Perkins and Comcare (Compensation) - [2018] AATA 3010

Perkins and Comcare (Compensation) [2018] AATA 3010 (8 August 2018)
Division:GENERAL DIVISION
File Numbers:2016/3726; 2016/3727; 2016/3728; 2016/3729
Re:Danny Perkins
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Member Dr P Wilkins

Date:8 August 2018
Place:Canberra

The Tribunal:
(a)sets aside the decisions under review in Applications 2016/3726 and 2016/3727 and remits each matter to Comcare to give effect to the findings of the Tribunal as set out in the reasons to this decision;
(b)sets aside the decision under review in Applications 2016/3728 and remits the matter to give effect to the findings of the Tribunal as set out in the reasons to this decision; and
(c)affirms the decision under review in Application 2016/3729

........................................................................
Deputy President J Sosso
Catchwords
COMPENSATION – adjustment disorder – whether Applicant is still suffering from the accepted compensable condition – whether an ailment or an aggravation thereof was contributed to, to, to a significant degree, by an employee’s employment – does the disease require medical treatment that is reasonable in the circumstances – is it reasonable for the Applicant to continue to be treated in Canberra – does the disease result in incapacity for work – does the disease result in permanent impairment – decision under review covering ss 16 and 19 set aside – decision under review concerning s 24 affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Abrahams v Comcare [2006] FCA 1829
Comcare v Holt [2007] FCA 405; 94 ALD 576
Comcare v Mooi (1996) 69 FCR 439
Comcare v Filla (2002) 115 FCR 163
Comcare v O’Brien (1997) 49 ALD 293
Comcare v Rope [2004] FCA 540; 135 FCR 443
Dojcinoski v Aleksovski [2015] ACTSC 357
Dow v Elbarby [2018] ACTSC 418
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Filla v Comcare (2001) 115 FCR 144
Halliday and Comcare (1994) 19 AAR 431
Hargreaves and Telstra Corporation Limited [2013] AATA 579
Howes v Comcare [2016] FCA 1521
Kennon v Spry (2008) 238 CLR 366
Madden and Australian Postal Corporation [2008] AATA 411
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
O’Maley and Comcare (1997) 48 ALD 300
Pembshaw and Comcare [2000] AATA 52; (2000) 60 ALD 279
Prain v Comcare [2017] FCAFC 143
Reilly and Military Rehabilitation and Compensation Commission [2007] AATA 1826
Ringshaug and Comcare [2016] AATA 88
Sheehan and Comcare [2017] AATA 2777
Stevens and Comcare [1995] AATA 310
Stevens and Comcare [1997] AATA 208
Taylor and Comcare [2017] AATA 1327
Telstra Corp Ltd v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Deputy President J Sosso
Member Dr P Wilkins
8 August 2018
INTRODUCTION

Mr Danny Perkins (“the Applicant”) seeks a review of a decision of Comcare of 1 July 2016, which affirmed four earlier determinations:
(a)30 May 2016, that the Applicant had no present entitlement to compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”);
(b)
30 May 2016, that the Applicant had no present entitlement to compensation under s 19 of the Act for incapacity payments during the period 30 May 2016 to

1 July 2016;
(c)
31 May 2016, that the Applicant had no entitlement for the costs incurred travelling from Wollongong to Canberra for medical treatment in the period

16 May 2015 to 10 May 2016; and
(d)7 June 2016, that the Applicant had no entitlement to permanent impairment compensation in respect of his earlier accepted condition.
The Applicant claims he suffers from a mental injury arising out of, or in the course of, his employment as a Corrections Officer 2 with ACT Corrective Services (“ACTCS”).
The Applicant submitted a workers’ compensation claim on 11 August 2011 – Exhibit 1 T5 pp. 33 – 50. The injury or illness claimed was described as “Mental stress” – Exhibit 1 T5 p. 36. The cause of the injury or illness was stated to be: “Poor management skills to address ongoing matters” – Exhibit 1 T5 p.38; and the actual injury was said to be: “The way I was disciplined over the years for doing my job being bullied by Senior Staff” – Exhibit 1 T5 p. 38.
In addition, the Applicant gave the following description of workplace conditions that contributed to his injury/illness – Exhibit 1 T5 p. 38:
“Dealing with prisoners who are abusive, threatening, cause self harm, cover themselves in human faeces.”
Subsequently, the Applicant prepared an undated statement that expanded on his claim – Exhibit 1 T4 pp. 30 - 31:
“This statement is made to correct and expand on my claim as at the time of completing the initial paperwork I was too distressed to answer the questions thoughtfully and accurately…
I commenced with ACT Corrections back in August 1995, and after just a couple of months I decided that I was going to make a career out of this…
I strongly believe the environment that I have had to work in plus the lack of support for dealing with crises contributed to my mental health condition – dealing with increased workloads, managing more prisoners with less staff (ratios changed from 1 to 4, to 1 to 40 or more), having to do two to three times as much computer work, trying to balance out a daily routine, as examples of overload causing a nervous breakdown.
A huge issue was trying to stay positive for the whole 12 hour shift, as we work in a negative environment. The clients don’t want to be there, staff are posted to an area for 12 hours (some posts are one officer stations working with mental health or management style prisoners). These clients are in your space or playing mind games as there is little else for them to do within the jail…
being abused, spat on, assaulted and required to deal with clients that have mental disorders, are suicidal and endanger others (ie) covering themselves with their own faeces, cutting up oneself (to get attention). Being forced to physically restrain clients and not being given debriefs caused me to start second guessing my actions before, during and after any incident.
I’ve had trouble sleeping after working in the past which affected the way I functioned the following day whether at work or home…To date I’m still not sleeping well, staying up till 3 or 4 in the morning – not wanting to go to sleep as it will bring on a new day. Then not wanting to wake and get up as it means the new day has arrived and I’ve got to go through this all over again…
I started off believing that I could handle this on my own, only to realise that it was something that I couldn’t do… I hardly go anywhere these days as I find it’s easier to deal with issues from home in my safe environment…”
On 4 January 2012, Comcare issued a determination accepting liability under s 14 of the Act for Post-Traumatic Stress Disorder (“PTSD”) and Major Depressive Disorder single episode – Exhibit 1 T11 pp. 131 – 140.
On 1 March 2012, ACTCS sought a review of that determination – Exhibit 1 T13 pp. 225 – 230. There were a number of matters that ACTCS outlined which, it said, should result in the Applicant’s claim being disallowed. The following final submission was made – Exhibit 1 T13 p. 230:
“Based on all of the information provided, the Directorate… [is] still of the view that the claim submitted by Mr Perkins is a result of performance and misconduct issues… that have resulted in reasonable management action being taken.”
On 3 May 2012, Comcare made a determination to affirm the decision of 4 January 2012 – Exhibit 1 T15 pp. 238 – 243. The Senior Review Officer noted that several administrative matters had occurred from 1997 until June 2011, and referred to the diagnoses of Dr Inglis Synnott, Consultant Psychiatrist, Dr David Gorman Consultant General Physician and Mr Ross Calear, Psychologist. The Senior Review Officer concluded – Exhibit 1 T15 p. 242:
“From the above evidence, I find that the overall working environment, including your perception of it, significantly contributed to the development of your claimed condition. While there have been numerous administrative actions taken during your employment with JACS, the medical evidence does not support that these actions significantly contributed to your claimed condition.
Subsequently, I find that the exclusionary provision of reasonable administrative action taken in a reasonable manner in respect of your employment does not apply. Therefore, I find that liability is accepted for your condition of ‘post traumatic stress disorder’ and ‘major depressive disorder, single episode’ under section 14 of the SRC Act.”
Between 2012 and 2016, the Applicant was paid compensation for incapacity and medical treatment. During that time, the Applicant participated unsuccessfully in several return to work programs and was examined by psychiatrists, a psychologist and some general practitioner’s.

On 19 July 2013, Comcare issued a Determination changing the description of the compensable condition from PTSD to “adjustment disorder” – Exhibit 1 T34 pp. 315 – 316. This change resulted from further assessment of the Applicant by two psychiatrists: Dr Farnbach and Dr Hundertmark.

In March 2016, the Applicant, at the request of Comcare, was assessed by Dr Doron Samuell. Exhibit 1 T57 p.392. Dr Samuell’s diagnosis was as follows – Exhibit 1 T58 p. 402:
“Mr Perkins was not unwell mentally at the time that I assessed him. His presentation was better accounted for by his personality and social factors. He is not taking any psychotropic medication, does not have a psychologist and only infrequently sees his psychologist. There were no mental state features to suggest that he was mentally unwell.”
Based on this somewhat blunt assessment, Comcare reviewed the Applicant’s entitlement to ongoing benefits, and then issued three out of the four determinations. The third determination, relating to travelling costs, is discussed below. In any event, the cumulative effect of these determinations was the termination of all payments that the Applicant had hitherto received from Comcare.

Despite the Applicant seeking reconsideration of these determinations the Senior Review Officer affirmed each of them on 1 July 2016 – Exhibit 1 T76 pp. 453 – 459. In reaching this conclusion, reference was made to various medical reports, including those from Mr Calear and Drs Samuell, Tshibangu, Khan, Lean, Farnbach, Hundertmark, Shaikh and Whiting. It is clear when reading the Senior Review Officer’s decision, that she gave considerable weight to the opinion of Dr Samuell – p. 458:
“In this regard, while I note the previous reports support that you continued to suffer the effects of your accepted condition of ‘unspecified adjustment reaction’, the only recent report I have available is that of Dr Samuell. As such, I have accepted his finding that you no longer suffer the effects of your compensable condition, and therefore have no present entitlement to medical expenses and incapacity under sections 16 and 19 of the SRC Act.”

On 18 July 2016, the Applicant applied for review of the abovementioned four determinations – Exhibit 1 T2 pp. 21 – 22.
A hearing was convened in Canberra between 26 – 28 March 2018. The Applicant was represented by Mr L T Grey of Counsel and the Respondent was represented by Mr C Clark of Counsel. The Applicant appeared in person and gave evidence. In addition, evidence was given by Dr Tshibangu, Mr Calear, Dr Whiting, Ms Majella Parr, Dr Knox and Dr Samuell.
FACTUAL BACKGROUND
Mr Grey prepared a very helpful Chronology, which is set out in Attachment A to the Applicant’s Written Submissions. Unless otherwise indicated, the material set out below is based on Mr Grey’s Chronology.
The Applicant was born in 1970 and grew up in Wagga Wagga. At the time of the hearing he was 47 years of age – Exhibit 1 T8A p. 59.
After leaving school he worked in a variety of jobs including plastic fabrication, carpet laying, concreting, carpentry, steel fabrication and as a heavy vehicle motor mechanic – Exhibit 2 pp. 141-142. He completed a Certificate in heavy vehicle motor mechanics at Wagga Wagga TAFE – Exhibit 1 T8A p. 59.

He reported to Dr Samuell that there was no history of psychiatric issues in his family, and that prior to 2011, he had not experienced any psychiatric problems – Exhibit 1 T58 p.397.

During 1993 -1994, he worked as a Custodial Officer Grade 1 for Australian Correctional Management, New South Wales.
In 1994 the Applicant commenced working with ACTCS.
On 19 June 1997, the Applicant was medically examined prior to an appointment of employment. In response to a number of questions relating to intellectual/psychological issues, the Applicant answered in the negative in each case – Exhibit 2 p. 78. The Doctor assessed the Applicant’s psychological/intellectual condition as “satisfactory” – Exhibit 2 p. 79, the examining medical officer affirmed that the Applicant had met the medical standard and was fit for appointment – Exhibit 2 p. 80.
A probationary report was prepared three months after the Applicant commenced duties in his new position (20 October 1997). In response to the question as to how the Applicant worked with fellow officers, the supervisor noted – Exhibit 2 p. 85:
“Mr Perkins fits in well with other officers, he is a valued team member and his influence on the behaviour of other officers is always of a positive nature.”
As to the Applicant’s then general behaviour, the supervisor said – Exhibit 2 p. 85:
“Mr Perkins behaviour in and around the centre conforms to the standard required.”
The supervisor also had a positive view about the Applicant’s application to work and drive and energy – Exhibit 2 p.86:
“Mr Perkins is self-motivated, completes all tasks assigned and requires minimal supervision whilst performing his daily duties…
Mr Perkins is enthusiastic in his approach to his work, he is willing to undertake any tasks set for him whether they be difficult or routine in nature, he is keen to expand on his job knowledge and this allows him to perform his duties to a high standard.”
The supervisor’s overall assessment was positive – Exhibit 2 p.88:
“Overall I would rate Mr Perkins as above average in all aspects of his duties.”
In a further probationer report prepared on 10 July 1998, the Applicant’s supervisor

(Mr Gordon Collins, Custodial Officer Grade 3) recommended that the Applicant’s appointment be confirmed - Exhibit 2 pp. 90 – 95.
In November 2003, the Applicant was advised that he had been promoted to a Correctional Officer Class 2 at the Alexander Maconochie Centre (“AMC”) – Exhibit 2 pp. 97-98.
When the Applicant was being assessed by Dr Gorman in November 2011, he informed the Doctor that he had been the subject of more than 13 misconduct investigations – Exhibit 1 T8A p. 59.
On 10 November 2011, Mr Greg Tong, Senior Manager, Business and Policy Coordination wrote to Comcare outlining the Applicant’s disciplinary history – Exhibit

1 T10A pp. 87 – 88:
“…While Mr Perkins’ service, generally speaking, has been satisfactory, he has run into difficulties with management over much of his service history, largely because of his attitude and behaviour. Indeed, he has been the subject of a number of misconduct investigations. Without being exhaustive, the following gives some indication:
oAttendance issues (late for duty) – November 1997. April 1998;
oFailure to attend training 1998;
oDispute over Christmas leave December 1998;
oFailure to follow proper procedures February 2000;
oSubmitted a report critical of training March 2000, using inappropriate language – his report was headed ‘Bullshit Training Days’;
oMisconduct investigation into alleged unlawful release of prisoner, March 2003;
oReported operational failures, February 2007;
oMisconduct investigation into alleged unauthorised access to staff rostering system, March 2007, resulting in Mr Perkins’ temporary reduction in classification from a CO2 to a CO1 for a period of sixteen weeks;
oRefusal to submit incident/operational reports, when requested, November 2007;
oRefusal to be searched on entry to the Symonston Temporary Remand Centre in May 2008, in contravention of a Superintendent’s direction;
oInternal audit of the AMC revealed that Mr Perkin had created non-official forms for use in the Remand section;
oMisconduct investigation into alleged use of force incident, June 2009, resulting in disciplinary action (removal from night shifts and performance review in three to six months) – subsequently reinstated to full duties, with continuing monitoring;
oRefusal to participate in fitness testing, October 2009; and
oAlleged inappropriate comments made to a detainee in June 2011.”
Despite this lengthy history of minor misdemeanours, the first formal incident involving work-related problems was not until 2009. On 25 June 2009, the Applicant and another correctional officer were involved in a use of force occurrence with a prisoner. The type of force used involved applying a wrist lock on the prisoner’s left wrist and forcing the prisoner to the floor. The Applicant was investigated for misconduct which involved him refusing to compile a detailed report of the incident. This in turn, resulted in the Applicant failing to comply with a direction given to him by a Senior Correctional Officer and a subsequent failure to comply with the AMC’s Use of Force Policy – Exhibit 2 pp. 1 – 15.
The Applicant was interviewed by Deputy Superintendent Peter Divorty on 8 July 2009 – Exhibit 2 p. 15.
On 13 July 2009, Mr Ray Giucci sent a report to Mr James Ryan, Executive Director, ACT Corrective Services in which he stated that he had reviewed Mr Divorty’s investigation into the alleged misconduct of the Applicant and supported disciplinary action. Further, he also agreed that the Applicant should be counselled either by Mr Ryan or Mr Folpp – Exhibit 2 p. 25.
Mr Ryan made handwritten notes on the Minutes he received from Mr Gucci as follows:
“1. Please interview Mr Perkins ASAP.
2. Consideration should be given to removing him from any position (eg ni (sic)) shift senior until he:
improves his attitude
follows procedures and directions
3. He should be warned.
4. Next step will be to prefer charges and the strong possibility that he may be asked to show cause why he should not be reduced in rank.”
The Applicant attended a counselling session on 28 July 2009, which was also attended by Messrs Doug Harrison, Greg Tong, Ray Guicci and Barry Folpp. The Applicant was advised of the following – Exhibit 2 p. 22:
“a. Remove from night shift Supervisor until improvement seen.
b. Warned in regards to future incidents.
c. If an incident occurs in the future staff member would be required to show cause why he would not be reduced in rank or last step to be terminated through disciplinary measures.”
On 17 April 2010, Mr Guicci emailed Mr Tong on his further review of the Applicant’s performance and conduct – Exhibit 2 p. 59:
“I have reviewed Mr Perkins performance and conduct with the information that has been provided to me from the area managers. This information has been verbal. It is evident that Mr Perkins has not come to my or Mr Johnston’s attention since he was disciplined by the Ed last year. Mr Perkins has been relocated to the PDC on light duties.”
The Applicant’s job performance apparently improved, because by September 2010, there was an attempt to reinstate him to full duties. The following is an email exchange that took place on 6 September 2010 between Mr Barry Folpp and Mr Doug Buchanan (Superintendent, Custodial Operations ACTCS) – Exhibit 2 p. 102:
“As I notified you last week I would discuss with the Executive Director (ED) your intention to reinstate CO2 Perkins to full duties (that is OIC of nightshift).
Please be advised that this should not occur at this stage and your Deputy or Area Manager should continue to supervise this officer. A report should then be submitted to the ED or DED in regards to how this staff member has been performing his duties.
This review, should be set down for early next year.”

On 21 April 2011, the Applicant was examined by Dr Shamim Khan, a General Practitioner. The clinical notes of the consultation are as follows – Exhibit 1 T7 p. 53:
“Difficulty at work
correctional officer – working for 16 years in current location
job – hard physical, internal politics
denied claim for work injury sustained 7/2/2011 (Dr El sherif)
stress, frustrated
unable to cope at work
spoke to a counsellor over phone yesterday – booked counselling session on 2/5/2011”.
Dr Khan diagnosed the Applicant as suffering from stress and provided him with a Medical Certificate – Exhibit 1 T7 p. 53.
The Applicant was again assessed by Dr Khan on 5 May 2011. On this occasion the reason for the visit was stated to be depression and the Applicant was prescribed Cymbalta 30 mg capsule daily – Exhibit 1 T7 pp. 53-54. His existing prescription for Keflex 500 mg was ceased. Duloxetine, sold under the brand name “Cymbalta”, is a medication that is often used for the treatment of major depressive disorder, generalised anxiety disorder, fibromyalgia and neuropathic pain. Keflex on the other hand, is an antibiotic.
The consultation notes are as follows – Exhibit 1 T7 p. 53:
“Feels same
counselling – had one session and booked for further sessions
discussed about medication
depressed – lack of energy/motivation
taken long service leave upto (sic) 6th of June”.
The Applicant saw Dr Khan on a monthly basis. The surgery consultation notes for

7 June 2011 and 1 July 2011 are as follows – Exhibit 1 T7 p. 54:
“Surgery consultation recorded by Dr Shamim Khan on 07/06/2011
went back to work yesterday
was anxious before the work
managed work yesterday – but still feel no motivation, cant say lot of help will be offered from work
came to conclusion does not want to be there – will try to relocate to another dept
Nil adverse effect with Cymbalta – improved mood…
Surgery consultation….01/07/2011
back to work but in same stressful situation
not coping
lost controll (sic) and almost physically harming a prisoner
- supervisors moved him to controll (sic) room where he does not have contact with other personnels (sic)
work counsellor contacted Ross Calear, psychologist, in Turner
Cymbalta helping with mood…
considering claiming work injury”.
The incident referred to in the consultation notes of 1 July 2011 are set out in some length in a report of 17 January 2012 prepared by Ms Simone Fowlie, Senior Manager, Community Based Corrections, ACTCS. At the time of the incident she was the Superintendent of Custodial Operations at ACTCS. Relevant extracts from that report are set out below – Exhibit 2 p. 60:
“On 29 June 2011 a detainee within the Alexander Maconochie Centre (AMC) submitted a complaint in relation to Mr Perkins, however it was early July 2011 by the time I received this complaint. Upon receiving the complaint I spoke to Deputy Superintendent Collins in relation to the allegations and requested that Mr Perkins be removed from the area where the detainee was housed. The Executive Director, Ms Mitcherson, responded to the Detainee advising that I would counsel Mr Perkins about the allegation.
On 15 July 2011 I had left the Centre for a period of time. Upon my return I met Mr Perkins near the Iris Scanners where he told me he had nearly assaulted a detainee (the same detainee mentioned above). I asked him to accompany me to my office immediately. I spent approximately one and a half hours with talking to Mr Perkins, about various issues, including the incident which had occurred earlier that day and the one on 29 June 2011. I discussed with Mr Perkins the options of him taking extended leave to address issues he was experiencing – he had identified that he did not think he could work at the AMC any longer and he acknowledged that he needed to deal with issues, both personal and professional. At the conclusion of this meeting, I arranged for Mr Perkins to be relocated to another area of the AMC for the remainder of his shift. Mr Perkins subsequently went on leave…”
The Applicant was referred by Dr Khan to Mr Calear, Psychologist, who assessed him on the following dates: 9 and 23 July, 10 and 24 September, 8 October, 5 November and 3 December 2011. Mr Calear noted that the Applicant presented with “symptoms of stress, anxiety, and trauma related to his workplace” – Exhibit 1 T9 p. 77.
It should be noted that Mr Calear worked at AMC for ACTCS between November 2008 and April 2010, which was at the same time that the Applicant was working at this facility. Mr Calear made a full disclosure statement in his report to Comcare of 4 December 2011, and provided the following information – Exhibit 1 T9 p.77:
“Mr Perkins was made fully aware of my work at the facility before commencing therapeutic work at my clinic. Before we commenced psychological assessment or work, Mr Perkins and I agreed that we had no prior knowledge of each other, whether personally or professionally.”
Mr Calear’s clinical opinion of the Applicant was as follows:
“Based on the evidence I have before me, I consider that Mr Perkins is currently suffering from Posttraumatic Stress Disorder (PTSD). Further to this, I consider Mr Perkins’ condition is likely to have had a duration of longer than three months, and that the index trauma could be one of several threat-to-life experiences Mr Perkins has had in his workplace, whether his life or the life of another. Secondary to PTSD, I consider Mr Perkins is also currently experiencing a Major Depressive Episode. Mr Perkins continues to experience chronic sleep disturbance, fleeting suicidality, depressed mood, amotivation, and anhedonia.
I have no evidence to suggest that Mr Perkins has a pre-existing mood disorder prior to his employment with ACT Corrective Services. There is available evidence of a general medical condition which may cause the symptoms in Mr Perkins’ presentation.
The evidence I have before me suggests that the psychological symptoms Mr Perkins is experiencing can be reasonably attributed to his workplace.
A diagnosis of Adjustment Disorder is excluded because Mr Perkins has experienced several instances of actual, observable, threat to life on several occasions…”
Mr Calear made the following summary assessment of the Applicant – Exhibit 1 T9A p.79:
“Thank you for referring Mr Perkins for assessment and treatment. Danny has now attended six sessions, and has requested further sessions.
Danny reported to me today that he has been somewhat restrictive in his recent self-reports. Danny advised that he utilises this style of communication after a career which necessitates intense guarding of personal matters. It is significant to note that Danny appears to gained some insight into this protection method, and has advised that he now hopes to become far less closed in non-work related situations.
Unfortunately, this protective façade has assisted little in the resolution of Danny’s current symptoms. Upon second administration of the DASS21 screen, there are no significantly positive changes to report in Danny’s current symptoms of depression, anxiety, or stress. His results today indicate that his depressive symptoms (score = 30) were in the ‘Extremely Severe’ range, his anxiety symptoms (score = 26) were in the ‘Extremely Severe’ range, and his stress symptoms (score = 16) were in the ‘Mild’ range. Despite these results, Danny continues to describe the sessions he has here as helpful”.
The Applicant made his Workers’ Compensation Claim after seeing Mr Calear on two occasions.
WORK HISTORY AFTER AUGUST 2011
The Department of Justice and Community Service requested that Dupont & Associates complete an Initial Needs Assessment with the Applicant, with a view to developing a return to work program. An Initial Needs Assessment Report was prepared on

2 February 2012 – Exhibit 2 pp. 141 – 145.
A work trial at Emergency Services (ESA) was established and would commence on 30 January 2012 – Exhibit 2 p. 143.
The Report, which was prepared by Ms Julie Thompson, Rehabilitation Consultant, outlined various barriers to the Applicant returning to work – Exhibit 2 pp. 143 – 144:
“Mr Perkins reports that his unhappiness has increased since being off work. He has lost a sense of purpose and belonging that came from being at work. He is keen to be back at work again but cannot perceive that he could return to work in his job as a Correctional Officer. At present he avoids even driving past the prison. He hopes to transfer his skills and experiences into a similar area of interest e.g. investigating fraud or working in a clerical role in a service environment. He sees the work trial at ESA as an ideal fit for his interests and skills and somewhere that he can contribute. He considers that he has not presented well in job interviews and this may be accurate. He may require some coaching in interview presentation….”
Ms Thompson recommended that a return to work plan be developed with an overall goal of undertaking a work trial for three months and job seeking to locate a permanent new position – Exhibit 2 p. 144.
On 21 January 2012, Mr Calear wrote to Dr Khan and noted that the Applicant had been given the option and was happy to return to work for ACT Fire and Rescue in an administrative role. However, the Applicant advised that he could not work initially, more than four hours per day – Exhibit 2 p. 146.
Despite a promising beginning, the work trial was ultimately unsuccessful – Exhibit 2 p. 159
Initially both the Applicant and ACT Fire and Rescue gave positive accounts of his employment. At a meeting held on 1 March 2012, the employer’s representative said that “ACT F & R are very happy with Danny’s work and positive outlook” - Exhibit 2 p. 156. The only note of concern was the Applicant’s pattern of coming to work late.
By May 2012 the situation had deteriorated markedly. A note dated 23 May 2012 records that “Of particular concern is how Danny is deteriorating in this placement to a near untenable degree and the work situation has hit a virtual brick wall. These concerns are in relation to training, Danny being the sole receiver of complaint type email regarding payroll issues, and issues with Danny’s supervisor who continues to query Danny’s work.” – Exhibit 2 p. 157.
The situation continued to deteriorate and by 17 August 2012, Mr Robert Tomei, Rehabilitation Case Manager, emailed Mr Michael Ockwell and provided the following information – Exhibit 2 p. 167:
o“I have medical evidence and have spoken to his treating psych suggesting the current placement at ACTF&R is not suitable for Danny’s rehab and as a result there has been high absenteeism
oThe current work situation has become unmanageable
oNeeds to be placed in low stress work so hours can be increased
oPlacement needs to be predictable and more structured.”
A comprehensive “Closure Report” was prepared by Ms Thompson and is dated

30 October 2012 – Exhibit 2 pp. 148 – 150. Ms Thompson made the following observations – Exhibit 2 pp. 148 – 149:
“Mr Perkins has been cleared to work a total of 25 hours/week at the work trial at Fire and Rescue. There have been some challenges in managing the appropriateness of expectations for work outputs without the provision of training and adequate equipment. Ultimately Mr Perkins’ motivation to persist has diminished and his attendance at the work trial has become unreliable…
Mr Perkins has been working at Fire and Rescue as a work trial to increase his work fitness. Unfortunately there have been insurmountable difficulties with both training and equipment…Mr Perkins had initially stated that he enjoyed the work and the work area but over time has reported becoming increasingly disillusioned. The role required him to attend to calls from officers regarding issues with payroll including a complex system of entitlements. There have been difficulties with being able to provide appropriate support and supervision to develop skills in the use of the Kronus system. Mr Perkins has reported that he found it challenging to deal with the emotionally charged nature of these interactions related to payroll…
the nature of the work proved to be a poor match for Mr Perkins…”
Mr Tomei sourced another placement for the Applicant with the Parks and Conservation Directorate in Territory and Municipal Services (TAMS). In his email of 17 August 2012, Mr Tomei outlined the nature of the proposed duties – Exhibit 2 p. 167:
“The role would commence at Macarthur House for about 2-3 weeks to assist in outstanding admin tasks before being assigned to either Kambah Depot or Athllon Depot where Danny will be assisting in office admin tasks at the depots and also operational tasks such as:
o“ Mowing
oCleaning
oLitter picking
oHorticultural work”.
The Applicant commenced in a work trail position with TAMS at 20 hours per week from 30 October 2012. The duties included litter picking on a specified route around Jamison, Hawker, Page, Scullin and Cook. The Applicant complained that he found the work “demeaning and meaningless” and that this was compounded “at times by previous correctional inmates noticing him and poking fun at him.” He also said that this type of work was given as a punishment to prisoners “and he found it difficult to see this as a positive step in his return to work” – Exhibit 2 p. 195 Mr Tomei spoke to TAMS who reported that the Applicant’s attitude was unfriendly and disengaged and, further, that he grunted at colleagues and ignored interactions. Accordingly, the work trial ended prematurely in December 2012 – Exhibit 2 pp. 159, 179, 194 – 195.
The Applicant was interviewed on 18 January 2013, and a Vocational Assessment Report was subsequently prepared. The following observations were made – Exhibit 2 p. 187:
“Mr Perkins clearly has significant frustration and embarrassment with his current situation of being out of the workplace, recent experience with work trials, and his illness. He clearly points the finger at management and failures within ‘the system’, with an inability to ‘let it go’ adequately to effectively move forward – this potentially will impact on his presentation in any job seeking process, and potentially limit success in employment, particularly if he continually raises or refers to these issues. It will be important for Mr Perkins to gain insight into how this is currently and could futuristically impact on his employment choices, and as such should be encouraged to have specific counselling in this regard…
The previous work trials appear to have not provided suitable duties at a level that would provide interest, challenge and motivation to Mr Perkins. He described one of them as being prevented in effectively using the system due to lack of training, and the other as menial – it is not surprising he displayed high levels of frustration. Neither of these work trials would have been able to provide a reference that would assist with further job seeking.”
Dr Khan certified that the Applicant was unfit for work for the period 13 December 2012 until 12 March 2013 – Exhibit 1 T12, pp. 160 – 162. Subsequently, Dr Khan certified that the Applicant was fit for modified duties commencing at 20 hours per week for the period 12 March 2013, until 11 June 2013 – Exhibit 1 T12 pp. 163 – 166.
The Applicant’s next work trial was at Disability ACT, where the Applicant performed basic administrative duties. The work trial commenced on 7 April 2013 at 20 hours per week. By June 2013, the Applicant had increased his work hours to 30 hours per week. The work trial supervisor initially reported that the Applicant was “enthusiastic and focused at work and has achieved well at the tasks provided”. Basic training was provided and the Applicant voluntarily contributed to additional tasks when possible. The work trial supervisor reported that he fitted in well socially and the Applicant found the workplace friendly and welcoming – Exhibit 2 p. 199. The Applicant reported that his symptoms had reduced while attending the work trial, and Ms Thompson wrote in her Progress Report that the Applicant “is almost ready to commence job seeking” – Exhibit 2 p. 200.
By July 2013 the Applicant was working full-time at Disability ACT. The work trial supervisors noted that he “displayed an exceptional capacity for work such as auditing which requires attention to detail and discernment of accurate versus inaccurate data”. The Applicant continued to fit in well socially “attending lunches with colleagues and joins in the office humour and camaraderie”. However, his work trial supervisor noted that he sometimes displayed “a lassitude or aloofness. At times he has demonstrated a belligerence and unwillingness to conform to agreed conditions such as not adhering to the agreed hours.” – Exhibit 2 p. 202. Ms Thompson noted in this Progress Report that the Applicant alternated between being friendly and sociable, to becoming agitated and angry, sometimes being unable to continue a civil conversation because of his anger management problems. Ms Thompson also noted that he was fixated on achieving the unrealistic vocational goal of becoming an investigator. In short, Ms Thompson opined that the Applicant “demonstrates consistent patterns of obfuscating and obstructing progress” – Exhibit 2 p. 203.
On 16 August 2013, Ms Thompson prepared a Closure Report. While the Applicant remained working at Disability ACT the same attitudinal and behavioural issues that surfaced at the previous work trials manifested themselves once more. Ms Thompson outlined a number of examples, including the Applicant being angry and withdrawn, not arriving for work, not attending work because he was too angry to be in a workplace, not adhering to agreed start and finish times, leaving work without informing his supervisor, not initiating new tasks if he had completed his work and refusing to apply for paid courses that would have improved his employment prospects – Exhibit

2 p. 206.
As the year progressed, the Applicant’s attitude and work performance continued to deteriorate. When interviewed on 14 November 2013 the Applicant was asked where, career wise, he would like to be in two years? The Applicant replied that he was unclear, and that “the only option would be investigations”. He complained that he felt unsupported and the interviewer noted that “(Danny started to get teary)” – Exhibit 2 pp. 237 – 238.
When the Applicant was again interviewed on 29 November 2013, the Applicant advised that he was bored with his current duties and “did not attend work on Wednesday because didn’t want to go”. He also stated that he was unable to cope after working for two days and that he needed to “break it up, or will punch someone” – Exhibit 2 pp. 241 – 242.
By 5 December 2013, the Applicant’s work situation had collapsed. It was noted that the Applicant was “no longer engaging with the team”. He was no longer having conversations with his co-workers, and reported that he was feeling so low that he wanted “to drive bike into the lake or under a bus…wants it to all be over / not to have to deal with things anymore” – Exhibit 2 pp. 245 – 246.
In February 2014, the Applicant’s work placement with Disability ACT ceased. Ms Sarah Watson, Acting Manager Business Support for Disability ACT outlined the reasons for this – Exhibit 2 pp. 279 – 280:
“Danny is not willing to undertake the work required in the Scheduling Office. The work of the office is administrative and requires that staff answer phones and interact with each other and external stakeholders. As Danny is not willing to talk to people on the phone the duties that he can do are very limited. While the Scheduling Office Coordinator has tried to find duties for Danny, finding work for Danny is resource intensive on the Scheduling Office Coordinator.
Danny was given the opportunity to take on a Work Health and Safety Project…Danny was unable to complete this project. He became bogged down in the details of the research and consumed with how the information he found related to his previous employment…
Danny has had a number of unexplained absences. He does not show up for work and does not call to let people know that he will not be in.
Danny has expressed that he does not want to be here…”

During April 2013, the Applicant and his then wife embarked on a cruise from Sydney to Singapore. Only a day or two into the cruise, the Applicant suffered a psychotic episode and had to be physically and chemically restrained before being off-loaded by Queensland Water Police and taken to Maroochydore Hospital. The Applicant told Drs Zsadanyi and Shaikh that he threatened to bash the Captain of the Cruise Ship with a cricket bat – Exhibit 1 T42 p. 342; Exhibit 2 pp. 375, 393. The Applicant gave evidence that this was the “final straw” that broke his marriage, and shortly thereafter he and his then wife separated.
The Applicant’s next work trial was with the Rural Fire Service, which commenced on 12 June 2014. He was allocated a range of duties including administrative tasks, researching in the office and on-site tasks such as erecting storage shelving. In addition, he was tasked with auditing local individual fire stations. As with his previous placement, he commenced his job being enthusiastic and positive, but as time went on he began not arriving for work on time, not advising of his lateness and walking out of the workplace during hours without returning. It was during this time, that the Applicant reported difficulty sleeping and taking medication, which led him to sleep in. In a progress report dated 24 July 2014, Ms Thompson observed that the Applicant lacked fluent emotional expression and exhibited as sad and upset. – Exhibit 2 pp. 374 – 375.
Despite these problems, his supervisors noted that “Danny is providing good work when he is there and they are relying on him to get though some of the tasks eg audit” – Exhibit 2 p. 378.

By the end of July 2014, the Applicant “disappeared without notice from the work trial and has not responded to attempts from the supervisor to contact him” – Exhibit 2 p. 300. Mr Calear was of the view that the Applicant was having suicidal ideations – Exhibit 2 p.302. The Applicant had separated from his wife in the previous few weeks and did not have stable accommodation – Exhibit 2 p. 303.
A determination was then made to cease his work trial “due to the welfare of Danny and others in the workplace” – Exhibit 2 p. 306.

Throughout 2013 - 2015, considerable effort was being made to find the Applicant suitable employment. Unfortunately, much of the effort being made was undone by the Applicant’s perceptions that the work being offered was not meaningful. This is illustrated by the Applicant’s unpreparedness, in March 2015, to take up a job offer as a Courier/Records Officer at Records Management at Mitchell. The Applicant is reported to have said that the proposed work placement was not suitable, and requested a more challenging job option – Exhibit 2 pp. 421 – 422.
Surprisingly, having regard to the Applicant’s unhappy experiences whilst working in a correctional environment, by mid 2015, he was keen to recommence working in a security role. Ms Thompson set out in an email dated 1 July 2015, the background to this development – Exhibit 2 p. 472:
“Yesterday Justine Lowder and I met with Danny Perkins to discuss his hopes to return to work in the security role at AMC. Justine advised that there were some barriers to this plan which included
·That Danny has been away from his role as a Correctional Officer for 4 years and will therefore need to undertake the training course in October
·That to date there is a medical restriction preventing Danny from being in contact with detainees
·That the security role would expose Danny to detainees as they come and go from the centre and also as the role is a Correctional Officer position would require him to respond to situations as they arise within the workplace
·That it may not be possible to provide a suitable level of supervision for the return to work period
·And finally that the role is due to end in February 2016 when the building project is completed
This information has been provided to the GP, the psychiatrist and the psychologist to ask for their opinions as to whether Danny could be medically cleared for the role in light of this additional detail. The psychologist and psychiatrist are both supportive of Danny fulfilling his career aspirations and consider that Danny is motivated to succeed in this role. Whilst there is some concern about direct contact with detainees the psychiatrist thought that this might also provide a means of allowing Danny to have a graded exposure to this situation so that a more considered and final determination of his capacity to manage within a correctional environment could be made…”
The Applicant’s GP, Dr Tshibangu, provided a report to Comcare dated 10 September 2015. Dr Tshibangu opined that the Applicant should be able to return to employment in a non-custodial role, provided he was not exposed to a similar environment and in particular, recommended that the Applicant should not be in a work environment where there would be a likelihood that he would have contact with detainees – Exhibit 1 T52 p. 381. On 25 September 2015, Dr Tshibangu certified that the Applicant was fit to undertake the training program with Corrections ACT and that he could have supervised contact or interactions with detainees as required, for the purpose of the training – Exhibit 2 p. 478.
A short time into the training program, the Applicant exhibited a pattern of disruptive and inappropriate behaviour that led to the cessation of the work placement.

Ms Bernadette Mitcherson, Executive Director of ACT Corrective Services, wrote to the Applicant on 28 October 2015, stating that she had concerns that his mental health had not sufficiently stabilised to allow the Applicant to return to Correctional duties. Accordingly, the work placement was ended on the basis that the Applicant was unfit for duty. Ms Mitcherson outlined in the letter examples of the Applicant’s behaviour that resulted in this decision – Exhibit 2 p. 61:
o“walking out of training sessions as a coping mechanism instead of ‘throwing chairs’;
obeing argumentative with training coordinators and questioning their decisions in front of other class members;
oprojecting a resistant behaviour toward conforming with instructions regarding your uniform;
ofocussing (sic) on negative aspects of your previous ACT Corrective Services (ACTCS) experience, and in turn, providing negative responses to questions asked of you;
ostudents and external facilitators reported that they perceive these comments to be antagonistic. These responses have been raised with you on a number of occasions by the training co-ordinators, however the behaviour continues;
oa negative comment you made to a training co-ordinator along the lines of, ‘well I’m not going to fill their heads with promises that this is a good place to work’; and
ofrequently engaging in conversations with existing staff at the Alexander Maconochie Centre (AMC) (outside of the training facility) when you should be participating in group activities. In effect isolating yourself from the training group.”
This was the Applicant’s last work placement before he was examined by

Dr Samuell and the subsequent decision of Comcare that determined that the Applicant did not have a present entitlement to compensation.
It is important now, to set out the various medical assessments of the Applicant, commencing with that of Mr Calear and then of the various psychiatrists who have examined him from 2011 onwards.
MEDICAL EVIDENCE
Introduction
The Tribunal was presented with extensive medical evidence, consisting of numerous reports prepared by professionals who examined and assessed the Applicant in the period 2011 – 2016. Extracts from various reports are set out below.
The extracts relate mostly to the assessments of the Applicant by various psychiatrists. During all of this period, the Applicant was also being treated by his psychologist, Mr Calear, and at least two GPs, Drs Khan and Tshibangu.
A perusal of these reports highlights a number of trends in the Applicant’s mental health over the period 2011 – 2016.
One important factor in monitoring the state of the Applicant’s mental health during this period was the state of his family life.
The period leading up to and following the breakup of his marriage, was, understandably, distressing and unsettling for the Applicant. The impact of the slow but inexorable marital breakup is mirrored in the various diagnoses of the Applicant’s mental health.
Conversely, when the Applicant commenced a new relationship with Ms Parr, his mental health improved. It is relevant to note that when Dr Samuell assessed the Applicant, he had been in a relationship with Ms Parr for five months and was living with her – Exhibit 1 T58 p. 398.
Dr Inglis Synnott, Consultant Psychiatrist: report 22 November 2011
Dr Synnott assessed the Applicant on 22 November 2011, after being referred to him by the ACT Department of Justice & Community Safety for a psychiatric assessment. The report of Dr Synnott is lengthy and he comprehensively outlines the Applicant’s presenting complaints, current status, lifestyle, current medical treatment, personal history and mental state examination.
In the summary and assessment section of the report, Dr Synnott made the following observations – Exhibit 1 T8B pp.70 - 71:
“According to Mr Perkins, from the time of his arrival in the mid nineties at ACT ‘Justice and Community Safety’, he has experienced psychological symptoms of significance – and he attributed it to the ‘culture of the place’ where he worked, and particularly his dissatisfaction with the managers at work and their poor training and lack of support for the staff; as well, he more recently had become increasingly dissatisfied with the inmates and their ‘constant whinging’ and demands that their rights and privileges be met…
In the five months off work, if anything his psychological state has deteriorated – ‘having time to think about the situation’ has not been of benefit; he wants to find alternative work but has been unable to do so…
I note he has an ‘arachnoid cyst in the left temporal lobe’ – that will need to be investigated by those [who] are experts in this area, and particularly a neuropsychological assessment could be worthwhile, to exclude an organic basis to his current psychological symptoms (particularly in his cognitive capabilities and capacity to control his frustration and anger). However, given the duration of his reported problems, the cyst may prove to be an incidental finding.
In my opinion, he described sufficient psychological symptoms to meet the diagnostic criteria of an adjustment disorder…
In my opinion, a psychiatric diagnosis is an incomplete and simplistic conceptualisation of the situation – it does not explain the totality of his presentation, and the extent of the difficulties he describes. He describes frustration and dissatisfaction with his workplace – and a sense of emotional volatility, and he has no motivation to return to his pre-injury duties.
In my opinion, being off work has been counterproductive and of no benefit – and there is no psychiatric reason for this to be the case; it is an accepted strategy and a widely recognised paradigm that in situations like this, people should be returned to the workforce as soon as possible – albeit (in his case) in a different type of job or an alternative workplace. In my opinion, the sooner he can get back to work the better – but not in his pre-injury duties: it would be in alternative duties – such as filing with his pre-injury employer or a completely different job away from his current employer. He may benefit from the assistance of a rehabilitation provider in finding an appropriate job for him.
In my opinion, psychological and psychiatric treatment will be of no significant benefit – and it is important not to overly ‘medicalise’ the situation; it is an industrial problem and will require an industrial solution – he should not look to psychological or psychiatric treatment to solve the problem, and he has to be central in any solution. To a large degree, it will be determined by his motivations and priorities – the outcome will be beyond the reach of the medical profession.
In my opinion, in itself the adjustment disorder does not prevent participation in employment; it is his particular mindset, his frustration and dissatisfaction with his pre-injury workplace that will be significant obstacles – and may well result in unacceptable and inappropriate behaviour on his part if he returns to work in the pre-injury area. His comments about his volatility and not being able to control himself in the workplace may prove to be a self-fulfilling prophecy – the very things he predicts could come to pass. There will be no successful return to his pre-injury duties.”
Dr David Gorman, Consultant General Physician, Pain Management Specialist and Medical Oncologist: reports 26 and 30 November 2011
At the same time that the Applicant was being assessed by Dr Synnott, he was also being assessed by Dr Gorman.
Dr Gorman prepared two reports. The second, dated 30 November 2011, focused on the possible importance of the Applicant’s arachnoid cyst. Dr Gorman concluded, after clinical examination, research and discussions with Neurologist colleagues that: “it is very unlikely that the cyst is having a major effect on his behaviour.” – Exhibit 1 T8 p. 56.
The first report, dated 26 November 2011, contains a very comprehensive analysis of the Applicants physical state of health. It also deals with the Applicant’s mental state. Dr Gorman concluded as follows – Exhibit 1 T8A p. 62:
“Mr Perkins was a man who had worked for 14 years in the Corrections service. He had problems with his conduct since he arrived. He gradually came to not cope with the situation and began to dislike both the prisoners and management increasingly.
He stated views which were openly hostile to the prisoners. He said that he was ‘sick of being a childcare worker’. He said that it ‘is not custodial’ any longer.
He drank heavily to cope but could not go on from April 2011.
He is now better in terms of his alcohol consumption and somewhat better in terms of his mood but feels that he cannot return to the Corrections Service. He is looking for other jobs.”
Dr Gorman addressed a number of questions at the conclusion of his report. One question was whether the Applicant was fit for the full range of duties as a Correctional Officer. Dr Gorman provided the following response – Exhibit 1 T8A p. 63:
“…Mr Perkins still thinks that on occasions he would severely injure a prisoner. Only recently an ex-prisoner tapped him on the shoulder in the shopping centre. He swung around rapidly and swung a punch at the person.
The attitude has built up slowly and I consider the situation is likely to be permanent. I do not feel that Mr Perkins will ever be able to perform the full range of correctional officer duties.”
Dr Gorman, however, opined that the Applicant was fit for other types of work. While the Applicant was, at that time, depressed and taking medication, Dr Gorman was of the view that within a few months he could return to other non-custodial work – Exhibit 1 T8A p. 63.
Dr Bruce Lean, Consultant Psychiatrist: report 3 September 2012
On 3 November 2011, Dr Khan referred the Applicant to Dr Lean. He attended the consultation on 12 January 2012 and was subsequently assessed by Dr Lean on: 31 January, 21 February, 8 May, 14 June and 10 July 2012. At the request of Comcare, Dr Lean prepared a report on the state of the Applicant’s mental health. That report is dated

3 September 2012, and contains the following assessment – Exhibit 1 T21 p. 265:
“Ross Calear previously diagnosed Danny as having Post Traumatic Stress Disorder (PTSD) which appears to have been more from accumulating circumstances than one specific incident, however there is no doubt that he has a clear picture of traumatic stress. Related to his chronic exposure to complex stress, Danny’s situation is currently subsumed under the mantra Complex PTSD which is not a DSM IV – TR* diagnosis. Many of the incidents that he has been through in the Maconochie Centre, or Belconnen Remand Centre and even further back to Junee, have been extremely distressing to him.
Consequent upon that traumatic history Danny has the two well known complications of PTSD, Substance Abuse Disorder Alcohol and Major Depressive Disorder. An added factor is that he has a left temporal lobe arachnoid cyst. The temporal lobe is central to emotional control and may be contributing to his mood state.
Also with a heavy use of alcohol in the past potentially affecting his frontal lobes and memory processes, the combination of intermittent frontal lobes with a temporal lobe impairment could certainly lead to difficulties with control of inhibition, motivation and change in executive function.
Diagnosis
In the multi-axial format of the diagnostic and Statistical Manual, 4^th edition, Text Revision* (DSM-IV [TR]*), Danny’s diagnoses are:
Axis I: Major Depressive Disorder (MDD), severe intensity with previous suicidal ideation
‘Complex PTSD’
Substance Abuse Disorder, Alcohol abuse; recently remitted
Axis II: Perfectionist features
Axis III: Headaches – for investigation
Left Temporal Lobe Arachnoid Cyst ? symptomatic.
Hypertension
Right knee dysfunction
Axis IV :On Comcare support; Interpersonal difficulties
Axis V: Global Assessment of Function (GAF) – worst in last 12 months, 46”.
Nonetheless, Dr Lean concluded with a relatively optimistic prognosis for the Applicant – Exhibit 1 T21 p. 267:
“Danny had adapted better than expected to his work in administration. He appeared to have benefited considerably from his medication and was utilizing his work with Ross Calear better. He had reduced his alcohol intake considerably and that was having a flow on effect to his psychosocial stressors and benefiting the efficacy of the treatment plan.
It is likely under the present circumstances that Danny’s prognosis is more optimistic. It is expected with adherence to the treatment plan he will gain full control over his anxiety and mood symptoms, being able to control their emergence.”
Dr Peter Farnbach, Consultant Psychiatrist: report 17 October 2012
Shared Services Injury Management referred the Applicant to Dr Farnbach for a psychiatric assessment. Dr Farnbach opined that the symptoms described by the Applicant were consistent with traumatisation, but not post-traumatic stress disorder – Exhibit 1 T22 p. 273. Further, Dr Farnbach expected that a return to full-time work was appropriate for the Applicant and that the Applicant’s symptomatology should resolve within four weeks – Exhibit 1 T22 p. 275.
Dr Farnbach’s assessment of the Applicant is set out below – Exhibit 1 T22 p. 274:
“MENTAL-STATE EXAMINATION
Mr Perkins presented as angry and dissatisfied rather than depressed. His talk was heavily focussed on his perception of ‘lack of support’ and other issues. There were vague suicidal thoughts …There was no evidence of psychotic symptomatology.
SUMMARY AND ASSESSMENT
In summary, Mr Perkins presents with what in my view is an adjustment disorder of moderate severity with depressed and anxious mood – while I certainly agree he has features of traumatisation, I do not agree that he has post-traumatic stress disorder.
The striking feature in Mr Perkins’ presentation is his prominent angry ruminations about his circumstances and how he perceives his difficulties to have arisen. He has unfortunately fallen into a pattern of involution – he has withdrawn from the world, and spends most of his time sitting at home with the curtains drawn watching television. He has unfortunately therefore fallen into a pattern of behaviour which is acting to exacerbate and perpetuate his disability…
I regard as rapid as possible a return to gainful employment to be an essential component of any ‘treatment’ program. Fortunately, Mr Perkins expressed a wish to return to work, and is himself of the view that a return to work is the best thing for him…”
Dr James Hundertmark, Consultant Psychiatrist: reports 20 February; 8 April 2013

Following the Applicant’s unsuccessful work trial with TAMS, he was referred by Comcare for psychiatric assessment to Dr Hundertmark.
The Applicant was assessed on 11 February 2013, and Dr Hundertmark’s first report is dated 20 February 2013 – Exhibit 1 T26 pp. 289 – 295.
Dr Hundertmark referred to the Applicant’s “gruff and slightly aggressive manner” and his tendency to “blurt out answers” while preferring “not to expand on any material” referring often to the fact he had previously given the information and it was contained in reports. The Applicant was observed to be “substantially more angry than depressive” and gave “angry and dismissive responses” – Exhibit 1 T26 p. 292.
Dr Hundertmark opined that there was evidence of narcissistic and other Cluster B personality traits – Exhibit 1 T26 p. 292.
Dr Hundertmark’s summary and assessment was as follows – Exhibit 1 T26 pp. 292 - 293:
“He reported some features of depression, more prominent anger towards Corrections and the system as a whole. He has an entrenched, negative and dismissive response to the rehabilitation system. It is my opinion that he suffers from an Adjustment Disorder of an unspecified type coded 309.9 on the DSM-IV-TR…
There are no features of exaggeration of symptoms.”
Comcare requested a supplementary report and posed six questions. Dr Hundertmark’s supplementary report is dated 8 April 2013 – Exhibit 1 T32 pp. 308 – 310. The first two questions are particularly germane to the resolution of these proceedings and are set out below.
The first question was: Does Mr Perkins still suffer from the compensable conditions of post traumatic stress disorder and major depressive disorder, single episode? Dr Hundertmark’s response was as follows – Exhibit 1 T32 p. 309:
“Mr Perkins did not suffer from either PTSD or Major Depressive Disorder at the time of the assessment. Neither condition could be diagnosed based on the symptoms obtained at interview using the DSM-VI-TR system of classification.”
The second question was: What was the cause of the condition of Adjustment Disorder and when is the condition likely to resolve? Dr Hundertmark’s response was as follows – Exhibit 1 T32 p. 309:
“The adjustment disorder was substantially caused by the workplace issues, namely dealing with difficult prisoners who self-harmed, acted out in a difficult fashion or who reportedly suffered mental health concerns.
Resolution of the condition is most difficult to predict particularly given Mr Perkins’ attitude to the rehabilitation and compensation systems and his previous employer.
As stated in my report of 11 February 2013, he has a 0.5 FTE capacity for work outside of Corrections at this time. However finding a suitable placement may be problematic.”
As previously noted, following these reports of Dr Hundertmark, Comcare made a further Determination on 19 July 2013, changing the Applicant’s diagnosis from PTSD to adjustment disorder – Exhibit 1 T34 pp. 315 – 316.
Dr Wasim Shaikh, Psychiatrist: report 26 May 2014
At the request of Comcare, the Applicant was assessed by Dr Shaikh on 7 May 2014.
Dr Shaikh observed that when assessing the Applicant, there was obvious evidence of “flattened affect, low mood and themes of anger”. The Applicant exhibited a sense of resentment against ACT Corrections, was disappointed with the handling of the claims process and lacked motivation to engage in extended discussions – Exhibit 1 T42 p. 343.
Dr Shaikh diagnosed the Applicant as suffering from an Adjustment Disorder of moderate severity. He also opined that the Applicant had significant personality vulnerabilities that contribute to his ongoing symptomatology and would affect his return to work. The Applicant’s personality vulnerabilities led to an impaired perception of experiences and an aggravation of perceived disabilities. Significantly, Dr Shaikh opined – Exhibit 1 T42 p. 346:
“…it does appear that factors beyond his accepted and compensable condition affect recovery and return to work.”
After considering and summarising the various medical reports set out above, Dr Shaikh made the following diagnosis – Exhibit 1 T42 p. 345:
o“I do not have much doubt that Mr Perkins suffers with a psychiatric condition, namely an Adjustment Disorder. In keeping with previous assessments, there appears to be a presence of maladaptive coping strategies, fuelled by cluster B personality traits. Further, there are motivational and medicalisation based factors that maintain his condition.
oHe seems to be convinced regarding the diagnosis of PTSD, supported by his Psychologist, and is keen to join a PTSD group with ex-Military personnel and ex-Policemen. Such thought patterns force him into an abnormal illness behaviour, providing a heightened perception of disability.
oIn my opinion, the only restrictions surrounding his employment are that he does not return to work as a Custodial Officer. Whilst he reports ongoing symptomatology, it appears as though his anger and personality vulnerabilities are primary factors affecting his motivation towards alternative employment.
oHis lack of motivation/interest in recent graduated Return to Work plans is not completely explained by his compensable psychiatric condition.
oI would suggest that treatment be based on managing his emotional instability and anger symptoms, rather than along the lines of PTSD management. His symptoms do not comprise significant PTSD related phenomena, and as such, treatment should be focused towards his maladaptive coping patterns, and anger issues.”
Dr Shaikh concluded by opining that the prognosis for the Applicant’s condition was “only fair” – Exhibit 1 T42 p. 346. Further, he was of the opinion that whilst there were other factors involved, the Applicant continued to experience symptoms relating to his prior experiences – Exhibit 1 T42 p. 347.
Dr Zoltan Zsadanyi, Consultant Psychiatrist: reports 30 September and 16 October 2014
The Applicant was referred to Dr Zsadanyi for a further psychiatric assessment, which was carried out on 24 September 2014. Dr Zsadanyi made the following findings – Exhibit 2 pp. 396, 398:
“His thought content indicated that he probably experiences symptoms consistent with posttraumatic stress disorder. In his mood he presents as an angry man who is very frustrated and he said he often felt depressed. His affect was restricted although he did thank me at the end of this assessment. I note that Mr Perkins appears to have chronic suicidal thoughts, he did not indicate whether or not he had a plan, he said he was able to control his impulses to harm himself and there seemed to be protective factors in his life…
[I]n my opinion, Mr Perkins does have a primary posttraumatic stress disorder diagnosis. The latter is reasonably attributable to the workplace factors that occurred while he was still working with the Department of Corrections. Additionally, he would fulfil the criteria for a major depressive disorder. I make this diagnosis on the basis that Mr Perkins has struggled over the last three years in different placements which were not within correction services. In some ways, his presentation is similar to former Defence Force personnel who are suddenly expected to work as civilians. Mr Perkins has struggled to adjust to working in different environments that are not regimented, or as structured and secure.
All of the above factors would make it highly difficult for Mr Perkins’ (sic) to be successfully rehabilitated. There is also a suggestion that he presents with cluster B personality traits which would be in line with his seemingly maladaptive coping strategies. Mr Perkins appears to be prone to externalising some of his problems and attributing blame to others. With ongoing psychotherapy, Mr Perkins would probably learn how to express himself in a different manner and accept that what happened in the past cannot be undone. He needs to be encouraged to focus more strongly on his future.
Ideally, Mr Perkins should be considered for an eventual return to work within Correction Services once his mental state has stabilised significantly. He is best suited to continuing to work in such an environment, especially if he is continuing to receive psychiatric and psychological treatment. In the interim, he should be found alternate duties with the aim of commencing another placement within one month time.”
Using the DSM-IV-TR multi-axial terminology, Dr Zsadanyi made the following diagnosis – Exhibit 2 p. 398:
“Axis I:            Chronic posttraumatic stress disorder.
Comorbid major depressive disorder.
Past history of alcohol abuse.
Axis II:            Cluster B personality traits.
Axis III:  Nil.
Axis IV:Currently not working, financially stressed, not receiving any income, recently separated from wife the settlement still pending, living with his parents.
Axis V:            GAF 61 to 70”.
Dr Zsadanyi was subsequently briefed with further material, including a Workplace Statement for Fitness for Duty Assessment, which comprehensively outlined the Applicant’s work trial placements – Exhibit 2 pp. 404 – 409.
Further, in a letter dated 13 October 2014, the Department of Justice and Community Safety informed Dr Zsadanyi that there were several references in his report to the Applicant experiencing financial stress due to not receiving any income. Dr Zsadanyi was informed that this was incorrect, and that since the early cessation of his placement with ACT Rural Fire Service, the Applicant was provided paid leave by ACTCS. Advice was formally sought as to whether this further information changed any of the “outcomes” in Dr Zsadanyi’s first report – Exhibit 2 p. 410.
In an extremely brief supplementary report of 16 October 2014, Dr Zsadanyi said the following – Exhibit 2 p. 411:
“The information provided in your letter does not alter my opinion regarding causation or regarding Mr Perkins’ diagnosis.”
Dr Meredith Whiting, Consultant Psychiatrist: report 31 August 2015
Dr Whiting had been treating the Applicant on a regular basis since 2013, although she had only seen him twice in the twelve months prior to the preparation of her medical report – Exhibit 1 T51 pp. 376 – 379.

Dr Whiting last saw the Applicant in May 2015, and at that time he had “ongoing liability of mood”, was feeling “pretty lousy” and had “fluctuations in his appetite.” – Exhibit 1 T51 p.376. Nonetheless, he reported “improvement in his sleep, energy and concentration” and had much more control in his life and “was enjoying being more accepting” – Exhibit 1 T51 p. 376. Accordingly, Dr Whiting made the following optimistic prognosis – Exhibit 1 T51 p. 377:
“I would assess there has been a significant improvement in his symptoms though they have not completely resolved.”

Dr Whiting observed that the Applicant’s low mood, irritability, sleep difficulties and anger contributed to significant issues with the Applicant’s family relationships, which in turn compounded his isolation and frustration – Exhibit 1 T51 p. 377. However, Dr Whiting opined that the Applicant’s psychological condition had improved – Exhibit 1 T51 p. 377.
Further, Dr Whiting opined that the Applicant’s psychological condition has “features of a post traumatic stress disorder, major depressive disorder and generalised anxiety” and that there may be features “which continue to influence Mr Perkins’ employment performance.” - Exhibit 1 T51 p. 378.
Dr Doron Samuell, Consultant Psychiatrist: report 6 April 2016
Dr Samuell examined the Applicant on 16 March 2016, and his report is of the same date – Exhibit 1 T58 pp. 396 – 404.
Dr Samuell observed that the Applicant “presented some annoyance at the outset of the interview saying that this was his seventh or eighth assessment” - Exhibit 1 T58 p. 396.
The Applicant informed Dr Samuell that he has a GP, psychiatrist and psychologist, and that he is assessed twice a year by his psychiatrist, but had not seen his psychologist for “a while now” because he was “trying to deal with it himself.” Exhibit 1 T58 p. 397.

Dr Samuell noted that the Applicant was, at that time, taking no prescribed medication and had last taken medicine in May 2015 – Exhibit 1 T58 p. 397.
Dr Samuell observed that the Applicant was able to attend to all activities of daily living without impairment, and that when he asked the Applicant about his perceptions of mental health, he replied “I suppose ok”. Further, the Applicant informed Dr Samuell that he was capable of “doing anything” but could “lose control” and always “get[s] defensive”. Asked in what way he considered himself to be unwell, the Applicant responded, “I have been treated like shit” – Exhibit 1 T58 p. 399.
The Applicant said he had recurring dreams, but stressed the point that they “are not nightmares anymore”. He also said, that he felt “gutted and empty” that he is unable to be a part of something and that he could do his previous job “blindfolded”, but then added that he did not feel as though he could trust himself 100 percent – Exhibit 1 T58 p. 399.
Dr Samuell made the following conclusions – Exhibit 1 T58 pp. 401 – 402:
“Mental State Examination
…He presented with attitudinal issues from the outset of the interview. He made several complaints about the insurer. He conveyed a limited degree of insight about his own contribution to the difficulties. He displays a very prominent external locus of control.
Many of the questions that I asked were answered indirectly. When I asked for instance about his symptoms, he preferred to talk about the perceived causes. His narrative generally had a strong flavour of disaffection and entitlement.
His affect was reactive and observed within a normal range. It was appropriate to what we discussed.
Cognitive functioning was normal.
There was no evidence of psychosis.
Opinion
…Mr Perkins was not unwell mentally at the time I assessed him. His presentation was better accounted for by his personality and social factors. He is not taking any psychotropic medication, does not have a psychologist and only infrequently sees his psychologist. There were no mental state features to suggest that he was mentally unwell.”
Later in his report, in response to questions posed to him, Dr Samuell stated emphatically – Exhibit 1 T58 pp. 403 - 404:
“Mr Perkins is not presently suffering from a mental illness…It is not clear to me when that injury resolved…Mr Perkins is medically fit from a psychological perspective to engage in any form of work for which he is suitably qualified. There are no psychological restrictions on his capacity to work.”
Dr William Knox, Consultant Psychiatrist: report 7 December 2016
Dr Knox assessed the Applicant on 7 December 2016, at the request of his solicitor and his medical report bears the same date – Exhibit 5.
Dr Knox’s report is totally at odds with the findings of Dr Samuell. Indeed, when reading both reports, it is difficult to conceive that the two doctors were assessing the same individual. Whilst Mr Clark correctly points out that Dr Knox examined the Applicant after Comcare made its four adverse determinations, there are numerous glaring differences in the account of the Applicant that cannot be explained by that fact alone.
Both in his written report, and during his testimony, Dr Knox seemed at times, to be more of an advocate for the Applicant, rather than a dispassionate professional. This manifested itself in Dr Knox attacking the independence of Dr Samuell and casting aspersions on his professionalism. This was unfortunate, but perhaps, goes some way towards explaining the gulf in the findings of both Drs Samuell and Knox.
Dr Knox stated that the Applicant had told him of ongoing intense emotional distress with features of anxiety and depression, that had manifested over the years in the aftermath of distressing events in the course of his work as a Correctional Officer at the AMC– Exhibit 5 p. 2.
Based on the Applicant’s history, Dr Knox opined that there had been little broad change in the Applicant’s mental health since he first became unfit for work in 2011. Somewhat incorrectly, Dr Knox claimed that the job placements were not well-conceived with very unsatisfactory duties and inadequate training – Exhibit 5 p. 3.
Dr Knox observed that the Applicant presented as – Exhibit 5 p. 3:
“a highly anxious man who appeared guarded…who was sweating heavily” and as the interview progressed became “especially anxious and need to take a break, feeling nauseated and panicky, having difficulty breathing, sweating heavily, becoming flushed, being confused”
In short, the Applicant was experiencing a panic attack, something which he told Dr Knox happened quite frequently in recent years.
Dr Knox went on to opine – Exhibit 5 p. 3:
“Your client describes symptoms that lead me to diagnose chronic Posttraumatic Stress Disorder (PTSD), as have his treating psychologist and earlier treating psychiatrist. He has frequent reminders of distressing events he witnessed in the course of his duties as a custodial officer, including being exposed to prisoners who had hanged themselves, and a prisoner who regularly covered himself with faeces. He has had distressing dreams for a number of years and will often wake distressed and sweating. He has increasingly distanced himself from connection with his life, including relationships and activities. His marriage has broken down. He is now divorced. He has lost interest in his hobbies, and feels there is little point in life. He has entertained ending his life at times. He tries to distance himself from memories of his stressful work, including the lack of support he reportedly experienced from prison management…
Despite treatment with a clinical psychologist in recent years, and psychiatric appointments, he has not regained his health. He has remained highly anxious, depressed, irritable and angry, and has abused alcohol a good deal of the time. He has behaved violently on occasions when frustrated.”
Dr Knox concluded with this pessimistic diagnosis – Exhibit 5 p. 5:
“Mr Perkins meets DSM-V diagnostic criteria for chronic, severe, Posttraumatic Stress Disorder. It is my opinion that this condition has come on progressively due to his long-term exposure to dangerous and violent events, and poor support from management, at the Alexander Maconochie Centre prison. Mr Perkins has not been constructively supported in rehabilitation, and has come to experience helplessness and mistrust, complicating his PTSD.
Mr Perkins has become unfit for any employment at this time, and is likely to remain so. He is also severely impaired in respect of his personal life.”
Dr Doron Samuell: report 9 March 2017
Comcare obtained a supplementary report from Dr Samuell after providing him with new material, including in particular, the above report of Dr Knox.
Dr Samuell made the following observations – Exhibit 13 pp. 3 - 4:
“Dr Knox appears to have elicited a different history to that which I obtained at interview. Dr Knox provided a very brief mental state examination in which he says that Mr Perkins suffered a panic attack. He reports Mr Perkins was ‘cognitively intact’ which appears to be at odds with Mr Perkins’ self-report of having concentration impairment.
Dr Knox makes a diagnosis of ‘chronic, severe, posttraumatic stress disorder’. He makes his diagnosis based on a different data set to that which I obtained. Although Dr Knox says that this condition ‘has come progressively due to his long term exposure to dangerous and violent events’ this is not typical of the manner in which a posttraumatic stress disorder will manifest. In addition, ‘poor support from management at the Alexander Maconochie Centre prison’ is not a factor in the production of a posttraumatic stress disorder.
Unfortunately, Dr Knox appears to have dismissed the history that I elicited, and without stating any reasons for this. Mr Perkins was not distressed at the time that I assessed him and, as such, it is entirely possible that the more recent mental state findings presented by Dr Knox reflect the decision making of Comcare, rather than any workplace injury. I did not see Mr Perkins at the time that Dr Knox examined him. Mr Perkins did not suffer from a psychiatric disorder when I assessed him and it is now possible that he is distressed and disordered due to events that may have occurred following my assessment.
When one reviews his medical records in the months preceding my assessment of him, he is recorded as saying, for instance, on 11 September 2015 that he considers himself to be ‘80% improved, happy, easy going’. It was added further that, ‘the other 20% he gets flashbacks, but overall he is getting better and better, coping with the situation’. In that same consultation, it was noted that he was ‘doing well without antidepressants’. A DASS21 assessment on that same date was ‘normal for depression/anxiety and stress’. I note that between the consultation mentioned above and my assessment in April 2016, there was no contemporaneous record in the general practice notes of psychological distress. This is, again, consistent with my own findings and inconsistent with the understanding of my colleague, Dr Knox.”
Concurrent medical evidence 28 March 2018: Drs Knox and Samuell

First, it is consistent with the other medical reports.
Second, Dr Knox’s findings are cogently expressed and in accord with the material he was presented and his clinical observations of the Applicant,
Third, it would appear that Dr Knox obtained the trust and cooperation of the Applicant, and was therefore, able to make an assessment predicated on the receiving and analysing of key information.
A few other matters also need to be ventilated, which will now be addressed.
First, the Applicant gave evidence on the first day of the proceedings and remained in the witness box for a number of hours. We were able to observe the Applicant giving evidence and formed a view as to the quality and veracity of that evidence.
We formed a positive view of the Applicant. The Applicant was clearly emotional, and, at times, was in distress. He answered the questions put to him by both Mr Grey and Mr Clark in a straightforward way, and was neither argumentative nor evasive. We did not perceive that he gave exaggerated responses, not did he hesitate to answer questions or attempt to avoid answering questions. The Applicant presented as an honest witness who, despite his obvious distress, attempted to give honest answers to sometimes very difficult questions. Mr Clark, in his usual professional, well prepared and thorough way, asked probing and sometimes challenging questions. If there had been a flaw in the Applicant’s case, Mr Clark’s forensic questioning would have exposed it. However, we saw no flaw in the manner in which the Applicant responded to the questions posed.
Second, in forming a view about the correct medical diagnosis of the Applicant, we have also taken into account the evidence of Ms Parr.
Ms Parr’s observations of the Applicant during the past three years are consistent with the findings made in all of the medical reports, other than that of Dr Samuell; that the Applicant does, in fact, suffer mental health issues.
We have therefore come to the conclusion, to quote Mr Grey, that “Dr Samuell is essentially an ‘outlier’ amongst the psychiatric opinions” – AWSR para 2.1.
Third, Mr Clark raised in his submissions the potential relevance of what he submitted was an exclusionary factor, namely, the “compensation process”. He referred to some authorities, including the following observations of Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641:
“When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or some characteristic of the work performed or the conditions in which it was performed.”
We also considered the case of Madden and Australian Postal Corporation [2008] AATA 411 where the following observations were made at [29]:
“In Federal Broom Co Pty Ltd v Semlitch, Windeyer J referred to the need for the causal factor to be ‘some event or occurrence in the course of the employment or some characteristic of the work performed or conditions in which it was performed’. In Re Australian Telecommunications Commission and Tzikas, this did not extend to resentment towards the employer because of lower earnings and delays in litigation which were described by the Federal Court as being remote from the employment in that case. I am satisfied that the reactions of Mr Madden to the rejection of his compensation claim are of the same character and that this is not a causal association embraced by ss 4 or 14 of the Act.” (Footnotes emitted).
Finally, there is the recent decision of Taylor and Comcare [2017] AATA 1327 where Senior Member Toohey said at [82]: “…a condition caused by the compensation process itself is not compensable.”
It is not necessary for the Tribunal to make a finding about whether the compensation process is an exclusory factor or not. We assume, without making a finding, that there is such an exclusory concept. However, as Mr Clark concedes, the cases he cites do not provide a definitive guide to the extent of the reach of the concept of “compensation process” - SBR para 51.
The only relevance of the exclusory factor would be in those cases, such as Taylor, where the employee had recovered from the compensable condition, and then suffered a new condition resulting from the termination of compensation benefits.
In this matter, we have found that the Applicant has not recovered from the compensable condition, and while the compensation process has, undoubtedly had a negative impact on his mental health, the underlying cause of his ailment is his compensable condition.
If there is in fact, an exclusionary factor known as the compensation process, then it would only arise as a live issue in the event we accepted Dr Samuell’s diagnosis that the Applicant’s accepted condition had resolved itself by the time he was assessed, but, that he suffered a new ailment brought about by the termination of his compensation payments.
It follows of course, that we accept that the decision by an insurer to terminate compensation benefits, would fall squarely within the concept as contended by Mr Clark - SBR para 51.
In conclusion, we agree with the submission of Mr Grey (AWS para 4.12) that at all times the Applicant suffered from an adjustment disorder. Further, we accept that the adjustment disorder varied in intensity, and on occasions achieved a degree of remission, consistent with its labile nature, but was always a manifestation of the original condition, for which liability was accepted by Comcare.
Section 16 - does the disease require medical treatment that is reasonable in the circumstances?
Having accepted that the Applicant continues to suffer from his compensable condition, it flows that Comcare is liable to pay the cost of medical treatment obtained in relation to the injury, being treatment that it was reasonable for the employee to obtain in the circumstances.
In Comcare v Holt [2007] FCA 405; 94 ALD 576 (“Holt”)) Mansfield J observed that medical treatment will generally be ‘reasonable’ within the meaning of s 16(1) if it is recommended by the treating doctor. Nonetheless, a decision-maker is required to engage in a cost benefit analysis – Comcare v Rope [2004] FCA 540; 135 FCR 443, which may involve an analysis of competing treatment options, or the value of the proposed treatment compared to no treatment at all –Holt at [25] – [26]/581 – 582.
Having made our previous finding, the only live issue arising out of s 16 of the Act, is in relation to the Determinations made on 31 May and 1 July 2016, that compensation was not payable to the Applicant for the cost of travel to consultations with his GP, psychologist or psychiatrist between 16 May 2015 and 10 May 2016 – Exhibit 1 T65 pp. 435 – 436, T76 pp. 453 - 459.
In reaching these Determinations, regard was had to ss 16(6) and 16(7) of the Act. However, it is also relevant to outline s 16(8) of the Act. All three subsections are set out below:
“(6) Subject to subsection (7), if:
(a)compensation in respect of the cost of medical treatment is payable; and
(b)the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c)in respect of the journey – of an amount worked out by using the formula:…
(d)in respect of the employee remaining for the purpose of obtaining the treatment – of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation under subsection (6) unless:
(a)the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b)if the journey made by the employee involved the use of public transport or ambulance services – the employee’s injury reasonably required the use of such transport or services regardless of the distance involved.
(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a)the place or places where appropriate medical treatment was available to the employee;
(b)the means of transport available to the employee for the journey;
(c)the route or routes by which the employee could have travelled; and
(d)the accommodation available to the employee.”
When making the first Determination, the Comcare Delegate made the following observations – Exhibit 1 T65 pp. 435 – 436:
“Therefore, under the legislation the cost of travel to seek medical treatment is payable only if the journey was necessary (no suitable providers available closer) and covers a substantial distance (a substantial distance being a minimum of 50km return trip).
On review of your file I can find no information indicating a medical reason why you would not have been able to attend a general practitioner, psychologist or psychiatrist closer to your home between 16 May 2015 and 10 May 2016. As such, it is not considered reasonable for Comcare to reimburse the costs of your travel to Canberra for consultations with a general practitioner, psychologist or psychiatrist when this treatment could have been obtained from a provider closer to your home.”
The Applicant sought a review of this decision, but the Senior Review Officer, affirmed the Determination, and gave the following reasons – Exhibit 1 T76 p. 458:
“In an email of 12 May 2015, you claimed for travel from your residence in Figtree to your psychiatrist in Deakin, your psychologist in Turner and your general practitioner in Chisholm. All claimed journeys were 488 to 520 kilometres in length.
In considering this claim, I note that when you sustained your injury you resided in Chisholm. On a Periodic Review Form, dated 20 January 2015, you advised that you had moved to Goulburn. In an email of 7 September 2015, you advised that you had moved to Figtree three months previous. This would have been in approximately June 2015.
I note Figtree is a suburb of Wollongong and as such, you would have access to numerous general practitioners, psychologist and psychiatrists closer to your residence than the ACT. I have no evidence before me to support that you were unable to seek appropriate medical treatment with these providers. I also note that you had previously changed your general practitioner, from Dr Khan to Dr Tshibangu, and your psychiatrist, from Dr Lean to Dr Whiting.
Therefore I find that your journeys to the ACT, to seek medical treatment, were not necessary journeys and subsequently, you are not entitled to travel costs for these journeys.”
Mr Grey submitted that during the relevant period, the Applicant consulted with Dr Tshibangu on ten occasions, Dr Whiting on three occasions and Mr Calear on two occasions - AWS 4.31. This estimate of the number of visits is plainly incorrect and was comprehensively rejected by Mr Clark, who submitted that a proper perusal of the records disclosed that instead of attending at Dr Tshibangu on 10 occasions, the Applicant had only physically attended on one occasion – SBR para 57.
Mr Clark drew our attention to the clinical notes of Dr Tshibangu of 8 September 2015, which are as follows – Exhibit 6:
“Phone call to Danny as per yesterday’s discussion.
Discussed:
1I really needed him to come for an assessment which will allow me to submit the requested report to Comcare. Danny thought I asked him all the questions I needed to at his last appointment. I informewd (sic) him that I did not and I still expected him to return as discussed during his last visit and I was under the impression that was agreed.
2Danny says he has no plan of coming to Canberra any time soon. It is a 6 hr trip.”
The summonsed records which comprise Exhibit 6 disclose, as Mr Clark submits, that the Applicant only attended during the relevant period, with Dr Tshibangu on one occasion in Canberra, but there was telephone contact on 8, 15 and 25 September 2015. Dr Tshibangu, however, had a number of consultations with Ms Julie Thompson of Dupont & Associates regarding the Applicant’s return to work trials. Those consultations were convened on the following dates: 28 August 2015, 15 and 25 September 2015, 3 November 2015, 18 December 2015, 29 January 2016 and 29 April 2016.
Mr Clark submitted that the purpose of the consultation with Dr Tshibangu was not to receive medical treatment, as required by s 16(6) of the Act, but, in order to assist in the preparation of documentation for Comcare. There is some force in this submission, but as Dr Tshibangu was not questioned during his oral evidence about the main purpose of the consultation, it is not possible to form a conclusive view. Clearly, one aspect of the consultation was to prepare documentation, but in order to do so, Dr Tshibangu would have needed to make an assessment of the then state of the Applicant’s mental health.
Mr Clark also made somewhat similar submissions about the purpose of the visits to Mr Calear on 25 May and 6 July 2015 – SBR paras 60 – 61. Again, it would appear that the consultations were for both medical assessment and the preparation of documentation.
Finally, Mr Clark conceded that the consultation notes for the Applicant’s consultations on 19 May 2015, 11 November 2015 and 10 May 2016 with Dr Whiting reveal that medical treatment within the meaning of the Act was sought by the Applicant – SBR para 62.
Mr Clark then made this submission – SBR para 63:
“It is the case at the relevant time that the applicant had chosen to leave Canberra and move to Wollongong. It is self-evident that Comcare as well as the Tribunal can come to the conclusion that Wollongong is a large provincial centre likely to be well served by general practitioners, psychologists and psychiatrists.”
There are two issues before us that require resolution:
(a)was the Applicant receiving medical treatment when he visited, respectively, his GP, psychologist and psychiatrist?; and, if so,
(b)was it reasonable for the Applicant to continue to seek medical treatment in Canberra, rather than seeking such treatment in Wollongong?
As to the first question, reference can be made to Comcare v O’Brien (1997) 49 ALD 293. In that matter the Tribunal found that the preparation of a medical report in order to assess whether a claim for permanent impairment under s 24 could be made was the provision of medical treatment. This approach was rejected by the Federal Court.
In this matter, it is conceded that at least the consultations with Dr Whiting were to receive medical treatment. Whether the consultations with Dr Tshibangu and Mr Calear could also be so categorised this way is not clear. If the sole purpose of the consultations was the preparation of documentation for Comcare then, following Comcare v O’Brien, no claim for travel costs can be made. If, however, the rationale for the consultations involved both a medical assessment and the preparation of documentation, then a claim could be made. In short, in order to reach a final view, clarification from both Dr Tshibangu and Mr Calear is necessary.
As to the second question, there is a considerable body of jurisprudence on what constitutes reasonably incurring expenditure when making a necessary journey to obtain medical treatment. A few key principles flow from that jurisprudence.
First, if a person changes address to a location far removed from where he or she was receiving medical treatment, and there are suitable medical practitioners who could provide the requisite medical treatment in the new location, it is not reasonable for the person to continue to use the services of medical practitioners in the original location – Stevens and Comcare [1995] AATA 310;Stevens and Comcare [1997] AATA 208.
Second, it is reasonable to be reimbursed for the cost of travelling to a location when equivalent medical and required treatment is not available locally – Pembshaw and Comcare [2000] AATA 52; (2000) 60 ALD 279.
Third, where a person has developed a relationship of trust with a medical practitioner, and that relationship is critical to the provision of medical treatment, it is then reasonable to be reimbursed for the cost of travel to continue to be treated by that practitioner – Reilly and Military Rehabilitation and Compensation Commission [2007] AATA 1826.
In this matter, it was reasonable for the Applicant to continue to utilise the services of his Canberra based medical practitioners. In each case he had formed a close and mostly productive relationship which, having regard to his mental health, was important. There is a distinction to be drawn between the provision of medical treatment for bodily as distinct from psychological injuries. In the latter case, the development of trust is a central issue in the provision of medical treatment. When trust is established, a patient is more likely to provide personal information, and to cooperate when advice or medication is provided. Consequently, where a bond is created between doctor and patient in such circumstances, particularly over time, sound diagnoses can be made and appropriate medication or treatment prescribed. It would have been unreasonable and unrealistic for the Applicant to simply terminate his relationship with his medical practitioners and start afresh in Wollongong. Moreover, if that course of action was adopted, it would have taken some time for the Applicant to find and establish trust with the replacement practitioners, and, this may have had an adverse impact on the state of his mental health.
Accordingly, we find that, it was reasonable for the Applicant to continue to travel to Canberra whilst residing in Wollongong in order to receive medical treatment. Based on the material discussed, we make no findings as to whether he was receiving medical treatment from either Dr Tshibangu or Mr Calear, but do find that he was receiving such treatment from Dr Whiting.
Section 19 – entitlement to incapacity payments
It flows from our previous findings on the Applicant’s mental health condition, that he had and has a continuing an entitlement to incapacity payments.
Section 24 – permanent impairment
The final issue to be determined is whether the Applicant’s “injury” has resulted in a permanent impairment.
“Permanent” is a state of affairs that is likely to continue independently – s 4(1). In O’Maley and Comcare (1997) 48 ALD 300 the Tribunal considered what constituted impairment. It quoted with approval the following explanation given by Woodward J in McDonald and Director-General of Social Security (1984) 6 ALD 6 at 13:
“The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision was made. It is not inconsistent with the notion of permanent incapacity that the pensioner’s position should be reviewed from time to time. Unexpected improvement in the person’s condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent.
In my view the true test of permanent, as distinct from temporary, incapacity is whether in the light of the available evidence, it is more likely than not the incapacity will be permanent in the future…”
In O’Maley the evidence indicated, on the balance of probabilities that Mr O’Maley’s compensable psychiatric condition had stabilised and was unlikely to improve significantly.
A further Tribunal determination of assistance is Hargreaves and Telstra Corporation Limited [2013] AATA 578.
Ms Hargreaves developed an adjustment disorder following an earlier physical injury suffered while at work, and by the time of the Tribunal hearing had suffered from impairment for almost seven years.

Deputy President Constance made the following findings:
“68. Although I have not accepted the view of Professor Mendelson that Ms Hargreaves was fit to work in December 2007, I prefer his opinion that the completion of these proceedings will be of considerable benefit to Ms Hargreaves and that it is likely that her condition will substantially improve after that time. Professor Mendleson is eminently qualified to express this opinion. His view is supported by the evidence of Dr Strauss that Ms Hargreaves told him that “she gets overwhelmed by the compensation process and she gets very anxious at times as a result.” It was clear from Ms Hargreaves’ demeanour when she gave evidence that she continues to find the process extremely distressing and that she felt that she has been badly treated by it.
69. I have taken into account also the Dr Uebergang expressed the opinion that with appropriate counselling Ms Hargreaves would be capable of holding a position with another organisation.
70. Taking into account all of the evidence, I am not satisfied that Ms Hargreaves has undertaken all reasonable rehabilitative treatment. I do not intend to be critical of Ms Hargreaves in any was in this regard. I accept that she wishes to be able to return to gainful employment and that her inability to do so has been a result of factors beyond her control. I accept the view of Professor Mendleson that Ms Hargreaves may benefit from psychotherapy by a consultant psychiatrist. In reaching this conclusion I have been mindful that Ms Hargreaves has limited her contact with others by seeking the support of those around her at the property in country Victoria. This is understandable, particularly as she has been denied compensation for her injury for more than five years, during part of which she ceased treatment as she could not afford it.
71. I am satisfied that with the proper support, including financial support, Ms Hargreaves is likely to improve and will be in a position to undertake further rehabilitative treatment.
72. For these reasons I am not satisfied that her employment by Telstra has resulted in a permanent impairment. Of course, it is open to Ms Hargreaves to apply again foe compensation for permanent impairment should her circumstances change.”
The Tribunal is required by s 24(2), when determining if an impairment is permanent, to 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.
Duration of the Impairment – s 24(2)(a)
In this matter, the Applicant has suffered from his compensable condition since 2011, or for more than seven years. Even though it was first opined that his condition would resolve within a relatively short period of time, subsequent events have illustrated that the Applicant’s adjustment disorder has not resolved as it is of longer term duration than first diagnosed.
Likelihood of Improvement – s 24(2)(b)
Assessing the likelihood of improvement of persons suffering from mental ailments, can be problematic, particularly when the medical experts provide divergent prognoses.
Dr Synnott opined in November 2011, that psychological and psychiatric treatment would be of no significant benefit to the Applicant, and that an industrial rather than a medical solution was required. He stated that a psychiatric diagnosis would be an incomplete and simplistic conceptualisation of the situation, and went on to emphasise aspects of the Applicant’s personality being key to properly understanding the situation. Importantly, Dr Synnott stated that the Applicant would never be able to successfully return to his pre-injury duties, and that there was a risk of the Applicant’s negativity becoming a “self-fulfilling prophecy” – Exhibit 1 T8B pp. 70 – 71.
Dr Lean’s assessment in September 2012 was more optimistic. He opined that the Applicant’s recovery “is realistically expected to take some time, probably through 2012 into 2013.” In short, Dr Lean was firmly of the view that the Applicant’s ailment was likely to resolve within twelve months, and was certainly not permanent.
Dr Farnbach, like Dr Synnott, referred in his report of October 2012 to aspects of the Applicant’s personality, which exacerbated his ailment. He referred to the Applicant’s “angry ruminations about his circumstances” and him “falling into a pattern of involution”. Consequently he “has unfortunately therefore fallen into a pattern of behaviour which is acting to exacerbate and perpetuate his disability”.
Dr Farnbach also diagnosed an industrial solution and then opined – Exhibit 1T22 p. 275:
“With a return to full-time appropriate work I expect Mr Perkins’ symptomatology to resolve extremely quickly (within four weeks)”.
Again, Dr Farnbach diagnosed a quick resolution of the Applicant’s accepted condition, but warned of the dangers of his personality perpetuating his ailment. He was also of the clear opinion that his accepted condition was not of permanent duration.
Both Drs Hundertmark (Exhibit 1 T26 pp. 289 – 295) and Shaikh (Exhibit 1 T42 pp. 339 – 350) referred to the Applicant’s low mood, prominent anger towards ACTCS and hostility to rehabilitation. Both Doctors thought the Applicant’s prognosis was only fair, with Dr Shaik observing “the ongoing anger and resentment do not help him to move forward” - Exhibit 1 T42 p. 346
Dr Zsadanyi, while opining (Exhibit 2 pp. 396 – 398) that the Applicant suffered from PTSD, also referred to Cluster B personality traits as negatively impacting his recovery. Nonetheless he opined that “Mr Perkins should be considered for an eventual return to work within Correction Services once his mental state has stabilised significantly”. In short, Dr Zsadanyi was of the view that a return to work and stabilisation of the Applicant’s mental state was a distinct possibility.
On 25 May 2015, Mr Calear, made these observations – Exhibit 10 pp. 1 - 2;
“I note Danny’s mental state today has significantly improved and stabilised since our last contact, which was shortly after he had abruptly ceased all psychotropic medications. In particular, I observed little or no labiality, normal speech, and a significantly more cogent form of thought. Listening to Danny’s description, I would assess his mood to be euthymic…
In light of this new information, I will now work with Danny to transition him back to full time work hours in the AMC security position. If this move remains effective, we will be moving towards discharge in three months.”
Dr Whiting, the Applicant’s long-term treating psychiatrist, opined in August 2015 that there had been a “significant improvement” in the Applicant’s symptoms even though they “have not completely resolved” – Exhibit 1 T51 p. 377.
Dr Tshibangu reported on 10 September 2015, that the Applicant’s then mental state was “stable” and that the Applicant described himself as “80% improved”.

Dr Tshibangu listed the following factors as contributing to his current condition – Exhibit 1 T52 p. 381:
“- Mr Perkins marriage breakdown,
- previous unsuccessful/unfulfilling work placements,
- Non-availability of suitable job placement positions, and resulting suspension of the job coaching exercise.”
Whilst we accept that the Applicant’s condition has varied over time, but not resolved, a fair reading of Dr Tshibangu’s report, which was reiterated when he gave oral testimony, was that there he perceived that the Applicant had reasonable prospects of re-entering the workforce and his compensable condition resolving.
Dr Samuell, was of the opinion when he assessed the Applicant, that he no longer suffered from a mental illness.
The only Doctor who provided an unqualified diagnosis that the Applicant has a permanent impairment from his accepted compensable condition was Dr Knox. For reasons already outlined, aspects of his evidence were tainted by his overt advocacy for the Applicant. Just as Dr Samuell was an “outlier’ when diagnosing that the Applicant no longer had a mental illness; Dr Knox is an ‘outlier’ in elevating the Applicant’s accepted condition to that of a permanent impairment.
A fair reading of the various reports discloses that each of the treating psychiatrists (except for Dr Knox) were of the opinion that the Applicant’s accepted condition could be treated successfully, but that the Applicant’s personality traits were an impediment to achieving that outcome.
A further theme throughout the reports is that the Applicant required not simply medical treatment, but, perhaps more importantly, an industrial solution.
It is also the case that as the years have gone by, the Applicant has suffered other stressors in his life. Dr Tshibangu, as previously noted, outlined three of them. We are of the opinion that at time this matter was heard, those other stressors had not yet “crowded out” the impacts of his employment with ACTCS, but that as time goes on, it will be more difficult to establish that medical treatment received will be in relation to the compensable injury.
Whether the Applicant has undertaken all reasonable rehabilitation treatment – s 24(2)(c)
In Filla v Comcare (2001) 115 FCR 144 Katz J said ([55]/157):
It is my view that s 24 (2)(c) of the SRCA raises in substance at least one and possibly two questions for Comcare (or, on a review by the AAT of a decision made by Comcare, the AAT): first, what, if any, reasonable rehabilitative treatment exists for the particular impairment whose permanence is under consideration; and, secondly, assuming that some reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration, has the employee undertaken all of it?
The Full Court subsequently upheld the approach outlined by Katz J – Comcare v Filla (2002) 115 FCR 163.
In this matter the Applicant has not undertaken all rehabilitative treatment for his accepted condition.
Successive medical experts have opined that his compensable condition has persisted, but has prospects for resolution if given further time, and, in combination with an ‘industrial’ or ‘vocational’ solution.
Here, not all of the rehabilitation treatment has been taken and it is tolerably clear that further rehabilitation treatment is still considered desirable and necessary. At the hearing the medical opinion that was provided, with the exception of Dr Samuell, was that the Applicant’s rehabilitation treatment has been prematurely terminated and that his accepted condition could be advanced or resolved with a further, and hopefully successful, return to work program.
Conclusion
In short, we find that it is not more likely than not that the Applicant’s accepted condition is permanent. Rather, we find that with ongoing medical treatment and a further attempt at return to work, that the Applicant’s compensable condition should resolve.
Accordingly, we affirm the determination that the Applicant has no entitlement to permanent impairment compensation in respect of his accepted condition.
DECISION
The Tribunal:
(a)sets aside decisions under review in Applications 2016/3726 and 2016/3727 and remits each matter to Comcare to give effect to the findings of the Tribunal as set out in the reasons herein;
(b)sets aside the decision under in Application 2016/3728 and remits the matter to give effect to the findings of the Tribunal as set out in the reasons herein; and
(c)affirms the decision under review in Application 2016/3729.

349. I certify that the preceding 348 (three hundred and forty - eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso and Member Dr P Wilkins.

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Associate
Dated: 8 August 2018

Dates of hearing: Monday, 26 March 2018 - Wednesday, 28 March 2018

Date final submissions received: 18 May 2018

Counsel for the Applicant: Mr Leo Grey

Solicitors for the Applicant: Gabbedy Milson Lee

Counsel for the Respondent: Mr Charles Clark

Solicitors for the Respondent: Sparke Helmore

Dates of hearing:	Monday, 26 March 2018 - Wednesday, 28 March 2018
Date final submissions received:	18 May 2018
Counsel for the Applicant:	Mr Leo Grey
Solicitors for the Applicant:	Gabbedy Milson Lee
Counsel for the Respondent:	Mr Charles Clark
Solicitors for the Respondent:	Sparke Helmore