Pedrosa-Hart and Comcare (Compensation) - [2018] AATA 4225

Pedrosa-Hart and Comcare (Compensation) [2018] AATA 4225 (13 November 2018)
Division:GENERAL DIVISION
File Numbers: 2015/6416; 2016/0215; 2017/0605
Re:Victoria Pedrosa-Hart
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Deputy President Rayment QC
Date:13 November 2018
Place:Sydney

All three reviewable decisions are set aside and remitted to the respondent for computation of the monetary entitlements of the applicants.
....................................[SGD]....................................
Deputy President Rayment QC
Catchwords
COMPENSATION – workers’ compensation – compensation for incapacity under ss 19 – 21 of the Safety, Rehabilitation and Compensation Act 1988 – compensation for medical expenses under s 16 of the Act – compensation for permanent impairment and non-economic loss under ss 24 and 27 of the Act – aggravation of adjustment reaction with mixed emotional features or major depression – whether the disease went into remission and returned at a later time – the disease suffered by the applicant currently is a recurrence of the same disease as suffered by her previously – whether the employment made a contribution to a significant degree to the disease – contribution made by the employment was to a significant degree – applicant entitled to compensation for disease – applicant entitled to compensation for medical expenses – applicant’s permanent impairment found as 15% and entitled to non-economic loss – reviewable decisions set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975, s 34D
Safety Rehabilitation and Compensation Act 1988, ss 4, 5A(1)(c), 5B, 7, 19, 20, 21, 24
Cases
Asioty v Canberra Abbattoir Pty Ltd (1989) 167 CLR 533
Azizi and Minister for Home Affairs [2018] AATA 2561
Comcare v Mooi (1996) 69 FCR 439
Hart and Comcare [2011] AATA 601
HSDR and Comcare (Compensation) [2017] AATA 779
Lonergan v Comcare [2005] FCA 377
Novosel v Comcare [2017] FCA 722
Zdziarsky v Telstra Corporation Ltd [2015] FCA 207 (2015); 146 ALD 354
REASONS FOR DECISION
Deputy President Rayment QC
13 November 2018

Mrs Pedrosa-Hart moved to Australia in 1981, having studied teaching at Catholic University, Rio de Janeiro, and undertaken further studies in the United Kingdom. Her teaching qualifications were not recognised here and she worked for a variety of government agencies in clerical roles. In August 2000, she commenced employment with the Child Support Agency, and her duties required her to spend the majority of her time on the phone with members of the public.
Some of those calls came from stressed and abusive persons and in the first years, she felt fully supported by her team leaders and managers, and she managed well.
In the year 2005, she had a clash with her new team leader and reacted badly to criticism from her. She had difficulty eating and sleeping and was referred to a psychiatrist, Dr Harris, and a psychologist, Mr Gross. She attended their rooms from 2005 and continued to see them from time to time later.
In 2005, she made a workers’ compensation claim which was settled during her review proceedings in this Tribunal. I will refer to the settlement below. In her statement, she says that the symptoms which she experienced in 2005 were never fully resolved.
In 2009, after further difficulties with her then team leader, she reacted very badly to an abusive telephone call from a member of the public and again could not sleep or eat and “could not function at home or at work”. She says she kept reliving the abuse in her head, and had no motivation or ability to do anything. She made another workers’ compensation claim and appealed to this Tribunal.
In the year 2011, the applicant obtained from this Tribunal a favourable decision. See Hart and Comcare [2011] AATA 601. That was a decision of Senior Member Toohey and Member Dr Tony Austin.
Within this Tribunal and within the administration of the respondent, such a decision is normative in the ordinary case: see Azizi and Minister for Home Affairs [2018] AATA 2561 and cases there cited. Neither party before me contended that I should depart from what was earlier decided in the Tribunal.
Senior Member Toohey and Dr Austin decided that Mrs Pedrosa-Hart suffered an injury within the meaning of the Safety Rehabilitation and Compensation Act 1988 in the course of her employment by the Child Support Agency in April 2009 and that she was entitled to compensation accordingly. The Tribunal rejected Comcare’s case that if so, her condition was contributed to, to a significant degree, by reasonable administration taken in a reasonable manner.
At [20] the Tribunal noted:
20. On 19 June 2009, Ms Hart saw Dr Wayne Mason, psychiatrist, at the request of the CSA. He diagnosed her as suffering from Adjustment Disorder with Anxiety and Depressed Mood. As far as he could ascertain, her condition “arose from a combination of being exposed to a particularly abusive telephone call from a client and then being subjected to what she saw as a lack of support from her team leader and critical attention from the administration with regard to her attendance record”.
At [33]-[35] the Tribunal recorded:
33.On 20 April 2009, Dr Nixon, who was not her regular doctor but worked close to the CSA, certified her unfit for work until 24 April inclusive for an injury that occurred “coping with demands difficult clients and time pressure” (sic).
34.On 24 April 2009, Ms Hart saw Dr Lucre who issued a certificate stating “Coping with demands of difficult clients and pressure of time”. On 1 May, Dr Lucre noted that Ms Hart was “Under stress at work and not coping with working on phone calls from the public”. She referred Ms Hart to Mr Gross, psychologist, who reported on 1 May 2009, noting the abusive call (see paragraph [19] above).
35.On 19 June 2009, Ms Hart saw Dr Mason, whose report dated 25 June 2009 also refers to the abusive phone call.
At paragraph [40] of the 2011 decision, the Tribunal said:
40. It is not in dispute that Ms Hart suffered an “aggravation of adjustment reaction with mixed emotional features” or major depression (or a similar description of her condition) in 2009. Medical evidence from her treating doctors, as well as examinations for the purposes of these proceedings, support that conclusion.
At [67], [71] and [76] the Tribunal said:
67. In his report dated 1 May 2009, Mr Gross, stated that Ms Hart’s statements to him had a “similar tone and content [to when he saw her in 2005] where she felt that management was unsupportive, unsympathetic and had increased pressure on her at times when she had been asking for support”. In his report dated 29 June 2009, he wrote that, on her return from Brazil, “she was placed on performance review because of her excess leave. This left Victoria feeling frustrated and angry with management – she perceived this as harassment and uncalled for.”
…
Dr Mason’s report
71. Dr Wayne Mason, a psychiatrist, saw Ms Hart on 19 June 2009 for a Fitness for Continued Duty Assessment arranged by the respondent. He submitted a report dated 25 June 2009. He, too, diagnosed “adjustment disorder with anxiety and depressed mood” directly resulting for her work, in particular from the particularly abusive phone call and to what she saw as the lack of support for her at work and the criticism about her attendance.
…
Dr Akkerman’s evidence
76. Dr Klass Akerman saw Ms Hart in January 2011 at the request of her solicitors. She told him about the phone call. He thought she had suffered major depression in 2009, rather than adjustment disorder, because of the severity of her symptoms, and was incapacitated between April and October 2009. He also thought she had recovered by January 2011.
I read the Tribunal’s decision of 2011 as a decision that as a result of her employment, the applicant suffered an injury in 2009 entitling her to compensation. The parties before the Tribunal agreed that the description of the injury was an aggravation of adjustment reaction with mixed emotional features or major depression (or a similar description). That agreement satisfies s 5A(1)(c) of the Act which provides (so far as relevant):
(1)In this Act:
injury means:
…
(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.
The evidence of Mr Gross to which the Tribunal referred, noted in relation to both the injury of 2005 and the injury of 2009, that the applicant felt concern about the fact that her employer offered her little support. Significantly, there is also evidence before me that in 2014, when the applicant showed symptoms of anxiety disorder and depression again, one feature of her presentation was that she again felt let down by her employer in the lack of advice she had been given at the time of her retirement.
As noted in the 2011 Tribunal decision, the applicant retired in October 2010. No claim was then made that she was, in October 2010 or in 2011, suffering from any continuing incapacity and no findings were made about that matter in the 2011 decision. Nor was any finding made about the circumstances of her 2010 retirement. The evidence before the Tribunal in 2011 was that she was at the time of her retirement, working full hours although with restricted duties, in that she was not then taking phone calls from the public.
The applicant was off work in 2009 and saw Dr Harris and Mr Gross. From October 2009, she worked six hours a day and by early 2010, she was working 37.5 hours per week. She did not do phone-based work but was given a variety of different positions. She says she was told by the Rehabilitation Officer, Mr Tubman, that eventually she would have to return to phone-based work, which was contrary to the return to work program in her case. That statement was very worrying to her because of the limitation which had been put on her return to work, and she felt it was necessary for her to retire even though she was then only 56 years of age.
She was, she says, encouraged to retire in 2010, having been told by Mr Tubman that she could access most of her long service leave entitlements.
Following her retirement, she accessed a portion of her superannuation fund and received a lump sum payment. Following the decision of this Tribunal in 2011, the respondent paid for medical treatment for the injury, and the last claim of the applicant for such treatment was made in December 2011, which appears to relate to a consultation with her psychologist Mr Gross in October 2011. Her work done after returning to work in October 2009 and prior to her retirement was unsatisfactory to her. She felt worthless and unproductive, being unable to help members of the public by telephone and being unable to do the main job which the Child Support Agency required of her.
She reports in her statement that after her retirement, she decided to cease to take medication and did not do so after mid-2011 and until 2014. She ceased to consult her psychiatrist Dr Harris in mid-2011. Her symptoms while she was off work were clearly improved for at least some of the intervening period prior to 2014. She says one factor in her decision to discontinue treatment in 2011 was that she could not continue to pay her psychologist or psychiatrist. In early 2011, she gave a positive account of her mental health to two doctors whose reports are in evidence. In her retirement, she had few stressors until 2013 or early 2014. In her statement dated 24 April 2017, she says that she was unable to find suitable employment in 2013 due to her major depression caused during her employment at the Child Support Agency.
The applicant says in her statement that after about eighteen months or two years from the cessation of her receiving treatment (a date which I take is about 2013), her husband was thinking of retiring or had just retired and, with finances pretty tight, she and her husband discussed her possible return to the workforce. She says: “From the outset of making that decision my mental health issues began to return. The more I thought about returning to work, the worse they became.”
I mention that the date of retirement of the applicant’s husband is somewhat obscure to me. In some of the medical reports, the retirement is put in about 2010 to 2011 and the information is attributed to the applicant. The applicant said in evidence that her husband was a contractor whose work was not continuous. He was not offered work for certain periods, and was not then working.
I do not place importance on this question. I take it that at some time in 2013, she and her husband were in discussion about their finances, which were difficult, and the possibility that she might need to go back into the workforce was discussed. Her husband was not well, and a return to work for him was not possible for that reason alone. Arising from that discussion, the prospect of a return to the workforce alarmed her and caused her to ruminate about what had happened when she last worked for the Commonwealth. The need for financial assistance appears to have led her to seek a disability pension, which she was able to obtain.
The next relevant event, in early 2014, was her telephone call from a work colleague and friend, Shannon, who asked her why, when she retired, she did not claim for her invalidity, as “medical retirement”. In due course, the applicant approached Comcare, and the officer with whom she spoke said that the matter could be reassessed. She felt resentment that she had not been advised to take that course in 2010, and felt that her employer has let her down yet again. Her ruminations about her earlier employment continued and it seems clear to me that her earlier symptoms of 2009 and probably also 2005 returned. Dr Harris thought that the symptoms of 2005 and 2009 were the same, and Mr Gross who saw her in 2005 and 2009-2011, 2014 and more recently, thought that the symptoms were the same on all three occasions.
None of the evidence suggests that prior to 2005, she had any psychiatric condition. The 2009 symptoms, as I have said, were treated by agreement as an aggravation of her earlier condition, which it also seems clear had its genesis at the Child Support Agency as a result of her employment.
The applicant claimed from Comcare in 2015, an “invalidity pension”, which the respondent treated as a claim for weekly payments of compensation as from October 2010 when she retired, on the basis that she had claimed incapacity from that date. Subsequently, the applicant claimed medical expenses from the same date, and later still, she claimed for permanent impairment. All three claims were rejected by Comcare originally and upon internal review, and all are before me now for review in this Tribunal.
THE RELEVANT LAW
The post-retirement claim for medical expenses arising from injury suffered at work is a familiar kind of claim in Comcare matters. The claim for incapacity payments arises under sections 19-21 of the Safety Rehabilitation and Compensation Act 1988 and the claim for permanent impairment arises under s 24 of the Act. Sections 19, 20, 21 and 24 provide as follows:
19Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
(2A)For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a)it is a week during which the employee’s incapacity prevents the employee working the employee’s normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and
(b)the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee’s normal weekly hours.
(2B)If, before the end of a particular week, the total of the hours that the employee has been prevented from working, or working at that level, in that week and in previous weeks, will exceed the total number of hours worked out in accordance with paragraph (2A)(b), then:
(a)subsection (2) applies in respect of the part of the week before that total number of hours is exceeded in accordance with subsection (2C); and
(b)subsection (3) applies in respect of the remainder of the week in accordance with subsection (2D).
(2C)For the purposes of paragraph (2B)(a), the compensation payable in respect of the part of the week to which that paragraph refers is an amount worked out using the formula:
where:
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
NWH means the number of normal weekly hours worked by the employee before his or her injury.
X is the total of the hours in that particular week:
(a)that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and
(b)that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours.
(2D)For the purposes of paragraph (2B)(b), the compensation payable in respect of the part of the week to which that paragraph refers is worked out using the formula:
where:
NWH means the number of normal weekly hours worked by the employee before his or her incapacity.
reduced rate compensation entitlement is the rate of compensation that would have been applicable for the whole week had subsection (3) applied throughout the whole week.
X is the total of the hours in that particular week:
(a)that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and
(b)that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours.
(3)Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
where:
adjustment percentage is a percentage equal to:
(a)if the employee is not employed during that week—75%; or
(b)if the employee is employed for 25% or less of his or her normal weekly hours during that week—80%; or
(c)if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—85%; or
(d)if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—90%; or
(e)if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—95%; or
(f)if the employee is employed for 100% of his or her normal weekly hours during that week—100%.
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
(3A)If, as a result of the incapacity:
(a)the amount per week payable to the employee in respect of his or her continued employment is reduced; and
(b)a pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment (including self‑employment)—the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour‑market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant.
(5)Where an amount of compensation calculated under subsection (3) exceeds 150% of the amount called the Average Weekly Ordinary Time Earnings of Full‑time Adults, as published from time to time by the Australian Statistician, the amount so calculated shall be reduced by an amount equal to the excess.
(6)Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
(7)For the purposes of subsection (6), the minimum earnings of an employee shall be taken to be:
(a)$202, or, if subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies; or
(b)an amount equal to 90% of the employee’s normal weekly earnings;
whichever is less.
(8)If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $50.
(9)If there are prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of birth of that child.
(10)If a prescribed child is:
(a)a prescribed person in relation to the employee; and
(b)the only prescribed person who is wholly or mainly dependent on the employee;
subsection (9) does not apply in relation to that child.
(11)If 2 or more prescribed children are each:
(a)a prescribed person in relation to the employee; and
(b)wholly or mainly dependent on the employee;
subsection (8) applies in relation to one of those children and subsection (9) applies in relation to the remainder of those children.
(12)In this section, prescribed person, in relation to an employee, means:
(a)the spouse of the employee; or
(b)any of the following persons, being a person who is 16 or more:
(i)     the parent, step‑parent, father‑in‑law, mother‑in‑law, grandparent, child, stepchild, grandchild, sibling or half‑sibling of the employee;
(ii)    a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to the employee;
(iii)   a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent on the employee.
(14)For the purposes of the definition of prescribed person in subsection (12), a person who has the care of a child referred to in subparagraph (12)(b)(iii) shall not be taken not to be wholly or mainly maintained by an employee merely because the employee pays remuneration to the person for caring for that child.
20Compensation for injuries resulting in incapacity where employee is in receipt of a superannuation pension
(1)Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:
(a)the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and
(b)the employee receives a pension under a superannuation scheme as a result of the employee’s retirement.
(2)Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.
(3)The amount of compensation is the amount worked out using this formula:
where:
amount of compensation means the amount of compensation that would have been payable to the employee for a week if:
(a)section 19, other than subsection 19(6), had applied to the employee; and
(b)in the case of an employee who was not a member of the Defence Force immediately before retirement—the week were a week referred to in subsection 19(3).
(4)In using the formula in subsection (3) to calculate an amount of compensation for an employee who retired before the day on which item 22 of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 commenced, use “SC” instead of “5% of the employee’s normal weekly earnings”. For this purpose:
SC means the amount of superannuation contributions that the employee would have been required to pay in that week if he or she were still contributing to the superannuation scheme.
21Compensation for injuries resulting in incapacity where employee is in receipt of a lump sum benefit
(1)Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:
(a)the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and
(b)the employee receives a lump sum benefit under a superannuation scheme as a result of the employee’s retirement.
(2)Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.
(3)The amount of compensation is the amount worked out using this formula:
where:
amount of compensation means the amount of compensation that would have been payable to the employee for a week if:
(a)section 19, other than subsection 19(6), had applied to the employee; and
(b)in the case of an employee who was not a member of the Defence Force immediately before retirement—the week were a week referred to in subsection 19(3).
weekly interest on the lump sum means the amount worked out by:
(a)multiplying the superannuation amount in relation to the lump sum benefit received by the employee by the rate specified in an instrument made under subsection (5); and
(b)dividing the result of paragraph (a) by 52.
(4)In using the formula in subsection (3) to calculate an amount of compensation for an employee who retired before the day on which item 22 of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 commenced, use “SC” instead of “5% of the employee’s normal weekly earnings”. For this purpose:
SC means the amount of superannuation contributions that the employee would have been required to pay in that week if he or she were still contributing to the superannuation scheme.
(5)For the purposes of the definition of weekly interest on the lump sum in subsection (3) of this section and subsection 21A(3), the Minister may, by legislative instrument, specify a rate that applies for the period of 12 months commencing on 1 July in any year.
24      Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A)Subject to section 25, if:
(a)the employee has a permanent impairment that is a hearing loss; and
(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8)Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b)the impairment constituted by the loss, or the loss of the use, of a toe;
(c)the impairment constituted by the loss of the sense of taste;
(d)the impairment constituted by the loss of the sense of smell.
(9)For the purposes of this section, the maximum amount is $80,000.

The claim for incapacity payments has some similarities with the circumstances considered, in the context of a different legislative regime, by the High Court in Asioty v Canberra Abbattoir Pty Ltd (1989) 167 CLR 533. There, a claim succeeded of a worker who had retired, whose dermatitis had been exacerbated during his employment by the respondent. If he had wished (after his retirement date) to obtain other employment reasonably available to him, he would have been unable to work because of his condition, but its symptoms were much less pronounced because he was not working. It was his enhanced susceptibility caused by his employment, rather than any continuing florid condition which led to the claim succeeding. Asioty had a pre-existing condition before his employment, but Mrs Pedrosa-Hart did not.
APPLICANT’S PREVIOUS AAT PROCEEDING
One matter which is in issue before me is whether the terms of the settlement of the 2005 claim limit the basis on which her present claims may be considered. The respondent has submitted that it is not open to me to revisit the matters agreed and embodied in the consent orders in 2007 having regard to the terms of s 34D of the Administrative Appeals Tribunal Act1975 and what was said by Perry J in Novosel v Comcare [2017] FCA 722 at [103]. Perry J there said:
103.Further and in any event, a consent decision made under s 34D of the AAT Act is no less final than a decision made on the merits following a hearing. As the respondent contends, “[i]t would be contrary to the intention of the legislature in enacting a range of alternative dispute resolution mechanisms to conclude that a consent decision is any less final than a decision that has been dealt with on the merits.” That Parliament so intended is supported by the fact that a consent decision can be made under s 34D(1) of the AAT Act only where neither party has notified the Tribunal that she or he wishes to withdraw from the agreement within a seven day “cooling off” period after agreement is reached and the Tribunal is satisfied that a decision giving effect to the agreement is within its powers. Nor as the respondent contends, did the applicant at any time seek judicial review of any of the earlier consent decisions, or to reinstate any of his withdrawn applications under s 42A(10) of the AAT Act.
The consent order dated 13 April 2007 and rectified on 3 May 2007 recorded the following ten decisions of the Tribunal:
1.The reviewable decision dated 13 April 2006 is set aside.
2.In substitution thereof:-
(a)The Applicant has suffered an “adjustment disorder” on 9 September 2005 which was materially contributed to by her employment (“the injury”) pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”).
(b)During the period 9 September 2005 up to and including 13 November 2006, the Applicant continued to suffer from the effects of the injury.
(c)As at 14 November 2006, the effects of the Applicant’s injury have resolved and as at 14 November 2006 to date and presently the injury did not result in any incapacity for work or impairment.
3.As at 14 November 2006 to the present time, the effects of the injury have resolved and the Applicant did not require medical treatment.
4.Pursuant to section 16 of the Act, the Applicant is entitled to compensation for reasonable medical treatment obtained as a result of the injury, upon the production of appropriate receipts, for the period between 9 September 2005 up to and including 13 November 2006.
5.From 14 November 2006 to date and presently the injury does not give rise to an entitlement to compensation for medical treatment pursuant to section 16 of the Act.
6.As at 8 May 2006 to present time the Applicant has not been incapacitated for work.
7.Pursuant to section 19 of the Act, the Applicant is entitled to compensation for incapacity resulting from the injury, upon production of medical certificates, for the period between 9 September 2005 up to and including 8 May 2006.
8.From 9 May 2006 to date and presently the injury does not give rise to an entitlement to compensation for incapacity pursuant to section 19 of the Act.
9.The matter is remitted to Comcare for determination of the Applicant’s entitlement to compensation in accordance with the Act.
10.The Respondent is liable to pay the Applicant’s reasonable party/party costs and disbursements, pursuant to section 67 of the Act and the Tribunal’s General Practice Direction, in the amount of $6,730.25 (inclusive of GST).
The terms of the consent order and the findings made in consequence do not appear to me to have been intended to rule out in advance, any claim which might later be made by the applicant that the employment later led to an aggravation (including a recurrence) of the anxiety and depression experienced in 2005. If such a claim was made (as appears later to have been the case with the 2011 proceedings), it would fall to be determined on its merits. The provisions of order 2(c) stating that the effects of the injury “have resolved” and “as at 14 November 2006 to date did not result in any incapacity for work or impairment” and the similar statements in order 3 do not seem to me to be intended to preclude a later aggravation claim. The references in the consent order to the period commencing in November 2006 and ending in April 2007 seem to limit the effect of the findings to that closed period rather than to make them extend indefinitely into the future.
The claim as finally pressed before me is that the disease from which the applicant suffered from 2014 to date is the same as suffered in 2005 or 2009, or both. Nothing stated in the consent orders seems to me to preclude a finding that the 2009 condition itself recurred in 2014, and the question which arises about the consent orders is whether it would interfere with the finality of the consent orders to hold that the same disease was suffered in 2005, 2009 and 2014. Just as cancer may go into remission and then return in the same part of the body, without making it inaccurate to speak of the cancer as one disease, may it be said, consistently with the 2007 consent orders, that one disease was suffered on all three occasions? That would seem to deny that the 2005 disease “resolved” in November 2006, if that means that it was incapable of recurrence.
The findings made in 2011 seem to me to have also denied that the 2005 injury “resolved’, in the sense of having been incapable of recurrence, because it was found that the injury did recur. That seems to have been the basis of the finding made in the agreed terms (noted in paragraph [40] of the reasons published in 2011) referring to the injury as an aggravation, read with the findings about the similarities between the two conditions. That produced a similarly final decision of this Tribunal, made after a hearing on the merits that the disease was aggravated in 2009.
In these proceedings, whether or not the 2009 disease was the same as the 2005 disease does not really matter. All that is important is whether or not the 2014 disease is the same as the 2009 disease. It seems that the 2009 disease persisted until after mid-2011, because medical treatment continued until then. The 2014 disease commenced in later 2013 or early 2014. Therefore only about two years later. The applicant was not working during that period of about two years. A little more than two years elapsed between November 2006 and April 2009.
The oral evidence of the applicant
The applicant gave evidence before me over most of a day. Her condition was very fragile. However, I formed a good impression of her veracity. I have been provided with detailed submissions by the respondent suggesting that on particular issues, I should reject the evidence which she gave. In some cases, the submission was based upon notes made by others, including Mr Gross, and to some extent, it was based upon unlikely evidence which she gave, such as a statement that she was unaware that Comcare was liable to meet medical expenses. These answers, if incorrect, did not appear to me to be deliberately incorrect, and I have sought in the findings I have made concerning the applicant’s evidence to concentrate upon evidence which she gave which I am satisfied was both truthful and reliable. Reports to a medical professional can be akin to a stream of consciousness rather than a disciplined answering of questions in the witness-box, and I would not necessarily reject an assertion in the witness box or in her written statement merely because it is not confirmed in contemporaneous notes of Mr Gross or a doctor. Those notes were, in general, prepared for a different purpose. She said that in or about 2014 (because of her husband’s retirement) she thought she might try to go back to work and that as a result of her illness, she could not bring herself to make an application, which in turn made her feel worthless, and first led to the recurrence of her symptoms.
She agreed with the respondent’s counsel that she had told her team leader in August 2010 that she would be retiring on 14 October 2010. She said she felt she had no option about that matter because Mr Tubman of the CSA said that the CSA is a phone-based agency and there was no other position available than a position in which she would have to take phone calls. She said she could not go back on the phones on medical advice. The applicant said that Mr Tubman had said that she would get most of her long service leave if she retired in October. Mr Tubman was not called by the respondent to dispute what the applicant said about Mr Tubman’s remarks to her in 2009-2010.
The applicant’s counsel submitted that in the circumstances, her “retirement” of 2010 amounted to a constructive dismissal, although she had conceived of it as a voluntary matter in 2010. No such question seems to me to be directly material to this review, although I accept that what was said to her by Mr Tubman influenced her to retire.
She said that after Shannon spoke to her, she was in touch with Comcare, who said her claim could be reassessed. Because Dr Harris had by then retired, she saw Dr Pilsky in mid-2014 and later, and he put her back on psychiatric medication.
When asked about her employability, she said her chances of ever getting employment were zero. The respondent’s evidence did not suggest the contrary.
She said that for the past two years, she has been receiving the disability support pension. She said her husband does everything for her, including cooking and shopping. She does not use public transport unless her husband is with her. She has to force herself to leave the house.
She agreed that she told Dr Hong that her depression comes and goes, and she might have three good days a week, and has problems with her concentration and memory and is unable to read any more. She walks and listens to classical music but lacks the motivation for cooking and baking, which she used to enjoy. She said she used to go for drives in the country with her husband but has not done that for a long time.
She has not seen Dr Pilsky since June 2017 because of cost considerations and sees her GP and Mr Perritt, another psychologist, for counselling.
The evidence of Mr Gross
Mr Tom Gross, a psychologist, treated the applicant in 2005-2007, 2009-2010, and 2014 and had a consultation with the applicant more recently. It is useful to set out what he reported on those occasions, because he is the witness who saw her more consistently throughout the relevant times.
In 2005, Mr Gross reported that he felt the applicant was suffering from an adjustment disorder with acute anxiety symptoms at that time, as a result of interactions with her then team leader, as a result of which she felt that she had been treated unfairly. One matter discussed between them had been a complaint by a client of the Child Support Agency who alleged that the applicant had hung up on her, a suggestion disputed by the applicant.
In 2006, he reported that he had been giving the applicant psychological counselling in relation to her work related stress condition since October 2005. Her workers’ compensation claim was at first accepted and later disputed by the Child Support Agency. This caused her considerable distress and she stated that it appeared that her employer was listening in on her private telephone conversations and accessing her personnel files. As a result, the applicant’s GP put her off work for four weeks. Mr Gross suggested that the CSA’s actions were severely dampening the speed of her recovery and her return to full time employment.
Mr Gross in fact, continued to see the applicant until December 2007, at which time she was still feeling some anxiety and depression around her work.
In 2009, he reported that although he had not seen the applicant over 2008, her statements in 2009 had a similar tone and content to what had been said over the years previously.
In 2011, Mr Gross reported that she was much improved since leaving work, though her then pending workers’ compensation proceedings were quite stressful to her and kept her anger and anxiety at her employer alive.
In 2014 when he saw her again, Mr Gross referred to “flashing back”. He meant by this that the applicant began re-experiencing some of the anxiety as she remembered her time at CSA, after receiving the phone call from Shannon, who asked her why she had not made a claim for continuing compensation when she retired.
In view of Mr Gross’ importance as a witness who treated her in 2005, 2009 and 2014, I will set out his report of 13 March 2018. He was cross-examined on the report and did not, in my opinion, materially qualify the report he made.
I would consider that Ms Hart’s condition was caused by her recognition that CSA had not informed her that she may still be eligible for compensation. As mentioned earlier, this had the effect of reigniting old feelings of powerlessness etc. associated with her time at CSA.
The primary sources of Ms Hart’s symptoms at CSA were; being on the receiving end of angry abusive phone calls, and then after being taken off phone duties being pressured by management to return to phone duties, informed that she needed to retire if she could not work the phones.
Her subsequently being informed that perhaps she was entitled to some financial recompense, and had not been informed by CSA of this, has made her aware that she still is impacted by the actions (or inaction) of the CSA.
Ms Hart’s symptoms appear consistent with what I had observed from initially seeing her. Her anxiety and panic have occurred throughout this period, as has her sense of injustice hurt and anger at what she perceived as her treatment at CSA.
She often experienced a shortness of breath and had a flushed expression (i.e. her anxiety was palpable) throughout the periods that I saw her.
I treat Mr Gross’ report of March 2018 as reliable evidence, which supports the hypothesis contended for by the applicant that her disease of 2009-2011 recurred in about 2014. Mr Gross mentions the Shannon phone call as a stressor which brought on the 2014 symptoms. I also accept the applicant’s own evidence that her earlier ruminations about a possible return to the workforce were also relevant to the onset or recurrence of her symptoms and began her descent into her current condition.
The evidence of other medical professionals
The reports of other doctors were tendered in these proceedings and several doctors gave oral evidence, including doctors who wrote medico-legal reports.
Dr Harris saw the applicant not only in connection with her 2005 injury but also between 2009 and 2011. He described her return to work in 2009 after two weeks of leave as involving a panic attack. She stood outside the building petrified, with shortness of breath and crying. Gradually, the panic attacks became smaller, with the help of Mr Gross. Dr Harris prescribed pharmacology and meditation with regular exercise. By 2011, after she retired, he reported that being away from the workplace obviously suits her, and that her anxiety was well (although not entirely) contained. He said that the legal negotiations with her employer are yet to be resolved and that that provided a focus for some ongoing concern. He observed that she continued to see Mr Gross.
Dr Pilsky, who gave oral evidence, first saw the applicant in 2014, since Dr Harris had retired by then. The applicant was referred to him both for management of her condition and to report for her compensation claim to Comcare. He was both a treating doctor until 2017, and a person instructed to report on her condition for the purposes of her claims. Reporting to an insurer is a regular part of functions undertaken by a treating doctor, and despite a submission of the respondent that his evidence should be treated as if he were a medico-legal specialist, I do not so find.
Dr Pilsky described residual symptoms of panic attacks every fortnight in his report of 23 June 2014, as well as avoidance of crowded places and public transport, consistent with agoraphobia. Her affect was somewhat apprehensive, she described her mood as anxious, some difficulty with concentration, and reasonable insight. He described her prospects for complete resolution as somewhat guarded, and her panic disorder and agoraphobia as chronic.
In August, he remarked that she continued to ruminate about problems at work which caused her to become unwell.
In May 2015, he said she had quite a bout of panic attacks and agoraphobia. In August 2015, he said she had been suffering severe insomnia. In September, he noted that Dr Wayne Mason had diagnosed her in 2009 with adjustment disorder with mixed anxiety and depressed mood, which, he said “is closely related to my current diagnosis”.
As noted above, she found by June 2017 that consultations with Dr Pilsky were too expensive, and discontinued them.
Dr Pilsky gave evidence by telephone on the second day of the hearing. Dr Pilsky said that symptoms of anxiety fluctuate from time to time depending on other stressful circumstances or depending on reminders of earlier distressing events. He said that the friendly phone call from her friend gave her, as Mr Gross described, flashbacks, intrusive memories of previous bullying and caused her to ruminate and made her more anxious.
He added:
But my overwhelming sense is that her symptoms have – the residual symptoms have always been there between 2010 and 2014. At some stage, whilst not working, she was coping better with them, but they were never completely gone, and this is what she described to me during my initial contact with her.
Mr Kelly for Comcare cross-examined Dr Pilsky and drew attention to certain differences between the scores given by Dr Hong and Dr Pilsky in relation to a non-economic loss claim form used by Comcare. I did not observe in the answers which Dr Pilsky gave, any concession that his estimations were incorrect.
He said he had seen the applicant on a number of occasions between June of 2014 and June of 2017 and that although her symptoms fluctuated, there was no overall sense of improvement in her condition over that period.
Dr Pilsky indicated that the incident of 2005 shows that she had experienced a significant vulnerability to such incidents and to being criticised at work.
When asked to assume that Dr Akkerman and Dr Synnott found no diagnosable psychological condition between 2011 and 2014, he said that if those reports were correct, then he would not be supportive of the fact that in 2014, she suffered from the same condition as in 2009.
He said that he had spoken with Mr Perritt, her current treating psychologist, and he was in agreement that her anxiety was exacerbated by the current proceedings. He thought that the pending proceedings were one of the stressors she is currently coping with.
He was also asked about a K10 assessment done by the applicant’s GP in February 2014 where she had the low score of 15 (suggesting that she was not, at that time, seriously ill), and said in re-examination that the score in question probably meant that she had deteriorated by the time he first saw her in June 2014.

Dr Hong, who examined the applicant for Comcare, treated her as permanently incapable of work, and diagnosed her as suffering from an adjustment disorder, and stated that a diagnosis of panic disorder would be equally valid. He reported on 21 July 2016 that the employment was the cause of her condition. On 7 September 2016, he was asked:
You have diagnosed Ms Pedrosa-Hart as suffering from an adjustment disorder with mixed anxiety and depressed mood. Medical literature states that an adjustment disorder should resolve within 6 months of the original stressor being removed. Given that Ms Pedrosa-Hart has been absent from Commonwealth employment since 14 October 2010, can you please detail why she has failed to recover?
His response was as follows:
You are correct that an adjustment disorder should resolve within six months of the original stressor being removed. This has not been the case with Ms Pedrosa-Hart. The medical literature also shows that a portion of patients with an adjustment disorder never fully recover and this could be due to a number of reasons. Firstly, whilst the person may be removed from the triggering event, the trigger had precipitated a number of changes in the person such as chronic feelings of resentment and injustice, or maladaptive coping strategies, and finally the losses associated with their psychological injury and loss of employment may serve to perpetuate their psychopathology. For those reasons a person may never recover psychologically. It appears that Ms Pedrosa-Hart has failed to recover and based on the information available, I consider that her condition remains attributable to her employment.
Comcare went back to Dr Hong and instructed him that on 11 June 2010, Dr Lucre advised that Mrs Pedrosa-Hart had reached maximum medical improvement. Comcare listed dates of medical treatment given to the applicant in 2011 and 2014. Question 2 was in the following terms:
If there was a triggering factor in August 2014 that led to Ms Pedrosa-Hart seeking treatment, do you consider this is as a direct result of the workplace events that occurred on 20 April 2009 or on the balance of probabilities as opposed to possibilities, is this related to personality traits?
His answer was as follows:
It is possible that there have been further triggering events leading to Ms Pedrosa-Hart seeking treatment. This may be personality-related or could be related to some external event that she did not disclose. Noting that she had been certified as having reached maximum medial improvement and was no longer in active treatment and subsequently entered treatment again, this does not suggest that factors outside her employment led to the re-entry into treatment.
This answer is significantly different from the earlier reports of Dr Hong. “Personality traits”, if this means something other than the consequences of the 2005 and 2009 incidents, is unsupported by any other evidence before the Tribunal. No “external event that she did not disclose” is in evidence before me, and no such suggestion was made to the applicant in cross-examination. I found the evidence of the applicant that she had no relevant disorder prior to 2005 acceptable. I prefer Dr Hong’s earlier reports of July 2016 and September 2016.
General Practitioner’s records
Dr Lucre produced records under a summons and included within those records is a mental health plan dated 21 February 2013 which includes the following:
Attention/Concentration: Not able to concentrate as well as usually.
Sleep: Disturbed sleep Waking early morning and difficulty getting back to sleep.
Motivation/Energy: Decreased motivation at present.
Anxiety Symptoms: Panic attacks and constant anxiety settling.
In the applicant’s submissions, that health plan is suggested to have been wrongly dated and that it should have been dated 21 February 2014. The suggestion must have been based upon instructions and I accept it as correct.
Medico-legal reports
Dr Akkerman saw the applicant on one occasion in January 2011, a few months after her retirement. She reported an absence of the symptoms which caused her to be unwell in 2009 and 2010, and Dr Akkerman reported that her depression was in remission.
Dr Synnott, who gave evidence in the 2011 proceedings in the Tribunal reviewed the applicant in February 2011. The applicant reported that her retirement had led to an improvement in her psychological condition, saying “It is like a weight off my shoulders and I do not feel I am letting people down at work” and “Now I do not have to worry about not doing my full job”. He mentioned that she attributed her improvement to the support of her medical attendants and her family. Dr Synnott expressed the view that currently there was no psychiatric condition – the adjustment disorder that she previously had has remained in remission. In his report, he also adhered to the asserted opinion that the adjustment disorder had been in remission since at least July 2009.
Dr Synnott also saw her in April 2016 and felt that her then condition owed nothing to her previous employment, or rather that “there was no significant relationship between her current psychological state and the previous employment”. He was unable to answer a question whether her condition persisted from 2011 to 2014.
He recorded that the applicant told him in 2016 that she had deteriorated because she was thinking about what happened in the workplace, the loss of income and job opportunities and that she feels unproductive.
He made in 2016, a diagnosis of major depressive disorder with prominent anxiety, and stated that he had no particular problems with a diagnosis of an adjustment disorder with mixed anxiety and depressed mood.
In oral evidence before me, Dr Synnott reiterated a number of points made in his written reports and adhered to the conclusions he expressed in those reports.
The hypothesis suggested by Dr Synnott that some extraneous event must explain the symptoms experienced from 2014 and that her present condition owes nothing to the disease from which he suffered in 2009, is contrary to much evidence that I accept. Specifically, it is contrary to the evidence of the applicant as to the events which led to the onset of her condition in late 2013 and early 2014. It is contrary to the evidence of her treating Psychiatrist, Dr Pilsky, in the respects I have mentioned. It is also contrary to the evidence of Mr Gross, which I find to be reliable.
The submissions of the parties
As to the claim which Comcare treated as a claim for weekly incapacity payments under sections 19 and 21 of the Act from October 2010 to date, the applicant submits that in 2014, she suffered an “injury”. There is no doubt on the evidence that she has suffered from an ailment from at least that date, as is common ground in the case. She suffers from a diagnosable condition, referred to above. Whether she suffered from the same condition before that date was the subject of contest between the medical practitioners, and in more recent written submissions of the parties.
Her symptoms between 2010 and 2014 were certainly less evident than they have become since early in 2014. It seems clear that close to the date of her retirement (that is, in January and February 2011), she was experiencing relief from her symptoms and was optimistic about her own well-being. However when last seen by Dr Harris in 2011, the applicant was described as a person whose anxiety was well (although not entirely) contained. She nevertheless continued to see Dr Harris and took medication until mid-2011 and continued to see Mr Gross until later in 20111.
One submission of the applicant is that the 2014 condition was an injury “either arising directly from or by way of aggravation in respect of an injury originally sustained by her in 2005, an injury sustained in 2009 or a combination of both”. Insofar as this submission leaves open the relative importance of the 2005 and 2009 incidents, it is not hard to understand in the light of the various expressions of opinion in evidence, especially from Mr Gross. I have already discussed the submissions made by Comcare about the effect of the consent orders made following the injury, also pointing out that whether the 2009 injury involved the same disease as the 2005 disease is a matter which may not require resolution, because the connection between the 2009 injury and the 2014 injury is the more important question. The findings I make are that the 2014 injury was the recurrence of that which occurred in 2009. The question whether the 2009 disease was a recurrence of the 2005 injury, if it matters, has already been determined in the 2011 decision of this Tribunal in my opinion. I also note, if the question matters, that the evidence before me indicates the same conclusion.
As the respondent submits, the suggestion that the 2014 symptoms and disease were a recurrence of the 2009 symptoms and disease needs to take account of two main problems: First, her apparent ability to work in restricted duties prior to her retirement, and second, the reports of Dr Akkerman and Dr Synnott.
Some of the evidence suggests that the applicant was not free of symptoms in the time between 2011 and 2014. Dr Harris did not consider that her anxiety was fully controlled in 2011, and Mr Gross thought in the same year that her anger and anxiety were still alive, albeit that he attributed that fact to her workers’ compensation proceedings which were still in contest.
The evidence of Dr Akkerman and Dr Synnott relating to consultations in January and February 2011 suggests that in the months following her retirement, she had a real reprieve from her symptoms, but a remission does not involve that the illness was gone. The question whether a disease is in full remission may well best be answered with the benefit of hindsight when one has seen what ensued rather than in advance when speculation may be involved. Nor did either Dr Akkerman or Dr Synnott state that the earlier condition had definitely resolved.
As to the work done by the applicant for the CSA when a limitation was put by her doctors on her return to work so that she would have no further phone work, it is notable that this is the time when she decided to retire rather than face the prospect that the limitation would be removed, and that the limitations under which she worked made her feel that she was letting down her employer, and helped keep her condition alive, and that she continued to have medical treatment during 2011, more than a year after her retirement.
I invited further submissions from the parties on the possible finding, which I was entertaining on the review, that what was suffered in 2014 was the same disease she suffered during her employment.
Next, the respondent referred to some evidence by telephone elicited from Dr Pilsky in cross-examination. He first saw the applicant in 2014 on 20 June. Having read earlier psychiatric reports from 2009, he expressed the firm view that her current presentation was a continuation of the initial psychiatric injury of 2005 rather than a new psychiatric illness. He gave evidence by telephone and counsel for the respondent put to him the results of a K10 psychometric test conducted in early 2014 by her general practitioner from which she scored 14, a score which Dr Pilsky regarded as not a high score, the range being 10 for a person without a psychiatric condition to 50 for a severe condition. He was cross-examined about a remark made in his lengthy report of August 2016 which recorded at page 7 that the applicant “retired in 2010 whilst she remained symptomatic her symptoms persisted until she was referred to see me in June of 2014, and since then I have been able to witness Mrs Hart being continuously symptomatic up until the present time”. At page 8, he compared his diagnosis with those of 2005 and 2009 saying: “This by no means represents a completely new illness as Mrs Hart had well-diagnosed panic attacks in 2009. This simply serves to highlight intensity of panic and avoidance currently experienced by Mrs Hart.” The doctor was asked to consider the remarks made by Dr Akkerman and Dr Synnott in early 2014. He was asked to assume that both Dr Synnott and Dr Akkerman found no diagnosable psychiatric condition. The reports in question were not before the doctor. Having heard what he was asked to assume, Dr Pilsky said:
Yes – and again I’m speaking to it retrospectively – if we assume that all the reports in that space between 2010 and 2014 were correct, then I would not be supportive of the fact that it was exactly the same condition, in someone who had been well for four years, no.
The most reliable evidence of Dr Pilsky, in my opinion, is the evidence of his treatment of the applicant. His answer in cross-examination suggested to me that he may have assumed that the reports of Dr Synnott and Dr Akkerman related to the period of four years, rather than the early part of 2011, shortly after her retirement. The remark that Dr Synnott and Dr Akkerman found “no diagnosable psychiatric condition” was correct, although Dr Pilsky was not taken to the 2011 remark of Dr Harris (the treating psychiatrist) recorded at [52] that her anxiety was then well (although not entirely) contained after she had retired. Stressors seem not to have affected the applicant until 2013 or 2014, so far as the evidence reveals.
In re-examination, Dr Pilsky was taken to a remark of Mr Gross in 2014 that she was thrown back into dealing with the same issues that caused her to come to see him in the first place in 2005, and he said a reminder of being mistreated at work, or perceived mistreatment, can cause someone’s mental state to deteriorate.
Dr Pilsky recognised a strong similarity between the diagnoses of 2005 and 2009 and what he observed in 2014 and 2015. Mr Gross saw her in all three periods, the last being in 2018, and he described similar symptoms and diagnoses in all three instances. During the years when he did not see her after 2011 and before 2014, and after 2014 and before 2018, he could not say whether she was in remission. He thought she would have been getting on with her life between 2011 and 2014. When she thought she had not been informed accurately about her entitlements, she began to ruminate on prior events more. She also considered re-entering the workforce, and that brought back to her mind the feelings of worthlessness she had when she decided to retire in 2010 and associated symptoms of anxiety and depression.
The respondent referred to Comcare v Mooi (1996) 69 FCR 439 for the proposition that in order for it to be found that a person has a psychiatric or psychological disorder, it is necessary for the applicant to show that she was “in a condition that [was] outside the boundaries of normal mental functioning or behaviour”. The reasons of Drummond J in that case do not discuss a case where the worker has a disease, which goes into remission and then recurs. With a physical disease such as cancer, remission is a commonplace, and in such a case, the cancer would, I think, normally be regarded as one disease and not as two separate diseases.
The applicant submits that the opinions of Dr Akkerman and Dr Synnott should be treated as being that the applicant was in remission rather than that the symptoms had resolved. The submissions note that psychological treatment in 2011 continued until 21 October 2011, and that on 21 December 2011, her general practitioner certified that the applicant was “suffering anxiety and depression relating to her workers’ compensation claim and needs to continue treatment until the end of January 2012”. As to the suggestion that the anxiety and depression related to her workers’ compensation claim, it must be remembered that the prior proceedings in this Tribunal had concluded on 30 August 2011, suggesting that the doctor’s note should be read as referring to the condition which led to the claim, rather than the proceedings themselves.
The concept of an “aggravation” in the Safety, Rehabilitation and Compensation Act is treated differently in respect of diseases and injuries other than diseases.
As to diseases, s 5B of the Act provides as follows:
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
In the case of injuries, s 5A provides as follows:
(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.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 4 of the Act contains an inclusive definition of “aggravation” in the following terms:
aggravation includes acceleration or recurrence.
A mental injury can be an “injury” as s 5A(1)(b) and (c) makes clear. In the case of a disease, the aggravation must be contributed to, to a significant degree, by the employment. In the case of an injury other than a disease, the aggravation must arise out of, or in the course of, the employment.
CONSIDERATION
My finding is that the applicant suffered as from late 2013 to date, from symptoms, the same as her symptoms of 2009, which were relevantly similar to her condition in 2005. She had mental disease from which she suffered and still suffers diagnosable symptoms in at least those periods. The 2009 symptoms seem to have improved by early 2011, but seem to have continued, to some extent, until after the middle of 2011. She had relief from those symptoms in 2011 until sometime in late 2013 or early 2014, when she relapsed. It was, in my finding, the same disease from which she never fully recovered and which was capable of recurring in 2013 and 2014, and which never went into complete remission. It has now become persistent and chronic. The beginning of her relapse in late 2013 or early 2014 involved end rumination about employment events triggered by contemporary events or discussions.

My preferred position is that we are here concerned with a disease, rather than an injury other than a disease. Her injury, in the nature of a disease, was capable of being brought back. The disease was not always florid, nor ever in “full remission” in the sense of being resolved completely. Recurrence or relapse was on the cards, and that occurred in later 2013 or early 2014. Section 5B speaks both of an ailment and of the aggravation of an ailment, and to require in each case that the ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. The word “aggravation” includes recurrence, but s 5B does not require that all cases of recurrence must be dealt with as if they were an aggravation. An “aggravation” will include in ordinary English, a worsening of a disease, such as when a person who is partially incapable of working becomes fully incapable of working, because of the progression of an injury suffered during the employment. If section 5B were to be construed as requiring that the employment contributed, to a substantial degree, to the ”aggravation”, then it may mean that a case of the disease which worsens without the employment contributing to the worsening, the employee could not recover. If the disease were cancer, which went into remission, and then returned, the return as recurrence and therefore an “aggravation” as defined, could not be thought to require a work-related contribution before compensation could be recovered by the employee.
The legislation is beneficial, no-fault legislation,[1] and such a view would not conform to that model. Moreover, in my opinion, section 5B does not compel such a construction, and I have concluded that the case is one of the same disease being suffered in 2014 as was suffered in 2009.
[1] See the discussion by Perram J in Zdziarsky v Telstra Corporation Ltd [2015] FCA 207 (2015) 146 ALD 354 at [14]-[25].
One matter which I have taken into consideration in reaching the construction of s 5B to which I have referred is the provisions of s 7(4) of the Act. Section 7(4) provides as follows:
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
That is, of course, a deeming provision, and as such, it does not, it seems to me, compel a different view of s 5B to the one I have expressed, even if it may have been drafted differently if the draftsman had in mind the possibility that s 5B may be construed as I have construed it. Evidence has not been led before me that in 2011, the disease from which the applicant suffered (that is, without the stressors which later occurred) rendered her incapable from working. In my opinion, the considerations mentioned in [98] and [99] outweigh any doubt arising from the terms in which s 7(4) is drafted.
That conclusion may entail that I do not need, in order to decide this proceeding, to reach a conclusion as to whether what occurred in 2014 was an “aggravation” to which the employment contributed to a significant degree.
The question has nevertheless been debated before me, and in case this matter goes further, I should deal with it, in case the view is taken that s 5B should be construed differently from the way in which I have suggested.
A question that would then have become relevant is whether the perceptions or memories which the applicant had in 2014 sufficiently showed that the employment made a contribution to the “aggravation” so as to attract that limb of s 5B(1)(b). In this Tribunal, a similar question was examined by Senior Member Dr Popple in HSDR and Comcare [2017] AATA 779, although under the legislative regime which preceded the 2007 amendments to the Act. Perceptions in the form of memories of what had occurred earlier were regarded by the Tribunal in that case as showing that the employment made a material contribution to the aggravation involved.
Dr Popple made factual findings that among the stressors which the applicant experienced was the perception of adverse events in her former workplace, the disease from which she suffered was one to which the employment made a substantial contribution (applying the pre-2007 tests). The circumstance that other unrelated stressors also played a causative role in the maintenance of her condition did not lead to any different conclusion.
Two main stressors have been referred to in the evidence before me, namely, contemplation of the prospect of a return to the workforce, and a belief that the employer failed to inform her that her retirement could be accompanied by a compensation payment or “invalidity pension”. Mr Gross makes no mention in his report of 13 March 2018 of the effects of any resentment that the applicant may feel about Comcare’s opposition to the claims presently being considered, and that matter should be treated as an unrelated stressor if it also has affected the symptoms which she has suffered since Comcare made its adverse decisions, the subject of this review. The first (internal) Comcare decision rejecting her claim was not made until October 2015, when she had been seeing Dr Pilsky and Mr Gross from 2014 onwards.
Therefore, the two stressors which led to the “aggravation” were both connected, for the applicant, with the employment from which she had resigned. Whenever workplace events lead to a mental ailment, recollection of what occurred (or even, in some cases, what is perceived to have occurred) will be involved.
What s 5B requires is that the aggravation was contributed to by the employment, to a significant degree. The aggravation would not have occurred if the relevant employment events of 2009-2010 had not occurred. Those events and their consequences for the applicant were the occasion for her to relive her earlier reactions. It may also be said, no doubt, that the employment had led her to be in a condition that she was liable, with appropriate stressors to suffer the same symptoms again. Those things make it possible to conclude that the employment did contribute to the “aggravation”. On the basis that it is desirable that I deal with issues that arguably would arise on appeal, I do so conclude, and also conclude that the contribution made by the employment is substantially more than material so as to amount to a contribution that is to a significant degree.
CONCLUSION
I have understood the claim of the applicant to be that her disease returned in 2014 when she first sought medical treatment, which relieves me from the need to consider the provisions of s 7(4) of the Act in the circumstances of this case. That is, for example, the s 14 claim pressed has a starting date when, in 2014, the applicant began again to seek medical treatment for her disease. Whether or not I have correctly understood the claim of the applicant, I do not understand the evidence of full incapacity for work led in this case by the applicant to relate to the period from late 2011 until 2013/2014. Such full incapacity requires proof, not only of the return of the disabling consequences of her disease in 2014, but also evidence of actual incapacity in the intervening period of in excess of two years, and evidence is not before the Tribunal to that effect. Before the applicant contemplated a return to work in about late 2013, and thereafter considered what she had been told by Shannon, all of which brought back to her mind the stressors which had previously led her to suffer the ailment of 2009, and to re-experience the symptoms which she then experienced, her incapacity to work is unproven. In 2014, she suffered, perhaps to a heightened degree, symptoms reported by medical professionals, which meant that she was then incapable to re-enter the workforce.
A much more confined claim could have been made in respect of the intervening period between 2011 and later 2013/early 2014, that the applicant had an incapacity for work except with the restriction which was in place at the time of her retirement or a corresponding similar restriction. If she had such a limitation upon her employability, it was not the reason she did not seek such employment, because once she did retire, she sought no employment at all, and no evidence has been led to explain that fact on the ground of a continuing (limited) incapacity. Those facts suggest to me that the claim which should be dealt with is a claim starting with the period from late 2013/early 2014 rather than a claim starting at the date of her retirement.
I conclude that the disease from which the applicant suffered from 2014 to date is compensable and that part of the reviewable decisions will be set aside and the matter remitted to Comcare for computation of the weekly compensation payable in consequence. Section 21 of the Act will be relevant to be taken into account in computing the actual entitlements of the applicant, since she had retired in 2010, and for this purpose, whether she retired voluntarily or was compulsorily retired makes no difference. A submission was made to me by the respondent relying upon Lonergan v Comcare [2005] FCA 377 (Heerey J). However, after the date of that decision, section 21(1) was amended to overcome the effect of Lonergan, and I do not understand it to have continuing application.
The second claim which was made by the applicant was a claim under s 16 of the Act for medical treatment from 2014 to date. That claim was opposed on the same grounds as the claim for incapacity and should be allowed for the same reasons. The reviewable decision about the s 16 claim will be set aside and the matter remitted to Comcare for reconsideration in the light of the reasons of the Tribunal. Submissions have been addressed to me by the respondent as to whether and when certain medical expenses were incurred. I regard such a matter as appropriate for vouching and determination by Comcare, in accordance with its statutory duty to decide such a matter on a fair appreciation of the evidence.
The third claim made is a claim for permanent impairment. As has already been noted, there was no dispute that Mrs Pedrosa-hart is unable to work at the present time, nor as to the existence of her disabling psychiatric condition, nor that it is chronic and likely to continue indefinitely. Since the applicant saw Dr Pilsky in June 2014, there is no opinion suggesting that she does not suffer from a major depression or an adjustment disorder with mixed anxiety and depressed mood, panic disorder or agoraphobia.
Section 24(5) of the Act provides that Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide. The current edition of the approved Guide contains, in Chapter 5, a general description of the effects on daily living of psychiatric conditions. There are three possible categories in the Guide (respectively at 10%, 15% and 20%). Dr Hong assessed the applicant as suffering a 10% permanent impairment.
The form filled out by Dr Pilsky at page 316 of the supplementary s 37 documents fails to attribute a percentage to the s 24 entitlement of Mrs Pedrosa-Hart, although the non-economic loss questionnaire contains his comments on the applicant’s answers to particular questions. The doctor was not asked as such to venture a written opinion about the level of permanent impairment in percentage terms. His comments on the questions relating to non-economic loss suggest that his assessment of permanent impairment would then have been higher than those of Dr Hong. Some of his more legible responses are:
Rarely symptom free.
Functionally impaired
Limited socially to family
Limited activities to small chores at home, needs prompting
The respondent supports the assessment of Dr Hong, and cross-examined Dr Pilsky about his assessment, directed to his assessment of non-economic loss under s 27 of the Act. I do not gain significant assistance from evidence elicited in cross-examination of Dr Pilsky to the effect that the doctor accepted that the assessments of Dr Hong were or would have been a response to the history given to him by the applicant. He accepted that the result of a K10 psychometric test administered by the general practitioner in February 2014 at 14 was not a high score. In re-examination, he attributed the score in February and his diagnosis later in 2014 as likely produced by deterioration in her condition.
The applicant submits that a percentage of 20% should be attributed to Mrs Pedrosa-Hart, and as I have said, the respondent supported the assessment of Dr Hong.
Consulting the second edition of the published guide at chapter 5.1, a level of 10% is described as follows:
Despite the presence of more than one of the following employee is capable of performing activities of daily living without supervision or assistance:
> reactions to stresses of daily living with minor loss of personal or social efficiency
> lack of conscience directed behaviour without harm to community or self
> minor distortions of thinking.
By contrast, levels of 15% and 20% are described as follows:
15% WPI
Any one of the following accompanied by a need for some supervision and direction in activities of daily living:
> reactions to stresses of daily living which cause modification to daily living patterns
> marked disturbances in thinking
> definite disturbance in behaviour.
20% WPI
Any two of the following accompanied by a need for some supervision and direction in activities of daily living:
> reactions to stresses of daily living which cause modification of daily living patterns
> marked disturbance in thinking
> definite disturbance in behaviour.
The difference between 10% and 20% is whether one or two of the indicia are present. I am satisfied that the first-mentioned indicium is present, because of her relative inability to mix socially, to do household chores and her need for her husband to be present when using public transport, and inability to read for longer than very short periods. I am not sure that there is support for a “definite disturbance in behaviour”.
To some extent, her condition is affected by distress about Comcare’s resistance to her claims and these proceedings themselves, and those matters may be expected to pass away and even if it would have been right to characterise one or more of her present symptoms as a disturbance in behaviour, not all of her symptoms will be expected to continue indefinitely at their present levels.
Overall, I would assess her level of permanent impairment at 15%.
Similarly, I prefer Dr Pilsky’s assessment of the entitlement of the applicant to recover for non-economic loss, to the assessment of Dr Hong. Cross-examination of Dr Pilsky did not show that his assessment requires adjustment, and I place greater reliance upon his assessment because of his greater exposure to her accounts of her situation.
Having made findings about causal questions involved, I do not take that any of the various requirements of section 24 of the Act are otherwise in contest between the parties, and section 27 entitlements are consequential, save for the assessment of a determination under the approved Guide of the degree of non-economic loss suffered by the applicant.
For the calculation of monetary entitlements under sections 24 and 27 of the Act, the matter will be remitted to the respondent.
DECISION
In the result, the three reviewable decisions will be set aside, and the matters will be remitted to the respondent for computation of the monetary entitlements of the applicant.

I certify that the preceding 127 (one hundred and twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment QC

...................................[SGD].....................................
Associate
Dated: 13 November 2018

Dates of hearing: 26 -28 February 2018; 31 July 2018

Date final submissions received: 26 September 2018

Counsel for the Applicant: Mr J De-Greenlaw

Solicitors for the Applicant: Mr B Adams, Adams & Co Lawyers

Counsel for the Respondent: Mr B Kelly

Solicitors for the Respondent: Mr P Snell, Lehmann Snell Lawyers

Dates of hearing:	26 -28 February 2018; 31 July 2018
Date final submissions received:	26 September 2018
Counsel for the Applicant:	Mr J De-Greenlaw
Solicitors for the Applicant:	Mr B Adams, Adams & Co Lawyers
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Mr P Snell, Lehmann Snell Lawyers