Philson and Comcare (Compensation)

Philson and Comcare (Compensation) [2017] AATA 1358 (28 August 2017)
Division:GENERAL DIVISION
File Number(s): 2016/2600
Re:Hoyt Philson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:28 August 2017
Place:Canberra

The decision under review is set aside. Mr Philson’s accepted exacerbation of hypertension injury persisted as of 22 January 2016 and, from that day to the present, he is entitled to compensation under s 16 of the SRC Act, subject only to proper determination of any such claim by Comcare on the merits.
........................................................................
Mr S. Webb, Member
COMPENSATION – accepted injuries – acute anxiety and exacerbation of hypertension – terms of originating claim and liability determination to be interpreted generously – allowance for progressive and evolving decision-making – variation of ‘injury’ description in the light of new evidence – episodic character of exacerbation – progress of underlying medical condition – assessment of causes and effects – causal link between anxiety and exacerbation of hypertension ongoing – decision set aside
JURISDICTION – injury – psychiatric disease and exacerbation of hypertension – sequence of events and progressive decision-making – weight gain a symptom of psychiatric disease – obesity – no jurisdiction to determine if obesity is an ‘injury’ for which Comcare is liable
Compensation (Commonwealth Government Employees) Act 1971, s 29
Safety, Rehabilitation and Compensation Act 1988, s 5A, 5B, 14, 16, 124
Australian Postal Corporation v Nadge [1994] FCA 1163
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Tippett v Australian Postal Corporation [1998] FCA 335
REASONS FOR DECISION
Mr S. Webb, Member
28 August 2017

Many years ago, Hoyt Philson was injured at work. His mind was affected and his hypertension was exacerbated. After the injury, in many ways, his life changed. He did not return to employment. His world collapsed into social isolation, disorganisation and futility coloured by loss of motivation and occasional despair. The consequences of injury affect him still. These proceedings arise from one aspect of Mr Philson’s injury and his present circumstances, in respect of compensation for medical treatment of hypertension.
On 22 January 2016, Comcare decided that Mr Philson was not entitled to payment of compensation for medical treatment of this kind as he no longer suffered the work-related exacerbation of his hypertension. This determination was affirmed on reconsideration. Mr Philson is not satisfied with this result and he applied for review.
In order to understand this case, it is helpful to set out the background facts and evidence in some detail.
Facts
Details of Mr Philson’s family and employment history are recorded in the 2 February 1993 medical report by Dr Knox, previous treating psychiatrist.[1] Otherwise, little is known about Mr Philson’s family medical history (he was adopted at the age of three). The present medical records do not shed much light on the state of Mr Philson’s health, including his blood pressure and weight in particular, before April 1987.
[1] ST4 folio 213-214.
On 15 April 1987, Mr Philson underwent a medical examination for employment as a fitter in the Rehabilitation Unit of the Woden Valley Hospital. He denied any personal or family history of high blood pressure.[2] The medical examiner, Dr Rososinski, recorded Mr Philson’s height as 170 centimetres; his weight as 93 kilograms; and his blood pressure as 110/80.[3]
[2] Exhibit 1, page 2.
[3] Ibid, page 6.
Things did not go well for Mr Philson at work. Conflict and mistrust arose in the workplace, and Mr Philson experienced tension and stress.
On 17 July 1989, Mr Philson was noted to be “overweight” and his blood pressure was “160/110 sitting”.[4] It appears that his blood pressure was labile at this time. Mr Philson’s blood pressure was recorded to be elevated in the period from 17 July 1989 to 23 August 1989. On 30 August 1989, his blood pressure was within the normal range at 120/90, but this increased above the hypertension threshold of 130/90 in the period from 1 September 1989 to 14 September 1989.
[4] Exhibit 10, page 1.
On 15 September 1989, he was admitted to the Woden Valley Hospital complaining of chest pain. His height (1.72 metres) and weight (99.2 kilograms) were recorded and he was noted to be obese.[5] Mr Philson cavils with this assessment on grounds that, at the time, he was fit, well-muscled and with a large frame.
[5] Exhibit 10, page 66..
On 18 September 1989, he was examined by Dr Hayes, a cardiology registrar, who reported that his blood pressure was “120/70 lying” and “145/76 standing”, and “he has a background of hypertension for about two (2) years, on treatment for only about two (2) months”.[6] Mr Philson says that Dr Hayes made a number of mistakes when recording his medical history – recording him as a ‘smoker’, when this should have been ‘ex-smoker’, and confusing his history of chest pains with hypertension. I am unable to determine if Mr Philson is correct as Dr Hayes was not called to give evidence.
[6] Exhibit 8, page 1.
While the contemporaneous clinical records do not establish that Mr Philson’s blood pressure was elevated to hypertensive levels prior to July 1989, there are other records that refer to a diagnosis of hypertension from 1987. Mr Philson was assessed in the Staff Clinic of the Woden Valley Hospital on 27 September 1989 with a six-month history of “atypical chest pain”. This symptomatology was investigated. On 5 October 1989, Dr McIntyre, a gastroenterology registrar, reported –
“A summary of this patient’s medical problems is:
hypertension – diagnosed two years ago. Currently treated with Metoprolol 50mg bd, Nifedipine slow release 40mg bd.
previous traumatic fractures – of left leg.
atypical chest pain – ischemic pain excluded with stress Thallium.
For endoscopy and oesophageal transit study looking for oesophageal cause of pain.”[7]
[7] Exhibit 10, page 11.
On this evidence, it appears that Mr Philson’s hypertension may have been initially diagnosed in or about October 1987. Even if that is correct, as I have said, his blood pressure was labile in the latter part of 1989 and it may be inferred that it was variable over the preceding period, possibly from October 1987.
Ultimately, a diagnosis of duodenitis was made and his chest symptoms were found to be non-cardiac in origin.
Mr Philson’s evidence is that while in hospital in 1989 he was referred to a dietician who recommended a weight-loss diet. He adhered to the diet and engaged in cycling activities for 18 months or so, during which period his weight reduced to approximately 71 kilograms. At this time, Mr Philson says he was involved in a cyclist touring group within Pedal Power, and he was very fit.
But Mr Philson continued to experience difficulties and stress at work to the extent that he was rendered unfit for work from 25 to 28 March 1991,[8] and from 22 to 24 April 1991.[9] I note that Mr Philson provided his employer with medical certificates covering these periods, but the medical certificates are not in evidence.
[8] STA folio 1.
[9] STB folio 2.
On 25 October 1991, Mr Philson consulted Dr Appel, a doctor in general practice at the Narrabundah Clinic. The doctor certified him unfit for work from 17 October 1991 to 1 November 1991.[10] In the medical certificate covering this period, Dr Appel recorded that Mr Philson was suffering from “hypertension”. While the doctor’s medical certificate does not refer to stress, this is what is recorded by Mr Philson in the leave application form he completed on 4 November 1991.[11]
[10] STC folio 3.
[11] STC.
On 19 February 1992, Dr Wallner, a doctor practising at the Woden Valley Hospital Staff Clinic, certified that Mr Philson was suffering from “stress reaction” and he was unfit for work from 20 February 1992 to 8 March 1992.[12] Dr Wallner also completed a Report of an Injury in which she described ‘the incident’ as “work related stress” “past few years: see Dr Appel record (medical)” and the injuries sustained by Mr Philson as “Acute anxiety and exacerbation of hypertension” affecting his “nerve system & chest”.[13] The doctor reported her expectation that Mr Philson would be incapacitated for duty for “2 weeks”.
[12] STF folio 6; STD folio 4 refers.
[13] STE folio 5.
On the same day, Dr Farnbach, a psychiatrist, stated –
“Mr Philson has seen me on a number of occasions over the past several months to discuss his working conditions.
My opinion is that he has been suffering from acute anxiety.”[14]
[14] STG folio 7
On 20 February 1992, Mr Philson’s supervisor reported that Mr Philson’s ‘disease’ had become apparent in the “past few years” and –
“Mr Philson has suffered stress and anxiety for some time. I think his reaction to the news of redundancy has contributed to this stress.”[15]
[15] STH folio 8.
On that day, Mr Philson signed a compensation claim form in respect of “stress & related chest pains” that he first noticed on 26 September 1989 and for which he first sought medical treatment on 16 October 1989.[16]
[16] STI folio 9.
It appears that Mr Philson’s incapacity for work persisted for varying periods thereafter.[17] I note that he was made redundant in or about January 1992, although his job was reinstated in March 1992 and he returned to it, but ultimately he was not fit to continue in that employment.
[17] See Comcare records in T79.
On 4 March 1992, Dr Wallner certified that Mr Philson was unfit for work from 9 to 13 March 1992, but did not specify the cause.[18] In a subsequent medical certificate dated 24 March 1992, the doctor certified that Mr Philson was unfit for work from 30 March to 24 April as a result of “anxiety reaction & hypertension”.[19]
[18] Exhibit 13, page 1.
[19] Ibid, page 3.
On 12 March 1992, Dr Appel reported that Mr Philson had attended the Narrabundah Clinic since 1988 and his main complaints included –
“Hypertension. He has at times recorded pressures of up to 150/115. Although tension is a factor in this I am sure he needs drug therapy. He is very loathe to do this and takes himself off treatment from time to time. When last seen here his blood pressure was recorded at 154/110 and he was advised to take Renitec 25mg mane. He was referred to Dr David Coles.”[20]
[20] Exhibit 10 page 14.
On the contemporaneous medical records in the period from 19 September 1989 to 18 December 1992, Mr Philson’s blood pressure was recorded within the normal range on 19 September 1989[21] and 20 October 1989,[22] and on 4 and 29 November 1991.[23] All other recordings of his blood pressure were elevated to hypertensive levels. Over this period, Mr Philson’s hypertension was treated with anti-hypertensive medications, although his compliance with the treatment prescribed, and the effectiveness of the treatment to control his blood pressure, was variable.
[21] Exhibit 10, page 11.
[22] Ibid, page 3.
[23] Ibid, page 5.
On 11 May 1992, Mr Hargreaves, acting director of Woden Valley Hospital Rehabilitation and Aged Care Services reported on the circumstances of Mr Philson’s employment, including “personal tensions” over the preceding three years between Mr Philson and his immediate supervisor and Mr Philson’s work-related anxiety.[24] Mr Hargreaves’ account is consistent with the account given by Mr Geier, an Occupational Health and Safety representative in Rehabilitation and Aged Care Services –
“It has been obvious that Mr Philson is suiffering [sic] from stress related symptoms for a considerable time, and that the stress has been work related.”[25]
[24] Exhibit 13, pages 9-11.
[25] Ibid, page 12.
On 1 June 1992, Comcare accepted liability under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) to pay compensation in respect of “acute anxiety and exacerbation of hypertension – episode only”, with compensation for incapacity for work payable from 17 October 1991.[26] In this decision, Comcare stated –
“Please note that further medical evidence will need to be supplied for any medical expenses or incapacity to work after 30.6.92.”
[26] ST1 folio 203.
The present documents do not explain why the injury was described in this way or why the particular commencement date was chosen, although it is a date on which Dr Appel certified that he was unfit for work and suffering from hypertension.
On 29 June 1992, Dr Wardman, treating general practitioner at that time, reported –
“Mr Philson has been known to suffer from elevated blood pressure for some time and is on treatment (Renitec) for that problem. Whilst Renitec has been controlling his blood pressure it has not been controlling his psyche
To expand upon that point, he has experienced for some time considerable conflict in his workplace. Various political machinations have gone on and it seems that the majority of these have been to his detriment – manifesting as stress. Indeed it is thought that this stress has exacerbated his hypertension. One manifestation of this stress was a hospital admission in September of 1989 with chest pains. Extensive investigation at that time failed to show any cardiac damage, but it did show a duodenitis at gastroscopy soon after (16 October 1889 [sic – 1989]) this too, of course can have stress as its basis.
To a degree his stress has responded to Prothiaden tablets but this has always been somewhat of a push against the persisting stresses at work.”[27]
[27] ST3 folio 208.
On 13 July 1992, Mr Hobday, Mr Philson’s ACT Board of Health Case Manager, wrote to Comcare and said –
“The determination for Mr Hoyt Philson which you signed on 1 June 1992 was for an episode only.
You requested additional medical evidence for further incapacity. Enclosed for your advice is a copy of a letter from Dr W Wardman of the Narrabundah Health Centre which details the continuation of Mr Philson’s medical condition.
It is therefore requested that you determine liability for a further period…”[28]
[28] Exhibit 2, page 1.
On 20 July 1992, a Comcare officer noted “I have agreed to extend liability up to & including 30/9/92 based on Dr Wardman’s report””.[29] As can be seen, Dr Wardman’s report does not suggest the occurrence or cessation of an episode of exacerbation of hypertension.
[29] Exhibit 13, pages 19 and 20.
On 24 July 1992, Dr Lai, a treating general practitioner, recorded Mr Philson’s blood pressure as 130/100.[30]
[30] Exhibit 11, page 1.
On 16 September 1992, Dr Wardman issued a “CONTINUING” medical certificate in which he stated that Mr Philson was suffering from “a stress related condition” and was unfit for work from 16 September 1992 to 31 December 1992.[31] This certificate does not refer to hypertension.
[31] Exhibit 13, page 22.
On that day, a Comcare officer noted “Given I have only accepted liability for an episode, I will write to Dr Knox for a report re ongoing liability”.[32] Quite clearly, the officer was proceeding on the basis that the ‘episode’ referred to ‘acute anxiety’ as well as to ‘exacerbation of hypertension’.
[32] Ibid, page 21
On 21 December 1992, a Comcare officer noted –
“Extend cut off dates to March 93.
Medical report now required from Dr Knox
10.45am 21.12.92; as system down, phoned Jason Personnel Advised him that we are going to determined [sic] to 31.12.92, when able and fax to him…”[33]
[33] Exhibit 13, page 23.
Even though the Comcare officers did not expressly refer to hypertension, the extensions granted were taken to apply to the entirety of the accepted injury. It was on this basis, I understand, that compensation was paid.
On 18 December 1992, Mr Philson was admitted to Calvary Hospital in a “situational crisis” under the care of Dr Lubbe, a psychiatrist.[34] The Hospital admission notes record that Mr Philson had “↓appetite with weight loss 12-15kg over 3/12”[35] and -
“Hypertension – intermittently found.
3 year hx of recurrent chest pain, flushing, etc – Anxiety
Apparently diagnosed as stress related by Dr Wardman.”[36]
[34] Exhibit 9, pages 1 and 6.
[35] Exhibit 9, page 2.
[36] Ibid, page 3.
With some exceptions, Mr Philson’s blood pressure was largely within the normal range in the period from 18 December 1992 to 6 January 1993.[37] On 23 January 1993, his blood pressure was elevated at 1230 hours but with the normal range at 2000hours.[38] On 24 January 1993, it was within the normal range.[39] It appears that Mr Philson’s mental condition was treated with the antidepressant Prothiaden and the neuroleptic Melleril. The latter drug was noted in the discharge notes from the Calvary Hospital.
[37] Ibid, pages 37 to 43.
[38] Exhibit 9, page 32.
[39] Ibid.
At this point it is important to note evidence given by Dr Gorman, a consultant physician, that Melleril has a known side effect of significantly reducing blood pressure, and this may have contributed to the low blood pressure readings recorded in the Calvary Hospital notes.
Considering the medical records of Mr Philson’s weight, I am satisfied that he lost 12 to 15 kilograms in the three months prior to admission to Calvary Hospital on 18 December 1992 and soon thereafter, on 23 January 1993, his weight was 92.5 kilograms.[40] In the period following his discharge from Calvary Hospital in January 1993, it is quite clear that Mr Philson gained a substantial amount of weight.
[40] Ibid, pages 37 to 43.
In his 2 February 1993 report, Dr Knox reported that “Dr Wardman had treated this man for hypertension for some time and had also initiated antidepressant treatment with the drug Prothiaden”[41] and -
“Although depression has been the major clinical presentation during the time of my treatment with Mr Philson [since August 1992] he has shown some symptoms of anxiety, and prior to my treatment of him I believe that his anxiety was quite possibly worse than what was later apparent to me. Chest pains and “knotting up” on the left side of the chest had earlier led him to undergo a cardiac assessment in 1989. Duodenitis was diagnosed, although I believe that quite likely that some of his symptoms in this regard were the result of anxiety.
Mr Philson also told me of a weight gain of the order of 17-kgs during his difficulties of recent times and the gradual worsening of sleep disturbance.
…
Mr Philson’s depressive condition has included symptoms of depressed mood, serious loss of interest in work and pleasurable activities, with him giving up of all of his hobbies with the exception of his computer studies, weight gain, insomnia, agitation, marked fatigue, feelings of worthlessness and guilt, disturbed thinking processes and concentration, and recurrent feelings that his life is without purpose. He has at times been suicidal when most deeply troubled by his depressive condition.”[42]
[41] ST4 folio 210.
[42] ST4 folio 211-212.
On 4 February 1993, Dr Knox completed the medical part of Mr Philson’s compensation claim for permanent impairment. This claim was made on 9 March 1993 in respect of “psychiatric condition”. The date of injury is said to be “1989” and the “Accepted condition” “Acute anxiety/hypertension”.[43]
[43] Exhibit 13, page 26.
Dr Knox reported a diagnosis of “Major Depressive Episode” and that the following impairments were “broadly stable for many months now” –
“Incapacitating psychological disability affecting capacity to work and conduct domestic activities, weight gain, sleep disturbance”[44]
[44] Exhibit 13, page 27.
Treatment was reported to be “ongoing” in the form of “Continuing counselling and provision of antidepressant and other medications”. While Dr Knox did not specify the medications, these are discussed in his 2 February 1992 report in the following terms –
“In hospital during late December and early January Mr Philson had his dosage of the antidepressant medication Prothiaden raised to 200mg, and the major tranquilliser drug Melleril was introduced at a dosage of 75mg. He continued to use Normison to assist with sleep and take analgesics for his headaches. He takes Renitec for his hypertension.”[45]
[45] ST4 folio 215.

On 8 February 1993, Dr McGill, a cardiologist, reported that Mr Philson’s hypertension was diagnosed in 1989 and his blood pressure was “145/90 lying” and “140/100 standing”.[46]
[46] Exhibit 10 page15.
On 1 September 1993, Mr Frontin, a rehabilitation consultant, reported upon his assessment of Mr Philson’s home and his need for home help assistance. Mr Frontin’s report of his findings is stark and disturbing. He said, in part –
“After not having seen [Mr Philson] for some months I was shocked to see how he had deteriorated, both in physical appearance and in emotional affect. Physically he has put on quite a lot of weight, has become very dishevelled looking…
Mentally, he seems to have sunk more into feelings of depression… He has ceased his former social activities with the bicycle touring club and has not gone to his Canberra Institute of Technology computer course for some months.
… Professionally, I have assessed many people’s homes and this is one of the worst cases of degradation that I have ever seen. Both the interior and exterior of the home need massive amounts of cleaning and tidying in order to bring it up to even the basic level of fitness for human habitation….”[47]
[47] ST5 folios 216-217.
On 14 September 1993, Comcare deferred a decision addressing Mr Philson’s permanent impairment claim “until such time as [he] completes all active treatment”.[48]
[48] Exhibit 13, page 28.
On 19 October 1994, Dr Guest, a consultant surgeon, reported Mr Philson’s weight to be 123 kilograms and his blood pressure to be 230/100 and said –
“The patient is enormously overweight and this can be linked with his depression and both these conditions in turn can be linked with his hypertension.”[49]
[49] ST9 folio 229.
On 18 April 1995, Dr Glaser, consultant psychiatrist, reported that –
“[Mr Philson] has gained a considerable amount of weight over the last three or four years. He noted that when he was involved in a cycling race in March 1991, he weighed 73kg. He now weighs 123kg”[50]
“From the psychiatric point of view, [Mr Philson] appears to be suffering from a depressive disorder of moderate severity. His current symptoms include depressed moods, loss of self-esteem, lack of motivation, sleep disturbance, nightmares, marked self-consciousness, intermittent suicidal thoughts, weight gain and concentration difficulties which are probably subjective in nature.
These various symptoms have resulted in considerable restrictions on both his working capacity and lifestyle. He is socially withdrawn, has given up a number of former interests including cycling and membership of a chess club and has some difficulties in planning and organising his day.
As pointed out by Mr Guest, it is reasonable to hypothesise that his problem of hypertension could well [sic – be] related to his psychological difficulties in that there is a definite association between high blood pressure and weight gain.”[51]
[50] ST10 folio 234.
[51] ST10 folio 237.
On 10 May 1995, Dr Wardman noted that Mr Philson’s blood pressure was 130/80, within the normal range, and he was “still very obese”.[52]
[52] Exhibit 11, page 60.
On 15 May 1995, having regard to the 2 February 1993 report of Dr Knox and the 18 April 1995 report of Dr Glaser, Comcare decided to make an interim payment in respect of Mr Philson’s permanent impairment claim as the decision maker was “not satisfied at this stage that [Mr Philson’s] condition has stabilised”.[53] This decision was affirmed on reconsideration.
[53] Exhibit 13, page 29.
On 27 June 1995, Dr Knox reported –
“I note Mr Philson’s treatment for hypertension and I believe, as does Dr Glaser, that his extreme weight gain (up from 71 to 123kg) has contributed to his blood pressure condition.”[54]
[54] ST12 folio 243.
On 28 August 1995, Dr Wardman noted that Mr Philson’s blood pressure was 120/80 lying and 110/80 standing and “only on Renitec for BP – stopped”.[55] On 10 October 1995, Dr Wardman noted Mr Philson’s blood pressure to be 160/110 and “out of Renitec 2 days”.[56]
[55] Exhibit 11, page 61.
[56] Ibid.
On 23 January 1996, Dr Christine Bennett reported her assessment of Mr Philson’s permanent impairment to Comcare, stating “[t]he condition present was described as “acute anxiety and exacerbation of hypertension – episode only”. I assumed only the anxiety was for permanent impairment assessment”.[57] Why the doctor made this assumption is not clear. Comcare’s briefing letter to Dr Bennett is not in evidence and Dr Bennett was not called to give oral evidence. I note that Comcare had applied the ‘episode only’ description to both elements of the injury.
[57] ST14 folio 247.
On 19 February 1996, Comcare decided that Mr Philson had a 25 percent permanent impairment.[58] This determination, including the assessments made in respect to non-economic loss, did not expressly refer to hypertension.
[58] Exhibit 13, pages 35-37.
On 3 March 1996, Mr Philson queried why the decision did not take exacerbation of hypertension into account.[59] On 14 March 1996, Comcare informed Mr Philson that “As the ‘exacerbation of hypertension’ was accepted for an episode only, Dr Bennett could not include this when assessing the permanent impairment”.[60] On 15 April 1996, Comcare sought further advice from Dr Bennett and said –
“As the condition of exacerbation of hypertension was for an episode only, this was not taken into account for assessment of permanent impairment.
…
Could you please further advise:
1. Should the permanent impairment assessment be extended to include ‘depression’?
2. Should the permanent impairment assessment also include ‘hypertension’ but not as an episode only?
3. Should further medical reports be obtained?
If so, by whom?”[61]
[59] Exhibit 13, page 38.
[60] Ibid, page 40.
[61] Ibid, page 41.
Dr Bennett replied to this request on 17 April 1996. She did so in a Comcare Minute headed “Claim Advice – Hoyt Philson” which I will set out in full –
“I have noted the report of Dr Knox. Most of the objections seem to be levelled at the diagnosis. I consider I should assess the condition as recorded as this is the condition for which liability has been accepted. it [sic] is apparent that liability was only accepted for an episode of hypertension and that there is no decision accepting long tern [sic] hypertension as work related. if [sic] the claimant considers his hypertension is work related he should be invited to submit a claim for this condition. An opinion from a cardiologist on the relationship between work stress and/or anxiety/depression would need to be obtained. I recommend Dr Peter French as an appropriate cardiologist.
With regard to the depression the inclusion of this in the diagnosis is optional but its inclusion would make no difference to the assessment which is based on the need for medication and the necessity for hospital admission. There is no evidence the claimant has symptoms relating to his depression which have not been taken into account in assessment of the anxiety.
I note Dr Knox’ [sic] concerns about the claimant’s chest pains. The fact these have not been shown to be due to any particular physical cause is not conclusive proof they are a feature of his accepted psychiatric disorder. However, it is the responsibility of the decision maker to decide matters of NEL and you may chose [sic] to prefer the opinion of Dr Knox concerning the relationship between the claimant’s chest pain and his accepted condition to mine on the grounds of greater expertise, although he admits some of the chest pain may be due to duodentitis and that relationship between this condition and the claimant’s accepted psychiatric condition is unproven.
With respect however, Dr Knox has no expertise in the area of hypertension or its causation and his comments regarding loss of expectation of life because of hypertension – itself not an accepted condition – should be disregarded.
In response to your specific questions:
1.    In light of the fact that Comcare has been paying for long term psychiatric treatment the label “acute” attached to anxiety is inappropriate. In general descriptors such as acute, temporary, mild, etc should not be included as part of an accepted diagnosis as, if the duration or severity of the condition changes a change of diagnosis becomes necessary. In this case it would be appropriate to amend the diagnosis from “acute anxiety” to “anxiety/depression”.
2.    With regard to the addendum “and exacerbation of hypertension – episode only” my view is that liability has only been accepted for one discrete episode of an exacerbation of hypertension and not for hypertension per se. Because the exacerbation in question was not permanent there are no grounds for assessing PI. The claimant may be invited to lodge a claim for hypertension. It should be handled as per my advice above.
3.    Not at this stage.”[62]
[62] Exhibit 13, pages 42-43.
Dr Bennett’s advice to Comcare is very interesting and important because Comcare acted upon it. As Dr Bennett was not called to give evidence, controversial aspects of her report and the advice she provided Comcare cannot be tested.
That said, there are several issues that bear upon the weight her evidence should be given. Firstly, I am unable to determine if the doctor conducted a thorough examination of Mr Philson, sufficient to enable a properly formulated clinical assessment and diagnosis of medical conditions he was suffering at the time – there is no record of his blood pressure on examination, for example, or of his history of hypertension. It appears that she conducted an “interview” with Mr Philson on 17 January 1996 but the documents do not record a medical examination of Mr Philson or clinical findings.
Secondly, Dr Bennett’s assessment arises from a single consultation with Mr Philson. Having regard to her reported qualifications, “B.Sc Med., MB. BS., LL.B Hons., Grad. Dip. Public Law”, it is not clear if she had any particular or specialist expertise, training, practice (her practice address was “Warramanga Shops”) or experience relevant to the diagnosis, treatment or causation of psychiatric disorders or hypertension. The evidence of psychiatrists who examined Mr Philson carries more weight. So, too, does the evidence of general practitioners, cardiologists and other specialists who treated Mr Philson.
Thirdly, Dr Bennett confined herself to making an assessment of permanent impairment resulting from the anxiety condition for which Comcare had accepted liability. She did not squarely address Mr Philson’s hypertension, which is presently in issue. Her conclusion that a singular ‘discrete episode’ of ‘exacerbation of hypertension’ was ‘not permanent’ is not clearly explained and she does not specify when the exacerbation or episode of exacerbation of hypertension came to an end. It is possible, even likely, that the doctor assumed that the words ‘episode only’ and ‘exacerbation of hypertension’ refer to something that is intrinsically temporary in nature and, therefore, not ‘permanent’. Why she adopted a different view in respect of ‘acute anxiety’ is not clear, although it is possible that this was drawn from the briefing materials she was given.
And lastly, as can be seen, the advice Dr Bennett provided to Comcare, at least in part, has an administrative or legal character. Her comments about the way in which Mr Philson’s hypertension injury should be dealt with exemplify this point. This raises questions that cannot presently be answered about the briefing she was provided by Comcare. I am unable to form any conclusions about the nature and extent of the briefing Dr Bennett was provided by Comcare, including the materials she was given, or her relationship with Comcare at the time.
For these reasons, insofar as it is relevant, I would give little weight to her report and to her comments regarding Mr Philson’s hypertension.
Nevertheless, it appears that Comcare acted on her advice. On 18 April 1996, Comcare amended the diagnosis of Mr Philson’s accepted condition to “anxiety/depression”.[63] On the same day, Comcare informed Mr Philson that –
“It is apparent liability was only accepted for an episode of hypertension and that there is no decision accepting long term typertension [sic] as work related. If you consider your hypertension is work related, you could submit a claim for this condition…
…
With regard to the accepted liability condition of “and exacerbation of hypertension – episode only” means that liability has only been accepted for one discrete episode of an exacerbation, and not for hypertension per se. Because the exacerbation was not permanent, there are no grounds for assessing a permanent impairment.”[64]
[63] ST16 folio 252.
[64] ST16 folio 252.
On 10 September 1996, Dr Lai, then treating general practitioner, reported that Mr Philson was taking specific medications, including –
“3. ADIFAX – was taken to attempt to reduce weight when other measures had failed.
His obesity was caused by overeating associated with depression/anxiety.
The obesity in turn would aggravate and exacerbate his hypertension.”[65]
[65] ST17 folio 254.
On 25 October 1996, Comcare decided to deny payment of compensation for the Adifax treatment as it was not considered to be reasonable medical treatment in relation to his accepted conditions.[66]
[66] ST18.
On 1 November 1996, Dr Knox reported in reference to Adifax treatment that –
“Mr Philson’s obesity has arisen as a consequence of his work-related depression of recent years. It is also linked to his anxiety. … weight gain is a symptom of Major Depressive Disorder.
Dr Lai is correct in treating Mr Philson to prevent further aggravation of his health, including hypertension, not to mention possible aggravation of his depression and anxiety.”[67]
[67] T6 folio 15.
On 4 December 1996, Comcare issued a reconsideration decision, setting aside its determination refusing compensation is respect of Adifax treatment and stated –
“It is clear from the evidence that the employee is markedly disabled by his compensable condition. His weight gain is said by 3 doctors to have been associated with that compensable condition and is a recognised symptom of Major Depressive Disorder.
In the circumstances, I consider that Adifax is medical treatment reasonably required by the employee in relation to his compensable condition.”[68]
[68] ST21 folio 264.
On 12 June 1997, Dr Lai reported that Mr Philson had been “suffering from acute anxiety and hypertension since a dispute at work in January 1992”.[69] Dr Lai was not called to give evidence and his report of ‘acute anxiety’ cannot be tested. In the circumstances, I prefer the psychiatric evidence of Dr Knox and Dr Glaser. I am satisfied that in 1997 Mr Philson’s anxiety and depression conditions were chronic but his anxiety symptoms were episodic, in the form of panic attacks and these intense or severe episodes may be considered to be acute.
[69] T7 folio 18.
On 25 June 1997, Dr Knox reported that he had treated Mr Philson for chronic Generalised Anxiety Disorder and a depressive condition “best classified as Major Depressive Disorder, In Partial Remission” and that –
“Mr Philson has become increasingly disabled on account of his mood disturbance, with him being chronically depressed and irritable, over eating, sleeping poorly, having poor self esteem, lack of energy, and very poor capacity to care for himself.
…
Mr Philson is undergoing treatment for hypertension…”[70]
[70] T8 folios 19-20
On 14 August 1997, Dr Rohan, a Health Services Australia Medical Advisor, reported –
“[Mr Philson] has had hypertension for about 8 years, for which he currently takes Renitec, with reasonable control. He had an episode of chest pains which were investigated and found not to be cardiac in origin. These have been worse when he is anxious.”[71]
[71] ST22 folio 266.
Subsequently, over a long period to the present, Comcare determined to pay compensation for medical treatment expenses obtained in relation to Mr Philson’s anxiety and depressive disorders.[72] Compensation for incapacity to work ceased when Mr Philson reached pension age. Comcare also paid for antihypertensive treatment.
[72] See T22 and T28 for example.
There are extensive clinical records of Dr Lai in evidence. Although many of these records are difficult to read, it is quite clear that Dr Lai noted Mr Philson’s blood pressure and weight in clinical notes spanning from 24 July 1992 to 27 July 2016. It can be seen (with some difficulty) that Mr Philson’s blood pressure was elevated above the hypertension threshold of 130/90 in all of Dr Lai’s recorded notes, but for readings within the normal range on:
·20 April 1996;[73]
[73] Exhibit 11, page 3.
·6 September 1996 when his weight was 123 kilograms;[74]
[74] Ibid.
·16 April 1997;[75]
[75] Ibid, page 4.
·1 December 1997 when his weight was 131.5 kilograms;[76]
[76] Ibid, page 5.
·9 June 1998 when his weight was 113 kilograms;[77]
[77] Ibid, page 6.
·25 June 1998;[78]
[78] Ibid.
·13 October 1998 when his weight was 109 kilograms;[79]
[79] Ibid, page 5.
·4 December 1998 when his weight was 105 kilograms;[80]
[80] Ibid.
·15 January 1999;[81]
[81] Ibid.
·2 February 1999;[82]
[82] Ibid.
·12 March 1999 when his weight was 95 kilograms;[83]
[83] Ibid, page 6.
·27 April 1999 and 31 May 1999 when his weight was 94 kilograms;[84]
[84] Ibid.
·8 September 1999 when his weight was 90 kilograms;[85]
[85] Ibid, page 7.
·14 March 2000 and 10 April 2000 when his weight was 95 kilograms;[86]
[86] Ibid.
·21 June 2001 when his weight was 106.7 kilograms;[87]
[87] Exhibit 11, page 7.
·19 December 2001 when his weight was 106.8 kilograms;[88]
[88] Ibid.
·27 March 2002, 24 April 2002, 28 May 2002, 25 June 2002 when his weight was between 102.8 and 94.9 kilograms;[89]
[89] Ibid, page 8.
·3 October 2002 when his weight was 83.8 kilograms;[90]
[90] Ibid.
·12 March 2003 when his weight was 95 kilograms;[91]
[91] Ibid, page 9.
·24 September 2003 when his weight was 108.9 kilograms;[92]
[92] Ibid.
·30 March 2004 and 27 April 2004 when his weight was 109.1 and 108.4 kilograms;[93]
·28 September 2004 when his weight was 106.8 kilograms;[94]
·15 February 2005, 15 March 2005 and 24 May 2005 when his weight was between 99.1 and 85.8 kilograms;[95]
·27 July 2005 and 24 August 2005 when his weight was 84.4 and 82.4 kilograms;[96]
·6 July 2009 and 18 August 2009 when his weight was 117.1 and 118.1 kilograms;[97]
·4 and 28 January 2010 when his weight was 114 and 111 kilograms;[98]
·9 June 2010 when his weight was 122 kilograms;[99]
·6 August 2012 when his weight was 127.7 kilograms;[100]
·18 December 2012 when his weight was 129.5 kilograms;[101] and
·11 July 2013 when his weight was 121.8 kilograms.[102]
[93] Ibid, page 10.
[94] Ibid, page 9.
[95] Ibid.
[96] Ibid, page 10.
[97] Ibid, page 12.
[98] Ibid, page 13.
[99] Ibid, page 14.
[100] Exhibit 11, page 15.
[101] Ibid, page 16.
[102] Ibid, page 15.
Clearly enough, Mr Philson’s hypertension has been somewhat labile or variable from time to time, probably in response to variations in his anxiety, his adherence to treatment, his weight and other factors. This notwithstanding, I note Dr Gorman’s evidence of the likelihood that Mr Philson has had ‘essential hypertension’ throughout this period and for many years, probably from 1992 or even 1989.
On 22 July 2012, Mr Philson was admitted to hospital and diagnosed with polymyalgic onset of seronegative rheumatoid arthritis.[103] Hypertension was noted as an additional diagnosis. In respect of hypertension, the following was recorded –
2) Hypertension
Patient was previously on methyldopa, perindopril, Micardis plus, monoxidine for his hypertension.
Patient was severely hypertensive during his stay up to 195/130 and this was very labile
Patient was seen by Dr Abhayaratna (cardiologist) during his stay…
Dr Abhayaratna also ceased the telmisartan and started the patient on diltiazem 360mg nocte.
Dr Abhayaratna would like to see [Mr Philson] in his rooms next week on 10^th August for the [echocardiogram] and for further investigation/management of [Mr Philson’s] hypertension.”
[103] T35 folio 56.

On 7 August 2012, Comcare informed Mr Philson that it was “not satisfied there is sufficient evidence to relate your consultation with Cardiologist, Dr Abhayaratna to your accepted compensable condition”.[104]
[104] T37 folio 70.
On 16 August 2012, Dr Abhayaratna reported –
“Mr Philson … presents with labile hypertension, chest pain related to anxiety and an ongoing need for prevention of coronary disease.
… Whilst in hospital, Mr Philson’s blood pressure was severely elevated at 195/130mmHg and very labile…
I note [Mr Philson’s] comorbitidies with morbid obesity, gastroesophageal reflux disease, gouty arthritis and anxiety for which he is on Mogadon…
[Mr Philson] stopped cycling five years ago and as a consequence has gained at least 20kg…
…
On examination, Mr Philson is morbidly obese with a BMI of 42.6kg/m based on a weight of 126kg and an estimated height of 1.72m… His … blood pressure was 147/104mmHg with no postural drop when standing…
Mr Philson has labile hypertension associated with morbid obesity…”[105]
[105] T39 folio 74.
On 30 July 2014, Comcare informed Mr Philson that it was “not satisfied there is sufficient evidence to relate your consultations with Cardiologist, Dr Abhayaratna to your accepted compensable condition…”.[106]
[106] T51 folio 101.
On 5 November 2012, Dr Lai reported that “hypertension is a lifelong illness and gets worse with aging”.[107] On 2 April 2015, Dr Lai reported that over 22 years Mr Philson’s conditions have not improved and stated that –
“1. [Mr Philson] is suffering from anxiety related to work stress, and aggravation of pre-existing hypertension. The anxiety is causing binge eating and resulting in obesity which aggravates his hypertension.
…
4. I agree with Dr Abhayaratna’s statement that Mr Philson has hypertension associated with morbid obesity. His morbid obesity is caused by his anxiety which causes binge eating and lack of exercise.”[108]
[107] T45 folio 91.
[108] T57 folio 109.
On 20 October 2015, Dr Gorman, a consultant general physician, reported that Mr Philson blood pressure was 180/125mmHg and –
“Mr Philson has signs of congestive cardiac failure and hypertension.
He remains anxious and depressed.
He is still focused on events in the workshop in 1992.
…
… The dominant findings on examination were Mr Philson’s morbid obesity as well as signs of congestive heart failure. He is also hypertensive.
…
Mr Philson has essential hypertension.
His blood pressure is elevated at all times (not just in stressful situations I believe).
I believe there has been a consistent elevation of his blood pressure.
…
I believe that the hypertension began during the period between 1992 to 1995 as he gained weight. Any episodes of hypertension prior to that were likely to be short lived related to anxiety.
…
Overall, my review of the notes and the history taking suggest that it was possible that he was treated with antihypertensives prior to 17 October 1991. The hypertension was aggravated by the anxiety around 1992 as outlined by Dr Wardman. However, overall the major contributor to his hypertension worsening was not the anxiety, but the weight gain. That occurred during 1993 and from then on until now he has continued to have hypertension which is best described as “essential” in conjunction with his obesity. It is not at all related to anxiety in the workplace in 1991/1992.
… I believe that his anxiety at work cannot now contribute to his ongoing hypertension which is best described as “essential” or “constitutional” and worsened by obesity.
…
I do not believe that his current condition remains as a result of the incident on 17 October 1991. I believe the work related anxiety may have contributed to some acute aggravations of blood pressure around 1991/1992 but cannot explain the continuation of his hypertension which has contributed, with his obesity, to ischemic heart disease and now his congestive cardiac failure.”[109]
[109] T60 folios 121-124.
In response to the question ‘In relation to Mr Philson’s employment, if there are no stress factors contributing to his hypertension, please detail when they ceased to affect his condition’, Dr Gorman answered –
“I believe they ceased to affect his condition when Mr Philson ceased working – he tells me that he has not worked since 20 February 1992.”[110]
[110] Ibid folio 124.
In response to the question ‘Has Mr Philson’s condition reverted to the natural progression of his underlying conditions?’, Dr Gorman answered –
“Yes, one could say that his condition has reverted to the natural progression of his essential hypertension and obesity.”[111]
[111] T60 folio 125.
Dr Gorman reported that “I do not believe that he requires any treatment for the medical conditions I have outlined above” and “he does not have any medical condition (physical condition) related to his employment with ACT Health”.[112]
[112] Ibid.
On 22 January 2016, Comcare decided that Mr Philson did not “presently suffer from the effects of exacerbation of hypertension” and determined that he has “no present entitlement to compensation in respect of medical expenses relating to hypertension”.[113]
[113] T66.
On 22 March 2016, Comcare issued a reconsideration decision affirming the 22 January 2016 primary determination.[114]
[114] T73.
Reports by Dr Adesanya, treating psychiatrist, dated 8 April 2016[115] and 5 December 2016[116] are in evidence. In the latter report, Dr Adesanya reported a diagnosis of chronic panic disorder complicated by hypertension and morbid obesity and stated –
“[Mr Philson’s] hypertension and morbid obesity are causally related to his panic disorder as the hypertension appears to be a symptom of his panic disorder while the morbid obesity has resulted from [Mr Philson’s] engaging in comfort eating when stressed or experiencing exacerbations of his panic attacks/disorder…
I am of the opinion that [Mr Philson’s] ongoing hypertension and morbid obesity are both clinically and causally secondary to his accepted condition of anxiety (panic disorder)/depression.”[117]
[115] T74.
[116] Exhibit 3.
[117] Ibid.
On 16 May 2017, Dr Gorman reported that Mr Philson’s blood pressure has not been permanently elevated since 1991, noting two recordings of normal blood pressure by Dr Lai in 1996 and 1999. He stated –
“I do not believe that [Mr Philson’s hypertension] is secondary to “anxiety/depression”. I do not believe that anxiety and depression can cause a permanent elevation in blood pressure. I believe the elevation is short-lived, leading to labile hypertension where recordings may be high or very high at time but at other times closer to normal.
I believe that his obesity plus his underlying constitutional genetic predisposition is the most likely cause of his hypertension.
…
… I believe the exacerbation of hypertension caused by anxiety is generally episodic or short duration. Although anxiety may be constant its severity varies and at times there can be episodes of “panic” or other more severe symptoms. I believe that the blood pressure is episodic and caused by anxiety.
…
I believe his current condition is a different condition from which liability was originally accepted. I understand liability was accepted for hypertension initially in terms of “exacerbation of hypertension”. However, I do not believe his need for medication nor his illness is best described as “exacerbation of hypertension”. His illness is “essential hypertension”. In this sense it is a different condition from that in respect to which Comcare originally accepted liability.
In my view Mr Philson’s condition is a natural progression of an underlying condition free from any workplace factors.
…
I do not believe the employment factors which caused anxiety/depression continued to cause, contribute or aggravate Mr Philson’s hypertension.
I believe these factors ceased as his obesity became more severe and his hypertension and cardiac problems increased from the mid 1990s on.
I believe the factors which particularly caused the episodes of hypertension with anxiety would have ceased in the years after he ceased work.
…
As mentioned, his initial anxiety/depression which caused episodes of hypertension has been superseded by the development of a constitutional factors [sic] and a factors [sic] related to obesity. These are now leading to his ongoing hypertension.” [118]
[118] Exhibit 7, pages 3-4.
Clearly enough, the correct description of the hypertension injury for which Comcare accepted liability is a matter of controversy. So, too, are key aspects of Dr Gorman’s evidence. As will appear, at the heart of Comcare’s argument is the proposition that liability was accepted for a single episode of exacerbation of hypertension that came to an end long ago. Nonetheless, Mr Philson cavils with this and argues there was no ‘episode’ of hypertension.
Counsel representing Comcare, Ms Bindon, and those instructing her, were not able to explain precisely what Comcare meant by reference to ‘exacerbation of hypertension – episode only’, or the nature and characteristics of the ‘episode’ or ‘exacerbation’, including when the episode began and when it ended. I allowed more time for these matters to be clarified and submissions made by both parties. Comcare provided written submissions, annexing additional materials. I have exhibited the materials in Annex B to these submissions – they are labelled Exhibit 13. Mr Philson, too, provided further written submissions. These are matters to which I will return.
Issues
The issue to be addressed is whether on 22 January 2016 and presently Mr Philson is entitled to compensation for medical treatment in relation to hypertension under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). For him to succeed it must be established on the balance of probabilities that
(a)under s 16(1), the medical treatment is reasonable for him to obtain in relation to an ‘injury’ and,
(b)under s 124(8) and (9) of the SRC Act, the compensation does not exceed the amount that would have been payable under the 1971 Act.
Comcare argues that the Tribunal’s jurisdiction in this case does not extend to determination of threshold liability under s 14 of the SRC Act in respect of morbid obesity as an ‘injury’ under s 5A and s 5B. Comcare asserts that no claim has been made, determined or reconsidered in respect of obesity.
Furthermore, in Comcare’s submission, the Tribunal’s present jurisdiction in this application does not extend to determination of threshold liability in respect of ‘essential’ or ongoing hypertension – all that was accepted by Comcare was a single episode of exacerbation of hypertension in the context of work-related stress and anxiety. Comcare argues that no claim has been made, determined or reconsidered in respect of long-term hypertension as an ‘injury’.
I will address the jurisdictional issues first.
Jurisdiction
The application presently before the Tribunal arises in respect of a reconsideration decision that affirmed a primary determination to reject present entitlement to compensation for medical treatment in respect of hypertension under s 16 of the SRC Act. While, as will appear, review of this entitlement requires findings addressing the hypertension ‘injury’, this does not involve review of threshold liability for this ‘injury’, or any other possible ‘injury’, under s 14.
Comcare’s original determination of liability is not under review. Mr Philson may cavil with the terms and scope of the ‘injury’ Comcare determined to accept, but he has not sought reconsideration of this determination and, absent a reconsideration decision, the Tribunal has no jurisdiction to review it. Thus, while a broad or generous interpretation of the terms used in the originating claim and related determination may be appropriate, and it is necessary to consider the determination in the context of subsequent events and developments in order to properly understand Mr Philson’s injury and Comcare liability,[119] the Tribunal cannot upset or change the determination.
[119] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 at [57].
For these reasons, the Tribunal is not presently seized of jurisdiction to determine if Mr Philson’s morbid obesity or his hypertension is an ‘injury’ for the purposes of the SRC Act for which Comcare is liable.
There is another issue raised in respect of hypertension that does not turn on a jurisdictional point but rather is directed to the proper characterisation of the ‘injury’ or the ‘disease’ for which liability has been accepted by Comcare.
There is no bar to the Tribunal making factual findings in respect of the existence of an ‘injury’, indeed it is necessary to do so in order to properly determine the application: firstly, to identify the nature and characteristics of the ‘injury’ for which Comcare accepted liability; secondly, to determine if the ‘injury’ persisted to 22 January 2016; thirdly, to determine if Mr Philson required or obtained medical treatment in relation to the ‘injury’ thereafter; and fourthly, to determine if it was reasonable in all the circumstances for him to do so.
Nature of the ‘injury’
The proposition that Comcare originally accepted an “acute anxiety and exacerbation of hypertension – episode only” as a ‘disease’ under the 1971 Act is correct.[120]
[120] ST1 folio 203.
In Comcare’s submission, both elements of the accepted injury were understood to be temporary in nature. This, so the argument goes, is indicated by the word ‘acute’ in respect of anxiety and ‘exacerbation’ in respect of hypertension. I accept this is correct and that the ‘episode only’ rider applied to both elements of the ‘disease’.
Mr Philson argues that his hypertension was caused by the work-related stress and anxiety he experienced from 1989. In his claim, he identified the onset of symptoms on 19 September 1989 and stated that he first sought treatment soon thereafter on 26 October 1989. Comcare made no reference to this when determining to accept his claim. In Mr Philson’s submission, Comcare’s use of the phrase ‘acute anxiety and exacerbation of hypertension - episode only’ is simply a device to limit the scope of liability, without properly addressing the true nature of his claimed injury.
The words ‘acute’ and ‘episode only’ imply something of short duration. The word ‘exacerbate’ does not have any special meaning under the 1971 Act or under the SRC Act. It is synonymous with ‘aggravate’, and may be taken to mean to irritate, make worse or more serious, or to increase the bitterness or violence of an existing ailment, in this case Mr Philson’s hypertension, which had been present since 1989 and possibly earlier.
Details of the ‘episode’ in which Mr Philson’s hypertension was exacerbated, when the episode commenced and in what circumstances, and why it was thought to be an episode, are not explained. I allowed time for Comcare to interrogate its records in order to shed more light on this point, and time for Mr Philson to make any response.
Additional materials were filed, but these do not illuminate the nature and extent of the ‘episode’ for which Comcare initially accepted liability. These things are lost in history and one must do the best with the available materials.
In seeking to understand the nature, characteristics and duration of the ‘episode’, one might reasonably expect to find evidence of it in the contemporaneous medical records.
Addressing this point, Comcare asserts that it probably adopted the description of injury set out by Dr Wallner in the Report of an Injury or a Disease form she completed on 19 February 1992. This may be accepted in respect of ‘acute anxiety and exacerbation of hypertension’, but Dr Wallner does not describe this as an ‘episode’. There are no other contemporaneous records of any such ‘episode’ in the documents that have been placed before the Tribunal.
Dr Wallner was not called to give oral evidence. On her report, however, reference should be made to the records of Dr Appel.
The 12 March 1992 report of Dr Appel reveals that hypertension was one of Mr Philson’s “main complaints” since 1988.[121] Evidence of this can be seen in the available clinical records.
[121] Exhibit 10, page 14.
Dr Appels’ notes on 7 July 1989 refer to Mr Philson being “overweight” with blood pressure of 160/110, but no reference is made to work-related stress or anxiety at that time.[122] The notes on 20 July 1989 record that Mr Philson’s blood pressure was 140/110 and he had experienced chest pains “when riding his bike” – once again, this record does not refer to his employment. The earliest record in which Dr Appel refers to Mr Philson’s work appears to be 3 December 1989. On 26 March 1991, the doctor noted that Mr Philson’s blood pressure was 170/100 and he was “Very upset re work” – she certified that he was unfit for work for two days.[123] On 9 April 1991, Dr Appel noted that Mr Philson’s blood pressure was 150/100 and he was “Upset with work”.
[122] Ibid, page 1.
[123] Ibid, page 4.
The clinical notes of consultations on 22 April 1991, 23 August 1991 and 23 September 1991 do not record his blood pressure or refer to his employment. Dr Appel’s notes on 16 October 1991 refer to Mr Philson’s employment –
“V. frustrated @ work again
BP: 190/120 !
Wants 3 days off !
see next week” [124]
[124] Exhibit 10, page 4.
On balance, I am reasonably satisfied that the ‘acute anxiety and exacerbation of hypertension’ Dr Wallner referred to arose in or about October 1991 in association with work related stress. It is probable that the ‘episode’ for which Comcare accepted liability commenced on or about 16 October 1991.
Under s 29(2)(g) of the 1971 Act, the deemed date of the injury would have been 16 October 1991, the date on which Mr Philson obtained medical treatment for the ailment from Dr Appel, and compensation would have been payable in respect of incapacity for work from 17 October 1991. That is what occurred.
I note that Dr Lai’s clinical note of “Acute anxiety/exacerbation of BP – 1989”[125] appears to have been made on his first consultation with Mr Philson on 24 July 1992. This is consistent with Mr Philson’s compensation claim, which expressly refers to an incident on 26 September 1989 and first medical treatment on 16 October 1989,[126] but it is not consistent with the injury for which Comcare accepted liability.
[125] Exhibit 11, page 1.
[126] STI, folio 9.
As for the causes of the ‘episode’ for which Comcare accepted liability, on the evidence of Dr Appel, Dr Wardman, Dr Knox, Dr Guest and Dr Glaser, I am reasonably satisfied that Mr Philson’s acute anxiety was a material factor in the exacerbation of his hypertension in October 1991.
It is probable, by his own account, that Mr Philson lost weight in the period from December 1989 to sometime in 1991, and that he gained weight when his psychological symptoms deteriorated. There are simply insufficient records of Mr Philson’s weight gain in the months prior to October 1991 for me to make any reliable assessment of the extent to which, if at all, weight gain was a material factor in the exacerbation of his hypertension in October 1991. It is probable that this factor became more significant as his weight increased and his depressive disorder advanced in the manner Dr Knox described on 2 February 1993.[127]
[127] ST4 folio 211.
Persistence of the ‘injury’
The next question is did the exacerbation of hypertension ‘episode’ come to an end, or was it overtaken by other events or the natural progress of Mr Philson’s medical conditions before 22 January 2016.
As I understand Comcare’s case, the original decision-maker proceeded on the expectation that Mr Philson’s ‘injury’ was an acute episode of anxiety associated with elevated blood pressure that was essentially temporary in nature. With the value of hindsight, and the extensive materials that are presently available, I am satisfied that this expectation was not met.
Comcare relies heavily upon Dr Gorman’s evidence in asserting that the episode of exacerbation of hypertension for which it accepted liability came to an end, or was overtaken by events or the natural progress of Mr Philson’s essential hypertension, many years ago. In Comcare’s submission, the episode came to an end before 22 January 2016, and in all likelihood, on the evidence of Dr Gorman and Dr Bennett, before 1996.

The present documents clearly reveal that the ‘episode’ of exacerbation of hypertension did not come to an end within the initial period foreshadowed in Comcare’s initial acceptance of liability: by 30 June 1992. On 13 July 1992, Comcare was asked to extend liability,[128] and this was done on 20 July 1992. It appears that further extensions were granted. Comcare argues that these extensions were in respect of the acute anxiety condition for which liability was accepted, without any detailed consideration of the exacerbation of hypertension episode.
[128] Exhibit 13, page 18.
To my mind, these matters are at risk of misunderstanding. It is now well settled that once an ‘injury’ has been found to exist, Comcare’s liability to pay compensation persists, subject only to the making and determination of claims under particular heads of compensation under the SRC Act. Each claim must be determined on the merits, having regard to all relevant materials that are available. This being so, Comcare’s decisions to extend liability can be taken to refer to particular heads of compensation, rather than the originating liability in respect of the ‘injury’ which was ongoing.
When making such decisions, Comcare had before it medical documents and reports by Dr Appel, Dr Wardman, Dr Wallner, Dr Knox, Dr Guest, Dr Glaser and others that refer to a causal relationship between Mr Philson’s anxiety and his hypertension. It can be accepted that Comcare considered these materials when it determined to make payments of compensation in respect of medical treatment in relation to both elements of the ‘injury’. When viewed through this lens, Comcare’s submission that Mr Philson’s hypertension was not considered is difficult to accept.
Comcare argues that, while the ‘acute anxiety’ condition was subsequently accepted as ‘permanent’, the exacerbation of hypertension was not. Comcare asserts that this was not considered when assessing Mr Philson’s compensation claim for permanent impairment in 1996 because it “already understood at that point that ‘exacerbation of hypertension – episode only’ had ceased, even though a precise date was not ascribed to that cessation”.[129]
[129] Respondent’s Supplementary Submissions, 24 July 2017, page 2 at [9(e)].
The rationale underlying this apparent understanding, including the materials on which it was based and the reasoning process that was applied, remains opaque. No determination was made to stop payment of compensation as a result of the alleged cessation of Mr Philson’s hypertension injury.
That said, it is probable that Comcare accepted advice it received from Dr Bennett, addressing this issue at the time. On 18 April 1996,[130] one day after receiving Dr Bennett’s advice, Comcare invited Mr Philson to lodge a claim for long term hypertension as no such claim had been made or determined. In Comcare’s submission, this was done because the episode of exacerbation of hypertension was long passed and Mr Philson was seeking compensation for continuing hypertension.
[130] ST16.
The flaw in this submission is that it is not established that Dr Bennett considered Mr Philson’s full medical history when providing Comcare with advice about his exacerbation of hypertension injury. Had that been done, and the contemporaneous medical records and reports properly considered, a different assessment may have been made. With respect to Dr Bennett, it appears that she proceeded on an assumption that the ‘episode’ of ‘exacerbation of hypertension’, perhaps by definition or by its very nature, had come to an end. An assumption of that kind is not consistent with the contemporaneous materials.
This notwithstanding, Comcare continued to pay compensation for hypertensive treatment thereafter over a very long period to 22 January 2016. In these circumstances, it is rather odd for Comcare to argue that it accepted liability for a single episode only which, on Dr Gorman’s evidence, may have lasted for only an hour or two or, on Dr Bennett’s advice, was “one discrete episode of an exacerbation of hypertension”, albeit not defined.[131]
[131] Exhibit 13, page 43.
While it may be true to say that Comcare, and this Tribunal, is not bound in any strict legal sense by previous decisions of this kind, and each decision-maker must assess the particular claim on its merits, it is now well established that the SRC Act allows for progressive decision making to take account of evolving circumstances of particular relevance.[132] And so it is here. To my mind it is quite clear that Comcare’s decision-making took account of changing circumstances in and after 1992, as Mr Philson’s compensable ‘disease’ progressed.
[132] Telstra Corporation v Hannaford [2006] FCAFC 87.
This notwithstanding, the question whether Mr Philson’s ‘exacerbation of hypertension’ injury persisted to 22 January 2016 is somewhat difficult to determine.
The psychiatric evidence of Dr Knox, Dr Glaser and Dr Adesanya is largely coherent, consistent and instructive. On Dr Knox’s evidence, Mr Philson’s work-related depressive disorder was associated with anxiety that commenced in the late 1980s and became chronic by March 1993. Dr Knox, Dr Glaser and Dr Adesanya agree that Mr Philson’s weight gain (as a result of binge or comfort eating, reduced activity and the side effects of prescribed medications) is a symptom of the anxiety and depressive disorders he suffers, and this is causally related to exacerbation or progress of his hypertension.[133] For this reason, Dr Glaser (with whom Dr Knox agreed[134]) thought that it was reasonable to hypothesise that Mr Philson’s hypertension could be related to his psychological condition. On 5 December 2016, Dr Adesanya went further and reported –
“I am of the opinion that [Mr Philson’s] ongoing hypertension and morbid obesity are both clinically and causally secondary to his accepted condition of anxiety (panic disorder)/depression.”
[133] T6 folio 15; T8 folio 19; ST4 folio 211; ST10 folio 237; ST12 folio 243; ST 15 folio 251; Exhibit 3.
[134] ST11 folio 240.
This assessment is consistent with that made by Dr Guest on 19 October 1994.
To the extent that Dr Gorman disagreed with these opinions, I prefer the evidence of Dr Knox, Dr Glaser, Dr Adesanya and Dr Guest.
Dr Knox, Dr Glaser and Dr Adesanya have medical and psychiatric qualifications and their opinions in respect of the causes, diagnosis and symptoms of psychiatric disease carry more weight than that of Dr Gorman, who is not a psychiatrist. Dr Gorman’s assertion that each of these psychiatrists has no specialist expertise in respect of hypertension is somewhat speculative and it has not been tested. Dr Gorman’s explanation of his expertise in this area confirms that he, too, is not a hypertension specialist, such as a cardiologist, but rather that he underwent training in his medical degree and gained experience in practice. Whether, on that basis, he has greater claim to relevant expertise than Dr Knox, Dr Glaser and Dr Adesanya in matters of hypertension I cannot determine and, that being so, his evidence does not carry greater weight.
Dr Guest is a surgeon. Whether he has greater expertise in respect of hypertension than Dr Gorman I cannot assess on the present materials. Once again, I would not give greater weight to either doctor’s evidence on the basis of expertise.
As will appear, there are other issues that bear upon the weight Dr Gorman’s evidence should be given.
Dr Gorman reported that Mr Philson’s hypertension is properly described as ‘essential hypertension’, and this should be distinguished from ‘labile hypertension’. When closely examined on this point, he explained that essential hypertension can be labile too. Considering the whole of Dr Gorman’s evidence, it is quite apparent that he refined and amended his opinions in successive reports and during the course of the proceedings to the extent that it is rather difficult to know what to make of it.
Dr Gorman’s oral evidence is that Mr Philson has probably suffered from essential hypertension from July 1989, and this has been susceptible to significant variations in blood pressure from time to time in response to constitutional and environmental factors including changes in Mr Philson’s age, weight, stress level or anxiety. The substantial thrust of Dr Gorman’s evidence is that Mr Philson’s essential hypertension has been continually elevated for some years, at least since 2015, and it is significantly contributed to by obesity, age and constitutional factors.
Dr Gorman distinguished essential hypertension from the ‘episode’ of ‘exacerbation of hypertension’ for which Comcare accepted liability. On his evidence, the ‘episode’ would have ended within minutes or hours on 16 October 1991 and Mr Philson’s anxiety is not a cause of his essential hypertension.
There are two things to say about this. Firstly, in respect of the duration of the ‘episode’, Dr Gorman stands alone and, with the possible exception of Dr Bennett’s advice, there is no other evidence to support his assessment. If the measure of the exacerbation of Mr Philson’s hypertension is elevated blood pressure – the ‘episode’ did not resolve in minutes or hours or days. It is quite clear that Mr Philson’s blood pressure remained at hypertensive levels for some time after 16 October 1991. On 4 November 1991, Mr Philson’s blood pressure was recorded below hypertensive levels, but in all likelihood this was the result of antihypertensive medications he was taking at the time.
Secondly, on the issue of causation, Dr Gorman clearly states that “the exacerbation of hypertension caused by anxiety is generally episodic or short duration” and “the elevation [of blood pressure] is short-lived leading to labile hypertension where recordings may be high or very high at a time but at other times closer to normal” – “I believe that the blood pressure is episodic and caused by anxiety”.[135] It is quite clear that Dr Gorman distinguishes this mechanism of exacerbation of hypertension from the causes of Mr Philson’s ‘essential hypertension’. The doctor’s evidence addressing this point is not entirely clear, however. On the one hand, it proceeds on the basis that Mr Philson has ‘essential hypertension’ in which his work-related anxiety plays no part. On the other hand, the doctor’s evidence is that Mr Philson’s anxiety “caused episodes of hypertension” or ““labile” hypertension”, but this was “superseded by the development of a [sic] constitutional factors and a [sic] factors related to obesity”.[136]
[135] Exhibit 7, page 3.
[136] Exhibit 7, pages 3-4.
It is not controversial that Mr Philson has continued to experience work-related anxiety for many years, since 1991 at least. It is chronic and episodic, and it is presently ongoing. And, on Dr Gorman’s evidence, there is a causative relationship between Mr Philson’s episodes of work-related anxiety and episodic exacerbation of his hypertension or labile hypertension. The balance of the medical evidence does not suggest that this exacerbating relationship between Mr Philson’s work-related anxiety and the exacerbation of his hypertension has come to an end or has been superseded by other factors that have contributed to his essential hypertension. On this point, I prefer the evidence of Dr Knox, Dr Guest, Dr Glaser and Dr Adesanya to that of Dr Gorman. I am satisfied that the exacerbating effect of work-related anxiety on Mr Philson’s hypertension is ongoing despite progress of his hypertension as a result of other factors, including obesity, age, genetic or constitutional factors, and (in Dr Gorman’s words) the “natural progression” of his “underlying” hypertension,[137] whatever that might be.
[137] Ibid, page 3.
It is probable, as Dr Gorman says and Comcare asserts, that Mr Philson has systemic or essential hypertension. It is also probable that this condition has several contributory causes, including age, constitutional factors and obesity.
On Dr Gorman’s evidence and the report of Dr Lai,[138] it can readily be accepted that advancing age may contribute to hypertension, generally, and that this factor may well be operative in Mr Philson’s case (he is more than 70 years old).
[138] T45 folio 91.
In general terms, it can be accepted that constitutional or genetic factors may play some part in a person’s susceptibility to develop hypertension. Little is known about Mr Philson’s family medical history. That being so, it is not possible to determine the extent to which, if at all, constitutional or genetic factors are operative in the advancement of Mr Philson’s hypertension or in his susceptibility to aggravation of that condition. On this point, Dr Gorman’s evidence may be accepted in general terms, but it is somewhat speculative in application to Mr Philson’s case.
I am satisfied that weight gain, another symptom of his work-related psychiatric injury, has causally contributed to Mr Philson’s hypertension and that this is presently ongoing. On the report of Dr Abhayaratna and Dr Gorman’s evidence, it is probable that the contribution is to a significant degree.
I am satisfied that each of these causes contributed to Mr Philson’s hypertension on 22 January 2016.
The central issue in this case is whether the anxiety-related exacerbation of hypertension in October 1991 continued to the requisite degree as of 22 January 2016.
As will appear, I am satisfied that it did.
I do not accept Comcare’s submission that there is insufficient evidence to determine that Mr Philson’s work-related anxiety significantly contributed to exacerbate his hypertension. Comcare had an adequate opportunity to call expert evidence, and it relied upon Dr Gorman’s evidence in this regard. Lest there be any confusion about this, I am satisfied that the present application can properly be decided, providing fairness to both parties, on the present evidence, and that it is not necessary or desirable for any further expert medical witness to be called.
The existence of a causal relationship between anxiety or stress and hypertension has been a matter of medical controversy for some years. Dr Gorman’s evidence is that a short-term reactive relationship exists, but no other causal relationship has been medically proven. Dr Knox, Dr Guest, Dr Abesanya, Dr Wardman and Dr Lai are more accepting of a possible link between stress or anxiety and hypertension. I am not about to attempt to resolve this controversy. Nevertheless, I am bound to assess the present evidence and to make the preferable decision on the available materials.
While Mr Philson’s psychiatric disorders are continuing, the psychological symptoms of these disorders are somewhat episodic. On the evidence of Dr Adesanya, Dr Glaser and Dr Knox, I am satisfied that Mr Philson’s psychiatric disorders are characterised, in part, by fluctuations in mood and anxiety, including panic attacks, as well as other symptoms. This is part of the essential nature of these conditions. On 5 December 2016, Dr Adesanya reported that “the hypertension appears to be a symptom of his panic disorder”. This is consistent with Dr Wardman’s 29 June 1992 report that “It is thought that this stress has exacerbated his hypertension”, and also with Dr Gorman’s evidence that increased stress or anxiety may result in a temporary elevation of blood pressure, albeit of only short duration.[139] Thus, when the work-related anxiety symptoms of Mr Philson’s psychiatric disorders intensify, there is likely to be a corresponding effect upon his blood pressure. To my mind, this is consistent with exacerbation of his hypertension.
[139] Exhibit 7, page 3.
This symptom or mechanism continues to exacerbate Mr Philson’s hypertension, as it has done for many years. The reports of Dr Wardman, Dr Guest, Dr Knox and Dr Adesanya are sufficient to establish that a causal relationship existed and continues to exist between Mr Philson’s work-related anxiety and the episodic exacerbation of his hypertension. Dr Gorman’s evidence also points to a causal relationship between episodes of acute anxiety and exacerbation of hypertension, albeit of short duration. I am not persuaded by Dr Gorman’s evidence that this has been superseded by other factors – his opinion lacks supporting evidence and his reasoning is not clearly apparent.
Even though these doctors do not describe the causal relationship using the precise language of the legislation, and they do not quantify the degree of contribution, one only has to read their reports to clearly see the significance given to work-related anxiety as a contributory cause, exacerbating Mr Philson’s hypertension. Dr Knox and Dr Adesanya treated Mr Philson. Their reports reflect that relationship. In that context, it is not unusual for a doctor to use medical or clinical language when describing the contributory causes of the patient’s medical conditions. The degree to which such causes contribute may be assessed having regard to the whole of the evidence, even though a doctor may not have used the precise language of the legislation. The important point is that the decision-maker must apply the test set out in the legislation when determining the existence of a ‘disease’, namely that the employment must have contributed to the particular ailment to a significant degree, being a degree that is substantially more than material.
On Dr Adesanya’s most recent report, I accept that the causal connection between Mr Philson’s work-related anxiety and his hypertension persisted and that the degree of the contribution was significant, albeit episodic.
The remaining question is whether this is attributable to the ‘injury’ for which Comcare accepted liability or to some other cause. On 5 November 2012, Dr Lai reported that “His conditions have not changed in the past 20 years”.[140] On 20 October 2015, Dr Gorman reported that Mr Philson “remains anxious and depressed” and “He is still focussed on the events in the workshop in 1992”.[141] On 8 April 2016, Dr Adesanya reported –
“[Mr Philson] continue [sic] to experience his anxiety/panic attacks from time to time. He currently experiences the symptoms 3-4 time [sic] each week.”[142]
[140] T45 folio 91.
[141] T60 folio 121.
[142] T74 folio 148.
On balance, I am satisfied that Mr Philson’s work-related anxiety has continued from October 1991 to the present with episodic symptoms, and that those symptoms have an exacerbating effect on his hypertension. And in that regard, having regard to the proper test to be applied,[143] the exacerbation of hypertension in this way may be considered to be a continuation of the injury for which Comcare accepted liability.
[143] Australian Postal Corporation v Nadge [1994] FCA 1163 at [29]-[30].
That said, it is probable that any elevation in stress may have the same kind of exacerbating effect on his blood pressure. His hypertensive lability, as noted by Dr Abhayaratna in 2012, clearly exemplifies this. Nevertheless, the medical evidence is quite clear that Mr Philson’s anxiety remains focused on the events or circumstances of his previous employment and this is the predominant feature of his disorder. To that extent, Mr Philson’s anxiety significantly contributes to the exacerbation of his hypertension.
While there are extensive medical records of Mr Philson’s blood pressure at various times, the records do not traverse the entire period from 16 October 1991 to 20 January 2016. There are but few materials addressing Mr Philson’s medical condition, and his hypertension in particular, during 1994, for example. This notwithstanding, as Dr Gorman explained, it is probable that Mr Philson has been hypertensive since 1989. The absence of blood pressure records do not break the chain of causation between Mr Philson’s employment injury and the continuation of that injury on and after 22 January 2016.
The available records reveal that, from time to time, Mr Philson’s blood pressure levels have been labile and he has been prescribed antihypertensive medications of various kinds. The degree to which these treatments have controlled his blood pressure, and the extent of his persistence with the treatments, have been somewhat variable.

For example, it appears that his blood pressure was recorded within the normal range on 4 and 29 November 1991 and at various times when he was admitted to Calvary Hospital from 18 December 1992 to 29 January 1993. I am satisfied that, at these times, Mr Philson was prescribed anti-hypertensive medications, namely (variously) Adalat, Renitec and Melleril, and in all likelihood this treatment explains the reduction in his blood pressure. While these (and other) pharmacological agents may have reduced Mr Philson’s blood pressure to some extent at various times, the medical records clearly establish that these treatments did not have lasting effect. Thus, while the symptoms may have been reduced temporarily, Mr Philson’s hypertension continued and his work-related anxiety continued to act upon it episodically.
In law, while the symptoms are taken to be part of an injury, the injury may be taken to continue even though its symptoms may be effectively managed with medical treatment or may have diminished or abated from time to time. In such circumstances, the question to be answered is whether the chain of causation between the original ‘injury’ and the subsequent symptom has been broken by intervening events or overtaken by the natural progression of underlying disease, unrelated to employment.[144] I am satisfied that variations in Mr Philson’s blood pressure as a result of treatments he has used do not break the chain of causation between his accepted 1991 injury and the exacerbating effect of work-related anxiety on his hypertension in January 2016.
[144] Australian Postal Corporation v Nadge [1994] FCA 1163 at [29]-[30].
Obesity
At this point it is desirable to address issues arising in respect of obesity.
It is quite clear that weight gain and resulting obesity significantly contribute to Mr Philson’s hypertension. It is also quite clear, despite Dr Gorman’s contrary opinion (which I reject), that weight gain is a symptom of Mr Philson’s psychiatric disorders.
Comcare argues that Mr Philson has not claimed obesity as an ‘injury’ and that matter is not presently before the Tribunal, and it is not relevant to the matters I must decide in this review. As I have said, that is correct and the Tribunal has no jurisdiction to determine if obesity is an ‘injury’.
But I do not agree that Mr Philson’s obesity is not a relevant consideration in the context of this review. His obesity is the result of weight gain that is a symptom of psychiatric ‘disease’ for the purposes of the SRC Act.
Where the balance of evidence is sufficient to establish that weight gain, even to the extent of morbid obesity, is a symptom of a compensable injury in the form of a mental illness, as here, it is not necessary to consider if the obesity, as a distinct medical condition, is an ‘injury’ in the form of a ‘disease’.
It is necessary to briefly reflect upon the difference between an ‘injury’ for the purposes of the SRC Act, or a ‘disease’ for the purposes of the 1971 Act, and the symptom of an ‘injury’ or a ‘disease’.
Clearly enough, for an ‘injury’ to exist, notice must be given specifying the nature of the injury or the ailment and the circumstances in which it arose, and a claim for compensation made and determined according to the legislative procedure.
Once an ‘injury’ has been determined, the incidents, causes and nature of the injury will be known. Where the ‘injury’ has the form of an ailment or a disease arising from multiple causes, and one of those causes is a continuing symptom of another work-related ‘injury’, on close examination of the evidence, on a fact by fact basis,[145] the latter symptom may be sufficient cause to establish continuation of the former ‘injury’ at a point in time. That will be so if a sufficient causal contribution is established, even though the symptom has not, itself, been subject of notice, claim or determination as an ‘injury’. The experience and symptoms of an ‘injury’ are part of the ‘injury’.[146] This should not be misconstrued, however. Where a new symptom of an ‘injury’ arises, and it significantly contributes to an ailment, that ailment cannot be taken to be an ‘injury’ without notice, claim and determination under the legislation. But where such an ‘injury’ has been positively determined, it is not necessary to make a separate ‘injury’ claim in respect of each particular symptom then present. It would be an odd result if an injured employee was required to lodge separate claims for each symptom of an injury before compensation could be paid.
[145] Military Rehabilitation and Compensation Commission v May [2016] HCA 19, per French CJ, Kiefel, Nettle and Gordon JJ at [49]-[51].
[146] Tippett v Australian Postal Corporation [1998] FCA 335 at [16].
Considering the claim for payment made by Dr Lai in respect of pharmacological compounds prescribed to treat Mr Philson’s anxiety disorder symptoms,[147] and the decisions issued in respect of such treatments,[148] it is clear enough that Comcare’s acceptance of liability to pay compensation for weight loss treatment under s 16, on reconsideration, proceeded on the finding that weight gain and resulting obesity is a symptom of the ‘acute anxiety and exacerbation of hypertension – single episode’, for which threshold liability had been accepted. At that time, when addressing the claim for weight loss treatment, it was open for Comcare to construe the claim broadly and determine whether the obesity to which Dr Lai referred was a ‘disease’ for the purposes of the 1971 Act. This was not done and the question of threshold liability for obesity as a medical condition or a ‘disease’ was not addressed.
[147] ST17 folio 254.
[148] ST18 and ST21.
Whether or not that was the preferable way of addressing the claim made on Mr Philson’s behalf for medical treatment of his obesity is not for me to decide. And presently, there is no reconsideration decision before the Tribunal addressing any determination of liability for his obesity.
That said, to the extent that Comcare argues in these proceedings that Mr Philson’s weight gain cannot be considered, absent a determination of threshold liability, I reject it. Mr Philson’s weight gain is a symptom of a ‘disease’ for which Comcare has accepted liability, which is presently ongoing. For this reason, it is a causal vector linking the exacerbation of Mr Philson’s hypertension with his previous employment and it cannot simply be set aside or discounted from consideration when assessing his entitlement to compensation under s 16 of the SRC Act as of 22 January 2016.
The evidence of Dr Guest, Dr Glaser, Dr Knox, Dr Abhayaratna, Dr Lai and Dr Adesanya is that weight gain and obesity is a symptom of Mr Philson’s depressive disorder. Dr Gorman rejected this proposition and argued that Mr Philson had an anxiety disorder that would more likely be associated with weight loss rather than weight gain. I prefer the psychiatric evidence of Dr Knox, Dr Glaser and Dr Adesanya on this point.
The evidence of Dr Guest, Dr Glaser, Dr Knox, Dr Abhayaratna, Dr Lai, Dr Adesanya and Dr Gorman establishes that there is a medically proven causal relationship between weight gain, obesity and hypertension. On the reports of Dr Gorman and Dr Abhayaratna, Mr Philson’s obesity is likely to significantly contribute to the exacerbation and progress of his hypertension.
It is possible, but not clearly established, that weight gain was a material factor that contributed to the exacerbation of Mr Philson’s hypertension in October 1991, for which Comcare accepted liability. It is more probable that this occurred following his discharge from Calvary Hospital on 29 January 1993, after which his weight increased very substantially.
As Conti J (with whom Heerey and Dowsett JJ agreed) explained in Telstra Corporation Ltd v Hannaford,[149] the statutory scheme of the Act “allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen”.[150]
[149] [2006] FCAFC 87.
[150] Ibid, at [57].
To my mind, the evolving circumstances and progressive decision-making in Mr Philson’s case are such that his weight gain should properly be considered as a symptom of the ‘injury’ for which liability was accepted, even though it may not have been a material factor when the original determination of liability was made.
For this reason, Mr Philson’s weight gain should be taken into account when determining if compensation is payable under s 16 of the SRC Act in respect of the exacerbation of hypertension ‘injury’ as of 22 January 2016.
This is so, even though no claim has been made or determined in respect of obesity, and the Tribunal presently has no jurisdiction to make any such determination. It is not necessary to make a decision of that kind. Rather, it is necessary to determine if Mr Philson’s exacerbation of hypertension injury persisted as of 22 January 2016.
Did Mr Philson’s hypertension injury continue as of 22 January 2016?
I am satisfied that it did.
Mr Philson’s psychiatric ‘disease’, including bouts of intense anxiety (up to three panic attacks each week on Dr Adesanya’s evidence) and weight gain, was a significant contributing factor to the ongoing exacerbation of his hypertension from October 1991 to 22 January 2016. While Mr Philson’s bouts of elevated anxiety have a recurring episodic character, his weight gain is not so episodic even though it has fluctuated from time to time. Having carefully examined the medical evidence, I am satisfied that these symptoms of ‘disease’ significantly contributed to the exacerbation of Mr Philson’s hypertension in an ongoing manner over many years - what began as an episodic occurrence produced a recurring and, ultimately, continuing effect. In the ongoing presence of psychiatric ‘disease’ that significantly contributes to the exacerbation of Mr Philson’s hypertension, his compensable ‘injury’ has not yet come to an end, and his employment continues to exacerbate his hypertension.
This is so even though it can be accepted that other factors, including Mr Philson’s age and genetic make-up, may also have contributed in some degree to the progress of his hypertension over the intervening years.
Medical treatment in relation to the ‘injury’
The next question is whether Mr Philson’s exacerbation of hypertension injury required medical treatment as of 22 January 2016.
The evidence of Dr Abhayaratna, Dr Lai and Dr Gorman establishes that Mr Philson’s hypertension requires continuing medical treatment with anti-hypertensive medications as of 22 January 2016 and presently.
On the present evidence, I am not persuaded that medical treatment of Mr Philson’s underlying hypertensive disease is distinguishable from medical treatment of the exacerbation injury for which Comcare is liable to pay compensation. The boundary between exacerbation of hypertension and essential hypertension has become blurred and indistinct. This is largely due to the contribution weight gain has made to the exacerbation of Mr Philson’s hypertension.
Furthermore, and in any event, matters of this kind cannot be determined in general terms or prospectively, absent a specific claim – each compensation claim for medical treatment expenses in relation to an injury must be assessed and determined on its merits.
Issues of this kind were not raised, agitated or pressed in the hearing. Absent jurisdiction to review a claim for particular treatment, I will go no further with these matters.
Conclusion
This is no easy case. Matters that appeared to be straightforward have turned out to be surprisingly complex and difficult. This has not been assisted by the length of time that has passed since Mr Philson’s original injury claim was first determined.
It is also not easy for medical reasons, where the interaction of mental illness and hypertension test the boundaries of medical science.
In addition, there are difficult legal issues that have arisen in the course of the hearing that required careful consideration.
Nevertheless, the balance of the evidence supports the conclusion that Mr Philson’s work-related anxiety contributed to a material degree to exacerbate his hypertension in October 1991. Mr Philson’s anxiety symptoms were episodic and this exacerbated his hypertension. Unfortunately, the exacerbation did not come to an end. While Mr Philson’s elevated blood pressure was treated, sometimes with good effect, I have not been able to identify when the episode of exacerbation of hypertension in October 1991 ended or if it was overtaken by other events or the natural progress of Mr Philson’s essential hypertension. It is quite clear that the mechanism by which his hypertension was exacerbated has continued. Central to this conclusion is the persisting focus of Mr Philson’s anxiety on events that occurred in his previous employment: even after more than 25 years, his anxiety is work-related.
To this, Mr Philson’s weight gain, another symptomatic effect of compensable psychiatric ‘disease’, has significantly contributed.
As the mechanism of exacerbation of his hypertension continues, so too does the ‘injury’ for which Comcare is liable.
Decision
The decision under review is set aside. Mr Philson’s accepted exacerbation of hypertension injury persisted as of 22 January 2016 and from that day to the present he is entitled to compensation under s 16 of the SRC Act, subject only to proper determination of any such claim by Comcare on the merits.

192.    I certify that the preceding 191 (one hundred and ninety one) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

........................................................................
Associate
Dated: 28 August 2017

193.    Date of hearing:

194.    13 July 2017

195.    Date final submissions received:

196.    4 August 2017

197.    Applicant:

198.    In person

199.    Counsel for the Respondent:

200.    Prue Bindon

201.    Solicitors for the Respondent:

202.    McInnes Wilson Lawyers

[2017] AATA 1358

28 August 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Remedies

Appeal

Procedural Fairness

193. Date of hearing:	194. 13 July 2017
195. Date final submissions received:	196. 4 August 2017
197. Applicant:	198. In person
199. Counsel for the Respondent:	200. Prue Bindon
201. Solicitors for the Respondent:	202. McInnes Wilson Lawyers