Re Georges and Telstra Corporation Ltd

[2009] AATA 731

MMYB and Comcare (Compensation) [2016] AATA 405 (17 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/2907
Re	MMYB
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	17 June 2016
Place	Perth

The Tribunal sets aside the decision under review and, in substitution therefor, decides that Comare is liable, pursuant to s 14(1) of the Safety, Rehabilitation Act 1988 (SRC Act), to pay compensation to MMYB, in accordance with the SRC Act, in respect of an injury, namely, aggravation of post-traumatic stress disorder.

Pursuant to s 67(8) of the SRC Act, the Tribunal orders that the costs of these proceedings incurred by MMYB be paid by Comcare in accordance with s 6.9 of the Tribunal’s Guide to Worker’s Compensation Jurisdiction, dated 14 July 2015.

........[Sgd]...............................................................

Senior Member CR Walsh

CATCHWORDS

COMPENSATION – aggravation of chronic post-traumatic stress disorder (PTSD) – aggravation of ailment – disease – contributed to, to a significant degree – exclusionary provision – whether aggravation of disease suffered as a result of “reasonable administrative action” – aggravation not suffered as a result of the administrative action - decision under review set aside and substituted  

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 – s 4 - s 5A – s 5A(1) – s 5A(2) - s 5B – s 5B(2) – s 5B(3) - s 14

CASES

Comcare v Martinez (No 2) [2013] FCA 439

Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21; (2012) 199 FCR 463; 125 ALD 181
Georges and Telstra Corporation [2009] AATA 731
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Jing Yu v Comcare [2010] AATA 80
Keen v Workers Rehabilitation and Compensation Corporation (1998) SASR 42
Martin v Comcare [2015] FCAFC 169; (2015) 148 ALD 1
Re Lynch and Comcare [2010] AATA38; (2010) 114 ALD 394

SECONDARY MATERIALS

Administrative Appeals Tribunal’s Guide to Worker’s Compensation Jurisdiction, dated 14 July 2015

REASONS FOR DECISION

Senior Member CR Walsh

17 June 2016

INTRODUCTION

1. MMYB seeks a review of a decision made by Comcare on 28 May 2015 that MMYB is not entitled to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in relation to his claimed condition of “aggravation of chronic post-traumatic stress disorder (PTSD)”.

   FACTUAL & PROCEDURAL BACKGROUND

2. MMYB, currently aged 45 years, has been employed as a police officer with the Australian Federal Police (AFP) since 2002.   

3. During 1999, while working with Victoria Police, MMYB was shot in the torso.

4. MMYB required an emergency laparoscopy and surgery for the bullet wound and had further surgery for keloid scar in 2002 and incisional hernia repairs in 2012 and 2013.

5. In 2012, MMYB was diagnosed with PTSD as a result of the shooting incident.

6. Liability for the applicant’s PTSD was accepted in 2014 by his previous employer, Victoria Police. At the time of the shooting, MMYB did not receive any assistance from a psychiatrist or psychologist.

7. MMYB has not actively worked as a police officer for the AFP since 26 November 2013. MMYB claims that on 25 November 2013 while leaving his usual workplace, he realised that he “could not fake it anymore”. MMYB attended his GP the next day and was then referred to a psychologist.  MMYB claims that the PTSD has prevented him from working, and provided medical certificates to show that he was unfit to work.

8. On or about 21 October 2014, MMYB submitted a “Claim for Worker’s Compensation” form with Comcare for chronic PTSD in respect of his employment with the AFP.

9. In his claim form, MMYB:

   ·     said that he first noticed that he was injured/ill on 18 September 2012;

   ·     said that he first sought medical treatment for his injury or illness on 10 October 2012 from Dr Patricia Linden at Davidson Trahaire Corpsych;

   ·     answered the question ‘What actually injured you or made you ill?” as follows:

   1. Deaths 2. AABB & JJQS (AFP) 3. AFP’s failure to keep in close contact with me including being supporting as per “Roles and Responsibilities of a Team Leader”

   4. Sent to another work area (airport) against my concerns.

10. In an annexure to his claim form, MMYB listed the following events as being the causes of the aggravation of his PTSD:

    ·Exposure to traumatic events whilst with the International Deployment Group (IDG) including mass-graves (East Timor), accidental death of in-line police officers (Bougainville, PNG), death of trainees being sent back to Iraq (Jordan; and a suicide, and evacuation of Australians from Lebanon during Israel/Hezbollah war in 2006 (Cyprus).

    ·Deliberate bullying by Team Leader, AABB for a number of months in 2010 whilst in the Joint Counter Terrorism Team (JCTT).

    ·Getting transferred out of JCTT against my professional desire (and formal request to remain in the JCTT) to the Human Source (HS) team despite having invested a lot of time and personal funds to develop my capability in the Counter Terrorism space (i.e. Master of Arts in Terrorism, Safety & Security, undertaking PhD in Terrorism).

    ·Exposure to a traumatic event in Australia, being the suicide of a Human Source (HS) of four years, within 2 hours of the HS meeting.  The suicide had a profound affect on me due to my long-standing relationship with the individual and I was left wondering if I had missed something, what could I have done to have prevented it, why didn’t the HS say something, why did the HS choose death as the only option, I wish I could have moved time back etc.  I then went to visit the gravesite to pay my respects and hopefully get some answers and closure – this was to no avail.  I informed my Team Leader JJQS that this death had affected me, however I did not give her the intimate details of what I was feeling at the time.

    ·Forced to be posted to Perth Airport for 3 months - in what I believed to be punishment for inability to transport asylum seekers - which required him to work in uniform.  This occurred even though I was visibly distressed and in tears about it, and even though I had clearly suffered from an anxiety attack in front of my Coordinator and Team Leader at the time.  The amount of anxiety I had whilst posted at the airport significantly attributed to my mental condition and I would frequently be vomiting and would have anxiety attacks on the way to and during my shifts (my Team Leader knew about this at the time, and nothing was done to support me).

    ·Having my work ethic and integrity questioned by Team Leader JJQS, and being mismanaged while in Human Source by my team leader after I had confided in her and informed her of my diagnosed condition.

    ·On 25 November 2013 I was leaving my usual workplace and as I walked out of the door I realised that I could not fake it anymore, that my condition was getting worse because of ongoing bombardment of things that were out of my control in the workplace and when I got home I just broke down and couldn’t take it anymore.  The next day I went to my local GP Dr Akpo who referred me to a psychologist.

    ·Since the 26 November 2013, I have received limited contact from anyone at my office to check on my welfare, in fact any and all of the contact from my team leader had been in regard to retrieving and (sic.) iPad, iPhone, and a couple of other minor pieces of equipment.  Additionally, no provision of support and follow-up has been forthcoming since I left the workplace which is contrary to AFP document entitled Roles and Responsibilities, which states that supervisors are to “ensure steps are taken to prevent further injury by understanding the cause of injury and putting in safeguards….[and]…..keep in close contact with the injured employee – be supportive and identify the assistance available to enable a return to work….,” but unfortunately this has not been demonstrated by JJQS.

11. On 6 February 2015, Comcare made a determination disallowing MMYB’s claim for compensation for PTSD under s 14 of the SRC Act (Determination). In the Statement of Reasons attached to the Determination, Comcare found that:

    · MMYB’s aggravation of PTSD is an aggravation of an ailment, as defined in s 4 of the SRC Act, and is therefore a “disease” under s 5A of the SRC Act; and

    · for the purposes of s 5B of the SRC Act, MMYB’s employment with the AFP has significantly contributed to an aggravation of his existing PTSD, including:

    o   viewing mass graves in East Timor in 2003;

    o   experiencing the deaths of trainee policemen in PNG in 2004 and Jordan in 2005;

    o   exposure to suicide bombings in Lebanon in 2006,;

    o   exposure to a cadaver and suicide note of a person who committed suicide in Cyprus in 2006; and

    o   JJQS’ criticism on 14 November 2013 of his interactions with her while he was on sick leave.

12. However, in the Determination Comcare further found that some of the actions that contributed to the aggravation of MMYB’s PTSD amounted to “reasonable administrative action”, including the decision to transfer MMYB from the Joint Counter Terrorism Taskforce to the Human Source Management Team, the decision to temporarily transfer MMYB to Perth International Airport and the comments made by JJQS in November 2013, such that liability for any aggravation of MMYB’s PTSD was excluded under s 5A(1) of the SRC Act.

13. On 2 April 2015, MMYB requested a re-consideration of the Determination and sought to draw a distinction between the events that had caused the aggravation of his PTSD and the events that had highlighted the symptoms of his PTSD, stating:

    Operational decisions and/or administration action taken were in no way responsible for the aggravation of my condition.  As outlined in my statement, the aggravation of my diagnosed mental injury was as a result of witnessing traumatic events, bullying and neglect.

14. On 28 May 2015, upon reconsideration, Comcare affirmed the Determination (Reviewable Decision).  The reasons for decision, attached to the Reviewable Decision, state:

    I consider that your condition, at least in part, resulted from the events of:

    ·     your transfer to duties at the Perth Airport

    ·     your transfer out of JCTT at the end of your five years in the team on 2 November 2011

    As these matters were both in my opinion reasonable administrative action, and undertaken reasonably, I agree with the conclusions reached by the delegate that the condition for which you have claimed is excluded under s 5A and is not compensable by reasons of the matters considered by the Full Court of the Federal Court of Australia in Hart.

15. On 15 June 2015, MMYB applied to the Tribunal for a review of the Reviewable Decision.

    ISSUES

16. The primary issue for consideration by the Tribunal is whether Comcare is liable to pay compensation to MMYB pursuant to section 14 of the SRC Act.

17. This requires the Tribunal to consider the following:

    (i)whether MMYB has suffered an “ailment” or the aggravation of an “ailment”;

    (ii)if yes to 17(i), whether that ailment or aggravation of that ailment was contributed to, to a significant degree by his employment with the AFP such that it constitutes a “disease” as defined by s 5B of the SRC Act; and

    (iii)if yes to 17(ii), whether MMYB’s claim is excluded because his claimed condition was the result of administrative action taken in a reasonable manner in respect of his employment pursuant to s 5A of the SRC Act.

    MEDICAL AND OTHER EVIDENCE

    (i)        Medical evidence

    Dr Thomas Ho, Somerly Central Medical Centre, report dated 23 June 2014[1]

    [1] Exhibit 1 at pp 17-19.

18. On 23 June 2014, Dr Ho, MMYB’s GP, reported the following:

    ·     the diagnosis of MMYB’s condition is PTSD following a gunshot wound while serving with Victoria Police in early 1999;

    ·     following his gunshot wound, MMYB required emergency laparoscopy and surgery for bullet wound, and then had further surgery for keloid scar in 2002 and incisional hernia repairs in 2012 and 2013;

    ·     MMYB’s reported symptoms are consistent with PTSD, including poor sleep, flashbacks, intermittent anger, frustrations and self-pity;

    ·     in his opinion, MMYB’s injury is completely and solely related to his employment as a police officer with Victoria Police;

    ·     MMYB should be able to return to pre-injury duties with no work restrictions within three months;

    ·     MMYB’s symptoms are not likely to continue indefinitely; and

    ·     MMYB should continue to receive psychological and psychiatric treatment for the next 2 years.

    Dr Yue (Olivia) Lee, Consultant Psychiatrist, MLCOA, reports dated 24 June 2014 & 23 October 2015[2]

    [2] Exhibit 1 at pp20-26 and report of 23 October 2015 filed on 13 November 2015.

19. Dr Lee provided a report in relation to MMYB’s condition at the request of the AFP.  On 24 June 2014, Dr Lee reported the following:

    ·     MMYB declined input from a psychiatrist or psychologist in 1999;

    ·     MMYB has since experienced ongoing nightmares and was averaging four hours sleep per night, he had become oversensitive, he became hyper vigilant to any dangers, and he felt increasingly detached with a lack of empathy and sympathy towards work-related matters and for the family;

    ·     MMYB also reported that he had been bullied at work, and felt that his integrity was criticised when he returned from work from leave and took additional days off due to illness;

    ·     MMYB wants to return to work but will only do so on a full time basis;

    ·     MMYB is not presently able to return to work, but may be able to return to pre-injury duties so in within the next 3-6 months with adequate treatment;

    ·     the general course of MMYB’s illness has been fluctuating, however, it has been improving over the past 12 months; and

    ·     there are no non-work related stressors impacting on MMYB’s current condition.

20. In the course of this proceeding, Comcare sought a Supplementary Report from Dr Lee, asking that she provide an opinion on the causes of MMYB’s condition. In a Supplementary Report, dated 23 October 2015, Dr Lee stated:

    ·     the shooting incident in 1999 was the cause of MMYB’s PTSD;

    ·     MMYB has not suffered any aggravation of PTSD in the course of his employment with the AFP.   MMYB served in other operations with the AFP and while he may have been suffering from PTSD symptoms, they were not so severe that he could not continue working, and Dr Lee could not elicit any other significant functional impairment until 2013;

    ·     the reasons that MMYB gave for his cessation of work was the perceived feeling of being bullied and ostracised at work. MMYB described having coped with his PTSD symptoms; and

    ·     PTSD may have been one of the factors causing impairment making MMYB vulnerable to disability but the cessation of work is likely multifactorial and not solely attributable to the disorder.

    Dr Alan D Jager, Forensic Psychiatrist, reports dated 21 October 2013 & 22 July 2014[3]

    [3] Exhibit 4 and Exhibit 1 at pp 29-33.

21. MMYB was referred to Dr Jager for assessment in the course of his compensation claim with Victoria Police. 

22. On 21 October 2013, Dr Jager reported the following:

    ·he interviewed MMYB on 23 September 2013;

    ·MMYB said that he last felt completely well in early 1999 before the shooting incident;

    ·at the time of the shooting incident MMYB was light-hearted and putting others at ease.  When MMYB was in the ambulance going to the hospital he never thought he was going to die. 

    ·in the hospital MMYB’s mood was “up and down”.  After about 12 days after the shooting “it got to him” and he “became angry at the nurses and felt miserable but was not seen by a psychiatrist”. 

    ·when MMYB went home he was happy to be there but his mood was “up and down”;

    ·when MMYB returned to work (at Victoria Police) he displayed a “manic defence” he “forced himself to go into situations to prove that he was not a victim and he did not seek any treatment”;

    ·when he transferred to the AFP he was initially alright but in 2012 he felt that something was not right and that he was “living a lie”.  He could not sit still.  His biggest fear was that someone at work would find out about his issues;

    ·MMYB saw the EAP counsellor and had 14 counselling sessions.  Nobody suggested he take medication and he did not want it;

    ·in September 2012, MMYB had “freaked out” after surgery and felt like he was in a war zone and he was looking for his gun;

    ·MMYB has since been referred to a Psychologist whom he attended weekly.  He was not on medication but was using cognitive techniques without any discernible improvement overall;

    ·MMYB felt anxious and angry most of the time and depressed some of the time;

    ·MMYB is able to enjoy life but has difficulty sleeping and feels tired frequently. He has violent nightmares almost every night.  He has had a nightmare where flesh falls off his hand;

    ·MMYB’s appetite and libido are alright but his concentration is impaired and he “drifts off tasks”.  He has flashbacks at least daily; and

    ·MMYB has “chronic” PTSD caused by the shooting incident in 1999 but “employment was still a cause”

23. On 22 July 2014, Dr Jager reported the following:

    ·since he last saw MMYB on 23 September 2013, MMYB had ceased work in November 2013 due to emotional instability;

    ·the diagnosis of MMYB’s condition is “chronic” PTSD;

    ·MMYB’s current time off work and his illness are both materially contributed to by the injuries sustained in 1999;

    ·MMYB is now unfit for full hours and duties as his “manic defence” has crumbled;

    ·the trigger for the crumbling of MMYB’s “manic defence” was having his integrity criticised, as he believed, but the need for treatment was still materially contributed to the incident in 1999;

    ·MMYB is not currently fit to work;

    ·current treatment is appropriate and should continue for 12-24 months; and

    ·capacity for return to work should be reviewed in 6 months.

    Mr Simon Matthews, Consultant Psychologist, Resilia, reports dated 31 December 2014 & 19 October 2015[4]

    [4] Exhibit 1 at pp156-171 and Exhibit 9.

24. MMYB was referred to Resilia for an independent psychological assessment by the AFP after lodging his compensation claim. 

25. On 31 December 2014, Mr Matthews, of Resilia, reported the following:

    ·MMYB stated that the reason for him ceasing to work in November 2013 was a build-up of a number of events;

    ·MMYB indicated that he first observed what he now understands to be symptoms of his condition several years ago and when asked to describe his current affective state, he said he feels angry, frustrated, sad, lost and irritable;

    ·MMYB is currently presenting with several symptoms of psychological distress including irritability, agitation, hyper-arousal, chronic sleep disturbance, nightmares and intrusive thoughts;

    ·his symptoms of distress are of adequate frequency and severity to warrant a clinical diagnosis of PTSD;

    ·to facilitate a return to work, Mr Matthews recommended that MMYB maintain consultations with his treating GP, psychologist and psychiatrist, that an externally facilitated meeting be held between the applicant and his former Team Leader upon MMYB’s return to work, that MMYB’s position be delineated to give MMYB focus and certainty prior to commencing a graded return to work; and

    ·MMYB appears to have some current capacity for work from a psychological perspective, however, there appear to be a broad range of views in relation to this.

26. In the course of preparing his report, dated 31 December 2014, Mr Mathews spoke with Dr Ho on 26 November 2014.  Mr Matthews’ report of 31 December 2014 indicates that Dr Ho told him the following:

    ·MMYB experiences marked mood swings, he does not sleep well and experiences nightmares, and displays behaviour consistent with higher-arousal;

    ·although MMYB expresses a desire to return to work, Dr Ho considers that this is “unlikely, or at least difficult”;

    ·he does not think MMYB is currently capable of undertaking pre-injury duties and would have significant difficulty coping;

    ·MMYB has current difficulties with concentrating and becomes distracted; and

    ·he is not aware of any difficulties that MMYB experiences in performing activities of daily living, or in decision-making, interacting with others or moving around the community.

1. In the course of preparing his report, dated 31 December 2014, Mr Matthews also received a written response to a questionnaire from Dr Forbes, in which Dr Forbes indicated to Mr Matthews the following:

   ·in response to a question about MMYB’s medical and psychological history and its current impact:

   I am aware that MMYB was shot in early 1999 while on duty with Victoria Police. He reportedly received chest injuries as a result, requiring hospitalisation. MMYB has told me that he has also undergone surgery on three occasions since then, all as a direct consequence of his gunshot wounds. As a consequence of the shooting incident, it is my opinion that [MMYB] experienced Post-Traumatic Stress Disorder (PTSD), and that this has now become a chronic condition because of a lack of treatment and a number of events that have served to exacerbate the condition. These events have included continued exposure to traumatic situations, including deployment with the Australian Federal Police’s (AFP) International Deployment Group and reported being subjected to workplace bullying. I also consider that the current high frequency of reviews from a range of organisations and by a range of people are having a negative impact on MMYB’s psychological well-being, and are contributing to his condition.

   ·for most of the time since 25 June 2013, he has seen MMYB every two weeks;

   ·MMYB’s current signs and symptoms of distress include recurrent, involuntary and intrusive memories, traumatic nightmares and associated poor sleep, intense or prolonged distress after exposure to traumatic reminders, persistent effortful avoidance of distressing trauma-related stimuli after the event due to trauma-related thoughts or feelings and trauma-related external reminders, persistent negative beliefs and expectations about himself or the world, persistent negative trauma-related emotions, markedly diminished interest in pre-traumatic significant activities, feeling alienated from others, constricted affect, hypervigilance, problems in concentration and sleep disturbance;

   ·while the signs and symptoms of distress are still present to some degree, the severity and intensity of the signs and symptoms has diminished and MMYB has made significant progress with regard to intrusion and avoidance symptoms;

   ·MMYB’s current distress is being maintained mainly by the impact of what he sees as a continuing fight to receive the recognition and support that he believes he deserves;

   ·MMYB is currently receiving cognitive-behaviour therapy and continuation of this treatment is recommended;

   ·there are no particular aspects of MMYB’s pre-injury role that he is presently unfit to take part in, and rather, MMYB appears to be reacting negatively to the notion that he needs to be managed or monitored in some way and that his employer appears to hold the belief that he is unable to engage in a full range of activities;

   ·while he does not believe that MMYB is ready for a full return to work, this is due to management and supervisory issues rather than any particular PTSD related symptoms, and the PTSD symptoms are at a low enough level not to cause significant function; and

   ·he does not believe that any functional restrictions should be placed on MMYB if MMYB returns to work.

2. On 20 November 2014, Mr Matthews also spoke with MMYB’s AFP Coordinator, Superintendent BBCC. In his report, dated 31 December 2014, Mr Matthews states that BBCC told him the following:

   ·in February 2014, the Intelligence portfolio was reviewed at a national level with the result that the Human Source management was subsumed within a larger team and became a part time role;

   ·when MMYB returns to work, his current role will be within the broader intelligence team and he would report to either DDEE or EEFF;

   ·he had heard varying accounts of conflict between MMYB and JJQS (MMYB’s former Team Leader), that he was aware a discussion took place between them before MMYB went on sick leave in November 2013, and that he was not aware of any history of discord between MMYB and JJQS;

   ·he had contact with MMYB on 11 August 2014 and 22 August 2014 to develop a sense of what MMYB would be capable of doing upon return to work, and he would like MMYB to return to areas with which he is familiar, he would be keen for MMYB to continue undertaking Human Source activities and, more generally, MMYB would be undertaking intelligence investigations; and

   ·MMYB would likely need to carry a firearm and appointments and would need to regain his qualification for doing so.

3. In the course of this proceeding, Comcare sought a supplementary report from Mr Matthews to address the causes of MMYB’s condition. In his Supplementary Report, dated 19 October 2015, Mr Matthews said:

   ·the cause of MMYB’s PTSD was the shooting event in 1999 when he was employed by the Victorian Police, in which he shot and was shot by an offender;

   ·MMYB reported an onset of symptoms a number of years before he went off work in November 2013;

   ·MMYB detailed two particular events which remained in his mind as having exacerbated his underlying PTSD: his attendance at the scene of a suicide as a result of a firearm when he was deployed in Cyprus and the suicide of one of his informant sources. MMYB described an apparent interpersonal conflict with his immediate supervisor as the event which led to him going off work in November 2013;

   ·MMYB appears to have suffered an aggravation of his PTSD during the course of his employment with the AFP. This view was based on a sequence of events that might be experienced by someone with severe and chronic PTSD; an initial traumatic exposure several years ago, the presence of chronic symptoms of distress, the absence of effective treatment, further traumatic exposures not necessarily related to the initial one and a seemingly benign triggering event;

   ·the events that could be causes of an aggravation of PTSD included the attendance at the scene of a suicide in Cyprus and the suicide death of a long term informant; and

   ·signs and symptoms include irritability, chronic sleep disturbance with associated nightmares, occasional suicidal ideation, tearfulness in the workplace, social withdrawal, reactivity to events or triggers which serve as reminders of the original trauma including ongoing pain and discomfort and the sight of firearms, hyper-vigilance and anxious rumination.

   Report from Dr Boon Loke, Consultant Psychiatrist, 19 November 2014[5]

   [5] Exhibit 1 at pp 226-228.

4. On 19 November 2014, Dr Loke reported the following:

   ·MMYB first consulted him on 30 January 2014;

   ·he recounted the history of MMYB’s condition as follows:

   ·in February 1999, while working with the Victorian Police, MMYB was involved in a shooting incident, with a bullet going through his upper abdomen and requiring him to have emergency laparotomy and surgery;

   ·in 2002, MMYB joined the AFP and saw mass graves in East Timor in 2003;

   ·in 2005, MMYB was in PNG training local police officers, two of whom were killed in a motor vehicle accident and the respondent transported their bodies in a banana boat;

   ·in 2005, MMYB was on training duties in Jordan, where some trainees failed an examination and were returned to Iraq in a mini bus but were killed as they crossed the border;

   ·in 2006, MMYB searched the body of a man who had shot his own chest with a shotgun;

   ·in 2006, MMYB was involved in evacuating Australian citizens during the Israel-Hezbollah war;

   ·in 2010-2011 while working in Perth, MMYB alleged that his superior was bullying him and that the whole thing was “swept under the rug” and instead MMYB was transferred out of that team;

   ·in 2012, a police informant committed suicide soon after a meeting with MMYB;

   ·in 2012, MMYB told a superior that he could not transport asylum seekers to Nairu and was then seconded to uniform duties at the airport as “punishment”, despite his declaration that he was not comfortable back in uniform, and he suffered panic attacks while working at the airport; and

   ·in 2013, MMYB returned from the Middle East with flu-like symptoms, and was told by airport medics to quarantine himself as he may be suffering from the Middle East Flu and suggested that his Team Leader questioned his integrity for taking four days of sick leave, which was “the straw that broke the camel’s back”;

   ·MMYB suffers from PTSD and fulfils DSM-V diagnostic criteria A(1), A(2), A(3), A(4), B(1), B(2), B(4), C(2), D(2), D(3), D(4), D(5), D(6), E(1), E(3), E(6), F, G and H;

   ·MMYB did not have any psychiatric disorder prior to 1999;

   ·MMYB’s current psychiatric condition is the result of cumulative traumas and stress that he experienced while on duty for Victoria Police and later for the AFP; and

   ·he is unaware of any non-employment causal factors for MMYB’s PTSD.

   Dr Eileen Tay, Consultant Psychiatrist, reports dated 1 December 2014 & 29 October 2015[6]

   [6] Exhibit 1 at pp244-261 and Exhibit 19.

5. MMYB was referred by Comcare to Dr Tay for assessment in relation to his compensation claim. The assessment took place on 24 November 2014. On 1 December 2014, Dr Tay reported the following:

   ·throughout the assessment, MMYB wanted to emphasise how his conditions of service and treatment by the AFP had aggravated his previous condition of PTSD;

   ·MMYB continues to report difficulties with sleep, with nightmares relating to the events he has witnessed since joining the AFP in August 2002;

   ·MMYB ruminates over the workplace bullying;

   ·MMYB stated he is “pencilled in” to work as an intelligence officer, but he does not know the role and would need to travel to Canberra for several weeks’ training, whereas he wants to return to JCTT because he knows what to do there and can manage his symptoms in that unit;

   ·however, MMYB further stated that he cannot return to JCTT as it is an operational position and he would require monitoring for 3-6 months;

   ·she formed the view that MMYB believes he can manage his return to work, doing it his way, and questions why the AFP can’t do it his way;

   ·MMYB said that the significant events from 2010-2012 led to him requiring the services of EAP include the alleged bullying in the workplace, being forced to leave the JCTT, then being sent to the airport where he felt humiliated when he broke down in tears, and the suicide death of an Iranian informer;

   ·she believes MMYB struggles with being criticised by anyone but he blames his inability to deal with that on the lack of sensitivity and care from his workplace, particularly his Team Leader once she knew of his PTSD, as opposed to being based on his personality structure;

   ·MMYB’s diagnosis is consistent with an aggravation of his pre-existing PTSD which he had managed in the workplace through a variety of measures but his personality structure suggests obsessionality, sensitivity to criticism and difficulty dealing with feedback from his colleagues that he does not like, for which he will attribute other motives such as envy and jealousy as opposed to his own inability to cope with the situation;

   ·MMYB’s previous PTSD had not fully resolved at the time he decompensated in 2012, following the suicide death of an Iranian informer;

   ·the clearest onset of MMYB’s inability to cope was when he stopped work on 26 November 2013;

   ·MMYB’s current medical condition is an aggravation of his pre-existing PTSD, with more frequent symptoms, and with continued experience of symptoms in regard to reliving the 1999 shooting but also additional traumatic memories from his time with the AFP;

   ·MMYB has retrospectively attributed his inability to cope with workplace bullying to his under-treated PTSD but then believed it was also used against him in the incident of November 2013;

   ·the specific trigger that is employment related is his alleged conversation with JJQS upon his return from annual leave in November 2013, which MMYB describes as “the straw that broke the camel’s back”, but the first factor that contributed to his condition was the suicide death of the Iranian informer in 2012;

   ·MMYB does not currently have capacity to engage in some form of employment, and it would be difficult for him to return to work without further engagement in group therapy; and

   ·current treatment should be reviewed as the combination and dose of current medication may be aggravating MMYB’s anxiety levels.

6. In a Supplementary Report, dated 29 October 2015, Dr Tay said:

   ·     each of the following events are causal factors in the aggravation of MMYB’s PTSD: 2003 East Timor excavation of mass graves, attending suicide bomb victim in Cyprus in 2006, suicide death of Iranian informer in 2012, feeling criticised by JJQS for taking an additional 4 days leave in 2013;

   ·     the alleged workplace bullying incident is not a causal factor, but rather MMYB’s sensitivity to being criticised;

   ·     the transfer to Perth Airport was not a causal factor, other than the fact that MMYB did not like it, did not feel it was appropriate and it is part of his personality structure that he did not respond well to real or perceived criticisms;

   ·     events that have caused or contributed to MMYB’s PTSD as an aggravation are any events that have a theme of integrity attached. This is an important consideration thematically. MMYB was distressed by the death of the Iranian informer, questioning what he could have done differently (i.e. his integrity in that suicide death), and the theme of integrity was also triggered in the 2013 incident with JJQS; and

   ·     the critical incidents that MMYB was involved in lowered his threshold to deal with criticism, real or perceived, especially regarding integrity. In that regard, it is possible to draw a distinction between events that are symptomatic of MMYB’s behavioural perception, due to PTSD, and events that actually contributed to his PTSD by way of aggravating the pre-existing PTSD.

   Dr John Forbes, Clinical Psychologist, reports dated 15 January 2015 & 2 April 2016[7]

   [7] Exhibit 1 at pp 302-304 and Exhibit 20.

7. Dr Forbes is MMYB’s treating psychologist.  On 15 January 2015, Dr Forbes reported the following:

   ·     he first saw MMYB on 25 June 2013 and believes that his PTSD commenced shortly after his shooting in early 1999;

   ·     he was not aware of any relevant history, pre-existing or underlying conditions, or of any predisposition to stressors; and

   ·     MMYB’s current condition is one that MMYB has continuously experienced since the shooting in 1999, but it has been exacerbated by a range of events, including some aspects of his employment with the AFP, including exposure to death, including suicide, mass graves and accidental death while on deployment, and MMYB also reports experiencing bullying while employed by the AFP.

8. In a subsequent report, dated 2 April 2016, Dr Forbes said:

   ·MMYB’s PTSD had been exacerbated by “some” of his service with the AFP.  Incidents where MMYB was “exposed to death or the possibility of death, and generally dangerous situations” would almost certainly have aggravated MMYB’s PTSD;

   ·a number of work-related incidents (including MMYB’s reported bullying by his team leader) would have served to aggravate MMYB’s condition, albeit not in as direct manner as witnessing: (i) mass graves while serving in East Timor; (ii) the deaths of two police officers in Papua New Guinea; (iii) the deaths of two trainee officers in transit form Jordan to Iraq; (iv) attending a suicide in Cyprus (which included direct contact with the body); (v) the suicide of an informant; and (vi) assisting with the evacuation of Australians during an Israeli conflict;

   ·MMYB’s ability to function has been severely compromised by his PTSD symptoms, including his ability to undertake his professional duties to the extent required by his position and significant personal impairment – driven mainly by MMYB’s avoidant behaviour; and

   ·in his opinion, MMYB’s transfer from JCTT to HS did not constitute a “traumatic” event.  However, because of MMYB’s concerns about being identified as a police officer and that his life was at risk because of wearing police uniform, then the posting itself would probably fall under the criteria for a traumatic event with regard to the aggravation of his PTSD.

   (ii)       Other evidence

   Statement of MMYB, dated 11 November 2014[8]

   [8] Exhibit 1 at pp 182-191.

9. In a Statement, dated 11 November 2014, MMYB describes the events that he says caused an aggravation of his PTSD.

10. In relation to his allegation of workplace bullying, MMYB states the following:

    ·he was deliberately bullied by his Team Leader, AABB, for a number of months between 2010 and 2011, while in the JCTT;

    ·he was continually threatened that he would be removed from the JCTT, he would be yelled at in private and on a number of occasions in front of others and would be told that he was incompetent, he was picked on and criticised and made to feel isolated from the team, and was the only team member to be micro- managed;

    ·he complained about the bullying and after an investigation, the conclusion reached was that “there is little evidence to support [MMYB’s] claims that he has been bullied or harassed, [and that] both members need to adhere to and be active in fostering the principles and practices of respectful workplace behaviour”;

    ·on 3 March 2011, he attended a PDA meeting at which he started to yell and scream at AABB and lost control of his emotions because (in his view) he has been mistreated and mishandled;

    ·a few days later he had a meeting with AABB and Acting Coordinator FFGG, at which AABB agreed he would “stop picking on” MMYB; and

    ·within a few months of the PDA dispute he was removed from the JCTT against his will, despite making a formal request not to be transferred.

11. In relation to his belief that his condition has been mismanaged, MMYB states the following:

    ·he found out that a Human Source he had been dealing with for a number of years had committed suicide within two hours of meeting with him and was quite badly affected by this death;

    ·he did not volunteer to transport asylum seekers from Christmas Island to Nauru;

    ·the reason he gave for not volunteering was that he had a small family, his wife was pregnant and he was unable to do this work at this stage;

    ·within a short time frame, he was told that he would be going to the airport for three months, and he was advised that this decision was final;

    ·he believed that this decision was punishment and he was told that he needed to be flexible;

    ·he suffered significant anxiety when working at the airport, which involved 10 hour shifts patrolling the airport on foot in uniform;

    ·his Team Leader, JJQS, knew about a number of these issues and knew that he had PTSD but did nothing to support him;

    ·in November 2013 JJQS accosted him in relation to having four days sick leave at the end of 1 month personal leave and attached his work ethic and integrity

    ·he then couldn’t take it anymore and left his employment; and

    ·he anticipated and hoped that his supervisor’s would maintain contact with him, but they did not do so and he was left feeling isolated, alone and unwanted.

    Statement of JJQS, dated 16 December 2014[9]

    [9] Exhibit 1 at pp 279-291.

12. JJQS is presently employed as a Team Leader with the AFP.  However, in March 2012 JJQS was transferred to the Human Source Management Team in the AFP’s Perth Office and one of her team members, at that time, was MMYB.

1. JJQS provided a Statement, dated 16 December 2014, essentially responding to some of the allegations in MMYB’s Statement, dated 11 November 2014.  JJQS’ Statement provides:

   7.At no time did [MMYB] make me aware that he was struggling with the death of a human source.  I did enquire at the time of the incident if he was ok and he stated that he was shocked to hear but fine.

   8.According to the AFP records the death did not occur two hours after {MMYB} saw the human source but the next day.  The team was made aware of the death 13 days after the death.  At no time did [MMYB] ever mention to me that he saw him two hours prior to that person’s death.

   9.[MMYB] made jokes about the death to myself and other team members (due to another human source also dying).  There was no indication to me at all from [MMYB] that this death had adversely affected him.  At no time did I witness [MMYB] act in a distraught manner over the death.

   10.I had absolutely no knowledge of [MMYB] visiting the grave site.  This is a breach of human source handling protocols.  Controllers are to be consulted prior to any human source interactions.

   …………

   15.The rotation for three months to the Perth International Airport was part of an office/airport rotation policy.

   16.[MMYB] advised me the rotation would cause hardship to his family.  He forwarded an email to me on 29 November 2012 that explained the hardship, titled – ‘[MMYB]:  Consideration not to be transferred to Perth Airport to the detriment of my family like’ – (Attachment A).  A decision was made at Coordinator level for the transfer to progress.

   17.I attended a meeting with [MMYB] and Coordinator SSYD where Coordinator SSYD advised [MMYB] he would be transferred to Perth Airport for three months to commence late January 2013.

   18.[MMYB] at no times cried or suffered an anxiety attack in front of me.  He did however have a meeting with Coordinator SSYD in which I was not present.

   ………..

   22.At no times prior to or during the deployment to the Airport did [MMYB] advise me he was suffering mentally.

   ……….

   25.In the first half of 2013 I was not aware that [MMYB] had any issues at the Perth Airport.  I had little contact with him during the first half of 2013.  He completed two and a half months of his three month rotation at the Airport and then had approximately two months off due to an operation.

   ………..

   29.About August 2013, [MMYB] informed me that he was attending physiotherapy appointments and taking time off to attend.  After two leave submissions that did not include medical certificates I requested next time he obtain a medical certificate from the physiotherapist.

   30.[MMYB] then asked to speak to me privately.  [MMYB] then took me to a storeroom, closed the door and advised me he was seeing a psychiatrist.  During this conversation he became very serious, standing very close to me telling me that if anyone found out he would know it was me.

   …………

   33.In about September 2013, [MMYB] advised me he had attended an independent psychiatric review in Melbourne for his ongoing compensation dispute with Victorian Police.  [MMYB] stated that the psychiatrist though he may have been undiagnosed for some time  and he may be suffering from PTSD.

   34.At no time did [MMYB] advise me that he had been diagnosed with PTSD.

   ………..

   45.In October 2013, [MMYB] took four weeks recreation leave and travelled to Jordan.  During that time I emailed him in relation to not contacting a specific human source whilst on leave.  He responded immediately.

   46.[MMYB] had at times expressed dissatisfaction that he was being directed to not contact human sources.

   ………..

   48.On Monday 11 November 2013, [MMYB] was due to return to work…..

   49.On Thursday 14 November 2013, [MMYB] and I had a discussion about his interaction with me during his sick leave the three days prior.  I was aware [MMYB] would not be pleased that I was addressing the issue and I though carefully about how I would address the minor matter.

   50.I attempted to explain to [MMYB] that I wasn’t addressing the leave as such, but his interaction with me during leave.  He quickly escalated the conversation, raising his voice.

   51.At the time I advised him I would not be spoken to like that and as I was leaving the office he yelled very loudly, “You don’t trust me!”  At no time did I raise my voice.

   ……….

   54.At no time did I question the integrity that he was sick.  I did however address what I though was inappropriate interaction with myself and team members whilst on leave.

   55.For the days that followed [MMYB] appeared ok to me….

   ……….

   63.On Tuesday 26 November 13 [MMYB] informed me via text that he would not be at work.  The following day he texted me to say he had a medical certificate for two weeks.  I attempted to contact him a few times via phone and then via text he advised he was unable to talk.

   ………..

   66.On 10 December 13 I was surprised when [MMYB] did not return to work.  He informed me via text message that he was off 10-24 December (inclusive) with a workcover certificate……

   67.[MMYB] did not contact me at any stage to chat about his issues in December, January and February.  I decided to respect that and when I spoke with Coordinator BBCC he said to be mindful if a person does not want to talk then I should not push.

   68.For approximately the first three months when myself or a team member asked when [MMYB] would be returning he was evasive and would only state that he had medical certificates till a certain date – within two weeks of the enquiry.

   ……….

   81.On 6 March 14, in the company of [MMYB’s] fellow team member, GGHH, I met with [MMYB] at a coffee shop near his home.  The conversation started amicably but then became very frank.

   ……….

   86.During the conversation he said a lot of things in the AFP had affected him including seeing dead bodies overseas, working in CT, and the death of the human source (this was the first time I was made aware of this).

   87.He also said that ‘my questioning his integrity’ he now realised was a very small thing but he couldn’t see that at the time.

   Statement of MMYB, dated 20 January 2015[10]

   [10] Exhibit 1 at pp 305-331.

2. MMYB provided a Statement, dated 20 January 2015, in response to the Statement of JJQS, dated 16 December 2014, in which he provided considerable detail of his recollections of his interactions with JJQS, and sought to present a picture that she was now raising unrelated incidents in an attempt to make herself look better.

3. However, in his supplementary Statement, MMYB conceded that JJQS may be correct about some aspects (for example, his wife was not pregnant when he was transferred to the Perth Airport and that the human source may not have died two hours after meeting with him).

   Statement of Dr David Cockram, dated 7 March 2016[11]

   [11] Exhibit 8.

4. At the request of MMYB, Dr Cockram provided a report, dated 7 March 2016.  Dr Cockram is a Doctor of Clinical Psychology who worked as a part-time AFP Chaplain for two days a week in the AFP’s Perth office and at the Airport from February 2006 until August 2013.  In his report, Dr Cockram states the following:

   ·MMYB first discussed his emotional concerns with him on 24 May 2012.  MMYB presented as being “emotionally fragile and physically tense”.  MMYB displayed symptoms of PTSD and most likely depression;

   ·he met with MMYB at various times during 2013, including 6 March 2013 (phone contact), 5 June 2013, 14 June 2013 and 19 June 2013 and he made a telephone call referral to Dr Forbes on 14 June 2013;

   ·the “index traumatic events or situations (as documented by Dr Loke, Dr Tay, Dr Forbes and Mr Matthews)” occurred during MMYB’s employment with the AFP and that any of the traumatic events described to him by MMYB, or the cumulative effect of these events, could give rise to an “aggravation of a development of PTSD”; and

   ·working in uniform at the airport was a strong causal factor in the aggravation or further development of MMYB’s PTSD in 2013.

   Statement of JJQS, dated 17 March 2016[12]

   [12] Exhibit 18.

5. On 17 March 2016, JJQS provided a further Statement in response to MMYB’s Statement, dated 20 January 2015.  In this Statement, JJQS provides her recollection of the meeting that took place between her and MMYB on 13 November 2013 which is different to that recorded by MMYB at paragraph 20 of his Statement, dated 20 January 2015.  In summary, in her Statement dated 17 March 2016, JJQS said the following:

   ·the meeting on 13 November 2013 took place in a private office with the door closed and that she told MMYB that she wanted to discuss his discussions with her whilst he was on leave and his text messages to other members of the team while he was on leave; 

   ·she told him numerous times that the meeting was not about the actual sick leave.  At no time did she say to MMYB that he was not sick or that he should not have taken sick leave; and

   ·at no time did she question MMYB’s integrity or honesty.  The only point she made was that his interaction when on sick leave was not appropriate.

   Statement of SSYD , dated 18 March 2016[13]

   [13] Exhibit 21.

6. SSYD worked in the AFP’s Perth office from October 2004 to January 2013 in a variety of roles, including as Superintendent Counter Terrorism and Intelligence. In that role, SSYD had responsibility for the deployment of Federal Agents within different teams within the AFP’s Perth Office, including MMYB.

7. In her Statement, dated 18 March 2016, SSYD describes her decision to transfer MMYB out of the Joint Counter Terrorism Team to the Human Source Management Team on 16 January 2012, as follows:

   4.During my time in the Perth Office, decisions for the movement of Federal Agents between teams were made on the basis of operational requirement, members’ skills and background, development requirements and tenure or time in role.  At  that time, the Joint Counter Terrorism Team (JCTT) had a tenure policy of between 2-5 years, meaning that time spent in the JCTT should not be less than 2 years but should not exceed 5 years.  The tenure policy had been agreed across all JCTTs in Australia; moreover all the members of the JCTT Perth Office were aware of this policy as I had mentioned it on more than one occasion during team musters and in general conversation.;

   5.On 16 January 2012, [MMYB] was moved out of the [JCTT] and into the Human Source Management Team (HSMT).  This decision was made on the basis of the extended time [MMYB] had served in the JCTT and the excellent interpersonal skills he possessed which would be beneficial in the area of Human Source (Information) Management.  I do not recall [MMYB] making a formal request to prevent a transfer from JCTT to HSMT.  I recall a conversation with [MMYB] where he expressed a desire to remain in the JCTT.  I do not recall what I specifically stated to [MMYB], however, I customarily reiterate to staff that movement between teams is the prerogative of AFP management based on the operational requirements, tenure policy and members’ background and skills.

   6.I was aware of [MMYB’s] investment of time and effort to attain post-graduate qualifications in Terrorism studies…..There was no guarantee made that completing his studies would lead to specialisation in the field of counter terrorism. [Emphasis added]

8. SSYD also describes her decision to temporarily transfer MMYB to the Perth International Airport in November 2012, as follows:

   7.In or about November 2012, the Perth Management Team, consisting of the Perth Manager, my fellow Superintendents and I made a decision to shift resources from the Perth Office to the Perth Airport.  Superintendent BBCC conveyed to me that were severe staff shortage at Perth Airport at the time.  [MMYB] was one of the first Federal Agents to be temporarily transferred to Perth Airport; however, he was not singled out for transfer……

   ………..

   9.After the decision was made to temporarily transfer [MMYB] to the Perth Airport, I advised [MMYB’s][ team leader FA JJQS.  I am not aware how this information was conveyed by [MMYB’s] team leader to him

   10.On or about 29 November 2012, I received an email from FA JJQS, which forwarded to me an email from [MMYB]…..

   11.After receiving this email, I arranged to meet [MMYB].  As I recall, the meeting took place between {MMYB} and myself and no other person was present.

   12.In the course of the meeting, I listened to [MMYB’s] concerns, which were consistent with those expressed in his email.  I advised [MMYB] that a decision had been made and that he would transfer temporarily to the Perth Airport.  With regard to his child care concerns, I explained to him that he was one of many members with young children and a working life and that although some flexibility would be allowed, the decision would not be reversed…….I explained that the transfer was only temporary.  Other members would also be temporarily transferred.  I also explained that [MYBB’s] permanent position would remain with the HSMT where he was doing a good job.  I concluded that the decision would not be reversed.;

   13.Throughout the meeting, [MMYB] was very upset and was crying.  I was understanding of his circumstances but explained that on occasion, managers need to make decisions about resource allocation and to move resources where they were needed.

   14.Although he was very upset, by the end of the meeting, [MMYB] appeared to accept the temporary transfer.

   Statement of ABCD, dated 7 April 2016[14]

   [14] Exhibit 10.

9. In a Statement, dated 7 April 2016, ABCD, MMYB’s wife, states:

   2.I can confirm that my husband, [MMYB], has been struggling with the symptoms of Chronic Post Traumatic Stress Disorder, and that this has had a direct and significant impact on both our private life (both personally and financially) and his professional career.

10. In her Statement, ABCD also provides detailed information concerning:

    ·her history with MMYB, the circumstances in which she found out about MMYB’s PTSD;

    ·the impact that the alleged bullying by AABB had on MMYB;

    ·the impact that his transfer to the Perth airport had on MMYB;

    ·the impact that the suicide of a long-term informant had on MMYB;

    ·MMYB’s behaviour prior to leaving the workplace on 23 November 2013;

    ·the impact of the AFP’s alleged neglect of MMYB after he left the workplace; and

    ·MMYB’s present situation, including the following:

    51.[MMYB] suffers ongoing nightmares and flashback (sic.).  He goes through severe depressive episodes.  He is difficult to motivate, hard to talk to, and withdraws himself from social scenarios often.

    ……….

    54.For the last two years [MMYB] has attended weekly therapy sessions with his treating psychologist.  He has attended bi-monthly sessions with his psychiatrist; he has attended a 10 weeklong PTSD program, to no avail.

    ANALYSIS

11. Section 14 of the SRC Act sets out the circumstances in which Comcare is liable to pay compensation and provides as follows:

    14       Compensation for injuries

    (1) Subject to this Part, Comcare is liable to pay compensation in accordance   with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. [Emphasis added]

12. The term “injury”’ is defined in s 5A of the SRC Act as follows:

    5A       Definition of injury

    (1)In this Act:

    injury means:

    (a)       a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

    (2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

    (a)       a reasonable appraisal of the employee’s performance;

    (b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

    (c)a reasonable suspension action in respect of the employee’s employment;

    (d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

    (e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

    (f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

13. The term ‘”disease” is defined in s 5B of the SRC Act as follows:

    5B       Definition of disease

    (1)In this Act:

    disease means:

    (a)       an ailment suffered by an employee; or

    (b)       an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    (2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

    (a)       the duration of the employment;

    (b)       the nature of, and particular tasks involved in, the employment;

    (c)       any predisposition of the employee to the ailment or aggravation;

    (d)        any activities of the employee not related to the employment;

    (e)        any other matters affecting the employee’s health.

    This subsection does not limit the matters that may be taken into account.

    (3)In this Act:

    significant degree means a degree that is substantially more than material.

14. The term “ailment” is defined in s 4 of the SRC Act as:

    any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

    Aggravation of PTSD

15. The injury for which MMYB claims compensation from Comcare is aggravation of chronic PTSD.

16. There is some medical evidence from which it would be open to the Tribunal to conclude that MMYB has not suffered an aggravation of PTSD and that the cause of MMYB’s PTSD remains the shooting incident experienced by MMYB in 1999 when he was employed by Victoria Police, including the evidence of Dr Ho, Dr Lee and Dr Jager:  refer to paragraphs 18-23 above.

17. However, the Tribunal is satisfied, on the balance of probabilities, that the medical evidence, including, in particular, the evidence of Mr Matthews (see paragraphs 24-29 above), Dr Loke (see paragraph 30 above), Dr Tay (see paragraphs 31-32 above) and Dr Forbes (see paragraphs 33-34 above) supports a finding that there has been an aggravation of MMYB’s PTSD, as claimed.

18. PTSD falls within the definition of “ailment” in s 4 of the SRC Act.

19. An aggravation of PSTD will therefore be a “disease” within the meaning of s 5B of the SRC Act if MMYB’s aggravation of PTSD was “contributed to, to a significant degree”, by his employment with the AFP.

    Contributed to, to a significant degree

20. As is evident from the following, there is some inconsistency in the medical evidence as to factors that contributed to the aggravation of MMYB’s PTSD:

    ·     seeing mass graves in East Timor in 2003 (supported by the evidence of Dr Loke, Dr Tay and Dr Forbes);

    ·     the deaths of two policemen in PNG in 2005 (supported by the evidence of Dr Loke and Dr Forbes);

    ·     the deaths of two trainees who were travelling from Jordan to Iraq in 2005 (supported by the evidence of Dr Loke and Dr Forbes);

    ·     attending the scene of a suicide in Cyprus in 2006 and searching the man’s body (supported by the evidence of Dr Loke, Mr Matthews, Dr Tay and Dr Forbes);

    ·     evacuating Australian citizens during the Israel-Hezbollah war (supported by the evidence of Dr Loke);

    ·     the alleged bullying in 2010-11 and then being transferred from the JCTT (supported by the evidence of Dr Loke and referred to by Dr Forbes, but suggested by Dr Tay not to be a causal factor);

    ·     the suicide death of an Iranian information in 2012, not long after MMYB met with the informant (supported by the evidence of Dr Loke, Mr Matthews and Dr Tay);

    ·     being transferred to the Perth Airport in 2013 (supported by the evidence of Dr Loke, but not the evidence of Dr Tay, who suggested that it was not a causal factor other than the fact that MMYB did not like it did not think it was appropriate and does not respond well to criticism); and

    ·     the incident involving JJQS in November 2013 (Dr Loke; Dr Tay).

1. However, the Tribunal considers that the overwhelming weight of evidence supports a finding that MMYB’s PTSD has been “contributed to, to a significant degree”, by his employment with the AFP such that the aggravation of MMYB’s PTSD is a “disease” for the purposes of s 5B of the SRC Act and, it follows, an “injury” for the purposes of s 5A(1) of the SRC Act.

2. Accordingly, Comcare will be required to pay compensation to MMYB pursuant to s 14 of the SRC Act, unless the exclusion at the end of s 5A(1) of the SRC Act applies so that the aggravation of MMYB’s PTSD is not an “injury” for the purposes of the SRC Act.

   The exclusionary provision

3. As set above (in paragraph 50), “injury” is defined in s 5A(1) of the SRC Act to:

   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. [Emphasis added]

4. Following the decision of the Full Federal Court of Australia in Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 at 33), “reasonable administrative action” need not be the sole cause of a claimant’s injury for the injury to fall within the exclusionary proviso in s 5A(1) of the SRC Act. If an excluded employment factor is causally implicated in the aggravation of a claimant’s condition, it does not matter that there are also other non-excluded causal factors. The Full Federal Court’s decision in Hart is, of course, binding on the Tribunal.

5. The relevant extract from the joint judgment of Branson, Conti and Allsop JJ in Hart is as follows:

   21.The so-called proviso in the definition does not exclude causes.  It provides that if a disease of injury which would otherwise fall within the definition (“any such”) is one which answers a description (relevantly here: “Suffered as a result of……the failure to obtain a promotion”), the disease or injury is not an “injury” as defined.  The words are satisfied here.  There was no debate that the factual findings made by the Tribunal amount to a conclusion that the disease or injury suffered was as a result of the failure to obtain the promotions.

   22.In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision’s purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes.  We do not agree.  The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something.  We see not evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing.  The words do not readily admit that construction.  The cases on multiple causes in tort or general law do not assist that enquiry.

   23.It will in any case be for the Tribunal to examine the facts, assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof…..[15] [Emphasis added]

   [15] It is noted that Hart v Comcare was decided by the Court in the context of the definition of the former “injury”, and the proviso contained in that definition, in s 4(1) of the SRC Act.

6. In Martin v Comcare [2015] FCAFC 169; (2015) 148 ALD 1 at 16-17, Murphy J (with whom Siopis J agreed) identified (at [70]) the following five limbs to the enquiry of whether the exclusion in s 5A of the SRC Act should apply in a particular case:

   (a)       whether the relevant action is administrative action;

   (b)whether the administrative action was taken in respect of the employee’s employment see Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21; (2012) 199 FCR 463 ... at [33] (Gray J) and [60] (Rares and Tracey JJ);

   (c)whether the disease, injury or aggravation is suffered as a result of the administrative action;

   (d)       whether the action is reasonable administrative action; and

   (e)whether the reasonable administrative action is taken in a reasonable manner. [Emphasis added]

7. The application of each the above five limbs on enquiry as to whether the exclusion in s 5A of the SRC Act applies in this case is considered, in turn, below.

8. The following three “actions”, identified in paragraph 54 above as having potentially contributed to the aggravation of MMYB’s PTSD, potentially fall within the scope of the exclusionary provision in s 5A(1) of the SRC Act:

   (i)the decision made by SSYD, on 16 January 2012, to transfer MMYB from the Joint Counter Terrorism Team to the Human Source Management Team;

   (ii)the decision made by the AFP’s Perth Management Team, in November 2012, to temporarily transfer MMYB to the Perth International Airport for a three month period; and

   (iii)JJQS’ discussion with MMYB, on 14 November 2013, during which MMYB felt that his integrity was challenged but JJQS says to discuss his interaction with her and other team members during his sick leave.

   (a)       Whether the relevant action is “administrative action”

9. What amounts to “administrative action” is defined in the SRC Act only to the extent of the examples of “reasonable administrative action” in s 5A(2) of the SRC Act: refer to paragraph 50 above. These refer to performance, appraisal, counselling, suspension or disciplinary action and “anything done in connection with” any of these examples. These examples are not exhaustive and the words “in connection with” have been interpreted as words which “have an ambulatory significance capable of a wide range of applications”. These indications imply that “administrative action” is capable of a broad meaning.

10. In Re Lynch and Comcare [2010] AATA 38; (2010) 114 ALD 394 the Tribunal said (at [99]) that “administrative action”:

    ……must be some specific incident in the course of employment, or specific or identifiable course of conduct by an employer.

11. In Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21; (2012) 199 FCR 463; 125 ALD 181 the majority of the Full Federal Court discussed the scope of “administrative action”, drawing a distinction between actions that were “administrative” in nature and those which were more appropriately seen as “operational”, going to the business/enterprise being conducted by the employer. In their joint judgment, Rares and Tracey JJ said (at 125 ALD 181 at 204):

    60.……Parliament intended that the exclusionary action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job……the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be.  Thus, “employment”, as used in s A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.

    ………..

    73.…….the purpose of s 5A was to broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment.  The parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what is considered were narrow judicial interpretations of the old exclusion in s 4(1).

    74.However, the explanatory memorandum did not suggest that “administrative action” was intended to cover the way in which an employee was to perform the employment itself or what were his or her duties or tasks in doing so.  It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action” in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.

12. Gray J (concurring) characterised “administrative action” as:

    33.…….action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer……..It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.

13. Comcare’s position is that each of the three “actions”, set out in paragraph 66 above, constitute “administrative actions” in the sense described by the Full Court in Reeve such that each of those actions falls within the scope of the general exclusion in s 5A(1) of the SRC Act.

14. The Tribunal is, of course, bound by the Full Federal Court’s decision in Reeve and consequently finds each of the three actions identified in paragraph 66 above to constitute “administrative actions”.  However, in the absence of the Full Court’s decision in Reeve, the Tribunal finds, based on the evidence of SSYD, JJQS and MMYB (including their oral evidence at the hearing), that the decision by: (i) SSYD to transfer MMYB from the JCTT to the HSMT; and (ii) AFP’s Perth Management Team (which included SSYD) to temporarily transfer MMYB from the JCTT to the Perth International Airport, to represent “operational” rather than “administrative” actions. In such circumstances, neither of these two “actions” would come within the ambit of the exclusionary proviso in s 5A(1) of the SRC Act. According to the evidence of SSYD, in particular, both transfer decisions were based on the operational needs of the AFP’s Perth Office at the time, rather than being related specifically to MMYB’s employment with the AFP. That is, MMYB was transferred from the JCTT to the HSMT primarily as a result of an application of the JCTT’s tenure policy at that existed at that time (which was agreed across all JCTT’s in Australia) that time spent by agents in the JCTT should not exceed five years. Further, the decision to transfer agents (including, but not limited to, MYBB) from the HSMT to the Perth Airport was based on severe staff shortages at the Perth Airport. In the Tribunal’s mind, these two transfer decisions constitute operational actions by the AFP, whilst acknowledging that there may be some “administrative” element to them.

15. Further, according to Comcare, in addition to falling within the general exclusion, the discussion between MMYB and JJQS on 14 November 2013 may also fall within the scope of s 5A(2)(b) of the SRC Act (Informal counselling), as the evidence establishes that the conversation was for the purpose of discussing MMYB’s interaction with staff members while on sick leave, to convey the opinion of his supervisor (JJQS) that certain interaction was not considered appropriate while on sick leave. The Tribunal accepts this contention without reservation and also accepts that MMYB’s conversation with JJQS, on 14 November 2013, represents “administrative action” for the purposes of the exclusionary provision in s 5A(1) of the SRC Act.

    (b)      Whether the administrative action was taken “in respect of MMYB’s employment” with the AFP

16. In Re Reeve, majority of the Full Court (Rares and Tracey JJ) discussed what is meant by “in respect of” in s 5A(1) of the SRC Act as follows:

    60.The intention that we have discerned from the Parliament’s use of “in respect of” is to provide a relational context for the administrative action taken and the employee’s employment. It is to require that the action be specific to the employee’s work or job so that the exclusion can operate harmoniously with the preceding portion of s 5A(1) rather than as eviscerative of it……

17. It is clear from the evidence that the relevant “administrative actions” in this case (being the three actions set out in paragraph 66 above) were taken “in respect of” MMYB’s employment with the AFP.  Each of the three “actions” concerned is matters “with respect to the employment relationship between that the particular employee has with the employer”:  Reeve per Gray J at [33]: refer to paragraph 70 above. Further, each of the three relevant “actions” were not part of MMYB’s everyday duties or tasks: Reeve per Rares and Tracey JJ at [60].

    (c)      Whether the aggravation of MMYB’s PTSD was “as a result of” the administrative action

18. As noted above (in paragraph 58), there is some inconsistency in the medical evidence regarding the degree to which factors experienced by MMYB in the course of his employment with the AFP (including the three “administrative actions” listed in paragraph 66 above) contributed to the aggravation of his PTSD.

19. As contended by Comcare, if the Tribunal accepts the medical evidence that the three administrative actions identified in paragraph 66 above collectively (or individually) contributed to a “significant degree” to the aggravation of MMYB’s PTSD, it follows that the Tribunal must also accept that the aggravation was “as a result of” those administrative actions, remembering that “significant degree” is defined in s 5B(3) of the SRC Act as a “degree that is substantially more than material”. Conversely, if the Tribunal finds, based on the medical evidence, that the three administrative actions identified in paragraph 66 above did not contribute to a “significant degree” to the aggravation of MMYB’s PTSD then it follows that the Tribunal should not accept that the aggravation was “as a result of” those administrative actions.

20. The judgment of Murphy J in Martin provides guidance on the operation of the “as a result of” test in s 5A of the SRC Act (see paragraphs [105] to [112], [114] and [120] to [125]). His Honour held that the enquiry required by s 5A of the SRC Act “is one of causation and does not include a requirement that the condition be a direct or intended result of the action” (at [105]). Further, his Honour stated “it is important to keep in mind that in cases such as this causation is a matter of common sense” (at [108]).

21. The fact that the transfer of MMYB from the JCTT to the HSMT in January 2012 contributed to the aggravation of MMYB’s PTSD is supported by the evidence of Dr Loke and referred to by Dr Forbes, but suggested by Dr Tay not to be a causal factor.  However, the available medical evidence (set out above) does not support a finding that that this “administrative action” contributed, to a “significant degree” (i.e. to a degree that is substantially more than material), to the aggravation of MMYB’s PTSD.

22. The fact that the transfer of MYBB from the HSMT to the Perth Airport in November 2013 contributed to the aggravation of MMYB’s PTSD is supported by the evidence of Dr Loke, but not the evidence of Dr Tay, who suggested that it was not a causal factor other than the fact that MMYB did not like it did not think it was appropriate and does not respond well to criticism).  The available medical evidence (as set out above) does not establish that this “administrative action” contributed, to a “significant degree” (i.e. to a degree that is substantially more than material), to the aggravation of MMYB’s PTSD.

23. The fact that the incident involving JJQS in November 2013 contributed to the aggravation of MMYB’s PTSD is supported by the evidence of Dr Loke and Dr Tay. However, the available medical evidence (set out above) does not support a finding that that this “administrative action” contributed, to a “significant degree” (i.e. to a degree that is substantially more than material), to the aggravation of MMYB’s PTSD.

24. The factors which the medical evidence shows contributed, to a significant degree, to the aggravation of MMYB’s PTSD are the other factors listed in paragraph 58 above which are not “administrative actions”.

25. Based on the medical evidence (as set out above), the Tribunal finds that the three administrative actions (identified in paragraph 66 above) did not contribute to a “significant degree” (i.e. to a degree that is substantially more than material) to the aggravation of MMYB’s PTSD.  In particular, the MMYB’s transfer from the JCTT to the HSMT.  It follows that the Tribunal does not accept that the aggravation of MMYB’s PTSD was “as a result of” the three “administrative actions”:  Martin v Comcare.

    (d)     Whether the action is “reasonable administrative action”

26. Having made the above findings (see paragraphs 79-83), it is unnecessary for the Tribunal to consider this particular limb of the enquiry of whether the exclusion in s 5A(1) of the SRC Act is satisfied in this case: see paragraph 64 above. However, for completeness, the Tribunal makes the following observations.

27. In Comcare v Martinez (No 2) [2013] FCA 439, the Federal Court observed that:

    82.……..I would of course agree ... that the word “reasonable" allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.

28. The Tribunal finds, based on the evidence (in particular of SSYD and JJQS), the three relevant “administrative actions” (identified in paragraph 66 above) objectively constitute “reasonable administrative action” for the purposes of s 5A(1) of the SRC Act.

    (e)      Whether the reasonable administrative action was “taken in a reasonable manner”

29. Having made the findings that is has (see paragraphs 79-83 above), it unnecessary for the Tribunal to consider this particular limb of the enquiry of whether the exclusion in s 5A(1) of the SRC Act is satisfied in this case: see paragraph 64 above. However, for completeness, the Tribunal notes the following.

30. In Keen v Workers Rehabilitation and Compensation Corporation (1998) SASR 42, Lander J said at 47-48:

    Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration action was taken in a reasonable manner by the employer.

31. Determination of whether action was reasonably taken requires consideration to be given to the particular circumstances of the employee that were known to the employer, or could have become known by simple enquiry: Georges and Telstra Corporation [2009] AATA 731; Jing Yu v Comcare [2010] AATA 80. However, the impact of the action upon the employee is not determinative: Martinez (No 2) at [73].

32. The Tribunal finds, based on the evidence, that each of the three “administrative actions” were undertaken by the AFP in a reasonable manner.

    DECISION

33. For the above reasons, The Tribunal sets aside the Reviewable Decision and, in substitution therefor, decides that Comare is liable, pursuant to s 14(1) of the SRC Act, to pay compensation to MMYB, in accordance with the SRC Act, in respect of an injury, namely, aggravation of PTSD.

I certify that the preceding 91 (ninety - one) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

.........[Sgd]...............................................................

Administrative Assistant

Dated 17 June 2016

Dates of hearing	28-29 April 2016
Representative for the Applicant	Self-represented
Representative for the Respondent	Ms C Dowsett
Solicitors for the Respondent	Ms A Ladhams Australian Government Solicitor