Ramalingam and Comcare (Compensation)
[2024] AATA 3272
•27 August 2024
Ramalingam and Comcare (Compensation) [2024] AATA 3272 (27 August 2024)
DIVISION:GENERAL DIVISION
2022/9856File Number:
Re:Shankar Ramalingam
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:27 August 2024
Place:Canberra
The decision under review is set aside, and in substitution thereof the Tribunal decides, as of 25 July 2022 and presently, Comcare is liable to pay Mr Ramalingam compensation in respect of his injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
The matter is remitted to Comcare to determine Mr Ramalingam’s compensation entitlements under s 16 and s 21 of the Safety, Rehabilitation and Compensation Act 1988.
…….…[SGD]…………
Mr S. Webb, MemberCatchwords
WORKERS COMPENSATION – psychiatric ‘ailment’ – ‘injury’ – liability to pay compensation – ‘disease’ threshold – contributory factors – requirement for present connection with employment – effects of injury – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14, 16, 19, 21
Cases
Comcare v Laidlaw [1999] FCA 40
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Canute v Comcare [2006] HCA 47
Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219
Military Rehabilitation and Compensation Commission v May [2016] HCA 19 Dunstan
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305Woodhouse
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Ramalingam and Comcare [2004] AATA 385
R v Ramalingam [2011] ACTSC 86
Ramalingam v R [2012] ACTCA 47
Ramalingam v McCue [2019] ACTSC 114
Smith v Comcare [2013] FCAFC 65
Lees v Comcare [1999] FCA 753
REASONS FOR DECISION
Mr S. Webb, Member
27 August 2024
Many years ago, Shankar Ramalingam was injured in his employment by the Australian Agency for International Aid (AusAid). After more than 20 years, Comcare decided, by primary determination and on reconsideration, Mr Ramalingam no longer suffered from the injury and he was no longer entitled to compensation for medical treatment expenses and incapacity for work. Mr Ramalingam lodged an application for review of this decision by the Tribunal.
In recognition of the difficulties a person such as Mr Ramalingam faces when representing themselves in proceedings of this kind, without a detailed knowledge of the applicable procedures, law or Tribunal processes, and with a mental illness, a good deal of latitude was allowed. This was done to ensure Mr Ramalingam was given a reasonable opportunity to present his case: to ask questions, to adduce and test relevant evidence, and to make submissions.
Mr Ramalingam decided not to give oral evidence during the hearing. Before making this decision, the significance and consequence of doing so was explained and he was given an opportunity to ask questions. Consequently, Mr Ramalingam’s version of events arises only from his untested documents in evidence.
Facts
In order to address the issues raised by the parties in this review, it is necessary to consider the lengthy history, causes and treatment of Mr Ramalingam’s psychiatric ailment and related compensation.
The following findings are made on the evidence, applying the reasonable satisfaction standard.
On 26 March 2001, Mr Ramalingam commenced employment as an Authorising Officer at the APS 5 level in the Financial Systems and Accounts Unit of AusAid.
Issues arose in respect of Mr Ramalingam’s alleged treatment, conduct and performance in this employment. These are extensively set out in a previous Tribunal decision, Ramalingam and Comcare [2004] AATA 385 (1st Tribunal decision), at [23]-[24] and [46]. [1]
[1] Exhibit 2, Tab 14, folios 531-533 and 540-545.
In the 1st Tribunal decision, the Tribunal found on 25 January 2002 Mr Ramalingam consulted Dr Phillip Hope, a general practitioner, who recorded ’work stresses, headache/dizziness one to two months’.[2] The Tribunal decided Mr Ramalingam suffered from an Adjustment Disorder at that time.[3] The Tribunal applied s 7(4) of the SRC Act and found 25 January 2002 to be the date of injury before determining the existence of an ‘injury’ for which Comcare was liable under s 14 of the SRC Act. This is not consistent with subsequent authority (Smith v Comcare [2013] FCAFC 65 at [34]), but the error is presently immaterial as the key point of relevance is that the Tribunal found (at [26]) Mr Ramalingam suffered from an Adjustment Disorder to which his employment contributed to a material degree. This amounted to an ‘injury’ for the purposes of the SRC Act.
[2] Ibid, folio 539; T18, folio 70.
[3] Ibid, folios 539-540.
On 12 February 2002, Mr Ramalingam was examined by Dr Ahmad Farshid, a cardiologist, who reported:
An ECG performed on 30 January 2002 was reported as showing possible inferior myocardial infarction.
…
Today … His ECG showed normal sinus rhythm with no significant Q-waves to suggest previous myocardial infarction. He was further evaluated with an exercise stress test… his exercise tolerance was within normal limits and no evidence of exercise induced myocardial ischaemia was detected.
… The issue of stress at work will also be addressed by him. I have reassured him about his heart and I did not think there was any evidence of previous myocardial infarction.[4]
[4] T4, folios 10-11.
On 10 May 2002, Dr Stephen Rosenman, a psychiatrist, examined Mr Ramalingam and on 13 May 2002 reported:
He is certainly bothered by symptoms of anxiety, sleep disturbance and agitation which is quite consistent with the current pressures on him. He feels unjustly criticised, undermined and threatened in his current job. In fact he is now threatened with termination of his position. The pressures he faces are real and his response appear understandable as an adjustment reaction.[5]
[5] T47A, folio 212.
In the 1st Tribunal decision, the Tribunal found Mr Ramalingam was subject to disciplinary action on and after 29 May 2002, including the termination of his employment, but these actions did not have an exclusionary effect because Mr Ramalingam’s Adjustment Disorder commenced in January 2002.[6]
[6] Exhibit 2, Tab 14, folios 546-547.
On 29 May 2002, AusAid terminated Mr Ramalingam’s employment.[7] Subsequently, Mr Ramalingam commenced proceedings in the Fair Work Commission.
[7] T5, folio 18.
On 31 May 2002, Mr Ramalingam signed a claim for compensation for ‘anxiety/insomnia/depression caused by work related stress’ which he first noticed on ‘23/01/02’ and for which he first sought treatment from Dr Hope on 25 January 2002.[8]
[8] Ibid, folios 14 and 17.
On 19 August 2002, and again upon reconsideration on 7 April 2003, Comcare decided to refuse the claim.[9] It was in respect of this reconsideration decision that Mr Ramalingam applied for review by the Tribunal, which resulted in the 1st Tribunal decision on 16 April 2004. By that decision, the Tribunal set aside Comcare’s decision and in substitution decided that Mr Ramalingam was entitled to compensation under s 14 of the SRC Act.[10]
[9] T6 and T9.
[10] Exhibit 2, Tab 14, folio 520.
On 24 December 2002, Dr Rosenman reported:
[Mr Ramalingam] remains intensely symptomatic but the symptoms are clearly a direct reaction to his current difficulties at work. These have multiplied since I last saw him and he is having great difficulty pulling himself together to respond to the grounds for the termination of his employment.
…
He has recently started [the medication] Cipramil…[11]
[11] T8, folio 29.
On 7 August 2003, Dr John Saboisky, a consultant psychiatrist, produced a report for Comcare in which he reported ‘the possibility of an underlying personality disorder with obsessive and paranoid features’ which he underscored in a supplementary report on 19 September 2003. In the 1st Tribunal decision, the Tribunal concluded a diagnosis of personality disorder was not made out. In his 7 August 2003 report, Dr Saboisky stated:
On the basis of the information provided to me I believe [Mr Ramalingam] does have an adjustment disorder with anxious and depressed mood specifically related to clashes with management and the process of termination of his employment.
…
His condition is inextricably linked to the termination process and the previous breakdown in relationships with his employment.
…
If there is a favourable resolution of his case that I think he could gradually perform his normal duties on a graduated basis. However if the outcome is unfavourable it will be very difficult for him to have the emotional equanimity to work. It is more likely than not that these events leading to his termination are likely to have a long-term eroding effect on his psychological well being.[12]
[12] Exhibit 2, Tab 5, folio 401.
On 24 May 2004, Dr Rosenman reported to Dr Hope that Mr Ramalingam’s ‘symptoms remain consistent with an adjustment disorder and I cannot see any relief from [sic] while the struggle he is committed to continues’. The doctor prescribed Dothiepin 25mg in addition to the Cipramil he previously prescribed to treat Mr Ramalingam’s condition.[13]
[13] T47C, folio 214.
On 19 July 2004, Dr Rosenman produced a further report to Dr Hope in which he referred to replacing Dothiepin with Tofranil and stated:
Psychologically he remains in difficulty. His previous employer is disputing the AAT findings and it looks like he will have to go through more litigation. If that happens I anticipate symptoms will remain on the boil and will have to be managed through that time.[14]
[14] T47D, folio 215.
On 20 September 2004, Dr Rosenman again reported to Dr Hope and stated:
The Comcare struggle is still not quite over and he continues to report symptoms which, while still apparent, are significant [sic] less intense than he experienced at the height of his difficulties. I expect that some degree of symptoms will continue for some time after the whole struggle is finalised but I do not think they will attain their previous degree of difficulty unless the whole struggle is re-ignited.[15]
[15] T47E, folio 216.
Following Dr Rosenman’s departure from Canberra, Dr Hope referred Mr Ramalingam to Dr William Knox. On 17 November 2004, Dr Knox reported he agreed with Dr Rosenman’s diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood and observed:
The situation appears to be one of those unhappy Canberra dilemmas where people have unresolved disputes with their workplace and continue to be unwell. There is no resolution on the horizon for Mr Ramalingam and I think he is likely to continue with his present symptoms until something constructive is done.[16]
[16] T47F, folios 217-218.
On 24 March 2005, Dr Hope produced a report for Comcare setting out the history of Mr Ramalingam’s Adjustment Disorder and stating:
24/2/05Most recent visit. Ramalingam continued to have unresolved workplace issues. I believe he has been to arbitration but this has not resolved the issues to his satisfaction. I understand that the Industrial Relations Commission has been involved in his case for compensation. He is currently taking Cipramil and Avopar, an anti-hypertensive. Until his work issues are resolved, he is unlikely to recover completely from the adjustment disorder.[17]
[17] T18, folio 71.
Dr Hope consulted Mr Ramalingam again on 29 November 2005 and 19 May 2006. On each occasion the doctor prescribed antidepressant medication and treatment by Dr Knox.
On 6 July 2005, Dr Knox produced a report for Comcare to which he attached a statement by Mr Ramalingam which summarised the incidents that Mr Ramalingam considered resulted in his disorder.[18] Dr Knox confirmed Mr Ramalingam continued to suffer from an Adjustment Disorder with Mixed Anxiety and Depressed Mood and stated:
I would however additionally say that Mr Ramalingam holds very strong views about how he was treated in his workplace, and I am of the view that the greater part of his psychiatric impairment arises out of his view of the workplace situation and subsequent events. While he is depressed and anxious, there is not deeply established Major Depressive Disorder nor other more serious Anxiety conditions. He does not suffer any other psychiatric condition.
Mr Ramalingam has been demeaned. He remains in an adversarial situation with his workplace over their efforts to rehabilitate him…
…
Mr Ramalingam described to me his interactions with Comcare and the Administrative Appeals Tribunal which he found ‘very stressful.’ These matters reportedly kept active his stress condition.[19]
…
… I am of the opinion that his condition has been caused by factors during the course of his employment. Details are given above and in Mr Ramalingam [sic] statement. The systemic processes following Mr Ramalingam going off work have played their part in aggravating and consolidation [sic] Mr Ramalingam’s psychiatric condition.[20]
[18] Exhibit 2, Tab 2, folios 71-73.
[19] Exhibit 2, Tab 2, folios 62-64.
[20] Exhibit 2, Tab 2, folio 70.
Mr Ramalingam consulted Dr Knox on 7 occasions in the period from 25 July 2005 to 11 December 2006.[21]
[21] Exhibit 2, Tab 7, folios 419-421.
Thereafter, Dr Knox ceased practice in Canberra.
On 27 November 2006, Mr Ramalingam obtained treatment from Dr John Robinson, his then general practitioner, at the Phillip Medical and Dental Clinic. The doctor prescribed antidepressant medication and further treatment by Dr Knox.[22]
[22] There are scant records of treatment provided by Dr Robinson in the materials given to the Tribunal. Relevant treatments are referred to by Comcare in the briefing letter provided to Dr Adams, T34, folio 150.
Dr Robinson consulted Mr Ramalingam on 2 July 2007 on 25 November 2007 and 3 December 2008. [23] On each occasion the doctor prescribed antidepressant medication and further treatment by Dr Knox.On 3 December 2008, Mr Ramalingam obtained treatment from Dr Robinson who prescribed antidepressant medication.
[23] Ibid, folios 418-419.
On 9 July 2008, Mr Ramalingam was charged with a number of offences arising from an incident involving his then wife and son on 8 July 2008.[24] He was committed for trial in the ACT Supreme Court and an indictment was prepared containing four counts of common assault.
[24] Ibid, Tab 9, folio 437.
On 22 December 2009, Dr Robinson issued a medical certificate in which he diagnosed ‘Adjustment disorder’ and stated:
In my opinion, the worker’s employment is a substantial contributing factor to this injury.[25]
[25] Exhibit 2, Tab 2, page 58.
On 13 December 2010, Mr Ramalingam consulted Dr Brand, a general practitioner with Erindale Healthcare, who noted:
been on Efexor and Avapro
has adjustment disored [sic], anxiety and depression
is not getting specialist care at present – last saw psychiatrist only Dr KNow [sic] – was told he would not get better and says ‘I lost hope after that’
…[26]
[26] Ibid, Tab 2, folio 21.
Dr Brand issued a medical certificate stating Mr Ramalingam was unit for work.[27]
[27] Ibid, Tab 2, folio 57
On 25 May 2011, Refshauge J found Mr Ramalingam guilty on each count of common assault.[28] Mr Ramalingam appealed against these convictions.
[28] Exhibit 2, Tab 10; R v Ramalingam [2011] ACTSC 86.
On 30 August 2011, Dr Brand noted:
discussed depression – aggravted [sic] by recent death of his dog[29]
[29] Ibid, Tab 2,folio 22.
On 10 January 2012, Dr Brand noted “says feeling better after dog died”[30] and issued a medical certificate in which he stated:
In my opinion, the worker’s employment is a substantial contributing factor to this injury: anxiety, adjustment disorder[31]
[30] Ibid, folio 23.
[31] Ibid, folio 43.
On 20 June 2012, Dr Brand reported Mr Ramalingam required a new specialist assessment of his mental condition.[32]
[32] T19.
On 13 September 2012, Dr Bhaswati Bhattacharyya, a consultant psychiatrist, produced a report for Comcare.[33] The doctor reported:
[33] T47I.
Mr Ramalingam continues to feel angry about his work at AUSAID and feels anxious about returning to the workplace…
…
… he has separated from his wife, although they live under the same roof. Things have become worse in the past three years and Mr Ramalingam does not have much of a relationship with his children…
…
In the past three years Mr Ramalingam’s symptoms have become worse and he has developed increasing anxiety with agoraphobia and also a major depressive episode.
…
Mr Ramalingam’s diagnosis is consistent with the stated cause. There are no other related problems, although Mr Ramalingam had problems with family members… He has not been adequately treated for his symptoms in the last 6 years.
…
The [diagnosed conditions] are related to Mr Ramalingam’s employment with AUSAID, specifically the incident on 25 January 2002. Mr Ramalingam has had continuing symptoms since the onset of work stress in January 2002 and he has not been able to return to any occupation either in the Australian Public Service or in the private sector.
…
I consider Mr Ramalingam’s lack of employment which resulted from the employment incident that occurred in January 2002 continues to contribute to his condition.[34]
[34] Ibid, folios 228-232.
On 7 November 2012, Mr Ramalingam’s appeal against his common assault convictions was dismissed by the ACT Court of Appeal.[35]
[35] Exhibit 2, Tab 11: Ramalingam v R [2012] ACTCA 47.
On 11 January 2013, Dr Brand noted:
comcare [sic] arranged a spychiatric [sic]
note letter from IME for Comcare
has major depressive episode and agrophobia [sic]
suggested increase Effexor to 150mg a day[36]
[36] Ibid, folio 24.
On 15 March 2013, Dr Brand referred Mr Ramalingam to Dr Adesina Adesanya, a psychiatrist.
On 3 April 2013, Dr Adesanya reported to Dr Brand diagnoses of ‘Major Depressive Disorder’ and ‘Adjustment disorder with mixed anxiety and depressed mood’ and stated:
[Mr Ramalingam’s] history is suggestive of ongoing depressive symptomatology since his suffering a workplace injury in 2002. The depressive symptoms have been intermittently associated with feelings of anxiety which have worsened since he saw an IME Psychiatrist who revised his diagnosis to agoraphobia and major depressive disorder in 2012.[37]
The doctor recommended increasing the dose of Mr Ramalingam’s antidepressant medication (Venlafaxine) and suggested the possibility of reinstating him to his previous job should be explored.[38]
[37] T20, folio 73.
[38] Ibid.
On 13 August 2013, Julie Thompson, a rehabilitation consultant, provided a report to AusAid in which she stated:
At this time there is no possibility of continuing with rehabilitation. Mr Ramalingam is expecting to be reinstated to a job that no longer exists. He is clearly disturbed by rehabilitation contact and distressed and confused about the processes required to consider his readiness for any return to work. It would seem most unlikely that Mr Ramalingam is fit at this stage to directly return him to work anywhere…
For Mr Ramalingam being reinstated is the beginning of any process rather than a goal that may be attained through preparation and commitment. Because his view is so black and white on this matter he seems unable to consider what is realistic or attainable. There was no benefit in confronting this view too strenuously given his level of agitation over much more simple matters such as meeting with the treatment providers.[39]
[39] T21, folio 79.
On 14 March 2016, Dr Adesanya produced a report for Comcare in which he stated:
Mr Ramalingam currently suffers from major depressive disorder (chronic and recurrent).
…
Mr Ramalingam’s condition is chronic with intermittent exacerbation of his illness symptoms in the context of stress and frustration about his situation.
…
The main barriers to the complete resolution of Mr Ramalingam’s condition include:
(i) The perception of being unfairly dismissed/terminated from his employment with Ausaid in 2002.
…
I suspect that resolution of his ongoing perception of unfair dismissal from his employment by Ausaid will assist with recovery from his condition.[40]
[40] T22, folios 81-82.
On 7 June 2016, Dr Brand provided a report to Comcare in which he stated:
Given the length of time he has been on Comcare, the chronicity of his problem and the likelihood he will never recover I believe consideration should be given to an IME psychiatric review.[41]
[41] T23, folio 83.
On 21 September 2018, Mr Ramalingam was found guilty in the ACT Magistrates Court of 3 charges of common assault and one charge of damaging property arising from an altercation on 7 October 2017 between Mr Ramalingam, his wife and his son.[42] He was sentenced to a one-year good behaviour bond.
[42] Exhibit 2, Tab 12, folio 488.
The sentence was stayed when leave to appeal was granted, out of time, on 15 March 2019. In the result, on 8 May 2019, the convictions were quashed and the matter was remitted to the ACT Magistrates Court.[43]
[43] Ibid, folio 504; Ramalingam v McCue [2019] ACTSC 114.
On 22 May 2019, Dr Adesanya provided a report to Comcare in which he stated:
[Mr Ramalingam’s] depressive symptoms have largely persisted with intermittent worsening of anxiety in the context of grieving the loss of his job since the unfair dismissal from Ausaid.
…
The persistent injury symptoms and associated functional impairment also contributed to the separation from his wife, and the ongoing relationship difficulties with his children since he lost his employment.
…
… There are no identifiable non-employment related causal factors in the onset and perpetuation of his condition.
…
I am of the opinion that the unresolved grief from the loss of his employment at Ausaid through unfair dismissal is the main reason for the non-resolution of his condition.[44]
[44] T50A, folios 243, 244 and 245.
On 12 August 2020, Dr Adesanya reported to Dr Brand:
[Mr Ramalingam] reported ongoing depressive symptoms (depressed mood, pessimism, amotivation, social withdrawal, poor concentration & memory, tiredness, and fleeting thoughts of suicide) despite adequate trials of pharmacotherapy for his condition. He is currently awaiting the court judgement for the case with his wife.
…
On examination today, [Mr Ramalingam] was anxious and depressed in his mood/affect.[45]
[45] T26A, folio 90.
On 18 August 2020, Dr Adesanya reported to Comcare that Mr Ramalingam ‘will require and likely benefit from the Repetitive Transcranial Magnetic Stimulation (rTMS) treatment for his condition which have [sic] so far not responded well to other treatments’.[46]
[46] T26, folio 89.
Mr Ramalingam underwent two courses of rTMS treatments.[47]
[47] T28 and T29.
On 29 January 2021, Dr Adesanya reported to Dr Brand that Mr Ramalingam reported some improvement in concentration and reduced anger following rTMS treatments, and stated:
However, he continues to feel gloomy in his mood, experiences anhedonia and is socially withdrawn. He also continues to experience headaches and dizziness.
…
On examination today [Mr Ramalingam] was reasonably stable, calmer and less anxious + depressed in his mood/affect.[48]
[48] T29A, folio 102.
On 1 June 2021, Dr Adesanya provided Dr Brand with a further report in which he discussed the continuing benefits Mr Ramalingam reported from rTMS treatment:
He is less angry, and finds the treatment to be particularly calmative, and useful for his concentration. The improved concentration from the treatment has also translated to improved personal and general functioning.
…
On examination today, [Mr Ramalingam] was brighter, calmer and less depressed in his mood/affect.[49]
[49] T30A, folio 111.
In a further report to Dr Brand on 16 June 2021, Dr Adesanya observed:
[Mr Ramalingam] continues to be intermittently stressed and depressed by his ongoing family court matters, and is likely to attend some court hearings soon. The improvement from the previous rTMS sessions appear to be largely sustained to date since the last session some weeks ago. However, he has started experiencing some headaches and is keen to have further maintenance rTMS once approved by Comcare.
On examination today, [Mr Ramalingam] was reasonably stable and slimmer, but still anxious in his mood/affect.[50]
[50] T30B, folio 113.
On 11 August 2021, Dr Adesanya sought Comcare’s approval of a further ‘maintenance course’ of rTMS treatment.[51]
[51] T30, folio 110.
In October 2021, an issue arose in respect of a dog Mr Ramalingam cared about. The dog resided with Mr Ramalingam’s son, from whom he had been estranged since at least 2018. The dog fell ill, and the son arranged for Mr Ramalingam to visit her. In this context, over a period of days from 18 to 23 October 2021, Mr Ramalingam engaged in stalking conduct against his son which led to him being arrested and charged.[52] On 6 December 2022, Mr Ramalingam was subsequently found guilty of this offence.[53]
[52] Exhibit 2, Tab 13, folios 507-513.
[53] Ibid.
On 22 February 2022, Dr Adesanya reported to Dr Brand:
[Mr Ramalingam] reported feeling depressed during the days and worsening concentration over the past couple of weeks. These continue to impact negatively on his overall functioning and wellbeing…
On examination, [he] sounded coherent, rational and stable on the phone.[54]
[54] T32A, folio 126.
On 25 February 2022, Dr Adesanya sought Comcare’s approval of further rTMS treatment for ‘EARLY RELAPSE PREVENTION SESSIONS’ and stated:
During the review appointment, [Mr Ramalingam], he reported a of relapse [sic] of his depressive symptoms, and has requested to recommence course of rTMS for his condition.[55]
[55] T32, folio 125.
On or about 10 March 2022, Comcare approved 12 further rTMS treatment sessions for Mr Ramalingam and informed him that further information was required and an independent medical examination would be arranged.[56]
[56] T52, folio 262.
On 27 April 2022, Dr Emma Adams, a consultant psychiatrist, provided a report to Comcare. The doctor stated:
Mr Ramalingam has a chronic major depressive disorder. His condition has appeared to fluctuate. His current symptoms are of the mild/moderate severity.
…
Mr Ramalingam first developed clinically identifiable symptoms in 2002. At the time he was diagnosed with an adjustment disorder and anxiety.
…
I consider that Mr Ramalingam’s current medical condition is an accumulation of stressors resulting from episodes of aggressive behaviour and may also be contributed to now by other medical conditions of cardiovascular disease and social isolation.
…
Initially Mr Ramalingam was diagnosed with an adjustment disorder with regards to his workplace difficulties.
It is only more recently that Mr Ramalingam has been diagnosed with a major depression. In the interim, there appears to be a number of additional other stressors in his life such as family and relationship breakdown, legal difficulties[,] social isolation and possibly his medical problems.
The subsequent events in Mr Ramalingam’s life have more probably contributed to his current difficulties than the events in his workplace about 20 years ago.
…
I do not consider his current difficulties are as a result of his original injury.[57]
[57] T36, folios 167 to 169.
On 13 May 2022, Comcare decided to refuse liability for further rTMS treatment sessions under s 16 of the SRC Act and it issued a ‘Notice of Intention to determine no present liability’.[58] It is not clear on the present material whether Mr Ramalingam requested reconsideration of this decision even though he cavilled with it.
[58] T37.
On 25 July 2022, Comcare determined it had no present liability to pay Mr Ramalingam compensation for medical treatment expenses under s 16 and incapacity payments under s 21 of the SRC Act.[59]
[59] T51.
On 24 August 2022, Mr Ramalingam requested reconsideration of this determination.[60]
[60] T54, folio 287.
On 4 October 2022, Comcare issued a reconsideration decision affirming its 25 July 2022 determination.[61]
[61] T59.
On 2 December 2022, Mr Ramalingam lodged an application for review of this decision by the Tribunal.[62]
[62] T2.
On 28 September 2023, Dr Adams provided Comcare a supplementary report.[63] The doctor reiterated her diagnosis of ‘chronic major depressive disorder’ and reported that Mr Ramalingam has ‘an underlying personality style that makes him more likely to externalise his difficulties and to blame others’ but there was insufficient evidence to diagnose a personality disorder. Dr Adams reported:
I maintained the view that the onset of major depressive disorder arose sometimes [sic] well after Mr Ramalingam ceased employment.
His first two psychiatrists did not give that diagnosis, they diagnosed adjustment disorder. It appears he only received the diagnosis of major depression around 2013, over 10 years after the workplace difficulties.
…
I do not consider that the initial adjustment disorder relating to workplace stressors continues to apply.
Mr Ramalingam has a tendency to externalise his behaviours. There is a pattern of complaints and accusations of bias when things do not go his way and escalating legal matters. This was alluded to by both Dr Rosenman and Dr Saboisky in 2002 and 2004.
I consider it is his relationship to Comcare and not with regard to his workplace stressors which is perpetuating this behaviour.
…
The enclosed material supports my view that Mr Ramalingam’s current presentation is most likely explained by accumulation of multiple life stressors.[64]
[63] Exhibit 2, Tab 8.
[64] Ibid, folio 432.
Issues
The issue for determination is Comcare’s liability as of 25 July 2022 and presently to pay Mr Ramalingam compensation under s 16 and s 21 of the SRC Act in respect of the ‘injury’ for which liability was accepted. The ‘injury’ was a ‘disease’, namely an Adjustment Disorder ‘ailment’ to which Mr Ramalingam’s previous employment contributed to a material degree.
There is no dispute about the occurrence of the ‘injury’. Counsel for Comcare, Mr Charles Clark, informed the Tribunal that Comcare does not press findings contrary to those made in the 1st Tribunal decision. Nevertheless, as will appear, Comcare asserts non-compensable factors after the onset of the ‘injury’, including the termination of Mr Ramalingam’s employment, and factors not related to his previous employment have overtaken compensable employment factors in the causation of his ailment as of 25 July 2022 and presently.
In order to address this, it is necessary to answer the following questions as of 25 July 2022 and presently:
(a)does the ‘injury’ and the requisite connection with the employment persist; and if so
(b)does the ‘injury’ result in impairment or incapacity for work; and if so
(c)is Mr Ramalingam entitled to:
(i)compensation for medical treatment expenses in relation to the ‘injury’; and
(ii)compensation for incapacity to work as a result of the ‘injury’?
Undertaking this review, the Tribunal must ‘stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review’.[65]
[65] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51].
Does the ‘injury’ persist?
Mr Ramalingam asserts he continues to experience the effects of the injury he sustained in his previous employment, and he has done so without relief from January 2002 to the present day. In his submission the nature of his illness progressed from an ‘adjustment reaction with anxious mood’ in January 2002 to an ‘adjustment disorder with anxiety and depression’ by May 2004, and then to a ‘major depressive disorder’ in 2012. He asserts his mental health has been badly affected by the injurious events in his previous employment, the failure of his previous employer and Comcare to provide him with rehabilitation, and ongoing effects of the injury, including his incapacity to work and ‘going mad waiting at home doing nothing’[66].
[66] Applicant’s Statement of Facts, Issues and Contentions, 27 December 2023, page 6 at [2.14].
In Mr Ramalingam’s submission, the medical evidence of his treating psychiatrists (Dr Rosenman, Dr Knox and Dr Adesanya) and the medico-legal report Dr Bhattacharyya provided to Comcare clearly establish the progressive nature of his illness and that the illness is employment related. The effects and symptoms of the injury continued, Mr Ramalingam argues, throughout the period from 2006, after Dr Knox departed from Canberra, to 2012 when he was examined by Dr Bhattacharyya, and he continued to take medications prescribed for the injury throughout this period and subsequently, as confirmed by Dr Adesanya.
Mr Ramalingam contends it is wrong for Comcare to have stopped payment of his injury-related medical treatment expenses and to have ceased periodic payment of compensation for incapacity when these are attributable to his employment injury. He denies that other factors have caused his illness since July 2022. He argues that difficulties in his family relationships with his wife and son and his interactions with the criminal justice system are insignificant causal factors of his illness. He alleges his injury was a causal factor in his family relationship difficulties and his related conduct.
Comcare asserts Mr Ramalingam’s Major Depressive Disorder is a separate and distinct clinical entity from his Adjustment Disorder, which is no longer an applicable diagnosis, and that the Depressive Disorder did not evolve from the Adjustment Disorder. Comcare contends Mr Ramalingam’s Depressive Disorder arose in or about 2009 in response to a number of life stressors, including the assault on his family members in 2008 for which he was charged and convicted in related criminal justice proceedings in 2011, as well as non-compensable stressors, relating to the termination of his previous employment and disputation over compensation. On Dr Bhattacharyya’s evidence, Comcare argues Mr Ramalingam’s mental condition worsened in the 3 years before she examined him. Comcare asserts, at that time, he had not been exposed to the employment stressors which gave rise to his Adjustment Disorder for 10 years and his ‘injury’ resolved. In Comcare’s submission, Mr Ramalingam developed a different mental illness in the context of his interactions with the criminal justice system, the breakdown of his marriage and family relationships and his personality traits. Comcare notes Dr Adams’ evidence that Mr Ramalingam’s Depressive Disorder arose in 2012 supports this conclusion, and asserts that her evidence should carry more weight than Dr Bhattacharyya’s opinion which was not informed by all the relevant facts.
Relying on the Full Federal Court judgment in Woodhouse v Comcare (Woodhouse)[67], Comcare submits the essential nexus between Mr Ramalingam’s employment and his ailment was broken, and that the contribution requirement which applies to the threshold of a ‘disease’ is not met as of 25 July 2022 and presently. Comcare alleges Mr Ramalingam’s previous employment does not contribute to his Depressive Disorder ailment to a significant degree. In Comcare’s submission, Mr Ramalingam’s [psychiatric ailment is attributable to non-compensable factors, including the termination of his previous employment, disputation in the Industrial Relations Commission, and disputation about compensation with Comcare and in the Tribunal, as well as factors relating to Mr Ramalingam’s family and his interactions with the criminal justice system. These factors, Comcare argues, have overtaken employment factors which, on Dr Adams’ evidence, have minimal or no effect on Mr Ramalingam’s psychiatric ailment.
[67] [2021] FCAFC 95.
As will appear, I am not persuaded Comcare’s submissions are made out.
Opinion evidence
At this point, it is necessary to make some observations about opinion evidence. No doubt, to some degree the formulation of opinion about the diagnosis and causes of Mr Ramalingam’s psychiatric ailment hinges on the nature, extent and quality of relevant information, including his self-report of symptoms.
Commonly, it is for this reason, at least in part, that the opinions of treating psychiatrists and psychiatrists briefed for medico-legal reasons to give expert evidence in legal proceedings often diverge. Many are the cases in which disputation about such matters is centred around the alleged independence, or lack thereof, of the particular witness, where professional opinion formed within a therapeutic relationship is held up against expert opinion purchased for medico-legal purposes, and where therapeutic knowledge, experience and judgment in the particular case is weighed against expert evidence and reasoning.
In this case, Dr Adams examined Mr Ramalingam on one occasion (on 22 April 2022) and she produced two medico-legal reports for Comcare. The doctor was briefed with extensive materials obtained by Comcare and produced under summons in the course of the Tribunal proceedings,[68] including reports by Mr Ramalingam’s treating psychiatrists. Consequently, following a single consultation with Mr Ramalingam, Dr Adams formulated opinions about the diagnosis, origin, progress and contributory causes of Mr Ramalingam’s psychiatric ailment and related matters from a medico-legal perspective. These opinions were tested in oral evidence.
[68] Briefing materials are cited by Dr Adams at T36, folios 159-160 and Exhibit 2, Tab 8, folios 424-425.
I note in passing that Dr Bhattacharyya was also briefed by Comcare[69] to produce a report and the doctor agreed to be bound by the Expert Witness Code of Conduct[70], but the doctor’s opinions could not be tested as she was not called to give evidence.
[69] Briefing materials are cited by Dr Bhattacharyya at T47I, folio 226.
[70] T47I, folio 234.
In all likelihood, many of the briefing materials given to Dr Adams for the purposes of her second report were not available to Dr Adesanya when treating Mr Ramalingam and preparing the reports which are in evidence. Matters arising from the materials and Dr Adams’ opinions could not be put to Dr Adesanya as he was not called to give oral evidence in these proceedings. I pause to note Dr Adesanya was asked to provide a report to Comcare in response to Dr Adams’ first report,[71] but the fee Dr Adesanya required for doing so was not accepted by Comcare.[72] Nevertheless, a number of Dr Adesanya’s reports are in evidence, without objection.
[71] T38.
[72] T44, folio 193.
Dr Adesanya has treated Mr Ramalingam over many years, from 3 April 2013. In the therapeutic context of his role as a psychiatrist treating Mr Ramalingam, when formulating diagnoses and appropriate treatment, it is expected the doctor would have exercised clinical judgment informed by Mr Ramalingam’s account of symptoms he experienced, his clinical examinations and progressive knowledge of Mr Ramalingam, as well as relevant available materials. So much can be inferred from the reports and other records of Dr Adesanya which are in evidence. Matters of this kind provide a therapeutic basis for the formulation of Dr Adesanya’s opinions about the diagnosis, origins, progress and contributory causes of Mr Ramalingam’s psychiatric condition over time.
It cannot be assumed that the medico-legal opinion of an expert doctor informed by extensive materials should always outweigh the professional opinion of a treating doctor informed by clinical judgement and engagement with a patient over a long period; nor can it be assumed that the professional therapeutic opinion of a medical witness should outweigh an independent opinion formed for medico-legal purposes by an expert witness. In the Tribunal, which is not strictly bound by the rules of evidence, such opinions must be weighed with an eye to the purpose of their formulation. The reasoning on which they are raised and the evidentiary basis on which they are supported must be carefully considered in order to determine their probative value, and the weight they should be given, in the context of all the materials of relevance to the factual question to be decided.
Importantly, it is the role an expert witness giving opinion evidence ‘to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions’ and ‘it must be established that the facts on which the opinion is based form a proper foundation for it’. [73] Furthermore, the Tribunal is not bound by the opinion of an expert witness on a question of causation, whether or not it is posited on the balance of probabilities. It is for the Tribunal to be satisfied of the relevant facts in consideration of all relevant materials placed before it. Nevertheless, evidence of this kind may assist the Tribunal to determine factual questions for the purposes of determining liability for compensation.
[73] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, per Heydon JA at [59] and [85].
Applicable legislation
By definition in s 5A of the SRC Act, an ‘injury’ includes two sub-sets: a ‘disease’, being an ailment to which the employment contributed to the specified degree; and an ‘injury (other than a disease)’, being an injury (in the ordinary sense), which occurred in the course of or arising out of the person’s employment:
(2) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
I note the definition of ‘injury’ in s 5A came into effect on 13 April 2007[74] and hitherto the following definition applied:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
[74] Item 2, s 2(1), Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Amendment Act).
This case engages the ‘disease’ kind of injury. The word ‘disease’ is given meaning in s 5B of the SRC Act:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(3) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Once the Amendment Act came into effect, this definitional section applied from 13 April 2007. Previously, ‘disease’ was given the following meaning in s 4(1):
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
By operation of items 41 and 42 in Part 2, Schedule 1 of the Amendment Act, the definitions of ‘injury’ in s 5A and ‘disease’ in s 5B apply where the injury or the disease is sustained on or after the day on which the Amendment Act received Royal Assent, 12 April 2007:
41 Application of amendment of the definition of disease (section 5B)
(1) The definition of disease in the Safety, Rehabilitation and Compensation Act 1988, as amended by this Schedule, applies in relation to:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that the employee suffers on or after the day after this Act receives the Royal Assent.
(2) For the purposes of subitem (1), an employee suffers an ailment or aggravation on the day determined under subsection 7(4) of the Safety, Rehabilitation and Compensation Act 1988.
42 Application of amendment of the definition of injury (section 5A)
The definition of injury in the Safety, Rehabilitation and Compensation Act 1988, as amended by this Schedule, applies in relation to a disease, injury or aggravation that an employee sustains on or after the day after this Act receives the Royal Assent.
Consequently, as can be seen, the amended definitions of ‘injury’ and ‘disease’ which have effect from 13 April 2007 are not applicable in Mr Ramalingam’s case, as he suffered a ‘disease’ kind of ‘injury’ on 25 January 2002.
This is significant for two reasons. The amended definition of ‘injury’ expanded the exclusions from an ‘injury’, and the amended definition of ‘disease’ increased the employment contribution requirement from a ‘material degree’ to a ‘significant degree’.
Whereas the term ‘significant degree’ means a degree which is ‘substantially more than material’, the term ‘material degree’ imposes a ‘substantially’ lower threshold. Considering this threshold in Dunstan v Comcare[75], Gray and Cowdroy JJ found:
40. … the Tribunal was required to consider whether the applicant’s employment was ‘more than a mere contributing factor’ to his incapacity. It is unnecessary, however, for a person claiming compensation to demonstrate that it was his or her daily duties, or specific aspects of the workplace environment, that resulted in his or her disease. Such an approach would constitute too narrow a focus. The requirement of a material contribution of the employment to the disease is a requirement that the claimant be able to point to his or her employment as a factor that operated actively to bring about the condition.
[75] [2011] FCAFC 108 at [40].
Pausing at this point, I note Mr Ramalingam touched on the ‘injury (other than a disease)’ kind of injury in respect of his Adjustment Disorder when making submissions. Even though the word ‘injury’ in the phrase ‘injury (other than a disease)’ is used in its primary sense, involving a ‘sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’,[76] and provision is made for a ‘mental injury’, being an injury in the primary sense involving a sudden and ascertainable psychiatric or psychological change or disturbance in the normal psychological state,[77] little turns on this distinction in this case.
[76] Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May), per French CJ, Kiefel, Nettle and Gordon JJ at [45].
[77] Ibid, at [52]; Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219 at [104].
There is no dispute about the occurrence of an ‘injury’ in the form of an Adjustment Disorder in January 2002. The present dispute is whether the ‘injury’ persists in fact, and whether it causes impairment, incapacity for work or it requires medical treatment as of 25 July 2022 and presently.
On this point, to the extent Mr Ramalingam posited the distinction between a ‘disease’ and an 'injury (other than a disease)’ extends to the requirement for a continuing nexus between the ailment underlying the ‘disease’ and the employment, some caution is required as a number of difficult issues arise in relation to Woodhouse which were not squarely raised or argued.
Woodhouse
In Woodhouse, the issue of a continuing employment nexus arose in the context of liability under s 14 of the SRC Act. Derrington J (with whom Collier and Rangiah JJ agreed) addressed the matter in the following way:
84. … If the cause of incapacity ceases to be an ‘injury’ as defined, the constituent elements for Comcare’s liability also ceases. It follows that it is the continuing existence of the necessary state of affairs which defines the duration of Comcare’s liability. However, some additional difficulty arises in the attempt to define the precise nature of that state of affairs. That is especially so in relation to the contribution requirement.
85. Logically, the causes of a disease or ailment tend to cease once the condition is suffered and the employee ceases employment or the causative factors are remedied. However, having been caused by the contribution of the employee’s employment, the condition itself often continues and compensation is payable to the extent to which it results in death, incapacity or impairment. It does not follow that, in order for Comcare to remain liable, the employee’s employment needs to remain a constant and continuing contributor to the ongoing injury. That would rarely, if ever, be the case. However, what is required is that the contribution requirement remain in place in the sense that the disease or ailment continues to have the characteristic of having been contributed to in a material degree by the relevant employment. To say that the employment factors continue to contribute in a material way to the employee’s condition is an inarticulate way to express this. It is preferable to say that the causal nexus between the employee’s employment and suffering of the disease continues unbroken. In this way, the operative effect of the expression ‘was contributed to’ in the definition is not spent once it has connected the employee’s employment with the contraction or aggravation of the ailment. In order for a disease to remain one in respect of which Comcare will be liable, it must retain the continuing characteristic that it was contributed to in the necessary degree by the employment. If at any later point in time the ailment suffered by an employee ceases to have that character, it will also cease to be a ‘disease’, and will therefore cease to be an ‘injury’ in respect of which compensation is payable pursuant to s 14 of the SRC Act. For the duration of each of the periods in respect of which the question of compensation is being determined, it must be possible to say that the contribution requirement was satisfied in respect of the ailment.
…
89. … Section 14 only imposes liability on Comcare where, amongst other things, the ailment in respect of which the claim is made remains an ‘injury’. In the case of an ailment said to constitute an ‘injury’ on the basis that it is a ‘disease’, the ailment must be one which continues to owe its existence to the contribution to, in a material degree, the employee’s employment. (For the avoidance of doubt, this does not require causation in the sense of a ‘but for’ test. In those unusual cases, such as the present, where the disease persists but only by reason of factors unconnected to the contribution of the employment, Comcare’s liability will have ceased.
90. Conversely, the applicant’s preferred construction should be rejected. Comcare has no liability under s 14 in relation to an ailment, the continued existence of which can no longer be said to have the necessary causal connection to the employee’s employment. The mere fact that the ailment suffered may once have had the necessary connection is irrelevant. Even where the ailment continues unabated, if it ceases to have the characteristic of being one which was relevantly contributed to by the employee’s employment, Comcare’s liability ceases.
[Citations removed. Emphasis added.]
Consequently, at the level of principle, the requirement for a causal nexus between an ‘injury’ and its compensable effects requires the statutory ‘injury’ threshold to be met at the time that liability for compensation is determined. Importantly, the liability to pay compensation is in respect of the ‘injury’.[78] A decision maker is required to make factual findings relevant to the causal threshold or nexus between the particular compensation claimed, whether in respect of an asserted past or present liability to pay, and the ‘injury’ for which liability was determined under s 14. This includes whether the person has the ‘injury’ at the time any particular liability to pay compensation is determined, reconsidered or reviewed by the Tribunal.[79] As Derrington J explained in Woodhouse:
[84] … It must be kept in mind that s 14 operates to impose liability on Comcare where and for as long as certain conditions exist. However, s 14 only provides the core or central touchstone of liability and other sections regulate the extent and manner in which such compensation is provided. An important element of s 14 is the condition that compensation is payable only where it results in death, incapacity, or impairment. Whilst death is permanent, the other two sequelae may be temporary with the result that s 14 will only render Comcare liable where the causative requirement continues to have effect.
[78] Canute v Comcare [2006] HCA 47 (Canute), at [10].
[79] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 (Hannaford), per Heerey J at [9]-[10].
I note His Honour’s reference to the ‘causative requirement’ adopts the language Finn J used in Comcare v Laidlaw[80] when referring to the essential causal nexus between an ‘injury’ and the results or effects of the ‘injury’ under s 14 and s 19, including impairment, incapacity for work or death. Adopting the language used by Finn J, the ‘causative requirement’ in respect of the effect of an ‘injury’ is not to be confused or conflated with the ‘contributory requirement’ in respect of the cause of the ‘injury’, applying the relevant statutory thresholds.
[80] [1999] FCA 40 at [22].
While the kind of ‘injury’ under consideration in Woodhouse was a ‘disease’, for reasons of consistent interpretation, the requirement for the existence of an ‘injury’ at the time liability for compensation under s 14 (or any other head in Part II of the SRC Act) is determined may be argued to apply in respect of any ‘injury’. Simply put, on the principle in Woodhouse, the liability to pay compensation under s 14 hinges on the existence of an ‘injury’ and satisfaction of the ‘causative requirement’. Following Woodhouse, where a ‘disease’ resolves, liability under s 14 for any persisting compensable effects of the ‘injury’ continue only so long as the ‘contribution requirement’ and the ‘causative requirement’ are met. The question Mr Ramalingam’s brief submission touches on is whether liability for compensation persists once an ‘injury (other than a disease)’ resolves.
This matter was not squarely raised or argued, and I will not go any further with it than to observe, with great respect, there are some difficulties arising from the Woodhouse formulation.
The construction introduces a temporal element to the existence of liability under s 14 which derives from the persistence of the ‘injury’ under claim. For reasons I have briefly discussed, it is difficult to see how this would apply only in respect of a ‘disease’ but not in respect of any other statutory kind of ‘injury’. In circumstances where the threshold applying to a ‘disease’ kind of ‘injury’ is no longer met at a point in time, there is a related question whether, following May, it is necessary to determine if the alternative basis of liability in respect of an ‘injury (other than a disease)’ or an aggravation of that kind is made out.
On the Woodhouse construction, where the ailment which gave rise to a ‘disease’ resolves or is ‘crowded out’ or ‘overtaken’ by subsequent contributory factors unrelated to the employment, but the employee continues to experience causally related impairment or incapacity for work, the employee would not be entitled to recover compensation as the ‘contributory requirement’ is no longer met. In such circumstances, as there is no longer an ‘injury’, liability to pay compensation under s 14 ceases (Woodhouse at [90]).
The question then arising is whether the cessation of an ‘injury’ at a point in time voids statutory liability to pay compensation in respect of the ‘injury’ arising from its prior existence. Does liability for compensation under Part II of the SRC Act in respect of a past ‘injury’ continue where the compensable effects of the previous ‘injury’ persist and the ‘causative requirement’ threshold is satisfied? Does liability for compensation hinge on the contemporaneous existence of an ‘injury’ and its compensable effects? I note the ‘causative requirement’ threshold is expressed in the terms ‘results in’, ‘as a result of’ and ‘in relation to’ in Part II of the SRC Act. This threshold is substantially different than the ‘contributory requirement’ thresholds of ‘a material degree’ or ‘a significant degree’ used in the definition of ‘disease’.
These matters were not squarely ventilated or addressed in Woodhouse. Noting the beneficial nature and purposes of the SRC Act, and in particular the significance of the definitional provisions in Part I for the purposes of Part II, and following the conception of ‘injury’ clarified in Canute (at [10]), the preferred construction is that the purported resolution of an ‘injury’ at a point in time, the healing of a wound, the repair or rectification of a physiological change, the recovery from an ailment, does not foreclose liability for the compensable effects of the ‘injury’ hitherto or which may persist thereafter, so long as the causative requirement is met. While the matter is not entirely clear, consistent with Lees[81] and Hannaford, I do not understand Woodhouse to stand for or require any different conclusion.
[81] Lees v Comcare [1999] FCA 753 at [27] and [34]-[35].
Ailment
Considering all this, on the facts of Mr Ramalingam’s case, the first question is whether Mr Ramalingam’s undisputed ‘injury’ persisted as of 25 July 2022 and presently.
In order to answer this question, it is necessary to consider the nature of the ailment underlying Mr Ramalingam’s ‘disease’ in January 2002, and to determine if the ailment persisted from then until 25 July 2022 and presently.
The word an ‘ailment’ as defined in s 4(1) of the SRC Act:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
This does not turn on a question of diagnosis, alone. While the diagnostic label given to the ailment by Mr Ramalingam’s treating doctors and psychiatrists at different points in time illuminates their categorisation of the ailment at those particular times, it is the nature of the ‘ailment’ which must be considered.
On the evidence of Dr Adesanya and Dr Adams, Mr Ramalingam has a diagnosis of Major Depressive Disorder. Dr Adams reported Mr Ramalingam’s Major Depressive Disorder is chronic and fluctuating.[82] On 3 April 2013, Dr Adesanya reported diagnoses of Major Depressive Disorder and Adjustment Disorder with mixed anxiety and depressed mood. The latter diagnosis aligns with the diagnosis Dr Knox reported on 6 July 2005. At that time, Dr Knox considered there was ‘not deeply established Major Depressive Disorder’.[83] On 28 August 2012, Dr Bhattacharyya examined Mr Ramalingam and diagnosed a Major Depressive Episode and Agoraphobia. The doctor reported:
(a)‘In the past three years Mr Ramalingam’s symptoms have become worse and he has developed increasing anxiety with agoraphobia and also a major depressive episode’;[84] and
(b)’He has not been adequately treated for his symptoms in the last 6 years’; and[85]
(c)‘Mr Ramalingam has had continuing symptoms since the onset of work stress in January 2002’.[86]
[82] T36, folio 167.
[83] T47G, folio 219.
[84] T47I, folio 229.
[85] Ibid, folio 230.
[86] Ibid, folio 232.
After Dr Knox ceased practice in Canberra, Mr Ramalingam did not obtain psychiatric treatment in the period from 11 December 2006 to 3 April 2013. On 13 December 2010, Dr Brand noted Mr Ramalingam did not obtain treatment as he ‘was told he would not get better and says ‘I lost hope after that’.[87] Dr Bhattacharyya reported Mr Ramalingam did not obtain treatment ‘after he became convinced his symptoms were permanent and his future was bleak’.[88]
[87] Ibid, Tab 2, folio 21.
[88] Ibid, folio 227.
Dr Adams reported Mr Ramalingam ‘did not require any psychiatric input and his medication, a low dose of venlafaxine remained constant’ during this period. In oral evidence, Dr Adams explained that the Major Depressive Episode probably arose in 2008 or 2009, at which time Mr Ramalingam was on a low dose (75mg per day) of venlafaxine. On Dr Adams’ evidence treatment with a low dose of antidepressant medication does not always mean the person is depressed and, in Mr Ramalingam’s case, there is a question about the nature and extent of his psychological symptoms: on one hand, the symptoms persisted despite the low level treatment and, on the other hand, the symptoms may have remitted and then become worse in response to stressors in Mr Ramalingam’s life at that time.
Nevertheless, as Comcare’s compensation records covering the period from December 2006 to August 2012 clearly reveal, Mr Ramalingam obtained medical treatment from Dr Robinson and Dr Brand, who prescribed anti-depressant medication. On 22 December 2009, Dr Robinson issued a medical certificate in which he diagnosed ‘Adjustment disorder’ with a date of injury being ‘2002’ which required ‘Antidepressant medication, supportive counselling’.[89]
[89] Exhibit 2, Tab 2, folio 58.
There is a substantial difference between a person with a mental illness not obtaining treatment and not requiring treatment. On this point, Dr Adams’ evidence Mr Ramalingam did not require psychiatric treatment is somewhat speculative. I prefer the more contemporaneous evidence of Dr Bhattacharyya, Dr Robinson, Dr Brand and Dr Adesanya and find, throughout the period from December 2006 to 3 April 2013:
(a)Mr Ramalingam continued to experience symptoms of the Adjustment Disorder with mixed anxiety and depressed mood Dr Knox and Dr Rosenman diagnosed;
(b)the Disorder and his symptoms were not adequately treated; and
(c)his symptoms became worse.
Regarding the diagnosis of Mr Ramalingam’s symptoms, it is possible that Mr Ramalingam’s Major Depressive Disorder is a diagnostic entity which is clinically distinct from his previous Adjustment Disorder, as Comcare asserts. While the diagnostic differentiation of an adjustment disorder from both a major depressive episode and a major depressive disorder is discussed in the 5th edition of the Diagnostic and Statistical Manual of Psychiatric Disorders[90], it is quite clear there are significant areas of overlap between these conditions, and any such diagnosis is informed by clinical judgment, having regard to the specified diagnostic criteria, in respect of the nature, extent and duration of symptoms in any case.
[90] 2013, American Psychiatric Association.
In the circumstances of Mr Ramalingam’s case, I am not persuaded there is a clear distinction between the ailment first diagnosed as an Adjustment Reaction or an Adjustment Disorder and the ailment later diagnosed as a Major Depressive Episode with Agoraphobia, or the ailment subsequently diagnosed as a Major Depressive Disorder. The weight of the medical evidence points to a continuity of underlying symptoms which were first described by Dr Rosenman and then by Dr Knox, Dr Bhattacharyya and Dr Adesanya. While it is probable the intensity of the ailment and the underlying symptoms which emerged in January 2002 have fluctuated, it is likely the underlying symptoms became chronic and entrenched in or about 2006. On Dr Bhattacharyya’s evidence, the symptoms and the ailment worsened without adequate treatment, and additional symptoms emerged, including agoraphobia.
The persistence of symptoms described by Dr Rosenman and Dr Knox is, in part, informed by Mr Ramalingam’s personality traits or his personality style, as described by Dr Rosenman, Dr Saboisky, Dr Knox and Dr Adams. Dr Knox reported that Mr Ramalingam ‘has been demeaned’. I am satisfied this perception has been instrumental in his reactive response to the injurious circumstances in his previous employment up to January 2002. Furthermore, it is likely this perception coloured Mr Ramalingam’s subsequent interactions with his previous employer and fuelled the perception of injustice which is clearly demonstrated in Mr Ramalingam’s communications and disputation when challenging the termination of his employment and when seeking compensation.
In such circumstances, I am not persuaded a clear dividing line can be drawn between the Adjustment Disorder diagnosed by Dr Rosenman, Dr Knox, Dr Robinson, Dr Brand and Dr Adesanya, and the Major Depressive Episode with Agoraphobia diagnosed by Dr Bhattacharyya, or the Major Depressive Disorder diagnosed by Dr Adesanya and Dr Adams. I am not persuaded Mr Ramalingam’s Adjustment Disorder resolved and a new disorder, Major Depressive Episode and Agoraphobia, arose in response to circumstances in the period from 2009. The better conclusion is that there is probably a continuity of symptoms underlying these diagnoses, albeit differentiated by diagnostic considerations relating to the nature, chronicity, extent and degree of Mr Ramalingam’s symptoms over time.
That being so, I am satisfied Mr Ramalingam’s ‘ailment’ in January 2002 was persisting on 25 July 2022 and it is presently ongoing.
‘Disease’ and ‘Injury’
The next step is to determine if Mr Ramalingam’s ‘ailment’ on 25 July 2022 and presently retains the characteristic that it was contributed to in the necessary degree by the employment. Factors which have contributed to the ailment are relevant when determining if the required connection with Mr Ramalingam’s previous employment continues as of 25 July 2022 and presently.
I note in the 1st Tribunal decision, the Tribunal made factual findings about stressors which contributed to Mr Ramalingam’s ailment.[91] Even though aspects of this decision no longer align with the present state of the law, no issue was taken with it by the parties. As can be seen, the factors which contributed to the ailment included performance management actions and reasonable disciplinary actions. The Tribunal noted that these occurred after the onset of the ailment and they did not, therefore, have an exclusionary effect on Mr Ramalingam’s compensation claim in respect of an injury. I do not see any need to go behind the factual findings in the 1st Tribunal decision. Mr Ramalingam was already psychiatrically unwell when disciplinary actions were taken and his employment was terminated. I am satisfied these factors reinforced and exacerbated Mr Ramalingam’s illness-affected perception of poor treatment and being ‘unjustly criticised, undermined and threatened’[92] and ‘demeaned’[93] in his employment, and they contributed to his ailment.[94]
[91] 1st Tribunal decision at [46].
[92] T47A, folio 212.
[93] T47G, folio 220.
[94] T8.
Even though Mr Ramalingam sustained an employment-related ‘injury’, it appears he was not provided with timely and effective rehabilitation and later efforts at rehabilitation were considered not viable and were not followed through.[95] When a rehabilitation Initial Needs Assessment was undertaken in August 2013, the rehabilitation consultant concluded there was ‘no possibility of continuing with rehabilitation’.[96] In all likelihood, the lack of meaningful rehabilitation contributed to the entrenchment of Mr Ramalingam’s illness-affected adverse reaction to employment circumstances he perceived to be unjust.
[95] T457G, folio 220.
[96] T21, folio 79; T47G, folio 222.
Mr Ramalingam’s compensation claim in May 2002 led to disputation between Mr Ramalingam, his previous employer and Comcare.[97] It is probable Mr Ramalingam perceived the disputation as a ‘struggle’ which became squarely focussed on Comcare. [98] On Dr Knox’s evidence Mr Ramalingam found these interactions to be ‘very stressful’.[99] Similar issues arise in respect of the action Mr Ramalingam initiated in the Industrial Relations Commission in 2004. Dr Rosenman’s observation ‘the engagement has now moved on to the Industrial Relations Commission’ suggests disputation with his previous employer in the Commission became the focus of Mr Ramalingam’s perceptions at the time.[100] In all likelihood, Mr Ramalingam perceived these events as adversarial, in which he felt ‘worthless, shame, helplessness, humiliation’[101] and ‘persecuted by his employer’,[102] and he wanted to ‘“clear [his] name’.[103] There is an open question as to whether Mr Ramalingam’s perception of this struggle and related stresses contributed to his ailment, or whether his ailment contributed to the perception and intensified the stresses he experienced. In the context of Mr Ramalingam’s Adjustment Disorder, it is probable that the causal relationship is illness-affected, cyclic and self-reinforcing rather than linear.
[97] T6, T7, T9, T13, T14 and T16, for example
[98] T47A, T47C, T47E.
[99] T47G, folio 221.
[100] T47C.
[101] T47F, folio 217
[102] T47G, folio 221.
[103] T47F, folio 217; T47G, folio 221.
On the evidence of Dr Hope, Dr Rosenman and Dr Knox, it is probable Mr Ramalingam’s perceived ‘struggle’ impeded the efficacy of treatment and the likelihood of recovery from the ailment.[104] Dr Knox reported Mr Ramalingam felt ‘trapped by the current circumstances’ and he had ‘become entrenched in his negative and defensive way of thinking’.[105] In successive reports Dr Knox illuminated the entrenched nature of Mr Ramalingam’s predicament at the time:
The situation appears to be one of those unhappy Canberra dilemmas where people have unresolved disputes with their workplace and continue to be unwell. There is no resolution on the horizon for Mr Ramalingam and I think he is likely to continue with his present symptoms until something constructive is done.[106]
Mr Ramalingam’s attitude, reported symptoms, and the length of time he has been impaired, all bode poorly for any improvement and recovery…
…
There is a high probability of permanence of impairment in this matter unless there is some major intervention in the situation.
…
Given the stuckness of Mr Ramalingam’s mental perspective I do not see that any treatment can be efficacious.
…
… The systematic processes following Mr Ramalingam going off work have played their part in aggravating and consolidation of Mr Ramalingam’s psychiatric condition…[107]
[104] T18, T47C, T47E, T47F and T47G, for example.
[105] T47G, folio 222.
[106] T47F, folios 217-218.
[107] Exhibit 2, Tab 2, folios 69-70.
The evidence of Mr Ramalingam’s treating doctors (Dr Robinson, Dr Brand and Dr Adesanya) and the independent medical opinion of Dr Bhattacharyya raise the strong likelihood Mr Ramalingam subsequently experienced continuing symptoms of the ailment. There is no reliable evidence the ailment resolved, and the contemporaneous evidence, such as it is, supports a contrary conclusion. On Dr Bhattacharyya’s report in August 2012, Mr Ramalingam had ‘continuing symptoms’[108] and he ‘continues to feel angry about his work at AUSAid and feels anxious about returning to the workplace’.[109] This is consistent with the prognoses of Dr Rosenman and Dr Knox. As I have said, on this point, Dr Adams evidence Mr Ramalingam did not require psychiatric treatment cannot be accepted.
[108] T47I, folio 232.
[109] Ibid, folio 228.
I am satisfied Mr Ramalingam’s ailment became entrenched and worsened with additional stressors and without adequate treatment, to the extent that Dr Bhattacharyya’s diagnosis of Major Depressive Episode with Agoraphobia in August 2012 and Dr Adesanya’s diagnosis of Major Depressive Disorder as well as Adjustment Disorder in April 2013 were then justified. On their evidence I am satisfied and find Mr Ramalingam’s ailment worsened without adequate treatment and in response to additional stressors to the extent that the diagnostic criteria for Major Depressive Episode and subsequently Major Depressive Disorder are satisfied.
It is likely the additional factors which contributed to Mr Ramalingam’s ailment include:
(a)inadequate treatment from 2007 to 2013;
(b)family issues, including the breakdown of Mr Ramalingam’s marriage and his relationship with his son;
(c)criminal charges relating to family violence and related court proceedings;
(d)social isolation;
(e)lack of employment;
(f)financial stresses;
(g)the length of Mr Ramalingam’s ailment-related impairment; and
(h)the death of his dog in August 2011.
I am satisfied that some, but not all, of these factors are, themselves, attributable, in part at least, to Mr Ramalingam’s employment-related ailment.
There is a question of the extent to which, if at all, Mr Ramalingam’s conduct, behaviour and family issues are causally related to symptoms of his ailment. Dr Bhattacharyya reported that Mr Ramalingam’s lifestyle was profoundly affected by his symptoms. On this evidence, I accept Mr Ramalingam’s mental illness was likely a factor in the family issues when arose. I do not accept, however, that Mr Ramalingam’s violent and aggressive conduct to his wife and son can be attributed to his ailment. There is no suggestion in the judgment of Refshauge J[110] that Mr Ramalingam’s anger and aggression on 8 July 2008 was attributable to his mental illness.
[110] Exhibit 2, Tab 10.
I note, on Dr Adams evidence, ‘social isolation may be a more key factor related to his current symptoms of depression than previously recognised’[111], although in a supplementary report the doctor stated social isolation had only a ‘Minor effect’ on Mr Ramalingam’s symptoms[112].
[111] T36, folio 167.
[112] Exhibit 2, Tab 8, folio 433.
It is clear enough Dr Bhattacharyya did not have all the documentary materials from Mr Ramalingam’s interactions with the criminal justice system in the period from 2008 when reporting on his condition in August 2012. While the briefing materials the doctor listed in her report are not extensive,[113] she took a history from Mr Ramalingam and referred to his separation from his wife in the following terms:
Mr Ramalingam’s lifestyle has been profoundly affected by his symptoms and as previously mentioned he has separated from his wife, although they live under the same roof. Things have become much worse in the past three years and Mr Ramalingam does not have much of a relationship with his children.
…
In the past three years Mr Ramalingam’s symptoms have become worse and he has developed increasing anxiety with agoraphobia and also a major depressive episode…
…
… the employment at AUSAID appears to have been the main contributor to the conditions.[114]
[113] T47I, folio 226.
[114] T47I, folios 228, 229 and 232.
I am not persuaded that the materiality of the employment contribution to the ailment was overtaken or supplanted by any other contributing factor at this time.
Dr Adesanya’s evidence confirms the continuation of Mr Ramalingam’s ailment over subsequent years with fluctuations in the intensity of symptoms in response to stressors from time to time. The additional stressors Dr Adesanya refers to in his clinical notes[115] include:
(a)in 2014, Mr Ramalingam worrying about his future and finances uncertainties;[116]
(b)his previous employer contacting him about rehabilitation in 2016;[117]
(c)his mother’s ill-health in 2016 and death in 2017;[118]
(d)homelessness in 2018 and housing issues in 2019; [119]
(e)in 2018 and 2019, criminal proceedings, denial of legal aid, and being remanded in custody for 2 months in respect of threatening his son with a knife, for which he was charged and convicted, although the charges were dropped on appeal;[120]
(f)in 2019, dealings with Comcare over non-payment for medications;[121]
(g)from 2020 to 2022, marital and family court disputes, including disputation over custody for his dog;[122]
(h)in 2022, Comcare’s arrangement of an independent medical examination and its decision to refuse compensation entitlements;[123]
[115] Exhibit 2, Tab 1.
[116] Ibid, folio 13.
[117] Ibid, folio 12.
[118] Ibid, folios 11-12.
[119] Ibid, folios 7-10.
[120] Ibid, folios 7-11.
[121] Ibid, folios 9-10.
[122] Ibid, folios 4-7.
[123] Ibid, folios 3-4.
It is clear enough Dr Adesanya was apprised of relevant factors when treating Mr Ramalingam, even though it is probable the doctor did not have access to all relevant materials which have been obtained for the purposes of these proceedings.
Considering this history and the relevant facts, I am not persuaded the contributory factors Comcare asserts have pushed Mr Ramalingam’s previous employment into the background sever or render immaterial the connection between his ailment and his previous employment.
Dr Adams’ opinion that Mr Ramalingam’s ‘current medical condition is an accumulation of stressors’ including episodes of aggressive behaviour, personality traits, other medical conditions (possible pituitary and cardiovascular issues), family and relationship breakdown, legal difficulties, homelessness, and social isolation can be accepted. This aligns with the progressive psychiatric and medical evidence over a long period. The mere existence of contributory factors which are not related to Mr Ramalingam’s previous employment is not sufficient to dispose of his ‘disease’ and Comcare’s liability in respect of his ‘injury’.
A material contribution does not impose a sole cause test, or even a predominant cause threshold. All that is required is the employment must contribute to the ailment to a material degree, that is a degree which is greater than de minimus.
Dr Adams goes further, explaining that ‘subsequent events’ ‘have more probably contributed to his difficulties than the events in his workplace about 20 years ago’ and concluding ‘I do not consider his current difficulties are as a result of his original injury’. Dr Adams expressed the opinion ‘it is not clinically reasonable to attribute [Mr Ramalingam’s] current symptoms and Major Depressive Disorder condition to the workplace incident’ and ‘it is more likely now that other factors have taken over’.[124]
[124] T36, folio 171.
As can be seen, Dr Adams applied different causal thresholds which do not align with the applicable material contribution threshold under the SRC Act.
Furthermore, it is difficult to comprehend Dr Adams’ rationale and the factual basis on which it is raised. On Dr Bhattacharyya’s evidence, Mr Ramalingam’s social isolation, his unfitness for employment (and lack of employment) and the agoraphobia the doctor diagnosed in 2012 are directly attributable to the employment injury Mr Ramalingam suffered. Dr Adams does not identify any other cause for Mr Ramalingam’s social isolation which, in her first report, she considered might be “a more key factor” in his symptoms of depression than previously recognised. In her second report, Dr Adams’ evidence is that social isolation had a ‘Minor effect’ in contributing to Mr Ramalingam’s symptoms.[125] Dr Adams applied a rough scale when answering the question put to her on this point, as far as the scale goes it includes ‘Minimal to no effect’, ‘Minor effect’, and ‘Moderate effect’. As can be seen, in this rough scale, a ‘minor effect’ is greater than ‘minimal to no effect’. From this it can be understood Mr Ramalingam’s social isolation had a material effect, greater than de minimus, on his symptoms.
[125] Exhibit 2, Tab 8, folio 433.
As I comprehend Dr Adams’ evidence, Mr Ramalingam’s Major Depressive Episode and Major Depressive Disorder, diagnosed in 2012 and 2013, are distinguished from the Adjustment Disorder diagnosed in 2002. Her evidence relies on two factual considerations. Firstly, there was a period of from 2006 to 2009 where Mr Ramalingam continued to take a low dose of Venlafaxine but he did not require psychiatric treatment and, secondly, his mental condition became worse in the period from 2009 to 2012 in response to additional stressors, namely the breakdown of his family relationships, episodes of violent aggression and related criminal justice proceedings.
I have found that the first of these factual considerations is not made out and it cannot be accepted. I am satisfied Mr Ramalingam’s Adjustment Disorder did not remit to the extent it did not require psychiatric treatment in the period from 2006 to 2009, rather it is likely Mr Ramalingam’s symptoms became more entrenched and more consolidated. The factors Dr Rosenman and Dr Knox considered necessary to remediate his ailment did not occur and, if anything, became more remote without meaningful rehabilitation and adequate treatment.
The second factual consideration, in respect of the worsening of Mr Ramalingam’s ailment in response to additional stressors, can be accepted, but it is conditioned by the lack of adequate treatment. The causal thread running through these developments is the ailment which first arose in response to circumstances in Mr Ramalingam’s previous employment. I am satisfied the ailment did not remit in 2006 or by 2009, and the lack of adequate treatment and rehabilitation added to Mr Ramalingam’s negative perceptions which fuelled the symptoms Dr Bhattacharyya described in August 2012. Quite clearly, other stressors have arisen in Mr Ramalingam’s life and these have contributed to his ailment.
With regard to the other factor’s Comcare asserts break the requisite employment connection, I am not persuaded the injurious employment circumstance have been pushed aside to the extent they are no longer material. While, generally, the effects of particular employment circumstances might be expected to diminish with the passage of time, the facts of each case require careful consideration. In Mr Ramalingam’s case, where he perceived he was demeaned, humiliated and wronged, Dr Rosenman and Dr Knox linked symptomatic relief with rehabilitative intervention and resolution of disputation, neither of which occurred. It was Dr Knox’s opinion that without intervention and resolution, permanent impairment could be expected to result. In this case, Dr Knox was probably correct. The disputation relating to the termination of Mr Ramalingam’s employment and in respect of his claim for compensation is a material factor which is not dispositive for reasons I have explained above.
Little can be made of Comcare’s submission about the paucity of clinical notes referring to the particular employment circumstances. The authors of the notes, Dr Robinson, Dr Brand and Dr Adesanya, were not required to give oral evidence and questions relating to the completeness of the notes or the matters raised and discussed by Mr Ramalingam could not be put or answered. Furthermore, in the context of a person who experiences significant anxiety, who perceives they have been demeaned, humiliated and wronged by their previous employer and who experiences increased stress with any communication from his previous employer (as occurred in 2016) it is possible after many years, even likely, the person might not choose to raise such issues without appropriate therapeutic intervention. In this case, I am not prepared to draw any inference from the paucity of employment references in the clinical notes of Mr Ramalingam’s treating doctors.
The non-work-related stressors Comcare has identified I have dealt with above. I am satisfied the contribution of these stressors to Mr Ramalingam’s ailment is not dispositive as they do not overtake, crowd out or push aside the employment factors to the extent they are no longer material and the contribution requirement is no longer met. Despite the contribution of additional non-work-related stressors, I am satisfied Mr Ramalingam’s ailment was contributed to by his previous employment and the requisite connection with Mr Ramalingam’s previous employment has not been broken.
With regard to Mr Ramalingam’s personality traits or factors identified by Dr Rosenman, Dr Saboisky, Dr Knox, Refshauge J and Dr Adams, these are in the background to Mr Ramalingam’s ailment. It can be accepted Mr Ramalingam has personality traits which inform the degree to which he externalises problems, downplays his own actions and blames others. On the balance of the psychiatric evidence, these do not qualify as a personality disorder and, being life-long, they are likely to become apparent in any circumstances. Dr Adams considers Mr Ramalingam’s personality traits have a moderate effect on his symptoms. This aligns with the evidence of Dr Rosenman, Dr Saboisky and Dr Knox to a substantial extent. I accept that Mr Ramalingam’s personality traits have contributed to his symptoms. Dr Adams does not explain the mechanism for such a contributory effect but considering the evidence of Dr Rosenman, Dr Saboisky and Dr Knox, it is likely this contributory mechanism involves perceived injustice and attribution of blame. If that is correct, each element can be traced back to the circumstances of Mr Ramalingam’s previous employment in which he felt demeaned, humiliated, threatened and wronged, for which he blamed his previous employer.
In conclusion on this point, I am satisfied the connection between Mr Ramalingam’s ailment and his previous employment has not been broken and it persisted on 25 July 2022 and it is presently ongoing.
It follows Mr Ramalingam’s ‘disease’ and, therefore, his ‘injury’ has not resolved or ceased to exist.
Does the ‘injury’ result in impairment or incapacity for work?
On Dr Adesanya’s evidence, as of 12 May 2022, it is probable Mr Ramalingam suffered from intermittent anxiety and depression requiring treatment with Duloxetine 60mg per day and on 12 April 2022 his mood and cognitive functioning had stabilised with rTMS treatment to ‘2-3 hours per day’.[126]
[126] Exhibit 2, Tab 1, folio 4.
On 27 April 2022, Dr Adams reported Mr Ramalingam ‘does not have the capacity to engage in any form of employment’ as a result off his ‘lack of motivation, cognitive difficulties and his short span of attention’.[127]
[127] T36, folio 171.
On this evidence, it is probable Mr Ramalingam’s ‘injury’ results in impairment and incapacity for work for the purposes of s 14 of the SRC Act.
Is Mr Ramalingam entitled to compensation?
As Mr Ramalingam has an ‘injury’ which results in impairment and incapacity for work, Comcare’s liability to pay compensation to Mr Ramalingam in respect of his ‘injury’ under s 14 of the SRC Act did not cease on 25 July 2022. I am satisfied Comcare’s liability in respect of Mr Ramalingam’s ‘injury is presently ongoing.
It remains to determine Mr Ramalingam’s entitlements to compensation under s 16 and s 21 of the SRC Act as at 25 July 2022 and presently. The matter will be remitted to Comcare to determine these matters pursuant to any claims by Mr Ramalingam, noting that such claims are to be determined on their merits.
Decision
The decision under review is set aside and in substitution thereof the Tribunal decides, as of 25 July 2022 and presently, Comcare is liable to pay Mr Ramalingam compensation in respect of his injury under s 14 of the SRC Act.
The matter is remitted to Comcare to determine Mr Ramalingam’s compensation entitlements under s 16 and s 21 of the SRC Act.
I certify that the preceding 153
(one hundred and fifty-three) paragraphs
are a true copy of the reasons for the
decision herein of Mr S.Webb, Member.…[SGD]…
Associate
Dated: 27 August 2024
Date(s) of hearing: 25 and 26 June 2024 Date final submissions received: 19 June 2024 Applicant: In person
Counsel for the Respondent:
Solicitors for Respondent:
Mr Charles Clark
Mr Luke Woolley Sparke Helmore Lawyers
Other Party: By MS Teams
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