘disease’ because the injuries were not contributed to, to a significant degree, by employment, but rather are best explained by her mental health condition. The Respondent contends that irrespective, she is excluded by virtue of section 7(7) of the SRC Act even if the Tribunal were to determine the Applicant’s employment had significantly contributed to her physical condition because she wilfully and falsely denied ever having a similar symptom or condition to he.r left thigh/hip area ‘in an attempt to bolster her claim’.
Regarding the psychological claim, the Respondent repeats its assertions that in the absence of any opposing medical evidence, A/Prof Varghese’s diagnosis of pre-existing MDD that was not changed by the incident itself and therefore no contribution by employment must prevail. The Respondent relies on the numerous instances within the evidence of prior psychological symptoms and constitutional factors causing PDD including psychiatric difficulties arising from sensitive issues of domestic violence.
In the alternative, the Respondent contends that the psychological claim is excluded on the basis that it was due to reasonable administrative action, taken in a reasonable manner, referring specifically to the Riskman Incident Report investigation and the subsequent claims process with the psychological condition first being noted on 10 August 2023 after the denial of the physical claim on 4 August 2023. Properly, it is well established that issues arising as a result of the claims process or litigation are not compensable.
The Respondent further contends that the psychological claim is also excluded by virtue of section 7(7) of the SRC Act due to the Applicant’s denial of having previous mental illness is clearly false having regard to the considerable medical history set out in the evidence.
Lastly, the Respondent submits that the Applicant is not a witness of credit and has already been the subject of adverse findings in two previous cases,[59] including the prior workers compensation claim where, extraordinarily similarly, one of the primary issues in dispute was whether the Applicant had wilfully misrepresented that she had not suffered from a prior similar condition to her tendonitis under section 7(7) of the SRC Act. This is of particular interest as it suggests the Applicant should have a very clear understanding of the operation of section 7(7) of the SRC Act and her obligations to correctly state whether she has had previous injury, illness or symptoms to the same area.
[59] Ofori v Comcare [2018] AATA 2113; In the Matter of an Application in the Estate of Thelma June Hanley [2007] ACTSC 70.
For those reasons, the Respondent says the decisions under review must be affirmed as there is no objective or compelling evidence before the Tribunal to find liability under section 14 of the SRC Act.
LEGISLATION
Pursuant to section 54 of the ART Act, the Tribunal may exercise all the powers and discretions conferred on the original decision-maker and essentially consider and decide the matter afresh on all of the evidence before it, otherwise known as de novo. Section 105 of the ART Act requires the Tribunal to make a determination as follows:
(a)affirming the reviewable decision; or
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and:
(i)making a decision in substitution for the reviewable decision; or
(ii)remitting the matter to the decision-maker for reconsideration in accordance with any orders or recommendations of the Tribunal.
The substantive application must be determined in accordance with the above, taking into account the legislative provisions of the SRC Act in the workers compensation jurisdiction.
Where an Applicant employee suffers injury that results in death, incapacity for work or impairment, a Respondent is liable to pay compensation pursuant to section 14(1) of the SRC Act:
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The word ‘impairment’ is defined in subsection 4(1) of the SRC Act as:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
Relevantly, section 5A(1) of the SRC Act defines injury as:
5A Definition of injury
(1) In this Act:
“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.
For the purposes of applying 5A(1)(a), disease is defined in section 5B of the SRC Act, which provides:
5B 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.
(3) In this Act:
"significant degree” means a degree that is substantially more than material.
Drummond J observed of ‘disease’ in Comcare v Mooi (1996) 69 FCR 439 that ‘only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus, ‘injuries’ for the purposes of s 14(1) of the Act.’[60]
[60] Comcare v Mooi (1996) 69 FCR 439.
It is accepted that the Applicant has a psychological ailment (but not a physical ailment) for the purposes of section 4(1) of the SRC Act, but it remains in dispute as to whether the ailment was substantially contributed to by employment, or in the alternative that it is due to reasonable administrative action or excluded by wilful and false representation under section 7(7) of the SRC Act.
Section 7(7) of the SRC Act excludes a disease from the definition of injury, and thereby potentially excluding an entitlement to compensation, stating:
Section 7(7)
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.
Senior Member O’Donovan considered the operation of section 7(7) in the matter of Philip Jones v Comcare[61] and while ultimately, he did not have to determine whether subsection 7(7) applied in that proceeding, he provides useful commentary on the interpretation of the sub-section and if it operates to exclude liability generally, or to deprive an employee only from the benefit of treatment for the injury where similar to a previous injury or condition that has been denied when read with section 6 of the SRC Act.
[61] [2023] AATA (30 June 2023).
CONSIDERATION
From the Applicant’s history gleaned from the various records in Exhibit A, it is clear she has had a difficult and, at times, traumatic life. Quite properly and reasonably she has sought medical treatment and counselling at various points to assist her in coping with these traumatic events (other than the incident) including:
(a)Serious physical abuse from her father in the guise of strict discipline;
(b)Marital breakdown with psychological violence;
(c)Separation anxiety from her child following divorce;
(d)The deaths of her father at an early age, and later her mother during the time of her marital breakdown;
(e)Caring for a child diagnosed with oppositional defiant disorder;
(f)Involvement of Child Youth Protective Services in relation to her son;
(g)Violent altercations between her and her son requiring numerous police attendance;
(h)An accepted neck injury in the course of work;
(i)Litigation relating to the denial of her claim for tendonitis;
(j)The death of a friend and losing her son’s uncle to suicide on the same day;
(k)Resuscitating a person whilst attending a funeral for her friend, in the presence of her son;
(l)Sexual harassment in the workplace and subsequent claimed harassment and victimisation after reporting the colleague;
(m)Witnessing a crime at her local shopping centre and having to give a statement, but fearing retribution for doing the right thing; and
(n)Encountering and contacting police as a result of a neighbour attending her home terrorising her son;
A common thread appears to be feelings of being victimised and persecuted by others.
In the simplest terms, the real issue in these matters is whether the Applicant sustained the claimed injuries as a result of her employment with the Respondent. As reiterated during the course of the Hearing, it is not within this Tribunal’s power or jurisdiction to make orders on Ms Cook’s behaviour, or even make orders regarding the conduct or management of the Canberra Health Services or the Respondent in the decision-making process. It is only to determine, afresh, if the Applicant was injured in the course of her employment or not, to the requisite degree, for the purposes of the SRC Act having regard to the definitions under the SRC Act (and any exclusions that may apply) and relevant case law.
The issue in dispute before the Tribunal is whether there was a physical and/or psychological injury that arose out of, or during the course of the Applicant’s employment with the Respondent as a registered nurse on 5 July 2023 when the incident occurred.
The Tribunal is required to conduct an independent merits review of administrative decisions to make the ‘correct and preferable decision in relation to the proceeding’.[62] It is generally not for this Tribunal to analyse the decision-making process. As eloquently started in Stenhouse v Secretary of Education, Employment and Workplace Relations:
The Tribunal’s deliberative processes are in any event not well suited to a more general sort of inquiry. It is certainly not intended that the Tribunal should adopt the role of a roving royal commission that roots out bad decision-making practices in isolation from the decisions which result… Our system of administrative justice anticipates that complaints about negligence or maladministration or corruption or bias will be handled by specialists in agencies with appropriate resources and powers. [63]
[62] Section 56(1)(a) of the ART Act.
[63] [2012] AATA 57 .
The Applicant is clearly distressed by what occurred at the time of the incident, but also what has happened since, commenting often on the manner in which she has been treated, not only by the employer and the Respondent, but also other organisations; ‘I became depressed in the weeks following the assault after being messed around and let down by the police and hospital management,’[64] (and presumably the ACT Courts system in relation to the reciprocal personal protection orders).
[64] JHB 6.1, pg 872.
Physical Claim
The Applicant states that she noticed the physical injuries immediately after the incident with the wheelie walker. This is supported by the patient who witnessed the incident and observed the Applicant’s response thereafter, noticing the Applicant wincing as if in pain upon movement after the impact.[65]
[65] JHB 4.1.
She confirms that there was no bruising and she was left feeling shaken. The Applicant required Panadol medication during shift for a headache, which I accept to be true, and then later in the evening for both her pre-existing neck injury and her left thigh and hip pain. She states that it was only upon returning to work as a nurse on 10 July 2023, presumably being on her feet for the majority of her shift, that she became fully aware of the physical injuries and became incapacitated.
Whilst the Respondent contends that the Applicant’s evidence should be taken carefully and only accepted where there is corroborating objective evidence, I accept the Applicant did suffer pain in her left thigh and hip upon impact of the wheelie walker at the time. Her re-telling of the type of pain in relation to her left thigh and hip is relatively consistent, taking into account variances for the passage of time. Similarly, it is consistent with the medical certificate of Dr Morris in relation to the left thigh and hip. Accordingly, I accept the Applicant suffered a frank injury to her left thigh and hip having regard to the contemporaneous reporting.
In Military Rehabilitation and Compensation Commission v May, the High Court held that a “physiological change...remains central” to the analysis of whether a condition can be categorised as an ‘injury (other than a disease)’ (also referred to as an injury “in the primary sense”). Whilst the “suddenness” of any physiological change is not a condition precedent to the classification, the High Court noted that “suddenness” is “often [a] useful” consideration “where there is a need to distinguish a physiological change from the natural progress of an underlying...disease”.
The Respondent refers to the previous attendance by the Applicant to the Emergency Department in December 2021 for left leg and knee pain to submit that the Applicant has not suffered an injury. With respect, I do not agree that the left leg and knee pain in December 2021 have any significant bearing on the Applicant’s left thigh and hip pain arising from the incident with the wheelie walker or cause me to consider the Applicant to have suffered from an ailment or disease.
The Respondent relies on Prof Youssef’s report that there was no clinical diagnosis and no physiological change to the Applicant’s left thigh and hip for the physical claim to be classified as an injury, taking into account the High Court’s decision.
Prof Youssef’s evidence as a qualified rheumatologist was carefully considered and his report on the documents well written, however I note that Prof Youssef was at a serious disadvantage in giving his evidence in that he had not had the benefit of clarifying any of the reports in the documentation with the Applicant, but also being in the position of providing a report, on the papers, a considerable time after the resolution of the injuries.
I accept Dr Morris’ medical certificate as providing a sufficient diagnosis of soft tissue injury to the left thigh and hip (though not the jarred back, for the reasons set out previously), presumably upon examination of the Applicant on 12 July 2023.
I also consider that the ‘sudden-ness’ of the impact with the wheelie walker was sufficient to cause a physiological change where the Applicant had been working as a nurse for over a year without any symptoms relating to her left thigh and hip.
Accordingly, I prefer the contemporaneous records noting the left thigh and hip arising from the incident and determine that the Applicant did suffer physical injuries as a result of the incident (though notably resolved within a relatively short time).
Psychological Claim
The Applicant has been careful to clarify that though she was distressed at the time of the incident, she did not suffer psychological trauma until she returned to work on 10 July 2023 and realised that the ‘perpetrator was still there and no one had been informed of what had happened’. In addition, the Applicant was concerned with the delay in the Riskman report having not been submitted until 13 July 2023, despite her having prepared a ‘rough draft’ and providing it to her manager, Bonnie Chen on the day of the incident.
The Applicant conceded she has previously completed Riskman reports and that it was open to her to start the report in the system on the day of the incident. She did not do so and offered a number of reasons in cross-examination as to why she did not including because she had a terrible headache at the time, the form itself is difficult to complete, and because staff were actively discouraged by management from initiating a Riskman and they were required to go through a manager or team leader first, and because she had been assured by her manager, Ms Chen that she would complete it so she did not have to.
The Applicant’s view was that her integrity was being called into question and she had no support from management. Further, whilst conceding that EML’s decision did not state that she had lied, she was of the unwavering view that they must believe her to have lied, or else the claim would have been accepted.
Therein lies the crux of the issue.
The psychological claim is that her injury arose from the incident that occurred between her and Ms Cook. What the Applicant has contended in evidence is that the trauma and psychological injury was due to the lack of support from her employer and essentially what she says was the mishandling of the incident and subsequent threats from management regarding her conduct. With respect to the Applicant, that is not what has been claimed in her claim form.
It is accepted that the Applicant suffers from an ailment, and therefore disease for the purpose of section 5B of the SRC Act. The Respondent however contends that the psychological condition only became apparent following the denial of liability for the physical injuries, and irrespective, she had a pre-existing psychological condition that did not change as a result of the incident, nor did her employment contribute, to a significant degree to the diagnosis of MDD based on the longitudinal history and A/Prof Varghese’s expert opinion, which was not opposed by the clinical records or other evidence, other than the Applicant’s own subjective evidence.
There is no doubt to my mind that the Applicant has pre-existing psychological symptoms and traumas. It is clearly evident in the records contained in Exhibit A. The question for the Tribunal to determine is whether the current ailment was contributed to, by a significant degree by her employment, was pre-existing, or is a reaction to the claims process and the Applicant’s feelings of persecution and misconduct of the workplace.
The question of what amounts to contribution to a significant degree as required for the purposes of section 5B of the SRC Act was extensively considered by the Federal Court in Comcare v Power making relevant observations as to what constitutes “significant degree” to meet the threshold under section 5B of the Act:
“78. A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial. ...
…
82. In other words, a material contribution is one which is greater than minimal or, one might say, trivial.
…
93. There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial. The Tribunal did not recognise this, despite its reference to the definition. The error the Tribunal made is similar to the one made by the Tribunal in Sahu-Khan.
94. Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention. The Tribunal did not engage with any of them. Indeed, it did not mention subs (2) at all. While the chapeau to the subsection states that those matters “may” (not “shall”) be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words that “may” means “shall”: see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223 (Earl Cairns LC); North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38; 326 ALR 16 at [209] (Nettle and Gordon JJ). In the absence of argument on this question I refrain from expressing a concluded view. Nevertheless, there is nothing in the Tribunal’s reasons to indicate that it carried out the kind of evaluative exercise required by the statute. [66]
[66] (2015) 238 FCR 187 at [78], [93] and [94].
This is further supported in, and eloquently summarised in XRLC and Comcare (Compensation)[67] as follows:
“Disease is defined by s 5B to include an ailment suffered by an employee, or an aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth. Section 5B(3) specifies that “significant degree” means a degree that is substantially more than material.”
[67] [2019] AATA 3553.
A/Prof Varghese’s evidence was that the Applicant’s employment had not contributed, to a significant degree, to the MDD condition. This is a legal test for the Tribunal to determine, having considered the factors in subsection 5B(2) of the SRC Act rather than a merely medical one, however A/Proof Varghese provides a strong and compelling foundation to enable determination.
The Applicant provided a lengthy response to A/Prof Varghese’s report clarifying, explaining and correcting numerous details within the report.[68] Specifically, the Applicant states that A/Prof Varghese told her she has a depressive illness and to inform her treating General Practitioner. When she told Dr Morris, she relays that he said, ‘I could have told you that. I am not going to prescribe antidepressants until you have dealt with the assault and secure workers compensation.’[69] I do not believe this to be an accurate reflection of what a treating general practitioner would say to a patient in ongoing psychological distress.
[68] JHB 6.1.
[69] Ibid, pg 866.
She put to A/Prof Varghese that she had reasonably attended for treatment as reasonable responses to adverse events and while being depressed, had never had depression. In A/Prof Varghese oral evidence the Tribunal was taken to a number of instances within the medical records where the Applicant had been diagnosed with having anxiety and/or depression, including a prior GP Mental Health Plan.[70]
[70] JHB 1.1, pg 135-136.
In her closing submissions, the Applicant asserted that A/Prof Varghese engaged in medical misogyny and gaslighting, blaming her for having a catastrophic reaction to the incident.[71] I do not accept that assertion.
[71] Applicant’s Written Closing Submissions.
She also highlighted that A/Prof Varghese is paid by the Respondent and contended that he could not make a credible diagnosis within a one hour interview whereas Dr Morris, as her treating General Practitioner of considerable years, had not made such a diagnosis despite the lengthy doctor/patient relationship.
Dr Morris was not called to give evidence by the Applicant, nor provided an expert report for the benefit of the Tribunal. All that was before the Tribunal were Dr Morris’ clinical records, including medical certificates and the letter of 30 August 2023 citing the emotional and financial stress the Applicant was suffering.
A/Prof Varghese’s response that a treating General Practitioner can only go by what is reported to them by a patient, particularly with respect to symptoms of a psychological nature was persuasive and preferred over the assertion that because Dr Morris had not specifically diagnosed depression, A/Prof diagnosis was incorrect. This is particularly in the context of noting considerable reference throughout the entirety of Dr Morris’ clinical records (and other records) to the Applicant being distressed, visibly upset, being overwhelmed and not coping and being referred for counselling and GP Mental Health Plans. I do not consider that the records of Dr Morris contradict the diagnosis made by A/Prof Varghese, but rather supplement it. A/Prof Varghese has had the benefit of access to not only Dr Morris’ clinical records, but those of other treaters. He also is a qualified expert in psychiatry.
I accept A/Prof Varghese as being an expert witness, appropriately qualified in psychiatry to make a diagnosis of the Applicant’s psychological symptoms. He presented as a consistent and compelling witness with a clear in-depth knowledge of the voluminous documentation contained within Exhibit A. In response to direct cross-examination by the Applicant, A/Prof Varghese calmly addressed the line of questioning in a thoughtful and attentive manner.
Having extensively reviewed the clinical records contained within the T-Documents and Supplementary T-Documents in Exhibit A, whilst it appears that the reference within A/Prof Varghese’s report to the Applicant being a victim of sexual abuse is a misinterpretation of a flowchart within the records of Women’s Health Centre instead of her father and uncle, the balance of the documentary summary is a fair description of what is contained within those notes. The Respondent contends this error does not assist the Applicant in that A/Prof Varghese’s opinion remains the same even were the incorrect reference to sexual abuse be excluded from the report. I tend to agree.
In the absence of any expert evidence to the contrary and being of the view that A/Prof Varghese is a suitably qualified and credible witness with a strong foundation supporting his diagnosis, I accept his evidence that the Applicant is suffering from Major Depressive Disorder that pre-existed the incident, with underlying chronic Persistent Depressive Disorder and make a finding of fact in that regard.
Having carefully considered the factors to be taken into account in determining whether an ailment has been contributed to, to a significant degree, by employment under section 5B(2) of the SRC Act, I find that the Applicant’s employment, nor the incident, did not contribute to the MDD to the requisite degree, but rather than on the Applicant’s own evidence, she became depressed at the way the incident and claim were handled on a background of previous claims of victimisation and mishandling of complaints by Canberra Health Services.
I disagree with the Applicant’s assertions regarding A/Prof Varghese and Professor Youssef and find them to be merit-less, unjustified and not based on any objective evidence. Indeed, these assertions seems to be precisely the type of response expected as part of MDD as per the example provided by A/Prof Varghese in his oral evidence of manifestations of the diagnosis of MDD with an underlying PDD condition, irrespective and unrelated to the incident.
While it is correct that an expert qualified by a particular party is generally remunerated by that party and it is understandable that a self-represented litigant would have a natural assumption that they are therefore biased and will tend to find in favour of that party, it is important to note that an inherent part of the role of an expert witness above and beyond a lay witness is their “overriding duty to provide impartial assistance to the Tribunal on matters relevant to their area of knowledge or experience.” [72]
[72] Administrative Review Tribunal (Expert Evidence) Practice Direction 2024.
This matter is further complicated by the psychological claim form clearly asking if there has been pre-existing or similar symptoms or injury, to which the Applicant has ticked no, thereby calling into question whether the Applicant is precluded from compensation by wilful and false misrepresentation under section 7(7) of the SRC Act. Her explanation for this played on semantics, emphasising repeatedly that she had felt depressed but not suffered depression previously and she had never had a psychological condition diagnosed as the result of an unprovoked and witnessed assault.
This was one of the primary issues the subject of her previous AAT proceedings and considerable submissions were made in that regard and detailed within the decision containing adverse credit findings of the Applicant’s evidence, though not to the extent that she wilfully and falsely misrepresented the truth.[73]
[73] Ibid 59.
As I consider the psychological claim was not contributed to by employment, to a significant degree, it is not necessary for me to make any determination in relation to either whether the injury arose out of reasonable administrative action taken in a reasonable manner, nor whether the Applicant made wilful and false misrepresentation in her psychological claim form (or since) to enliven the exclusion provisions of section 7(7) of the SRC Act.
I do make a peripheral observation that given the extensive argument regarding this same issue in her previous Tribunal matter, one would expect an over cautious approach to completing claim forms thereafter to avoid such an issue arising again. Were it to continue happening it could be said to be a tendency or pattern of behaviour that would certainly suggest a more deliberate intent to misrepresent the truth.
DECISION
2023/8772 – Physical Claim
Based on the reasons set out above, I am satisfied the Applicant suffered from a compensable physical injury to her left thigh and hip with right knee stiffness arising from the altered gait from limping due to the contact made with the wheelie walker in her workplace on 5 July 2023 that resulted in incapacity and the need for medical treatment.
Accordingly, I set aside the decision under review dated 5 October 2023 and in substitution, decide the Respondent is liable under section 14 of the SRC Act.
I do note that on the medical evidence before the Tribunal, and the Applicant’s own evidence, the soft tissue injury to her left thigh, hip and right knee stiffness resolved within a short period of time of the incident with physiotherapy treatment and certainly as at the date of the Hearing she no longer suffers the effects of these injuries, having fully recovered.
In accordance with the decision of Lees v Comcare[74] the nature and amount of any compensation payable is to be determined under other provisions of the SRC Act, and it is not for this Tribunal to determine any future entitlement in advance, pre-judge or bind a future decision maker.[75]
[74] [1999] FCA 753.
[75] Plumb v Comcare (1992) 39 FCR 236; Liu and Comcare (2004) 79 ALD 119; Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396; Australian Postal Corporation v Oudyn (2003) 73 ALD 659.
2023/8773 – Psychological Claim
Further, for the reasons already stated, I affirm the decision under review in relation to the psychological claim.
While I acknowledge that this decision may cause some distress to the Applicant, I am required to apply the legislation and applicable case law to the facts as presented in evidence. I encourage the Applicant to provide a copy of this decision to her treating General Practitioner and discuss it with him to seek his support.
Applicant: Self-Represented
Respondent: Mr Peter Woulfe instructed by HWL Ebsworth Lawyers
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