Renouf and Comcare (Compensation) - [2019] AATA 1055

Renouf and Comcare (Compensation) [2019] AATA 1055 (29 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1785
Re:Raymond John Renouf
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:29 May 2019
Place:Brisbane

The decision under review is affirmed
...............................[SGD].........................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION – benefits and entitlements – Applicant suffering from anxiety disorder/depression – condition initially caused by the Applicant’s employment – whether liability for condition has ceased – Safety Rehabilitation and Compensation Act 1988 (Cth) –– decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
CASES
Carson and Telstra Corporation (2001) 33 AAR 351
Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Commonwealth v Smith (1989) 12 ALD 224
Howes v Comcare [2016] FCA 1521
Jones and Comcare [2013] AATA 334
Kennon v Spry (2008) 238 CLR 366
Kirkpatrick v Commonwealth (1985) 9 FCR 36 at 39
Lees v Comcare [1999] FCA 753
Lord Abinger v Ashton (1878) L.R. 17 Eq 358
Mifsud and Comcare (1994) 33 ALD 376
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Pedersen and Comcare [2016] AATA 449
Prain v Comcare [2017] FCAFC 459
Renouf and Comcare [2004] AATA 525
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
Telstra Corporation Limited v Hannaford (2006)151 FCR 253
Trumpf and Comcare [2008] AATA 1024
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
REASONS FOR DECISION
Deputy President J Sosso
29 May 2019
INTRODUCTION

Mr Raymond John Renouf (the Applicant) was born in 1953 and was employed by the Australian Broadcasting Commission (ABC) in Darwin from April 1995 until March 1998 as a Technical Officer Productions Operations (TOPO). On 24 October 1997 he lodged a claim for compensation in respect of anxiety disorder and depression alleging that this condition was related to his employment, namely a tripled workload and noisy and cramped conditions. The Applicant first sought treatment on 8 September 1997 and denied any prior psychological treatment or injury – Exhibit 2 para 5, Renouf and Comcare [2004] AATA 525 at [1] (Renouf).
On 13 February 1998 Comcare denied liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). The Delegate attributed the Applicant’s psychological conditions to performance issues and personality conflicts. However, on reconsideration, liability was accepted for an adjustment disorder suffered as a result of the Applicant’s increased workload but only for the period between the deemed date of injury and the time the Applicant first sought medical treatment (8 September 1997 – 19 December 1997) – Exhibit 2 para 8.
The Applicant ceased working permanently from 20 March 1998, and on 29 May 1998 lodged a second compensation claim for anxiety and depression as a result of “unbearable pressure” due to “harassment from management”. The claim was rejected by Comcare and the Applicant sought review by the Tribunal. However, before the matter was heard by the Tribunal Comcare conducted a reconsideration on its own motion. The review officer found that while the Applicant had not suffered a new injury, in March 1998 he had suffered an exacerbation of his original September 1997 adjustment disorder, which resulted in him being unfit for work from 20 March 1998 – Exhibit 2 paras 9, 11 and 13.
On 17 December 2001 the ABC asked the Applicant to show cause why his employment should not be terminated having regard to four specified matters which included previous misconduct, unsubstantiated allegations against the ABC and most of the managers running the Darwin branch of the ABC and the Applicant’s apparent permanent incapacity to work as a TOPO. The Applicant’s employment with the ABC was subsequently terminated on 22 March 2002 – Exhibit 1 T60 pp. 193 – 194.
On 16 November 2001 the Applicant made a compensation claim for permanent injury. In that claim Dr N McLaren, Consultant Psychiatrist, opined that the Applicant was suffering from a post-traumatic stress disorder with depressive and paranoid elements and assessed him having a 40% whole body impairment – Exhibit 1 T59 p. 192.
Comcare declined liability to pay compensation for permanent impairment and non-economic loss both initially and on reconsideration (Exhibit 1 T63 pp. 218 – 220, T64 pp. 221 – 223 and T67 pp. 233 – 240). Further, Comcare also determined to cease paying compensation benefits on and from 5 August 2002. In reaching this conclusion reference was made to a report of Dr Frank Varghese, Consultant Psychiatrist, of 3 May 2002.
On 13 January 2003 the Applicant sought a review by the Tribunal of the determinations rejecting liability to pay compensation for incapacity and medical expenses and permanent impairment – Exhibit 1 T68 pp. 241 – 242.
On 25 May 2004 Member Kenny set aside (in Renouf) the decisions under review and substituted the following decisions:
(a)Comcare was liable to continue to pay compensation for anxiety disorder/depression pursuant to s 14;
(b)the Applicant was suffering from a permanent impairment which was causally related to his employment in accordance with s 24;
(c)Comcare was to determine the degree of permanent impairment; and
(d)Comcare was to pay the Applicant’s costs.
In reaching this determination, Member Kenny outlined and considered at length the various medical reports that were admitted into evidence. Particular attention was given to the evidence of Dr McLaren, Consultant Psychiatrist, who had been treating the Applicant since 1997 and Associate Professor Varghese who examined the Applicant on 21 March 2002. I have not considered it necessary for the disposition of this matter to outline at length the various medical reports that were prepared prior to the determination of Renouf. None of the conclusions of Member Kenny or his analysis of the medical evidence before him has been challenged. For the purposes of this determination, therefore, I adopt the analysis of the medical evidence as outlined by Member Kenny in his decision.
With respect to the cessation of liability determination, Member Kenny said:
“78. Dr McLaren has treated the applicant since October 1997. In November 2002, he said that, while it is difficult to give an unequivocal psychiatric diagnosis, the applicant had features of a chronic major depressive condition in the setting of an anxious-paranoid personality, generalised anxiety disorder, panic attacks, social phobia and intermittent reactive paranoid psychotic episodes. Dr McLaren said that the applicant had become dependent upon benzodiazepine and this was prescribed for him as part of the treatment for his anxiety symptoms. Dr McLaren said that he had also used cannabis and alcohol to assist him but that, despite the fact that he had not been consuming excessive amounts of these substances during 2003, there had been no discernible change in his mental state.
79. On the basis of the medical evidence, in particular that of Dr McLaren who has seen the applicant on many occasions over several years, I am satisfied that the appropriate diagnosis for the applicant’s psychiatric state is that which was attributed to him in the respondent’s initial decision. This is anxiety disorder/depression. I am also satisfied that he suffered from this condition at and from the time the respondent ceased liability.
80. The issue then is whether the applicant’s anxiety disorder/depression in August 2002 was causally associated with circumstances present in the workplace at the ABC…
81. Dr Mulholland identified alternative scenarios to explain the applicant’s psychiatric condition. These were that he developed a depressive illness which was complicated by substance abuse and histrionic and paranoid behaviour independent of his work situation; or the work situation was causal in the development of a psychiatric illness characterized by chronic depression, substance abuse and histrionics and paranoid behaviours which has continued to be aggravated by and contributed to by unresolved litigation. He was unable to decide as between those two scenarios but said that it would be reasonable to assume a work-relationship if the following factors were met: his basic pre-morbid personality was reasonably satisfactory; he was subjected to significant work related stress; and there were no other significant stressful life events.
82. As to the first of those, I accept…the applicant as a person with a satisfactory pre-morbid personality…
84. Nevertheless, I am satisfied that his duties presented him with adjustment difficulties and that these had a role to play in the development of his psychiatric condition…I accept that the underlying psychiatric condition of the applicant had the requisite nexus with his employment, as determined by the respondent in May 1998.
85. Further to the second matter…I…am satisfied that there was no actual victimisation of the applicant by management at the ABC. Nevertheless…persons with depression commonly develop paranoid ideas… if the applicant were given information by a supervisor about adverse management attitudes towards him, this could increase the levels of paranoia in an already vulnerable person.
86. The third matter referred to by Dr Mulholland was the role played by other significant stressful life events. In this case, there was evidence of an assault on the applicant by taxi driver, of the death of his parents and of the effects upon him of his involvement in litigation processes. Dr McLaren and Dr Mulholland expressed the opinion that, while such influences may have aggravated the applicant’s emotional state, this would have been on a temporary basis and these factors would not have borne a primary responsibility for the development of his depressive condition.
87. Another factor for consideration is the effect on the applicant of substances such as benzodiazepine, upon which the applicant developed a dependence, and cannabis, which he used from time to time prior to 2003. The evidence is that the benzodiazepines were prescribed for the applicant because of his depression and anxiety disorder and Dr Mulholland said that there was a tendency for a person to develop tolerance to the drug. Dr Varghese, whilst noting that the applicant had developed a dependence on benzodiazepine, conceded that its initial ingestion was iatrogenic. Dr Mulholland considered that cannabis use had the capacity to prolong or aggravate a depressive mood. Dr McLaren was of the opinion that this would not affect the applicant’s condition and I accept his evidence that the cessation of cannabis and benzodiazepine use has not resulted in a significant change in the level of the applicant’s psychiatric symptoms. While I am satisfied that there were factors external to the applicant’s employment activities which had some impact, from time to time, on his emotional state, I am also satisfied that these have not had a permanent effect upon his psychiatric condition.”
Member Kenny made the following observations on the question of permanent impairment:
“90. As at the date of the respondent’s decision to reject his claim for payment and impairment, the applicant had suffered from his psychiatric condition for almost five years. Dr McLaren, in his report of 18 February 2003, expressed the opinion that the applicant’s condition is permanent and that he is unfit for any gainful occupation. In his report of 11 March 2004, Dr Mulholland expressed the opinion that it was more likely than not the applicant would remain severely psychiatrically impaired for the foreseeable future and that he will need to have ongoing intensive psychiatric treatment. The applicant has been under constant treatment from Dr McLaren without moderation of his symptoms, and attempts to re-engage in employment, at the ABC in 1998 and with the Australian Aboriginal Legal Aid Service in 1999 proved unsuccessful. I am satisfied that, having regard to factors in subsection 24(2) of the Act, the applicant's anxiety disorder/depression has resulted in permanent impairment for which the respondent is liable to pay compensation to him. The decision under review to reject the applicant’s claim for permanent impairment should be set aside.”
Following this decision, Comcare made a determination on the quantum of compensation and various legal interventions, none of which requires amplification in this decision.
In February 2008 the Applicant left Australia and lived in Spain for approximately two years. Following that he resided in Germany and thereafter moved between Spain, Egypt and Morocco – Exhibit 1 T96.3 p. 422. The Applicant informed his treating psychiatrist, Dr Petros Markou (whose clinic is located in Maroochydore), that whilst living in Morocco his house was robbed twelve times, locals were terrorising him, dead dogs were put in his water supply and that he had been beaten by the local police – Exhibit 1 T96.3 pp. 422 – 423. The Applicant subsequently left Morocco and commenced residing in Cape Verde, which is a small island nation off the coast of North Western Africa – Exhibit 1 T96.3 p. 423.
Perhaps, not surprisingly, difficulties arose in the provision of medical certificates by the Applicant to Comcare, with resultant interruptions in the payment of compensation entitlements.
Comcare agreed to pay for the Applicant’s travel costs from Marrakesh to Tenerife in the Canary Islands where he was assessed by Dr Bouchra Elatifi, a General Practitioner. In a report dated 20 October 2014, Dr Elatifi certified as follows – Exhibit 1 T103 p. 489:
“…his medical condition remains stable and corresponds with the information recorded in his medical history file… After reading the detail, in my opinion, his symptoms remained essentially unchanged.”
This conclusion was in accord with that of Dr Ahmed El Bok, an Egyptian medical practitioner from the Nozha International Hospital who opined in a report dated 16 August 2011 – Exhibit 1 T104 p. 484:
“This is to certify that the patient still suffers from symptoms of anxiety as well as depressive symptoms in the form of social withdrawal, sad mood, spontaneous crying, death wishes and Anhedonia.”
During this period the Applicant became increasingly frustrated with having to provide medical certificates when he had been found to be permanently impaired. Comcare reported that the tone of the Applicant’s correspondence with its staff was abusive. Comcare wrote to him on 23 September 2013 directing that he refrain from using inappropriate or abusive language in his dealings with staff. Unfortunately this state of affairs continued and by July 2014 Comcare refused to deal with the Applicant’s claim until receipt of a completed, dated and signed Periodic Review Form. Further, Comcare warned that if the Applicant continued sending inappropriate and abusive correspondence it would cease dealing with him directly – Exhibit 1 T90 p. 395.
On 30 April 2015 Comcare emailed the Applicant in which it was again stated that his communications to Comcare staff had been abusive. The Applicant was informed that in those circumstances it would not respond to his request for incapacity to work payments – Exhibit 1 T90 p. 396.
Comcare subsequently agreed to pay for the Applicant to be assessed by his treating psychiatrist Dr Markou. The consultation was conducted on 10 March 2015 by Skype as the Applicant continued to reside overseas.
Dr Markou observed that the Applicant’s clinical symptoms were low mood, anxiety, irritability, poor sleep and weight loss and it was stated that these symptoms were caused by “work at ABC”. The diagnosis was adjustment disorder with depressed to anxious mood – Exhibit 1 T104 p. 490.
Further medical certificates were provided by Dr Markou on 6 May 2016 and 8 March 2017 – Exhibit 1 T104 pp. 491 – 492. On both occasions the diagnoses and observations of Dr Markou were consistent with that set out above.
There was an email exchange in June 2017 between Comcare staff and the Applicant about the completion of the Periodic Review Form. In an email of 7 June 2017 the Applicant stated – Exhibit 1 T95 p. 416:
“I have a ‘brain freeze / shut down’ with any ‘forms’ I am confronted with…
My brain was fried by the ABC and then the continued harassment from comcare and the total lack of any sort of support from comcare made this situation permanent.
If you want, I will get Dr Markou to make yet another report and he can hi-lite the inability I have to fill out forms.”
Dr Markou contacted Comcare by email on 14 June 2017. He stated that he had regular videoconference consultations with the Applicant, and then informed Comcare – Exhibit 1 T95 p. 413:
“He is unable to complete the forms as his concentration is so poor and his anxiety deteriorates with such forms, which are reminders of what happened to him at the ABC.
I don’t think I am able to fill those forms for him, as they are addressed to him and require his own personal information. I am however able to write a report regarding Mr Renouf if you wish. If that is the case, please forward a schedule of questions.”
On 23 October 2017 Comcare wrote to the Applicant informing him of its intention to determine that it had no ongoing liability for compensation payments – Exhibit 1 T98 pp. 432 – 434. The reasons advanced for this proposed course of action were as follows – pp. 432 – 433:
“Following review of your Comcare claim, and particularly in response to the current medical evidence provided by Dr Markou, I am not satisfied that you are still suffering from your compensable injury, Anxiety Disorder, sustained on 8 September 1997 whilst employed with the Australian Broadcasting Corporation. This is based on the available evidence in that your employment is significantly contributing to your current condition and I note the following:
·You have been away from the Australian Broadcasting Corporation since 2002, and away from Australia in 2008 according to Dr Markou, therefore away from the stress and the environment that caused your injury.
·Dr Markou refers to symptoms associated with Comcare harassing you and the administrative process particularly, from July through to September 2017.
·Cape Verde has limited and basic medical care therefore you have not had access to medical treatment including psychiatric treatment nor antidepressants. I note that the treatment you have recently undertaken which Dr Markou refers to you as having regular being every weeks of supportive psychotherapy by him. His clinic notes show that treatment has been with respect to non-compensation related stressors as well as support in dealing with Comcare processes.
oLast invoice for treatment paid 10 April 2008 and note from the clinic notes you had travelled to Spain, Germany and Canada where you may have had access to medical treatment.
oInvoice for 10 March 2015 paid by Comcare and this is the first treatment paid for since 2008 where a medical certificate was supplied for continuing incapacity payments. Continuing treatment did not ensure from this time.
oThe next invoice received was 8 March 2017 due to the expiration of a previous medical certificate. Several invoices for psychiatric treatment have been paid by Comcare which correspond to the dates within the clinic notes and I note that treatment on 3 May 2017 was not relating to a service for Comcare and the remainder of services paid for relating to the administrative processes of your claim.”
The Applicant responded in an impassioned and angry letter of 7 November 2017. The Applicant made the following assertion – Exhibit 1 T99.1 p. 437:
“However Comcare I am not away from your 20 years of continued harassment and unfair treatment. Your harassment does not stop. Do some real research and see Comcare’s actions in the past…Go back over the last 20 years and see the cruel and malicious things others before you have done and educate yourself as to what Comcare really does to its clients that it pretends to care for. You have no idea and are totally out of your depth.”

The Applicant concluded as follows – Exhibit 1 T99.1 p. 440:
“I presume also that you are planning to stop my pay over Xmas and into the new year just because you can. This is correct isn’t it?
Are you at Comcare on a Work Experience program from a local school? If not just apologise for your ignorance and stupidity and causing me this unnecessary stress.
It is very clear that you have absolutely no idea what you are doing. This so called report that you created is rubbish and not worth the paper it is written on. It is neither accurate, factual or relevant.
I demand you hand over all correspondence, including this ridiculous baseless conclusion you created without any medical or legal training nor the basic skill to prepare such a document, to your Manager and that your excuse yourself from my account as from today..
I refuse to have any more dealings with you.”
Dr Markou also corresponded with Comcare regarding the 23 October 2017 letter. In his letter of 8 November 2017, Dr Markou made a number of serious criticisms of Comcare – Exhibit 1 T99.2 pp. 441 – 442:
“There are a number of reasons why I believe you letter is vexatious and punitive…
Mr Renouf has had a particularly distressing period of interaction with his previous case manager… the result of which has been that he has had to request a different case manager. Your appointment to Mr Renouf’s case has ensued, and your apparent first action with Mr Renouf is to request my clinical notes… followed by a notice of ‘Intent to Determine No Present Liability’. This looks like retribution on Comcare’s part, in response to Mr Renouf daring to question your processes and request a new case manager…
You state in your letter to Mr Renouf that because he has been away from the ABC since 2002 and away from Australia since 2008, therefore ‘away from the stress and the environment that caused the injury’, drawing the conclusion that he therefore is not suffering the effects of any stress in relation to the above. This view is naïve at best and completely disregarding of the nature of psychological injury and its effects. Despite being away from Australia since 2004 [leaving the country in order to get as far away from the perpetrators as possible], the effects of his trauma follow him everywhere. He constantly thinks about what occurred to him, and every day he is living a life that has been forced upon him by the ABC. Add to this the constant harassment by Comcare, and Mr Renouf continues to experience the effects of what happened to him in 1997 8 at the ABC on a daily basis.”
On 23 January 2018 Comcare determined that it had no ongoing liability under ss 16 and 19 of the Act. The Comcare Delegate said – Exhibit 1 T100 p. 443:
“…I am satisfied that, on the balance of probabilities, the injury of 8 September 1997, is no longer the most significant contributing factor to your compensable injury (Anxiety Disorder) whilst employed with the Australian Broadcasting Corporation.”
In reaching this conclusion, the Delegate had regard to the fact that the Applicant had been away from the ABC since 2002 and Australia since 2008 and the fact that Dr Markou referred to symptoms associated with alleged Comcare harassment and the administrative process, particularly from July to September 2017.
The Applicant sent a copy of the Determination to Dr Markou who emailed Comcare on 4 February 2018 in the following terms – Exhibit1 T101 p. 445:
“…the ABC is the source of the ongoing psychiatric distress that he continues to experience. To send a ‘request for reconsideration’ to the ABC is completely inappropriate. It will undoubtedly also worsen his already precarious emotional state, and increases the liability of Comcare and the ABC in relation to his suffering. Mr Renouf has already been deemed permanently incapacitated. How has that been overturned?”.
The Applicant requested an independent review of the Determination of 23 January 2018, and on 14 February 2018 the Review Officer affirmed that decision. In reaching this conclusion, the Review Officer made the following observations – Exhibit 1 T102 pp. 448 – 449:
“To be entitled to compensation, I must be satisfied on the balance of probabilities that your employment with the ABC continues to materially contribute to your compensable psychological condition labelled as ‘adjustment disorder’, sustained on 8 September 1997, and that your requirement for continued medical treatment and incapacity payments is in relation to this injury.
On the basis of the medical reports provided by Dr Leonard Marinovich, psychiatrist, Dr Niall McLaren, psychiatrist, and Dr Barrie Kenny between 1997 and 2002, I accept that you developed and experienced the effects of a psychological condition, namely ‘adjustment disorder’ which arose during the course of your employment with the ABC.
However, I consider that your compensable psychological condition has now resolved. This is supported by the medical evidence obtained from Dr Petros Markou, treating practitioner, which suggests that your current condition is attributable to factors unrelated to your employment with the ABC.
In a medical report from Dr Markou, dated 24 August 2017, Dr Markou wrote that you have been experiencing persistent symptoms of anxiety and depression, which he considers is consistent with being engaged in the Comcare process.
In the clinical notes provided by Dr Markou in March 2015 and for the period of August 2017 to September 2017, Dr Markou reports that you were experiencing anger and stress associated with your administrative dealings with Comcare. You claimed that your felt harassed and unsupported due to the ongoing requirement for you to complete periodic review forms and provided updated medical evidence in relation to your claim and this has adversely affected your psychological state.
Dr Markou also refers to a number of difficulties associated with your living conditions overseas, in both Morocco and Cape Verde, which have caused you to feel threatened and stressed. These include being beaten and terrorised by local police, witnessing other members of the community being maltreated by local authority, witnessing animal cruelty, being robbed over 12 times and having to regularly appear in local courts.
Having regard to the current medical evidence and the significant passage of time since your employment with the ABC, I am satisfied that the effects of your compensable psychological condition, namely ‘adjustment disorder’ does not continue to be materially contributed to by difficulties associated with your working conditions and the harassment you claimed to have experienced whilst employed by the ABC.”
On 7 April 2018 the Applicant sought a review of this decision – Exhibit 1 T1 pp. 1 – 5. In the review application form, the Applicant provided the following reasons for contending that the reviewable decision was wrong – Exhibit 1 T1 p. 5:
“Comcare combined 2 claims when in fact they are separate. Claim 1 was 8 September 1997 and claim 2 was later…Claim 2 was the claim that classified me as permanently impaired and I received a lump sum compensation for that through the AAT in 2004. Comcare paid me at the 1997 rate and ignored the 1998 pay rate. Then in 2009 the combined the 2 and reduced my pay by about 30%. Comcare forced me to use my superannuation to live during the six and a half year AAT case and now owe me my superannuation. Comcare cut me off now because they say I am not suffering from the 1997 condition and totally ignore the 1998 compensable condition using ‘File Notes’ obtained from my treating psychiatrist. Comcare ignore my treating psychiatrist diagnosis I consult with fortnightly via Skype. Comcare in my view cannot combine these 2 separate claims and untrained office staff cannot decipher a doctors notes when even a professor of psychiatry would not do the same. They are also responsible for my super as it was a legitimate expense to fund the 1998 – 2004 decision because during that time I was only receiving disability payments from social security.”
THE HEARING
A Hearing was convened in Brisbane on 6 and 7 February 2019. The Applicant was self-represented and gave evidence. The only witness called by the Applicant was Dr Markou who testified on 6 February 2019. Comcare was represented by Mr Charles Clark of Counsel who was instructed by Lehmann Snell Lawyers. The only witness called by Comcare was Associate Professor Frank Varghese who testified on 7 February 2019.
LEGISLATIVE SCHEME
Section 14 “is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned.” - Lees v Comcare [1999] FCA 753 (Lees) at [27]. It creates a liability for Comcare to pay compensation for injuries suffered by employees resulting in death, incapacity for work or impairment. As the Full Court in Lees highlighted, liability is qualified in two ways:
(a)liability is subject to the other provisions in Part II of the Act; and
(b)the liability is “in accordance with the Act”, namely “to pay compensation for which the statute provides, as required by the Act: see, for example, ss 17(3), (4), (5), 19, 2, 24 and 25” – Lees at [27].
In order for liability to be accepted pursuant to s 14, the following findings are required:
(a)appropriate notice of injury has been given;
(b)a claim for compensation, in accordance with the Act, has been made;
(c)the claimant was an employee at the relevant time;
(d)the employee suffered an injury; and
(e)the injury resulted in death, incapacity for work or impairment;
see Lees at [35].
There is a distinction between a decision to revoke a s 14 determination and one terminating liability because the condition no longer attracts payments for medical expenses or for incapacity. The former is relatively rare as it involves revisiting one or more of the five matters highlighted in Lee – see Renouf at [76], Carson and Telstra Corporation (2001) 33 AAR 351 at 358 - 359. It is much more likely that a cessation of liability will involve reconsidering matters under ss 16 and 19 of the Act.
Before focusing on the nature of the compensable “injury” it is important to note that in those matters where Comcare has initially accepted liability to pay compensation under s 14, in order for compensation to continue to be paid, there must be continuing incapacity or impairment – see Mifsud and Comcare (1994) 33 ALD 376.
The term “injury” is defined by s 5A to mean:
“(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, an 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.”
It will be seen that the definition of “injury” comprises two main subsets, namely “disease” and “injury (other than a disease)” each of which comprises separate but related bases of liability. The third basis of liability is an aggravation of a physical or mental injury (other than a disease).
As the High Court explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at 482, the first task of the Tribunal of fact is to determine if the employee is suffering a disease. However, it is important to note, that “disease” and “injury (other than a disease)” are not mutually exclusive categories – Prain v Comcare [2017] FCAFC 459 at [72] (Prain). Kenny, Tracey and Bromberg JJ in Prain made the following observation (at [74]):
“We do not think that it was impermissible for the Tribunal to note that the authorities ‘tended to place mental illness in the statutory category of ‘disease’. We would not read the Tribunal’s statements in [20] of its reasons as requiring the conclusion that mental illness must be categorised as a disease and, for that reason, could not also be classed as an ‘injury (other than a disease)’. Once again the Tribunal’s reasons assumed, correctly, that whether or not a mental illness is to be categorised as a ‘disease’ or, alternatively, an ‘injury (other than a disease)’ will depend on the nature and incidents of the physiological change.”
“Disease” is defined by s 5B of the Act to mean:
“(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.”
The term “ailment” is defined by s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“Aggravation” includes acceleration or recurrence – s 4(1). Reference can also be made to the following observations of Windeyer J in Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537 at 593:
“’Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increase in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’ Federal Broom v Semlitch…”
It is also important to note that the test of employment contribution for a disease (or aggravation thereof) is dependent on timing of on the onset of the compensable “injury”. The Act was amended in 2007 replacing the “material degree” test with the “significant degree” test – Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) (the Amendment Act).
Item 41 in Schedule 1 of the Amendment Act provides as follows:
“41 Application of amendment to 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”
(bold in the original)
Subsection 7(4) provides that an employee is taken to have sustained an injury, being a disease, or an aggravation of a disease, when, inter alia, the employee first sought medical treatment for the disease, or aggravation.
This is important to note, as it would appear that the Comcare Delegate who, on 23 October 2017 determined that Comcare was no longer liable to pay the Applicant for medical expenses and compensation, applied the significant degree contribution test – Exhibit 1 T98 p. 432.
In this matter, it is not disputed that the Applicant sought medical treatment for his compensable anxiety disorder/depression before the Amendment Act received the Royal Assent in April 2007. Accordingly the material degree test is the appropriate workplace contribution test to be applied.
Reference can be made to the observations of Finn J in Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536 for guidance in ascertaining the meaning of “material degree”:
“13…the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection may be disregarded.
14. What is problematic is identifying where the threshold lies. Treloar’s case sets its own threshold of sorts for satisfying the 1971 Act’s ‘contributing factor’ requirement. It would, for example, exclude a de minimus contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar, at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe the contribution as ‘material’: see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term ‘material’ in the phrase ‘in a material degree’ is used in the SRC Act. The legislative history of this definition makes this plain.
15. There are, in my view, obvious hazards in allowing finely tuned nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word ‘material’ in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions in the SRC Act were engaged. This said I consider that one of the meanings of the word ‘materially’ in the Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –
‘4. In a material degree; substantially, considerably.’
An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the ‘loose ends’ of the definition of ‘material’ in the Macquarie dictionary ‘namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’.
16. Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);
(iii)whether this will be so in a given case will be a matter of fact and degree.”
It is important in this context to refer to s 5B(3) which defines “significant degree” as a “degree that is substantially more than material.” It follows, then, that a “material degree” is substantially less than a “significant degree”. As his Honour Finn J explained above, what meets the threshold of a material degree is a matter of fact and degree, but it is clear that it is a more generous standard for an injured worker than that which applies following the 2007 amendments.
Subsection 16(1) of the Act provides:
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
It will be seen that s 16(1) requires that the medical treatment obtained must be “in relation to the injury”. Whilst the words “in relation to” have the widest possible meaning intended to convey some connection between the subject matter to which the words refer (Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111 per Mann CJ), the relational connection between the medical treatment and the compensable injuries must be determined objectively and by reference to all relevant evidence. In order to determine if the relational connection exists or existed, it is necessary for the Tribunal to consider the nature of the compensable injuries in light of the evidence presented, including opinions by medical specialists, and make, on the balance, an evaluative conclusion – Howes v Comcare [2016] FCA 1521 at [53] – [54].

Section 19 provides that Comcare is liable to pay an employee who is incapacitated for work as a result of an injury compensation calculated in accordance with the prescribed formulae. Essentially, compensation for incapacity is paid on the basis of normal weekly earnings and is designed to reflect pre-injury earnings, including regular overtime and certain allowances.
It is also the case that when considering liability to pay compensation, an employer and its insurer is required to take an employee as it finds him or her. As von Doussa J observed in Commonwealth v Smith (1989) 12 ALD 224 at 226:
“Incapacity due to disabling psychological symptoms precipitated by minor physical injury to a person already suffering a neurotic temperament is a well-recognised and unfortunately common phenomenon. If the precipitating injury occurs in compensable circumstances, the incapacity caused by the psychological symptoms is compensable even though the physical effects of the injury may resolve quickly. In such a case the injury is an element which only completes the tale of circumstances which constitutes the cause of the incapacity in the non-legal sense, but in the legal sense it is itself the cause of the incapacity which ‘results’ from it: see Ward v Corrimal-Baalgownie Collieries Pty Ltd (1938) 61 CLR 120 at 130. The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all the predispositions and susceptibilities, whatever they may be: see Mason JA, as he then was in Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29 at 44 whose judgment was upheld by the High Court: (1973) 47 ALJR 236….”
CONSIDERATION
Introduction
It is not contested that the sole issues before the Tribunal are whether the Applicant continues to obtain medical treatment in relation to the accepted injury (s 16) and whether the Applicant continues to suffer incapacity as a result of the accepted injury ( s 19).
Comcare has not sought to rely on the Full Federal Court decision of Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 and contend that the Tribunal make findings of fact that undercut the factual findings in Renouf thereby re-opening the question of liability under s 14.
In reaching a decision on the issues before the Tribunal, consideration must be given to the medical opinions expressed by Dr Markou and Associate Professor Varghese.
There are some issues with the opinions of Dr Markou which are dealt with below. However, before dealing with those matters, it is appropriate to outline the progress of the Applicant’s medical condition from the time of the Tribunal Determination of May 2004. Reference will be made to the 2004 reports of Dr McLaren, and the various clinical notes, correspondence and reports of Dr Markou. The clinical notes of Dr Markou are contained in Exhibit 5. As there is no pagination, references to those notes is by reference to the date of the notes in the Exhibit.
Applicant’s Medical Condition post May 2004
In July 2004 the Applicant was urgently admitted to hospital because of suicidal ideas and paranoid beliefs regarding the ABC. Dr McLaren, Consultant Psychiatrist, opined that whilst these ideas had a basis in reality, the Applicant was over-reacting to them and that he had no control over his reactions. In addition, Dr McLaren opined that the Applicant’s mental state was directly related to his compensable condition – Exhibit 1 T74 p. 301.
In August 2004 the Applicant “impulsively” went to Germany to visit a friend. Dr McLaren wrote a report to Comcare on 2 December 2004 in which he stated that he had not seen the Applicant since 23 August 2004. At that time he was taking an antipsychotic drug (Olanzepine), an antidepressant in a full dose (Mirtazepine) and a hypnotic (Zolpidem). Further, the Applicant remained intensely paranoid about the ABC and was estranged from all of his former Darwin friends. Dr McLaren described the Applicant at that time as “seriously disabled” with a “significant risk of suicide” and exhibited “considerable loss of self-control, particularly financially, and no evidence whatsoever that he is learning from experience” – Exhibit 1 T76 pp. 304 – 305.
The first written record of the Applicant being assessed by Dr Markou is 22 January 2008. The notes Dr Markou made of the first consultation are unremarkable. There is no suggestion that the Applicant was suicidal or experiencing the type of extreme reactions outlined by Dr McLaren in 2004. Instead, Dr Markou noted that the Applicant had spent 10 months in Germany, returned to Australia in 2006 and then wished to travel overseas. However, he noted that the Applicant complained that Comcare “put a spanner in the works”. Dr Markou also noted that the Applicant informed him that he needed a medical certificate every September – Exhibit 5.
The Applicant was examined by Dr Markou regularly during the first four months of 2008: 3, 4, 8, 13 21, 27 and 28 February, 4, 6, 10, 13, 17, 20, 25 and 27 March, 4 and 10 April. After the 10 April 2008 consultation, there are no further clinical notes until 10 March 2015.
A constant theme is the Applicant’s frustration with Comcare:
(a)1 February 2008: “Comcare won’t provide support”; “constant harassment by them”;
(b)8 February 2008: “Comcare won’t help”; “Hates Comcare; no response”; “Best thing is to wrap up Comcare”; “They don’t do lump sums”; “Ongoing issues with Comcare”;
(c)13 March 2008: “angry with Comcare, ABC”.
The Applicant recounted to Dr Markou a number of problems with his life, particularly with his sister, who he claimed “stripped” his deceased parents’ home of furniture and belongings before he could get there (notes of 22 January 2008). The Applicant complained that his sister had all of his furniture (4 February 2008), and that his sister was “cold’ towards him (13 March 2008).
The Applicant informed Dr Markou (28 February 2008) that he would get anxious when he went out, that he hated meeting people and that he couldn’t relax anymore. He also reported anger problems and wanted medication to calm him (27 February 2008).
Despite this, the Applicant reported living with a friend and getting “stoned on the weekend” (21 February 2008).
The clinical notes end at a time when the Applicant was about to leave for Germany. Throughout the notes were accounts of the Applicant’s anger and frustration directed at Comcare, the ABC, the Commonwealth Ombudsman and the then Prime Minister’s Office (the Hon. Julia Gillard) – “…response from Julia Gillard’s office. very angry” (4 April 2008).
The clinical notes also contain suggestions that the Applicant was subjected to troubling events earlier in his life. For example, in the notes of 1 February 2008 it is reported:
“1987 – Leongatha, house torched”.
In the notes of 8 February 2008 the following account is reported:
“…bashed by an ex-boyfriend once.”
As previously stated, the next note was of an assessment on 10 March 2015.
Dr Markou noted that the Applicant was still “very angry with Comcare”. This note also records the Applicant’s movements over the past eight years including his initial visit and residence in Spain, followed by relocations to Germany, Spain, the Canary Islands, Egypt and, finally, Morocco. Throughout this time there are references to troubling incidents including the Applicant cutting the security page out of his passport, being present in Egypt during the revolution, being robbed several times in Morocco and going to court for a year. The Applicant had lost weight and had little money. He informed Dr Markou that he was suffering “a lot of stress” and that “his life is threatened”.
In the clinical notes of 8 March 2017 Dr Markou noted that the Applicant had left Morocco was now residing in Cabo Verde (Cape Verde Islands). Dr Markou noted the following troubling events that allegedly took place whilst the Applicant was residing in Morocco:
“local police – locals were terrorising her (sic); they would take things
putting dead dogs in water supply
house robbed 12 times
total corruption beaten by police”.
Dr Markou also noted that the Applicant was stressed about the Comcare process, in particular, the need to return to Australia to deal with Comcare. Subsequent notes (26 June, 12 July, 8 August, 24 August, 5 September, 9 October, 25 October, 7 November, 16 November, 27 November, 7 December and 18 December 2017) all contain references to Comcare and the Applicant’s anger and frustration with the compensation process. For example, on 16 November 2017 Dr Markou records that the Applicant had not heard from Comcare and was “very stressed, to the maximum…”. Again, on 4 December 2017 Dr Markou notes that the Applicant was “very stressed at not having heard anything.”
A further common thread is the Applicant’s variable mood and trouble with authority. Despite first liking Cape Verde, by 26 June 2017 Dr Markou notes that the Applicant “does not like Cape Verde”.
This different perspective is perhaps explained by the note of 3 May 2017 wherein Dr Markou reports that the Applicant has been “beaten up by the local cops recently”. He further reported that the Applicant didn’t know why but then notes;
“videotaped them and smashed the camera…‘Ray hit them first’”.
The notes record a marked decline in the Applicant’s mental and physical condition during the course of 2018. It is not necessary to set out in this decision what the Applicant told Dr Markou during the course of 2018, except to note that the Comcare process by this time was having a severe and deleterious impact on him.
The Tribunal does not have before it a comprehensive medical report on the Applicant prepared by Dr Markou. It does, however, have a number of shorter reports which provide some information which is of assistance.
As previously noted, Dr Markou opined in the medical certificates he provided of 6 May 2016 and 8 March 2017 (Exhibit 1 T104 pp. 491 – 492) that the Applicant was still suffering from an adjustment disorder with depressed and anxious mood.
In an Authority and Consent for the Collection and Release of Medical Information Form dated 24 August 2017 Dr Markou made the following diagnosis – Exhibit 1 T96.2 p. 420:
“Adjustment disorder with depression and anxiety.
Injury is a response to bullying and intimidation at the ABC & subsequently by the insurer.”
In response to the question of what is the current significant contributing factor impacting on the Applicant’s medical condition, Dr Markou provided this response – Exhibit 1 T96.2 p. 420:
“The past injuries at the ABC continue to play a significant role. In addition administrative dealings with Comcare which are belligerent and harrassing have worsened his condition.”
The final question posed was that given the duration of the Applicant’s condition of adjustment disorder, had Dr Markou considered any further investigations or referrals. Dr Markou replied as follows – Exhibit 1 T96.2 p. 421:
“No. The persistence of his symptoms is consistent with being engaged in the Comcare process.”
Reference has already been made to Dr Markou’s letter of 8 November 2017 to Comcare where he attacked the Intent to Determine No Present Liability letter as being “vexatious and punitive”. Despite the belligerent and overly combative tone of the letter, Dr Markou did make the following observation – Exhibit 1 T99.2 pp. 441 – 442:
“Despite being away from Australia since 2004 [leaving the country in order to get as far away from the perpetrators as possible], the effects of his trauma follow him everywhere. He constantly thinks about what occurred to him, and every day he is living a life that has been forced upon him by the ABC. Add to this the constant harassment by Comcare, and Mr Renouf continues to experience the effects of what happened to him in 1997 8 at the ABC on a daily basis.”
Perhaps the most significant medical report prepared by Dr Markou is a document dated 25 June 2018 and which is headed Report of Psychiatric Status and Functional Capacity regarding Mr Ray Renouf – Exhibit 4.
In this document Dr Markou refers to the Applicant’s “longstanding post-traumatic stress disorder.”
Dr Markou rerfers to the Applicant’s “pervasively anxious and depressed state”, which is manifested in being unable to adequately care for himself, having a poor diet and rarely travelling outside the home he was then residing in. In addition, Dr Markou noted that the Applicant had difficulties interacting with people, especially outside his immediate circle and being frequently angry and irritable. The Applicant was said to have limited capacity to sustain focus and concentration which attendant problems in filling our forms for Comcare. His condition made him angry, confused and frustrated. Related to this problem was an inability to plan and make decisions some resulting in erratic and impulsive behaviour which often alienated people.
In another report also dated 25 June 2018 which is headed REPORT OF PSYCHIATRIC STATUS regarding Mr Ray Renouf (Exhibit 4) and provides the following information:
“This is to certify that I have been seeing Mr Ray Renouf for over 10 years for the management of his longstanding post-traumatic stress disorder, initially manifesting as an adjustment disorder in 1997 as a result of traumatic events experienced during the course of his employment with the ABC.
His post-traumatic stress disorder has also manifested from 2004 in response to the court action that arose following these incidents…
He remains on treatment including regular counselling, and has in the past been on medication which he was unable to tolerate. He was last assessed by me today, June 25 1998.”
As noted previously, Dr Markou testified on 6 February 2019. In response to questions from Mr Clark, Dr Markou testified that he had in fact been treating the Applicant since 2001, albeit that the Applicant only had one session with Dr Markou in 2001 and did not seek treatment again until 2008. Further, there was another gap between 2008 and 2015, when the Applicant again sought treatment from Dr Markou.
Mr Clark referred Dr Markou to this statement that the Applicant was subject to bullying and intimidation at both the ABC and during his dealings with Comcare (Exhibit 1 T96.2 p. 420). Dr Markou replied that the Applicant had informed him that he had been the subject of jokes and harassment because of his sexuality. The bullying from Comcare related to threats to cease payments because the Applicant had not followed procedures.
Dr Markou agreed that he was relying entirely on the Applicant’s self-reporting and when asked why he had not sought confirmation from Comcare he replied with words to the effect of:
“I’m here as his advocate”.
Mr Clark then asked Dr Markou if he had assumed the role of the Applicant’s advocate. To which, Dr Markou answered in the affirmative.
When asked how he could opine that the Applicant was suffering from PTSD as a result of his employment with the ABC, Dr Markou replied that the Applicant had been exposed to horrific videos including mutilations.
Dr Markou
It is patently clear from listening to the testimony of Dr Markou, and reading the various reports he has prepared, that he has a strong emotional attachment to the Applicant’s cause. As explained above, during cross-examination he was explicit in stating that he perceived himself as an advocate for the Applicant. The fact that the Applicant was not legally represented was possibly a factor in leading Dr Markou to this position.
Mr Clark in his summing up on 7 February 2019 specifically referred to Dr Markou’s statement that he was an “advocate” for the Applicant and submitted that the Tribunal should treat with caution the opinions expressed by Dr Markou. Further, Mr Clark drew the Tribunal’s attention to Dr Markou’s letter of 8 November 2017 to Comcare (Exhibit 1 T99.2 pp. 441 – 442) and submitted that it amounted to “outrageous advocacy” and was “extraordinary”.
It is a matter of regret that it must be stated that the Tribunal formed the view that Dr Markou’s evidence was highly subjective and tainted by partisanship. The bonds of familiarity and possibly friendship built over a decade of providing professional assistance to the Applicant have obviously had an impact on Dr Markou.
Sir George Jessel MR observed in Lord Abinger v Ashton (1878) L.R. 17 Eq 358 at 373 – 374 that “it is natural” that the mind of a professional witness “however honest he may be, should be biased in favour of the person employing him, and accordingly we do find such bias…there is a natural bias to do something serviceable for those who employ you and adequately remunerate you.”
Sir George Jessel was there referring to unconscious partisanship; a state of affairs which is all too common because it is an intrinsic part of the DNA of many persons, including professionals, who are either overly empathetic or overly loyal.
The issue in this matter, however, was not unconscious partisanship but deliberate partisanship. It was deliberate because Dr Markou made it clear beyond doubt that he saw himself as an advocate for the Applicant, and the views and opinions he expressed where therefore coloured by this conscious bias.
The Tribunal has no reason to doubt the conviction of Dr Markou’s opinions or the fact that they are honestly and sincerely held. It is the case, however, that Dr Markou has ceased being an objective and independent professional whose opinions about the medical state of the Applicant and its cause are dispassionate and devoid of emotion.
The Tribunal does not discount the worth of the medical diagnoses of Dr Markou, but considers they must be, as Mr Clark submitted, dealt with a degree of caution. Certainly, in weighing the medical evidence, the Tribunal considers that the opinions expressed by Associate Professor Varghese are to be preferred.
Associate Professor Frank Varghese
Associate Professor Varghese examined the Applicant on 14 August 2018 and prepared a report dated 4 September 2018 – Exhibit 7. Dr Varghese had previously examined the Applicant in 2002 and prepared two reports, both of which were considered by Member Kenny – see Exhibit 1 T61 pp. 195 – 207 and T71 pp. 258 – 261.
Importantly, Associate Professor Varghese noted that at the time of the assessment, the Applicant was not taking any medication, and that he had ceased taking benzodiazepine. Further, the Applicant reported that he drank little alcohol and only very occasionally smoked cannabis – Exhibit 7 p. 1.
Associate Professor Varghese then set out at considerable length the Applicant’s lifestyle and how he had lived since 2004. It was noted that the Applicant was “keen to give his account” and with respect to mood and affect “there was no evidence of any depression or anxiety. His affective was reactive and warm. I note a bright smile and a sense of humour and he was able to laugh at times. Overall he seemed in reasonably good spirits. There was no disorder of the form of thought.”
Associate Professor Varghese’s provisional diagnosis of the Applicant was as follows – Exhibit 7 p. 5:
“At the time of the evaluation Mr Renouf cannot be considered to be suffering from any psychiatric illness in any meaningful way. Any previous Major Depression is now in remission as can be judged by self report and mental state. He does not describe pervasive low mood. He expresses anger and annoyance about certain issues to do with the ABC and Comcare but these are not of clinical significance. He can be said to be in a state of embitterment about the ABC and Comcare but this is not a psychiatric illness.
Importantly I note that there is no longer any benzodiazepine dependence or alcohol dependence and this may account for the remission of any previous depression and anxiety.
Currently the principal clinical issue relates to personality. In addition to a sense of persecution I also note difficulties in interpersonal relationships, paucity of relationships, social avoidance and an alternate lifestyle, but his overall psychosocial functioning is quite good given his circumstances.”

Associate Professor Varghese then comprehensively examined much of the medical and related material that is contained in Exhibit 1, at least as it relates to the Applicant’s current condition. Reference was made to correspondence between Dr Markou and Comcare in 2017 relating to the Applicant’s inability to complete forms. In response to this Associate Professor Varghese observed – Exhibit 7 p. 7:
“(COMMENT: The proposition that Mr Renouf is unable to fill in the forms required by Comcare because of his psychiatric condition does not fit with the correspondence I have noted between Mr Renouf and Comcare, nor does it fit with him being able to obtain Visas including extension of Visas in several countries.)”
Associate Professor Varghese was particularly critical of Dr Markou’s PTSD diagnosis. He made the following observations – Exhibit 7 p. 9:
“(COMMENT: Even if one accepted entirely Mr Renouf’s account of his treatment at the ABC there is nothing about his treatment there that could possibly give rise to PTSD. Indeed the diagnosis of PTSD would have to be said to be preposterous in the circumstances.
If Mr Renouf has PTSD, then the only possible cause for this would be the events he described to Dr Markou [as per Dr Markou’s notes] which occurred to him while he was overseas in Morocco.)”
Having considering the documentation, Associate Professor Varghese did not change his diagnosis, and made these further observations – Exhibit 7 p. 13:
“The principal clinical issue and the source of Mr Renouf’s difficulties in functioning are related to personality vulnerability/disorder. The personality configuration is of a mixed type with the predominant feature being in the paranoid spectrum. I note however other elements include difficulties in sustaining relationships, difficulties in affect regulation, lack of meaningful attachments, lack of consistency in abode, problems with social engagement and an external locus of control. He tends to have a conspiratorial role of others in the world. There is also a sense of entitlement.”
Associate Professor Varghese gave evidence on 7 February 2019 and was cross-examined by the Applicant.
In response to questions from Mr Clark, Associate Professor Varghese testified that in his opinion the Applicant was not currently suffering from a psychiatric illness in any meaningful way, and that he was not suffering from major depression or anxiety. In his opinion, the Applicant’s anger towards the ABC and Comcare was not a manifestation of psychiatric illness but within normal human mood variations. According to Associate Professor Varghese, these feelings were a manifestation of the Applicant’s personality, and he opined that there are wide variations in personality traits amongst the population.
Associate Professor Varghese also opined that the difference between a vulnerable personality and a psychiatric disorder is a spectrum, and where a person stands in these circumstances is a judgment call by the treating medical professional. In this matter the Applicant’s innate personality was very important in understanding what the actual situation was. Associate Professor Varghese testified that when he first examined the Applicant in 2002 he was in a very bad situation, with medical drug dependence combined with significant depression and alcohol abuse. In fact at that time the Applicant’s depression was of psychotic intensity. In comparison, Associate Professor Varghese opined, the Applicant now exhibited no signs of chronic depression, and by its very nature, major depression cannot persist for two decades.
Renouf and Comcare (2014)
Member Kenny accepted in Renouf that the Applicant was then suffering from a psychiatric condition which was labelled anxiety disorder/depression – see Renouf at [79].
In addition, Member Kenny accepted that the Applicant had a satisfactory pre-morbid personality – Renouf at [82].
In terms of determining if the Applicant’s condition should be categorised as a disease or an injury simplicter, Member Kenny’s reasoning proceeded on the assumption that it was the former, and he applied the pre-2007 workplace contribution test of material contribution – Renouf at [80]. Likewise in this matter, I have proceeded on the uncontested assumption that the Applicant’s psychiatric condition at the time he was employed by the ABC and in the period following until the decision of Member Kenny, was a disease and not a injury simplicter. Further, as explained earlier, I have also applied the material contribution test in determining this matter.
Member Kenny was satisfied that the Applicant’s employment duties presented him with adjustment difficulties and these had a role to play in the development of his psychiatric condition. Moreover, this condition arose before the Applicant commenced taking benzodiazepine and, accordingly, Member Kenny accepted that the Applicant’s underlying psychiatric condition had the requisite nexus with his employment – Renouf at [84].
It was accepted by Member Kenny, and conceded by the Applicant’s counsel, that the Applicant was not subjected to sexual harassment or victimisation by the management of the ABC. However, Member Kenny observed that a person with depressed mood would be more vulnerable to feelings of paranoia – Renouf at [85].
Member Kenny referred to other stressors in the Applicant’s life including an assault by a taxi driver, the death of his parents and the negative effects of the litigation process. These stressors, however, while possibly aggravating the Applicant’s emotional state, were determined to only have had a temporary impact and were not the primary responsibility for the development of the Applicant’s depressive condition – Renouf at [86].
After noting that the Applicant’s condition had not significantly changed after the cessation of using cannabis and benzodiazepine, Member Kenny observed that some elements of his psychiatric state were related to non-employment factors, but that employment factors materially contributed to his ongoing psychiatric condition of anxiety disorder/depression – Renouf at [88].
A reading of the various medical reports that were before Member Kenny paint a very different picture of the Applicant’s condition at that time compared with the evidence before the Tribunal in this matter. It is clear that in the period leading up to the 2004 Determination, the Applicant was a very sick man. His mental health was at a nadir and his capacity to function and to reason were severely impaired. Comcare has not sought to revisit Member Kenny’s decision, and the Tribunal accepts that the conclusions reached by Member Kenny were soundly made based on the weight of medical evidence before him.
Section 16: Compensation in respect of medical expenses
The first question to be determined is whether Comcare continues to be liable to pay the costs of medical treatment which is contended by the Applicant to be obtained in relation to the compensable injury.
As was noted previously, the term “in relation to” has been given a broad interpretation. For example, in Kennon v Spry (2008) 238 CLR 366 Kiefel J said (at [217]):
“The expression ‘in relation to’ is of wide and general import and should not be read down in the absence of some compelling reason for doing so. As Toohey and Gummow JJ said in PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service, the words are prima facie broad and designed to catch things which have a sufficient nexus to the subject. The question of nexus is dependent upon statutory context.”
In determining in this matter if the costs of the Applicant obtaining medical treatment is in relation to the accepted compensable injury, consideration must be given to the weight of the evidence before the Tribunal, and, in that regard, the reports of the medical experts. In Howes v Comcare [2016] FCA 1521 the Tribunal, when determining whether or not breast reduction surgery was in relation to the applicant’s compensable injuries, gave consideration to the evidence of the various medical experts. This reliance was challenged by Counsel for Ms Howes.
In rejecting this challenge, Griffiths J made the following observations (at [54]):
“The AAT approached the central issue on the basis that the relational connexion between the surgery and the compensable injuries had to be determined objectively and by reference to all relevant evidence. I accept Comcare’s submission that, in order to determine whether the relational connexion existed, it was necessary for the AAT to consider the nature of the compensable injuries (see Manns v Comcare [2012] AATA 462 at [22]-[23]). Contrary to the applicant’s contention that Dr Maxwell’s evidence was only relevant to the issue of ‘reasonableness’, I consider it was relevant to the prior question whether surgery was in relation to those injuries. It was open to the AAT to prefer his evidence on this question. I do not consider that this simply involved a finding of fact, as suggested by Comcare. The AAT’s conclusion that the surgery was not in relation to the injuries is more accurately described as ‘an evaluative conclusion’ based on primary facts (see Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272 at [88] per Robertson J). The subjective views of either the applicant or her medical advisors were not determinative. This is what the AAT apparently had in mind when it stated, later in its reasons [28], that the surgery was not medical treatment obtained in relation to the compensable injuries, ‘regardless of whether [the applicant] (or, indeed any of the doctors that she consulted before the surgery) thought that it was’.”
Dr Markou opined on a number of occasions that the Applicant continues to suffer from an adjustment disorder with depressed mood and that this condition has its origins with his employment with the ABC – see, for example, Exhibit 1 T104 pp. 491 – 492; Exhibit 1 T96.2 pp. 420 – 421.
Somewhat surprisingly, in his reports of 25 June 2018, Dr Markou provided a different diagnosis, namely PTSD – Exhibit 4. When questioned at the Hearing about the cause or causes of this ailment, Dr Markou advanced the theory that its genesis lay in the Applicant’s viewing of horrific video footage while working with the ABC in Darwin.
Associate Professor Varghese opined that this diagnosis, based on the material he had read, was ‘preposterous” – Exhibit 7 p. 9.
The Tribunal is not convinced that the Applicant is suffering from PTSD, but if he is, then it is not related to his employment with the ABC.
Dr Markou testified that the Applicant witnessed horrific images whilst working in the interchange area of television production at the ABC in Darwin. The Tribunal has no reason to doubt that the Applicant may have been exposed to images that were disturbing, however what is also clear is that if he was traumatised by being exposed to such images, there is little, if any, evidence of this in the material before the Tribunal.
Member Kenny did not deal with this matter in his reasons, and if there is a record of the Applicant being affected by horrific images then the Tribunal has not been able to locate any. It is not surprising that Associate Professor Varghese opined that the diagnosis of PTSD was preposterous, because, as he said, there was no objective basis on the material he had read that would link that condition to the Applicant’s employment.
It is not being critical of Dr Markou to note that the diagnosis of PTSD is surprising. It is surprising not only because there is little, if no evidence of the Applicant being traumatised by viewing disturbing images while working for the ABC, but equally importantly, because Dr Markou did not diagnose the Applicant with such a condition in the Medical Certificates he provided in May 2016 and March 2017 – Exhibit 1 T104 pp. 491 – 492. The first time that Dr Markou made this diagnosis is in the 25 June 2018 reports. Those reports are brief, and, compared with the report of Associate Professor Varghese, devoid of any serious analysis or cross-referencing. The PTSD diagnosis is not supported by evidence or buttressed by professional reasoning. It is simply a bald assertion which, as noted, is devoid of any identified evidentiary corroboration.
It is also a surprising diagnosis because whilst there is little, if no, evidence of the Applicant being traumatised by video images whilst employed by the ABC there is extensive evidence of the Applicant being subject to traumatic non-employment related events. Some of those events are as follows:
(a)Applicant’s Leongatha house “torched” pre 1997;
(b)physically assaulted by ex-boyfriend, pre 1997;
(c)death of both parents;
(d)estrangement from sister;
(e)being denied his rightful inheritance due to his sister “stripping” his parents home of furniture and belongings;
(f)loss of most of his pre-Darwin friends from HIV, some of whom he nursed until it became too much for him – Exhibit 1 T40 p. 124;
(g)assaulted by a taxi-driver in 1996 – Renouf at [40];
(h)present in Cairo during the Egyptian revolution;
(i)robbed several times in Morocco;
(j)house in Morocco broken into on 12 occasions;
(k)beaten by the Police in Morocco;
(l)dead dogs placed in his water supply in Morocco;
(m)involvement in long-running court proceedings in Morocco;
(n)beaten by the Police in Cape Verde;
(o)altercations with locals in Cape Verde.
The Tribunal agrees with the analysis of Associate Professor Varghese that if a diagnosis of PTSD is open, then the cause or causes of that ailment can be found in one or more of the above traumatic non-employment related events. Indeed, the clinical notes of Dr Markou are somewhat limited in terms of the Applicant’s life story. There may be other traumatic events that have occurred which the Applicant has not disclosed, or, if he has, have not been recorded by Dr Markou or at least not admitted into evidence.
Turning now to the accepted conditions, the Tribunal was impressed by the written and oral evidence of Associate Professor Varghese. His report of 4 September 2018 is comprehensive, with an exhaustive examination and assessment of the materials he was briefed with. The conclusions reached by Associate Professor Varghese flow logically from those materials and his examination of the Applicant. Further, his conclusions also comport with the Tribunal’s reading of the written evidence and observations of the Applicant when he gave oral evidence.
It will be recalled that Associate Professor Varghese opined that the Applicant was not, in 2018, suffering from any psychiatric illness in any meaningful way. Further, he opined that the Applicant’s major depression, anxiety state and adjustment disorder were in remission and that his state of embitterment about the ABC and Comcare was not a psychiatric illness - Exhibit 7 pp. 5 and 12.
Associate Professor Varghese opined that the principal clinical issue and the source of the Applicant’s difficulties in functioning is related to a personality vulnerability/disorder – Exhibit 7 pp. 5 and 13.
Associate Professor Varghese also opined that the Applicant’s emotional symptoms in early 2018 could be understood as constituting an adjustment disorder in relation to his dealings with Comcare – Exhibit 7 p. 13.
It flows from this diagnosis of Associate Professor Varghese that, firstly, the Applicant is no longer suffering from the mental ailment for which he was awarded compensation. According to Associate Professor Varghese, any Axis I disorder/illness caused by the Applicant’s employment with the ABC is no longer present – Exhibit 7 p. 13. Associate Professor Varghese made the following observations – Exhibit 7 p. 14:
“Mr Renouf does not currently suffer from any condition that could have arisen from his employment with the ABC. If he has suffered any condition contributed to by his employment with the ABC in the form of Adjustment Disorder, then this would have been in remission by definition within six months of termination of employment.
It is now some two decades since Mr Renouf worked for the ABC. It is most unlikely that he has any psychiatric disorder that could meaningfully be related to his employment.”
Second, Associate Professor Varghese opined that the Applicant’s personality vulnerability is longstanding and was present before he commenced employment with the ABC. He opined that such a personality disorder can arise from complex issues involving interaction between constitutional factors (temperament) and developmental experiences, particularly with respect to secure attachment in the early developmental years. The Applicant’s underlying personality issues may have influenced the form and content of his employment caused adjustment disorder – Exhibit 7 pp. 13 - 14.
This diagnosis is contrary to that given by Dr Markou who, both in his written diagnoses and at the Hearing, was passionate in advancing the view that the Applicant continues to suffer from a mental ailment whose origins lie in his employment with the ABC. The Tribunal has no reason to doubt the sincerity of Dr Markou or the fact that he strongly believes that the Applicant is a sick man whose mental ailment (in his opinion) was materially contributed to by his employment, albeit two decades ago.
The Tribunal is in no doubt that the Applicant is a person who continues to suffer from various mental issues which were outlined by Associate Professor Varghese, namely, difficulties in sustaining relationships, problems with social engagement, a conspiratorial view, and, generally, a paranoid personality – Exhibit 7 p. 13. Associate Professor Varghese diagnosed all of these matters as being related to the Applicant’s underlying personality as distinct from a mental ailment which was either caused or aggravated by his employment.
Psychiatry is an inexact branch of medical science. The mechanics of the brain as manifested in thoughts and behaviour are still in a realm where psychiatric diagnoses can only provide educated and logical hypotheses. It is the case here that the Applicant has a fragile and vulnerable personality. It is equally clear, as previously explained, that an employer takes on an employee as they find him or her. The fact that an employee may have vulnerabilities is not an impediment to successfully obtaining compensation if the employee is injured in the course of his or her employment, even if a fellow worker without those vulnerabilities would not have been injured.
It is not contested that the Applicant was in fact injured whilst working for the ABC. The first question to be determined, however, is if those injuries still materially contribute to the Applicant’s mental state. It is tolerably clear, based on the evidence presented, that the mental disease contracted by the Applicant whilst employed by the ABC has over time ceased to materially contribute to his mental state. Those work-related events that caused his disease have been “crowded out” by subsequent events. The Applicant has lived in various countries over the past decade, sometimes in dangerous conditions, and has been subjected to numerous traumatic incidents. The Tribunal accepts that the Applicant’s underlying personality vulnerabilities have come to play a significant, if not sole, role in his present mental state. The Tribunal also accepts the diagnosis of Associate Professor Varghese that the Applicant is not currently suffering from a psychiatric illness. Further, if the Applicant is suffering from such an illness, then its genesis lies in post-employment events, and not with his employment with the ABC.
Finally, Dr Markou also opined that the Applicant’s employment related injury has been exacerbated by his subsequent dealings with Comcare. On 24 August 2017 he opined that the Applicant’s “administrative dealings with Comcare which are belligerent and harassing have worsened his condition.”- Exhibit 1 96.2 p. 420.

As the Tribunal has found that the Applicant is no longer suffering from a psychiatric illness this is a moot point. However, in the event that the Tribunal is in error in finding that the Applicant is no longer suffering from a psychiatric illness, it is appropriate to consider the implications of this diagnosis on the question of the ongoing liability of Comcare to pay for medical expenses pursuant to s 16.
There is a considerable line of authority to the effect that an “injury”, or aggravation of an “injury”, arising from the compensation process is not compensable as it is not part of the employee’s employment.
In Re Jones and Comcare [2013] AATA 334 an employee of the Australian Tax Office claimed for an adjustment disorder that arose out of an unsuccessful application to ComSuper for a Partial Invalidity Pension. In rejecting the Applicant’s claim, Senior Member Cunningham made the following observations:
“75. Section 5B requires that a disease be contributed to, ‘to a significant degree,’ by the employee’s employment which is defined in subsection (3) as meaning substantially more than material. Such a determination requires an objective assessment of the actions of the employer. For the reasons identified above, the Tribunal does not consider that the actions of ComSuper or any of its agents can be attributed to Ms Jones’s employment with the ATO. ComSuper managed the assessment of Ms Jones’s application for PIP and engaged their own medical practitioners from an independent panel to assess and provide reports on her incapacity and qualification for the PIP. The PIP process was initiated by Ms Jones and managed independently by ComSuper. The ATO was merely a participant in the process providing guidance and advice to its employee. It was not the role of the ATO’s case managers to give direction to either the employee or ComSuper. It was not Mr Hunter’s role to assess whether the medical practitioners engaged by ComSuper were appropriately qualified in accordance with the guidance notes. The actions of any of ComSuper’s employees or medical practitioners independently engaged by ComSuper cannot be attributed to the ATO.”
In Pedersen and Comcare [2016] AATA 449 the Applicant was a Centrelink employee who developed compensable PTSD and subsequently a shoulder injury was also accepted as a compensable injury. Later when Comcare declined liability for the shoulder injury was declined the Applicant panicked thereby aggravating her pre-existing PTSD. In rejecting her compensation claim, Deputy President Melick said:
“44. In this matter I find that the Applicant’s situation analogues to many of the matters above and that her ongoing incapacity for work arose from notice given to her, by an agency other than her employer, that her week incapacity payments and the need for medical treatment would no longer be paid for her shoulder injury. There was clearly a separation of functions between the respondent and the Applicant’s employer.
45. Comcare were not the Applicant’s employer and ‘the nature of, and particular tasks’ undertaken by Comcare were not the responsibility of her supervisors or anybody within Centrelink.
46. Applying the above decisions I conclude that the actions of the Respondent that amounted to a contribution to the aggravation of the Applicant’s condition were not conducted as part of the Applicant’s employment for the purposes of s5B of the Act.”
These are but two examples of the Tribunal determining that the compensation process itself is not a “causal phenomenon” for the purposes of s 14 of the Act, nor is it, “in relation to”, pursuant to s 16 of the Act – Trumpf and Comcare [2008] AATA 1024 at [22].
The above findings of the Tribunal are also consistent with previous Federal Court authority, and some support for these conclusions can be found in, for example, Kirkpatrick v Commonwealth (1985) 9 FCR 36 at 39 – 40 (Kirkpatrick).
As the Applicant was not legally represented and this issue was not given the proper ventilation that is needed, I do not need to go further. In this case the fact that the Applicant objected to Comcare properly seeking to ascertain his state of health, is not a ground for claiming that this legitimate exercise activates an independent head of liability. If this type of contention were available it could, in some cases, result in the type of unacceptable scenarios that were outlined by the Full Federal Court in Kirkpatrick.
It flows from the above findings that Comcare is not liable to pay the cost of medical treatment obtained in relation to the previously accepted injury of the Applicant.
Section 19 and 24: Compensation for injuries resulting in incapacity
Section 19, as previously explained, provides for compensation when an employee is incapacitated for work as a result of an injury. Section 24 then deals with the situation where the injury results in permanent incapacity.
It flows from the findings made pursuant to s 16 that the Applicant does not suffer from an incapacity, or a permanent incapacity, resulting from a work-related injury. Any incapacity which resulted from the Applicant’s employment with the ABC has dissipated, and any incapacity he now suffers is non-employment related.
In these circumstances there is no liability to pay compensation pursuant to s 19, and, consequently, the Applicant no longer is suffering from a work related permanent impairment pursuant to s 24.
DECISION
The decision under review is affirmed.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

..................................[SGD]......................................
Associate
Dated: 29 May 2019

Date of hearing: 6 – 7 February 2019

Applicant: Self-Represented

Counsel for the Respondent: Mr Charles Clark

Solicitors for the Respondent: Mr Abe Ghaleb
Lehmann Snell Lawyers

Date of hearing:	6 – 7 February 2019
Applicant:	Self-Represented
Counsel for the Respondent:	Mr Charles Clark
Solicitors for the Respondent:	Mr Abe Ghaleb Lehmann Snell Lawyers