Orfanidis and Commonwealth Bank of Australia

[2011] AATA 914

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 914

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos    2009/4078

GENERAL ADMINISTRATIVE  DIVISION		)  2010/2246
Re		SUSAN JUDITH ORFANIDIS

Applicant

And COMMONWEALTH BANK OF AUSTRALIA

Respondent

DECISION

Tribunal Ms Regina Perton, Member
Miss E A Shanahan, Member

Date20 December 2011

PlaceMelbourne

Decision The Tribunal affirms the decisions under review.

[sgd] Regina Perton

Member

COMPENSATION – panic disorder, anxiety and depression – revocation of liability – cessation of liability – whether applicant sustained an injury or temporary aggravation – liability for permanent impairment – decisions affirmed.

Accident Compensation Act 1985 (Vic)

Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 16, 19, 24, 27

Australian Postal Corporation v Lucas (1991) 33 FCR 101

Re Lucas and Comcare [2008] AATA 1142

Re McMillan & Anor and Comcare [2010] AATA 628

REASONS FOR DECISION

20 December 2011 Ms Regina Perton, Member
Miss E A Shanahan, Member         

1.Susan Orfanidis started working for the Commonwealth Bank of Australia (the bank) in 1997 as a customer service officer and was promoted to personal banker in 2003.  Subsequently, her role was as a customer service specialist.  In November 2003 she sustained a work-related injury and received workers’ compensation benefits under the Accident Compensation Act 1985 (Vic).

2.On and after 31 March 2008 the bank was licensed to operate under Commonwealth workers’ compensation law rather than being subject to the laws of the individual states in which it operates.  

3.On 29 September 2008 the bank accepted liability for exacerbation of existing major depression/anxiety panic attacks following an incident on 24 July 2008.  On 5 June 2009 the bank decided that it had no further liability for compensation for incapacity benefits and medical expenses. On 5 August 2009 the bank affirmed the decision of 5 June 2009.  Ms Orfanidis seeks a review of the decision of 5 August 2009 (application 2009/4078). 

4.Ms Orfanidis also seeks review of a decision dated 21 May 2010, that she was not entitled to compensation for permanent impairment (application 2010/2246).

5.The issues before the Tribunal are:

·Did Ms Orfanidis suffer an injury or an aggravation of an injury arising out of or in the course of her employment on 24 July 2008?  If so:

·Did the injury result in incapacity for work after 5 June 2009? If so:

§What is the period of incapacity and the liability for compensation? And:

§What medical treatment is required for the injury and what is the liability for compensation for the payment of medical expenses?

·Is Ms Orfanidis entitled to compensation for injuries resulting in permanent impairment?

LEGISLATIVE BACKGROUND

6.Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides that:

(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.

7.Sections 5A and 5B of the SRC Act came into effect on 13 April 2007. The pertinent parts are as follows:

5A  Definition of injury

(1)      In this Act:

Injury means:

(a)       a disease suffered by the employee; or

(b)an injury (other than a disease) suffered by the 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.

…

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.

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.

8.Section 16 of the SRC Act provides for the payment of compensation in respect of reasonable medical expenses incurred as a result of an injury. Section 19 provides for the payment of compensation for incapacity for work resulting from an injury. Sections 24 and 27 of the SRC Act provide for compensation for injuries resulting in permanent impairment.

DID MS ORFANIDIS SUFFER AN INJURY (OTHER THAN A DISEASE) OR AN AGGRAVATION OF AN INJURY ARISING OUT OF OR IN THE COURSE OF HER EMPLOYMENT ON 24 JULY 2008?

The evidence

9.Ms Orfanidis told the Tribunal that after completing Year 10 in Belfast her family migrated to Australia.  She worked in sales before leaving the workforce to raise three children.  She joined the bank on a part-time basis and became a full‑time employee in 2002, working in various suburban branches.  She said that she was located at the Port Melbourne branch in early 2003, working as a sales‑focused personal banker.  Ms Orfanidis said that she was initially successful, achieving a number of awards for meeting quotas and targets in her first six months at the branch.  Her branch manager indicated he was happy with her performance.  However, by October 2003 she was pushing herself too hard, with the result that she was experiencing stress and panic attacks.  She became embarrassed and flushed at work, and found it difficult to speak at staff meetings.

10.Ms Orfanidis stated that she consulted her general practitioner and commenced counselling.  The situation became worse on 26 November 2003, when she perceived that the branch manager made comments criticising her performance, causing her to experience a panic attack.  On 22 December 2003 she experienced a further panic attack.  She lodged a claim for Workers’ Compensation under the Victorian legislation, which was accepted. She remained off work until February 2004, when she commenced a graduated return to work program at the Sunshine branch of the bank, before resuming full-time duties.  She was taking prescribed anti-depressant and anti-anxiety medication from 2003 throughout 2004.

11.Ms Orfanidis told the Tribunal that in March 2005 she overdosed on anti‑anxiety medication after a non-work related dispute and was admitted to the Melbourne Clinic for five days, after which she returned to work.  She said that on 14 August 2007 she had a panic attack at work after the new manager of the Sunshine branch made a written comment on her weekly sales statistics that was critical of her performance.  One month later she reduced her working hours to 27 hours per week.  She also said she was being hounded by the assistant branch manager (Sophie Constantinou), who was constantly and unnecessarily monitoring her performance, and [a] few times she poked me in the ribs to make sure that I was working and to hurry me up. 

12.Ms Orfanidis stated that on 24 July 2008 (the 24 July incident), the bank had closed for the day and the staff were compiling sales statistics.  She said that Ms Constantinou told her that her performance was just not good enough.  She suffered what she believed to be a panic attack and left the branch with a colleague.  When she arrived home she took anti-anxiety medication and consulted her psychiatrist the next day.   She said that she was unable to work for about four weeks, and returned to work on 21 August 2008.  On 30 July 2008 she commenced counselling with a psychologist.

13.Ms Orfanidis explained that she continued working until May 2009, when an incident occurred in the branch involving a relieving assistant manager who was listening to her interviewing a customer.  Ms Orfanidis began to feel anxious, and the next day the branch manager gave her an unfavourable customer service report.  This caused her to become stressed, and she began to forget some of the matters that customers had raised during interviews.  She said that she ceased work and that the bank terminated her employment in November 2009 on the grounds of ill health.  After ceasing work she began to feel depressed and was admitted to the Melbourne Clinic for a second time in April 2010.  She said that she tends to stay at home. She visits family members occasionally.  She continues to consult her treating psychiatrist and takes prescribed medication.  She still has memory problems.

14.Under cross-examination, Ms Orfanidis agreed that she had experienced difficulty in sleeping since 1998, when a family member was displaying behavioural problems and more recently when that person was the subject of criminal investigations and charges in 2006 (which ultimately did not proceed).  However, she denied she was depressed or that she worried unduly; or that she experienced any panic attacks at this time.  Ms Orfanidis confirmed that the overdose of anti-anxiety medication in 2005 was deliberate.  She has been taking the medication since 2003 whenever she feels anxious or has a panic attack.  She conceded that she had carried Xanax tablets in all of her handbags while still working just in case she felt a panic attack coming on.  She also agreed that she saw her doctor regularly so that she had supplies of medication on hand.

15.Dr Vijay Navani told the Tribunal that he has been Ms Orfanidis’s general practitioner since 1995.  In a written report dated 15 October 2009 he stated that Ms Orfanidis sustained an adjustment disorder with mixed anxiety and major depression in 2003, following her interaction with her then bank manager.  He said that Ms Orfanidis has never recovered and has continued to struggle with anxiety, panic attacks and a fragile mental state. This has led to tiredness, poor concentration, performance anxiety and an extreme sensitivity to any perceived negative interaction, particularly with supervisors in the workplace.

16.Dr Navani stated that Ms Orfanidis managed her duties with the bank remarkably well until the 24 July incident, when she received negative feedback from the assistant branch manager in an offhand manner, leading to panic attacks and an exacerbation of her anxiety, which caused a deterioration in her already fragile mental state and a permanent incapacity for work.  He said that he took a history from Ms Orfanidis that on that particular day she felt that the summary of her weekly performance was unfair.

17.Under cross-examination, Dr Navani agreed that Ms Orfanidis was first prescribed anti-depressant medication in 1995 and that in 1998 she was having difficulty in dealing with family issues.  He also confirmed that since 2003 he has prescribed anti-anxiety medication which Ms Orfanidis has kept in her handbag constantly, used in various situations when she has felt anxious, and that the dosage has increased significantly since then.  Dr Navani described Ms Orfanidis’s condition as a panic disorder and conceded that a panic attack may be triggered by a number of events, including incidents that are not work-related.  He agreed that in 2006 and 2007 she had to deal with stressful family issues and litigation relating to her claim for compensation under the Victorian legislation. 

18.Dr Navani had noted that by mid-2007 Ms Orfanidis was not coping with formal performance reviews and work appraisals, so she requested to work reduced hours.  He said that she has never reported to him any panic attacks caused by other than work-related matters.

19.Dr Navani stated that he was aware of Ms Orfanidis’s ongoing litigation under the Victorian legislation and that he had read the report of a Medical Panel dated 1 May 2007.  In his report, Dr Navani noted that the outcome of the Medical Panel’s review was that Ms Orfanidis was deemed to suffer from a permanent Psychiatric Injury (see later).  Dr Navani conceded that he had also formed the view by that time that Ms Orfanidis had a permanent psychiatric injury.

20.The Medical Panel’s report followed a conciliation conference in February 2007.  The bank had decided on 2 January 2007 to stop payments of compensation, medical expenses and the like.   On 8 May 2007 the Medical Panel determined that the worker is suffering from a mild Adjustment Disorder with anxiety which was materially contributed to by the claimed injury. There is no reference to permanency of the condition or permanent impairment in the Medical Panel’s ‘Opinion’ or ‘Reasons for Opinion’.  A Conciliation Outcome Certificate dated 5 July 2007 indicates that as a result of the Medical Panel’s report, the bank had agreed to continue to provide Ms Orfanidis with medical and like treatment in accordance with the [Victorian] Act.

21.In a written report dated 4 August 2010, Dr David Weissman, consultant psychiatrist, stated that Ms Orfanidis presented as an open, honest, reliable and genuine historian.  He said that she had an accepted WorkCover claim for an incident at the Port Melbourne branch of the bank in 2003 and that by mid-2007 she had no psychiatric condition or mental injury.  Dr Weissman said that at the time of the 24 July incident she was working and functioning full-time without difficulty or symptoms and was not depressed or anxious. He said that the injury suffered as a result of that incident was a new and separate psychiatric condition; although she probably had some pre-existing vulnerability to stress, anxiety and depression.

22.Under cross-examination, Dr Weissman agreed that by at least 2007 Ms Orfanidis had lost some capacity to engage in daily activities of everyday life, despite consistent and frequent medication, so in fact she had not fully recovered.  He agreed that, whatever the causes, there was a chronicity to her symptoms and impairment by 2007, and that the 24 July incident caused an aggravation of a pre‑existing chronic adjustment disorder with anxious and depressed mood and features of traumatisation.

23.In a written report dated 12 November 2010 Dr Ashok Mishra, psychiatrist, stated that he has been treating Ms Orfanidis since 12 April 2010 when she was referred for the treatment of depression as an inpatient at the Melbourne Clinic.  He said that her Major Depressive Disorder commenced in 2003 and was related to stress at work. He said that, with the assistance of medication, she was able to work full-time and enjoy aspects of her life, so that in 2007 she was functioning well and her condition was in remission.  Dr Mishra reported a relapse as a consequence of the 24 July incident, which he described as a new episode of Major Depressive Disorder due to the stress at work and a loss of capacity for work.

24.Dr Mishra stated that although Ms Orfanidis was vulnerable and sensitive to criticism, the 24 July incident was a significant stressor. Her relapse occurred only after she felt threatened, harassed and bullied by her manager.  He concluded that the 24 July incident was another major depressive episode as a result of a new injury. He said that he had no reason to doubt the accuracy of Ms Orfanidis’ perception of events as she described them to him.

25.Under cross-examination, Dr Mishra agreed that by July or August 2007 Ms Orfanidis’s condition was ongoing because she had experienced a third episode of a major depressive disorder.  He conceded that events in her life that were not work-related were stressors but he maintained that the 24 July incident was separate and that her reaction to that event was dramatic.

26.In written reports, Dr M J Nathar, consultant psychiatrist, opined that Ms Orfanidis’s adjustment disorder was chronic and originated from personal events and stress that occurred during her employment at the Port Melbourne branch of the bank in 2003.  The adjustment disorder had fluctuated in severity since that time based on incidents in 2005, 2007 and 2008.  He stated that symptoms included depression, anxiety and panic.  Dr Nathar believed that at the time of the 24 July incident Ms Orfanidis was still vulnerable and had not recovered from her 2003 underlying illness, leaving her prone to anxiety and panic attacks when she perceived work events to be an adverse reflection on her capability and performance.  He suggested that despite family issues in 2003, there was a causal link between her employment and the development of her condition in 2003, as well as exacerbations since then.

27.In a written report dated 13 December 2006 Dr Nigel Strauss, consultant psychiatrist, stated that Ms Orfanidis suffered from an anxiety state and that her prognosis depended on her personal circumstances.  He noted the incidents involving anxiety and panic attacks when Ms Orfanidis was working at the Port Melbourne branch of the bank in 2003 and 2004 and the possible family history of panic attacks.  Dr Strauss said he suspected that Ms Orfanidis has always been prone to anxiety and that the initial problems at work in 2003 and 2004 were no longer relevant to her anxiety state.  He concluded that Ms Orfanidis was not suffering from a work-related psychiatric condition. He said that personal factors, such as marital issues, family relationships, her background and her personality, were perpetuating her anxiety state.  

28.Dr Edward Cole, psychiatrist, examined Ms Orfanidis on 28 August 2008 and prepared a report addressed to Gallagher Bassett Services, an agent for the Victorian Workcover Authority.  In his opinion, Ms Orfanidis was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood with features of panic disorder.  He stated that her condition dated back to at least 2003 and that the 24 July incident represented an aggravation of her condition with the background of a vulnerable personality.

29.On 3 September 2008 Gallagher Bassett Services advised Ms Orfanidis that she was not entitled to compensation on the basis that the 24 July incident was considered to be an aggravation of the previously accepted condition and hence a fresh injury.  She was advised that she could lodge a claim with the bank and/or seek review through the Victorian system if she wished to challenge the decision.  Ms Orfanidis subsequently lodged the claims which the Tribunal is reviewing.

30.Ms Constantinou told the Tribunal that she was the customer service manager at the Sunshine branch of the bank from August 2007 until October 2009.  She said that she was Ms Orfanidis’s supervisor during this time and was not made aware of any issues experienced by Ms Orfanidis regarding anxiety and/or stress.  With respect to the 24 July incident, she explained that after the branch had closed she asked Ms Orfanidis for her stats sheet, which lists an individual’s sales figures for the day and are collected each Thursday.  She said that after perusing Ms Orfanidis’s results she told Ms Orfanidis that the result for that day was not good enough because the expectation was that targets would be met.  She said that her comments were made in a matter-of-fact way and without emotion.  She  denied that she raised her voice. No other staff member was present.  After this conversation she talked to other staff members about their results, as she did every day. She observed Ms Orfanidis leaving the branch.  She stated that Ms Orfanidis seemed to be in a happy mood and showed no obvious signs of stress.

31.Ms Constantinou emphasised that she never had any concerns about Ms Orfanidis’s work performance.  She denied that she had ever acted inappropriately towards Ms Orfanidis, and said she was not aware of any complaints by staff at the Sunshine branch about her interaction with them.

32.Mr Andrew Saliba, a branch manager with the bank, told the Tribunal that he was the manager of the Sunshine branch of the bank since June 2007.  He described Ms Orfanidis as …a very good worker and …a good team member.  He said that until a minor incident in August 2007 he was unaware that she had experienced any stress or anxiety issues.  Mr Saliba stated that he was not present during the 24 July incident.  He conceded that some staff may have been a little unclear about the new system of sales targets introduced shortly before that date.

Submissions and consideration

33.There is no dispute that Ms Orfanidis is suffering from a disease; that the ailment is incapacitating; that she was an employee of the bank; and that from 31 March 2008, the bank has been a relevant Commonwealth employer. 

34.Mr Carey, counsel for Ms Orfanidis, submitted that she is going through a significant single episode of a major depressive disorder and that the condition will continue indefinitely, resulting in an inability to work.   He conceded that Ms Orfanidis has suffered from the disorder for quite some time. However, he submitted that she was in remission and fully functioning at the time of the 24 July incident.

35.Mr Carey stated that although Ms Orfanidis was under stress, she was performing well at work. The respondent had contended that the issues she faced were primarily because of the activities of certain family members.  In response, Mr Carey submitted that, despite the particular difficulties during 2006, Ms Orfanidis continued to work full-time throughout that year and that by the time of the 24 July incident, Ms Orfanidis had come to terms with her son’s situation. 

36.Mr Carey stated that the 24 July incident may well seem like a very small occurrence when viewed objectively.  He stated that Ms Orfanidis was a fragile, somewhat predisposed or susceptible individual and had to be accepted as such in relation to the aggravation.  He cited cases supporting these submissions.

37.Mr Carey submitted that the 24 July incident made a significant contribution to Ms Orfanidis’ condition, based on the sequence of events.  He referred to Ms Orfanidis becoming quite panicked and needing to leave immediately afterwards.  Mr Carey cited as pertinent her need to get assistance to go home, her visit to her doctor at the earliest opportunity and that she it was almost four weeks before she attempted to return to work.  He submitted that the 24 July incident led to a significant aggravation of an underlying disorder and that the aggravation is likely to continue indefinitely. 

38.Mr Wallace, counsel for the bank, pointed to the changed emphasis in the Act following the insertion of s 5B. The Act now requires the decision maker to consider whether employment has contributed to the ailment or aggravation to a significant degree and to weigh various specified and unspecified factors.   He submitted that this was a substantial change from the previous definition of disease.

39.Mr Wallace submitted that Ms Orfanidis was still suffering from an ongoing condition that had been evident since 2003.  The 24 July incident and the reaction to it were simply part of the waxing and waning of Ms Orfanidis’ condition over the years.  He pointed to her reliance on prescription medication, particularly Xanax, which she kept in all her handbags and used regularly, when she experienced stress. 

40.The medical evidence before the Tribunal indicates that Ms Orfanidis has been suffering from an anxiety condition for many years.   Dr Navani, who has been her general practitioner since 1995, indicated that Ms Orfanidis has been given regular prescriptions of anti-anxiety medication since 2003.  He conceded that by mid-2007 he had formed the view that Ms Orfanidis had a permanent psychiatric condition.  

41.Dr Weissman initially reported that at the time of the 24 July incident, Ms Orfanidis had been well, with no evidence of depression and anxiety.   However, on being informed of events and reports of which he had no awareness prior to cross-examination, he agreed that by 2007, Ms Orfanidis’s condition was chronic. 

42.Dr Mishra, Ms Orfanidis’s treating psychiatrist since 2010, initially formed the view that she was in remission from her major depressive order which had commenced in 2003.   In his report prepared in November 2010, he described the 24 July incident as a fresh injury. Under cross-examination, he agreed that her depressive condition was ongoing and that there were stressors in her life apart from those that were work-related.  Nonetheless, he maintained the view in his report, that the 24 July incident was a separate stressor.

43.Dr Nathar traced Ms Orfanidis’s condition back to 2003.  He described her adjustment disorder as chronic and fluctuating in severity based on events in 2005, 2007 and 2008.   Dr Strauss concluded that Ms Orfanidis’s psychiatric condition was no longer work related.     Dr Cole concluded that Ms Orfanidis was suffering from a chronic adjustment disorder dating back to 2003.

44.While it is not necessary for the Tribunal to determine the exact nature of Ms Orfanidis’s psychiatric disorder (Australian Postal Corporation v Lucas (1991) 33 FCR 101), the expert psychiatric evidence favours a diagnosis of Chronic Adjustment Disorder with anxious and depressed mood.  There have been relatively well documented episodes of an exacerbation of symptoms of the disorder in 2003, 2005, 2007 and 2008.  In her evidence to the Tribunal on 19 November 2010, Ms Orfanidis said I never stopped getting panicky – I have always had, you know, a degree of anxiety. She has however repeatedly denied having symptoms of depression until after the 24 July incident. Her general practitioner and all psychiatrists have, since 2003, identified a depressive component to her illness. Despite a close temporal relationship of the four episodes of symptom exacerbation with her son’s problems which range from expulsion from school to being charged with a very serious crime (not proven), Ms Orfanidis denies that these events impacted on her health in any way.

45.While the psychiatrists disagreed as to what constitutes a remission of a psychiatric disorder, it was eventually agreed that Ms Orfanidis was not, at any time, in remission.  Dr Mishra who has been Ms Orfanidis’s treating psychiatrist since April 2010, is the only psychiatrist to diagnose a Major Depressive Disorder and has done so primarily on the clinical history obtained from Ms Orfanidis.  Dr Navani originally made a diagnosis of Acute Anxiety, Depression and Panic attacks in 2003 and this has varied over the years to his most recent diagnosis of Post-Traumatic Stress Disorder (report of 7 August 2009).  He may also have misinterpreted the opinion of the Victorian WorkCover Medical Panel in deeming it to have determined that as of May 2007, Ms Orfanidis’s Mild Adjustment Disorder was permanent.  The Medical Panel did not consider permanency or impairment.   

46.Based on the medical evidence cited above, the Tribunal finds that Ms Orfanidis was already suffering from a chronic condition i.e. an ailment well before 31 March 2008, the date from which the Commonwealth compensation laws applied to her employment.  All the medical practitioners dated her condition back to 2003 at the latest.    

47.For the Tribunal to be satisfied that the 24 July incident constituted an aggravation of her ailment and therefore a new injury, the Tribunal must be satisfied, on the balance of probabilities, that the 24 July incident contributed to the aggravation to a significant degree. Section 5B(2) sets out some of the matters to take into account although the relevant factors are not limited to those set out.

48.Ms Orfanidis had been employed by the bank for about 11 years before the 24 July incident.  Her tasks had not changed significantly for some years before the injury.  However, the manner in which staff achievement was measured had changed somewhat around that time. There is strong evidence that Ms Orfanidis had a predisposition to suffer anxiety attacks in the workplace for several years before the 24 July incident.  She carried and regularly used anti-anxiety medication to cope with her work.   Medical evidence dates the existence of the condition back to at least 2003.  In terms of any activities of the employee not related to the employment, Ms Orfanidis was under significant stress due to family related matters.  She gave evidence that she coped well with a situation many would find extremely difficult. 

49.The Tribunal is not satisfied that the 24 July incident contributed to Ms Orfanidis condition to a significant degree.  The evidence indicates that she had an ongoing disease which was deemed to be permanent by 2007.  The condition waxed and waned somewhat but was not in remission at the time of the 24 July incident.

50.There are two decisions of the Administrative Appeals Tribunal relevant to this application.  The facts in both are similar to this matter in that both applicants suffered from psychiatric disorders of varying severity and related this causally to work-place stressors.

51.In Re Lucas and Comcare [2008] AATA 1142 the Tribunal stated at paragraph 61:

…Once established in 1993, the condition did not resolve; the severity of her condition fluctuated affecting her incapacity for work in varying degrees. In our minds, the evidence supports a finding  that the disease was acting upon Ms Lucas’ mind and her perceptions during periods in which it was otherwise apparently quiescent…In our minds it does not follow, however, that each such reactive episode is consistent with a new aggravation injury. Rather, these episodes point to the enduring nature of Ms Lucas’ psychological symptoms and the reactive nature of her illness, especially in relation to her perceptions of events in the workplace…

52.In McMillan and Anor and Comcare [2010] AATA 628 Senior Member Creyke concluded at paragraph 88 that:

The finding that Mr McMillan’s condition in April 2008 was not an aggravation in the sense of a new injury, but a re-emergence of symptoms of his underlying psychological condition due to circumstances in the workplace is also supported on balance by the medical evidence.

53.The Tribunal finds that the 24 July incident did not constitute a new aggravation injury but represented a further fluctuation in the pre-existing Chronic Adjustment Disorder from which Ms Orfanidis has suffered since 2003.

54.It therefore follows that the Tribunal is not satisfied that Ms Orfanidis is entitled to compensation for permanent impairment under Commonwealth law. 

55.The Tribunal notes that the bank initially accepted the aggravation claim and made payments until 5 June 2009.  The Tribunal further notes that the bank has stated that while it no longer accepts that the condition was compensable under Commonwealth legislation, it will not seek reimbursement of the payments it made until that date.

DECISION

56.The Tribunal affirms the decisions under review.

I certify that the fifty-six [56] preceding paragraphs are a true copy of the reasons for the decision herein of:
Ms Regina Perton, Member and
Miss E A Shanahan, Member

Signed: .........Dianne Eva.................
  Clerk

Dates of Hearing  19, 23, 25 & 30 November 2010
Date of Decision  20 December 2011
Counsel for the Applicant         Mr M Carey
Solicitor for the Applicant          Ryan Carlisle Thomas
Counsel for the Respondent     Mr J Wallace
Solicitor for the Respondent     Turks Legal