Riccardo Vittiglia and John Holland Pty Ltd - [2012] AATA 212

[2012] AATA 212

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/2709

Re

Riccardo Vittiglia

APPLICANT

And

John Holland Pty Ltd

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop
Dr J Chaney, Member

Date 13 April 2012

Place Perth
The decision under review is set aside and, in substitution therefor, it is decided that, pursuant to s 14(1) and Part VIII of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the respondent is liable to pay compensation, in accordance with that Act, to the applicant in respect of a mental injury, namely, aggravation of depressive/anxiety condition, suffered by him on 29 March 2011.
Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
.................[sgd]..............................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – employee of licensed corporation – applicant suffered from depression/anxiety from 2003 – applicant suffered aggravation of depression/anxiety condition at workplace in March 2011 – aggravation of mental ailment – aggravation of mental ailment contributed to, to a significant degree, by applicant’s employment by respondent – aggravation of mental ailment a disease – aggravation of mental ailment an injury – respondent liable to pay compensation to applicant in respect of aggravation of depressive/anxiety condition – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s4(1), s5A, s5B, s7(4) and s14(1)
CASES
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, member
13 April 2012
Introduction

Riccardo Vittiglia (“the applicant”), who was born in August 1964, has been employed by John Holland Pty Ltd (“the respondent”) as a Trades Assistant from 8 December 2010.
On or about 20 May 2011 the applicant made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of a mental condition which he claimed was related to an incident which occurred at his workplace on 29 March 2011.
On 23 June 2011 an officer of the respondent made a “determination” that the respondent was not liable under s 14 of the SRC Act to pay compensation to the applicant in respect of “Major Depressive Illness”.
On 4 July 2011 an officer of the respondent made a “reviewable decision” under s 62 of the SRC Act affirming the determination of 23 June 2011.
On 11 July 2011 the applicant lodged with the Tribunal an application for review of the reviewable decision of 4 July 2011.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1-T20, pp 1-89) lodged by the respondent, in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), on 3 August 2011;
·Exhibits A1-A4 tendered by the applicant;
·Exhibits R1-R12 tendered by the respondent;
·the oral evidence of the applicant and of the following witnesses:
−Dr Ernst de Jong and Dr Iryna Oleshko (who were called by the applicant); and
−Dr Anthony Mander, Darren McCamish, Stuart McQueen and Ryan Carrington (who were called by the respondent).
The Factual Background
On 24 November 2010 the applicant completed a Pre-Employment Health Assessment questionnaire in which he indicated that (inter alia):
·he had previously been referred to a psychologist/psychiatrist;
·he had been diagnosed with depression five years previously (“due to family tragedy”) and also suffers from related anxiety, and continues to take anti-depressant medication;
·he had also been diagnosed with “Adult ADHD” soon after the depression diagnosis, and takes medication for that condition. (T6)
In a letter dated 26 November 2010 Dr Ernst de Jong, Psychiatrist, confirmed that the applicant was under his care and had been treated for “Depression and ADHD” and was taking Cymbalta, Dexamphetamine and Diazepam, and that he had last seen him on 12 November 2010. (T5)
On 30 November 2010 Dr Tim Drew assessed the applicant and determined that he was suitable for the position of Trades Assistant with the respondent “without restriction”. (T7)
In an Incident Investigation Report, dated 29 March 2011, regarding an incident which occurred at a worksite of the respondent on that date, that incident is described as follows:
“ The supervisor asked the [applicant] to get a drill from the stores. When he arrived back he had no drill bits with the tool. He was asked to get out the way of the sparks that were coming off the grinder. When he said to the supervisor why because I have my mono goggles on and the sparks will not get in. The supervisor said if he were to poke him in the eye with his drill bit his mono goggles would be ineffective.” (sic)
The “immediate actions taken” are described as follows:
“ Riccardo was taken to the Psychologist by M James. He was visibly shaking and not making any sense. The psych said he had a Panic attack. His doctor wrote a certificate which stated fit for restricted duties from the 29^th March.” (T9, p 37)
A handwritten statement of the applicant, dated 29 March 2011, is as follows:
“ I was asked by Man Poon to get a drill from stores, and when I got back Macca said to me to be careful of my eyes, which confused me. I had all my PPE on and James was grinding on the side but there were no sparks that I could see where Macca and I were standing so I asked what he meant by that. Macca said ‘I wouldn’t want you to get hurt or anything, which again confused me so I said again what do you mean there’s nothing going on. Macca said ‘you’d better be careful around here because some cunt might want to drill your eye out and skull fuck you. While he was saying that he was very close and poking his finger into my mono’s. Again I asked what are you talking about and Macca replied, that I’d better be careful around here because someone might just want to do that to me. He seemed aggressive towards me and was not joking which really upset me. He told me to go and get drill bits from the store so I did but on the way there I couldn’t stop thinking about it, I couldn’t understand why he threatened me like that. When I got back I asked Macca again why he said that to me, and he sarcastically said, I’m just trying to look after you which felt like another threat, so I said I’m going to see Stu. Stu wasn’t in his office so I rang him but he didn’t answer so I went and saw Jeremy Slater”. (sic) (T10)
A handwritten statement of Adam Ash, dated 29 March 2011, is as follows:
“ This morning of the 29^th of March 2011, at about 8.00 am, I witnessed Darren McCamish call Rick Vittiglia aside and talk to him about his lack of visual contact and the fact he was sitting down on the job and not spotting correctly, maintaining a clear pass for other people trying to cross through our work area with the correct communication.
About a hour and a half later while I was standing a bit further a way I noticed Darren & Rick talking again and Rick started to walk off in the direction of the crib huts there was no aggressive body language between the two.
So I just assumed he was off to the toilets.
I was later asked what I had seen and overheard that is why I’m writing this statement. Did not hear what happened but saw no aggressive behaviour.” (sic) (T11)
A handwritten statement of Darren McCamish, dated 29 March 2011, is as follows:
“ On the 29-3-11, I Darren McCamish, leading hand on Stuart McQueen’s small bore piping crew was organising a job witch involved 5 other workers and myself. These workers were Adam Ash, Man Poon, James Kim, Brent Tanian and Ric Vittiglia. The job being done involved the use of an EWP, Ric Vittiglia was doing spotter duties. When Man Poon asked Ric to go and get a drill for him, because Ric is the crews TA. I was talking to Adam Ash the BMV about brackets that needed to be put up to support the pipes being worked on, when Ric returned with the drill and no drill bits at first I thought he was joking, but there were no drill bits with the drill. I then told him to go back for the drill bits. On returning with the drill bits, James Kim was grinding and Ric with only mono goggles on was standing in the line of fire of the sparkes. I told Ric to move out of the sparkes, when he said I’ve got mono’s on Not double eye protection was what I told him. I then said what if the sparkes get in your eyes, he said no they won’t. Then I said joking with him if I poked one out and skull fucked you the mono’s wouldent be enough protection. I was only joking with Ric when I said this, I didn’t even realise that he took me seriously until Stuart called me to his office and told me that Ric had made a complaint, at the time that this incident happened I was only joking with Ric. But the day before when I was operating the EWP and Ric was spotting for me and Arwin another TA I had for the day, I was bringing the EWP basket back to the ground in a very tight area, that’s why Ric was spotting. Arwin yelled stop because the basket was about to hit a live castic line. When I looked down to see what Ric was doing, there he was sitting down not even looking at what we were doing. Stuart McQueen seen this happen and had some stern words with Ric about what he was supposed to be doing and what he actually was doing. At this time not only was he putting us at risk in the EWP, and everyone else in the area.” (sic) (T12)
A Management Journal entry, dated 30 March 2011, written by Ryan Carrington, HR/IR Manager with the respondent, states as follows:
“ Riccardo Vittiglia (RV) attended my office on Tuesday 29 March 2011 to provide a written statement regarding an ‘incident’ that occurred in his work area that morning. Riccardo presented as very reserved and seemed to be withdrawn and upset. He handed me a written statement which I read while he was in the room with me. In the room also was Daniel Dick (General Superintendent).
In my experience what people put into written statements sometimes differs from details they provide verbally when questioned so my normal approach in this type of situation was to ask Riccardo to take me through the days happenings in his own words.
He started to do this however when I asked him to clarify certain aspects of his version of events he seemed to clam up and said that everything he needed to say was in his written statement, I found this to be somewhat evasive behaviour, however, given that he was demonstrably upset I cut the meeting short.
After a short discussion with Warwick Lind (Construction Manager) we decided to err on the side of caution and organise for RV to be taken to a medical centre and assessed by a qualified doctor. We organised for Michael James (Safety Manager) to personally escort RV to the medical facility and attend the consultation (with RV’s permission) with him.
We then invited Darren McCamish (DM) to a discussion with Warwick Lind and myself about half an hour later. Daniel Dick (General Superintendent) was also present at this discussion. After a short discussion, DM also agreed to provide a statement. He was also able to name Adam Ash as someone who witnessed events of that day.
After hearing information from all relevant parties to the incident on that day it was deemed appropriate that a discussion be had with Darren about how he discusses issues with his colleagues.
The entire issue seemed to stem from Riccardo being asked to get a drill from the stores. He returned with the drill and no drill bits. This frustrated Darren. Riccardo also seemed to be standing in the way of grinding sparks while this discussion was occurring. When Darren told him to move out of the sparks Riccardo responded that he was wearing ‘mono’s’ Darren appears to have lost his cool at this point and told Riccardo that he would poke one of his eye’s out and skull fuck him – that the mono’s wouldn’t be enough protection then.
An apology in this circumstance would be the common sense approach to this situation however Riccardo has not returned to work since the incident occurred. Darren has expressed a willingness to apologise and admits his behaviour was not appropriate and that he would communicate more appropriately in future.
Statements are attached.” (sic) (T13)
The Applicant’s Evidence
The applicant gave the following relevant evidence-in-chief:
“ …
And can you explain to the tribunal in as much detail as you can what occurred on 29 March 2011?‑‑‑29^th?
Yes?‑‑‑Okay. That was – I – no one spoke to me at pre-start at all, so I took – I – we all took off to go to our job areas. I tried to catch up with Darren to ask, you know, what he wanted me to do. He just yelled at me, so I just followed the rest of the crew. On that day, it was like – there was – I was helping out with a group of people, and Darren was one of them. He asked one of the tradesman – his name is Manpoon (sic) – asked me to get a drill from the stores, so I did. I didn’t think about drill bits because most tradesmen have their own and I wasn’t told to get any or a certain size or anything else, so I didn’t bother. I came back with the drill and walked up to Macca to – no, actually I walked up and Macca came towards me and said ‘What are you doing?’ And I said ‘I’ve got the drill’ and he goes ‘Well, you know, watch out for your eyes’ and I’m going ‘What do you mean, Macca?’ He said ‘Well, there’s sparks and that’ and there was no sparks. I mean, James was on the left side, a fair distance. The sparks were heading in the opposite direction. There was nothing coming towards us. I mean, we were in the same area. There was nothing. And he just kept having a go at me about it, so I just kept asking ‘What do you mean, Macca? I don’t understand why you seem upset at me because of this.’ And he said ‘Look, just’ – and he goes ‘Where’s the drill bits?’ I said ‘Well, you didn’t ask for any’ and he goes ‘Well, go back and get these’ – whatever sizes. So I went back to get them, come back with the drill bits, and he was – he just – yeah, it was just, like, in my face. He come, like, right up close to me and – poking me in the mono goggles about the situation, and he – yes. You know, just what he said to me I’m not allowed to say.
Yes. You can explain exactly?‑‑‑That, you know – that somebody wants – you know – sorry, I’m just getting a bit – that somebody, you know, is going to poke my eyes and skull fuck me, for some unknown reason, and he was – at the time, saying that, he was poking me in the mono goggles and sort of pushing me back and I’m, like, ‘What are you saying, Macca?’ You know, ‘What’s going on?’ I just couldn’t understand what was happening because there was no – there was nothing, no problem beforehand. There was nothing that caused it and he just – yes, just forcing it on me, sort of thing.
And what happened from that point, when you had that exchange?‑‑‑I just kept asking him, ‘Why? Why? What are you saying?’ And he just looked, he just come up to my face: ‘Just be careful because someone might want to do that to you’ and I didn’t get it. I couldn’t understand it. And I said ‘Look, this isn’t right and I’m going to see Stew (sic).’
When you say ‘Stew’ (sic)  ?‑‑‑Stewart (sic) McQueen, the supervisor.
Okay. So you were at that point there. Exactly what happened following that incident?‑‑‑I went to find Stew (sic). He wasn’t in his office. I tried to ring him but there was no answer so I walked over to Jeremy Slater’s office to let him know and I told Jeremy what happened and he said – he told me to go back to Stewie’s (sic) office, just sit outside Stewie’s (sic) office and wait, and he said ‘I’ll get a hold of Stewie (sic) to come talk to you.’ So I did that on the way back and I was getting really wound up. That’s when – I was told later it was a panic attack that struck me and I sat down. And then Stewie (sic) eventually came and he wanted me to go upstairs to write a statement, so I did. I went upstairs to write a statement.
THE D.PRESIDENT: And is this – can I just interrupt: is this the statement that – if Mr Vittiglia could be shown the T documents, a (sic) T10 – page 41?‑‑‑Yes, my written statement. Is that the one? Yes.
So is that the statement you’re referring to, Mr Vittiglia?‑‑‑Yes.
Two pages?‑‑‑Yes. Yes, that’s the one.
So do you affirm that the contents of that statement are all true and correct?‑‑‑It is, yes. I might have got a bit confused telling it, but this is how it was exactly.
Yes, Mr Stewart.
MR STEWART: Yes. So you attended Stewart (sic) McQueen’s office. Where had you actually gone in order to make the statement we’ve just referred to?‑‑‑Into his office.
Stewart (sic) McQueen’s office?‑‑‑Yes.
Okay. And what occurred at that point?‑‑‑I made 
You made a statement, then what has occurred after that?‑‑‑I made a statement. He asked Steve, who’s the – I think he was occ health and safety – to go to the crib room to get my bag because – I think it was Dicko – I think it’s Daniel Dickson – was it Daniel – Dicko – who used to be the superintendent, he was coming to pick me up and take me to the offices.
And can you explain what occurred after that, and how you were feeling at the time?‑‑‑I was very upset. Stewart (sic) was – we saw – he saw – when he came and saw I was upset, he was trying to calm me down, and Dicko took me – we – came and got me and got in the ute and went down to the main offices and I was waiting there with them, and then – it was three people. It was the HR manager, the head of the project – I’m not sure what his name was, but he was the actual head of the project – and there was a third person. I can’t remember if it was Dicko or the HSC manager. They asked me to go into this small room and they asked me to sit in a corner and they sat around me and started asking me more questions, like what happened again – well, like, trying to ask me what happened again, and I said ‘I’ve got my statement. You’ve got my statement’ and I was trying to explain, and it – it just – I felt really stuck in the spot and I had another panic attack and they took me – they stopped the meeting and took me outside and I sat outside with – I believe it was the HSC manager who was then taking care of me, Michael James, and they left me outside and I was trying to calm down. I was waiting. I waited for a long time, and then Michael came back, finally came back and – but he was nice. Every minute he would check on me and then he drove me down to the doctor’s surgery and – but he was really good. He was – all the way down, he was trying to calm me down and he was nice, yes.
And so which doctor’s surgery and which doctor did you attend upon?‑‑‑It was Brecken Health. I can’t remember if it was Dr Oleshko first or there was another doctor I saw first because Dr Oleshko wasn’t there – but I can’t remember. But it was eventually Dr Oleshko the whole time after that.
And since that point when you went through that whole process and you left work, have you been back to work since then?‑‑‑No.
No. And could you just explain, since that time up to now, the care that you’ve been under with respect to the relevant doctors, what treatment they’ve provided you?‑‑‑Well, it has been the GP, Dr Oleshko, which I was seeing every fortnight, then it went monthly, and then I went to – she sent a letter to, or a fax to my psychiatrist, like, Dr De Jong, to see me, so that was organised, and I’ve been seeing Dr De Jong monthly or sooner, and they have been trying to help me get this under control with medications and stuff.
And what Dr De Jong diagnose your condition as?‑‑‑A stress disorder .....
And had you seen Dr De Jong prior to ?‑‑‑Yes.
 this incident?‑‑‑I’ve been seeing Dr De Jong since about 2008.
Can you explain the reasons as to why you were seeing him?‑‑‑I had problems, like, with depression after I lost my father in ’92 and my mother in 2005, and I wasn’t coping. We’re a very close family. I wasn’t coping. I don’t have any – yes, just trying to get it under control.
Before the incidents leading up to you going off work with John Holland, can you explain how you felt in terms of your state and how you were travelling in terms of work and general life?‑‑‑I was fine. I didn’t have any problem. I was still – I was seeing Dr De Jong yearly, just for – what they call it – like a revision and to – mainly because of the medication I was on. Like, I had to be revised yearly or something.
And you weren’t seeing Dr De Jong for any other purposes up to that point?‑‑‑No.
And so from the time after the incident when you saw Dr De Jong, how often did you continually see him up to now?‑‑‑It was monthly, or sometimes sooner. Yes, monthly or sometimes sooner.
And what does Dr De Jong feel – how did he kind of describe your treatment and recovery from the time you saw after this incident up to now?‑‑‑My treatment and recovery?
Yes. What was he saying in terms of your condition and what you could do in terms of returning to work up to that point?‑‑‑Well, he said I couldn’t work and I was – he put me on medication because I couldn’t sleep. I was having a lot of trouble sleeping and they put me on different medications for that and medications for the panic, depression thing.
Just finally, Mr Vittiglia: immediately following the incident and the conversation that you had with Mr McCamish, what were your immediate thoughts following that conversation, and how did that all make you feel?‑‑‑At first I was shocked and I didn’t ..... I didn’t know whether I should – like, it – I felt it was – it was a threat. I didn’t know if it was going to get physical, and I didn’t know whether I should even – I even thought should I stop this? Should I hit him, or should I just leave, or – I was very confused, so I just – that’s when I just sort of said no, I’m going to walk off. I just went to see Stewart. (sic)
…” (Transcript, pp 20-24)

In cross-examination the applicant gave evidence to the following effect:
·he had worked at the same construction site for a different employer for almost five years before he was employed there by the respondent;
·before he first saw Dr de Jong in 2008, he had been prescribed anti-depressant medication by his (then) general practitioner, Dr Bowyer;
·after the incident with Mr McCamish on 29 March 2011 he experienced a condition which the general practitioner and psychiatrist described as a “panic attack”;
·the symptoms he then experienced were that he could not stop shaking, he could not control his breathing, he was trying to control himself from “breathing really quickly”, he was “lost” and “didn’t know what was going on”, he was sweating;
·he could not remember ever having experienced those symptoms before.
It was put to the applicant that, when he first saw Dr de Jong on 5 May 2008, he had completed a “DASS” questionnaire in which he indicated that (inter alia) he had, during the previous week;
·“experienced breathing difficultly (eg excessively rapid breathing …)” some of the time;
·“had a feeling of shakiness…” some of the time;
·“perspired noticeably … in the absence of high temperatures or physical exertion” a good part of the time.
He acknowledged that he had experienced those sorts of symptoms before but he added:
“not as severe as it was on that day” (Transcript, p 35)
The applicant also gave evidence to the following effect:
·he had been seeing Dr Bowyer for about 10 years prior to 2011 and in February 2000 he had told him that he was “highly strung and stressed at work”;
·he was then having sleeping problems and these have continued on and off from 2000 but “not as bad as lately”;
·he continued to experience work stress in 2003 but he “always handled it”;
·his mother passed away in 2005 and he was diagnosed by Dr Bowyer as suffering from depression in September 2005;
·although Dr Bowyer then wanted him to see a psychiatrist, he did not do so until 2008 when he saw Dr de Jong;
·he has taken various anti-depressant medications since 2005, including Lexapro, Efexor, Cymbalta, and Pristiq, as well as medication for ADHD;
·he continued to feel depressed and Dr Bowyer referred him to Dr de Jong in April 2008;
·he has been seeing Dr de Jong on and off since then;
·he saw Dr de Jong for a regular review on 21 March 2011 and told him that he was not happy with his treatment at work, was feeling tired and fatigued, was having sleeping problems and was concerned about his lack of sexual interest;
·on that occasion Dr de Jong changed his anti-depressant medication from Cymbalta to Pristiq;
·he had commenced seeing Dr Oleshko (instead of Dr Bowyer) in January 2011;
·his previous employment with BHP ceased on the ground that he had allegedly slapped a female worker on the bottom and that had “upset” him “because it didn’t happen”;
·in March 2011, prior to the incident on 29 March 2011, he was anxious and worried because of financial problems and because he had been warned that his work performance was substandard and he had “kept trying to explain … and no-one would listen…”;
·he was nevertheless not worried that he would lose his job, but he was anxious that he might lose his job because of his supervisor’s negative attitude about his work performance.
The Evidence of the Medical Witnesses
Dr Ernst de Jong
Dr de Jong, Consultant Psychiatrist, confirmed that he had prepared a report dated 30 July 2011, addressed to the applicant’s solicitors, for the purpose of this proceeding. That report states as follows:
“ Thank you for your request for a report about Mr Vittiglia. I have addressed your questions point by point 1-7.
This report is solely based on the information I have received from Mr Vittiglia and my assessment of his presenting symptoms. I have known Mr Vittiglia since 2008. He was diagnosed with ADHD-Adult type and responded well to treatment with dexamphetamine medication. He also experienced episodes of depression for which he was treated with antidepressant medication.
1.The dates of his attendances upon you with respect to his injury;
21 March 2011 (pre-injury), 31 March 2011 (email/phone call), 18 April 2011, 9 June 2011, 30 June 2011, 26 July 2011
2.Your findings at those attendances;
On 21 March 2011 Mr Vittiglia came for a review appointment for his medication. He mentioned that he felt he was not treated well (‘they treat me like shit’) at his new work. Mr Vittiglia phoned me on 31 March 2011 about an incident at work where he felt leading hand Macca had made threatening statements to him; he emailed me the statement he had made at work about this incident on 29 March 2011. On 31 March I received a phone call from his GP Dr Oleshko with whom he had an appointment that day at 2pm. Dr Oleshko was very concerned about Mr Vittiglia’s mental state as a result of the alleged incident at work and she discussed with me her management recommendations in the short term which included the option of admission to the Perth Clinic after the weekend. On 12 April 2011 I received an urgent fax from Dr Oleshko being very concerned that Mr Vittiglia’s mental state was worsening in spite of regular counselling by a psychologist in her practice and that Mr Vittiglia in her view was unable to return to work.
Mr Vittiglia presented for an appointment with me on 18 April. I discussed with him his written statement of 29 March 2011. He described to me the incident at work. He said that the aggressive facial expression of, tone and content of the language by leading hand Macca without any clear reason in his view had made him really unsettled, further escalating to the point of panic after repeatedly asking what he had done wrong led not to any further clarity. He said that he saw no other option then (sic) to get away as quickly as possible to speak to his supervisor. He reported that the subsequent meeting with the Head of HR and two others of the company (he could not remember the names) led to a further anxiety attack requiring him to be taken out of the room to calm down. He felt confused as he was told that he would be contacted the following day. At the following appointments Mr Vittiglia described the symptoms reported in detail under question 3.
3.Your summary of Mr Vittiglia’s current symptoms and complaints;
Mr Vittiglia described feeling angry, sad and scared all the time, having heart palpitations, crying for no apparent reason, sleeping poorly and waking up drenched in sweat with nightmares, constantly thinking ‘why, what have I done wrong’. At seeing his yellow work shirt he would feel scared. He reported often seeing the face of Macca in his mind, and avoiding going out of the house.
He appeared overwhelmed and helpless and withdrawn, not being able to make sense of it all.
4.Your diagnosis as to his injury/condition;
The symptoms of excessive ruminations, sleep disturbance with nightmares, recurrent reminders of the incident, avoidance behaviour, feeling confused/overwhelmed are in keeping with a diagnosis of acute stress disorder under circumstances of by him perceived threat to his safety.
5.Your opinion based upon the information you have obtained from our client as to the factors giving rise to his stress injury, separating to the extent you can those factors into work and non-work categories;
Work factors:
Mr Vittiglia felt that prior to the incident he was talked down to as a trade assistant but ‘took it’ accepting that as part of the work culture. He felt that at his work he always did what he was told to do.
The described incident with the leading hand is in my view work bullying of a significant nature and hard to be understood as just a joke.
Non-work factors
The above incident took place at a time that Mr Vittiglia was struggling with significant financial stresses. Shortly after the incident as well Group (sic) he became aware that his sister with whom he is very close was diagnosed with a terminal illness. This all contributed to him feeling down, depressed and vulnerable. Mr Vittiglia was treated with antidepressant medication to help him cope with the stresses he was under prior to the incident.
6.Your opinion to (sic) the treatment, including psychological counselling and/or possible specialist oversight, other treatment and/or medication Mr Vittiglia likely requires with respect to his injury; and
Mr Vittiglia requires ongoing treatment under the supervision of a psychiatrist involving the prescribing of medication and counselling but also having access to specialist psychological counselling in the area of work bullying.
Acknowledgement by and apologies from the alleged perpetrator about the inappropriateness of the used language and behaviour is always a good starting point for the healing process.
A fairly rapid resolution of his claim will be most likely in the interest of all parties.
7.Your opinion as to the extent that our client’s injury/condition:
(i) currently impairs his capacity to carry out the full range of his pre-injury duties as a trade assistant with John Holland Group; and
I am of the opinion that Mr Vittiglia is psychiatrically not well to be able to carry out the full range of his pre-injury duties as a trade-assistant at John Holland Group.
(ii) is likely to impair that capacity in the future.
I am of the opinion that Mr Vittiglia eventually will be able to return back to his pre-injury capacity. However this might take up to 6-12 month of treatment. I know him as an honest man who is keen to work. Fortunately some of his symptoms have been improving somewhat lately.
…” (Exhibit A2)
In his oral evidence-in-chief Dr de Jong opined that the incident of 29 March 2011 (referred to in his report) was “a significant bullying incident” and that it “contributed significantly” to the applicant’s subsequent symptoms.
Dr de Jong also opined that the applicant’s psychiatric condition had “significantly improved” since the date of his abovementioned report. He further opined that the applicant is presently able to work and he added that he had added that he had discussed the matter of returning to work with the applicant when he last saw him on 7 December 2011. He was unsure, however, as to whether the applicant would be able to work at his former workplace with the respondent.
In cross-examination Dr de Jong confirmed that:
·he first saw the applicant in May 2008 following a referral by his general practitioner because of a history of episodes of depression;
·the applicant has, since May 2008, reported to him various symptoms, including changes of mood, sometimes feeling down, agitated and angry, difficulty with sleeping, worrying about life circumstances (including work and non-work), stress and anxiety as a result of work problems and financial difficulties;
·the applicant sent to him a copy of the handwritten statement he had made on 29 March 2011 regarding the relevant work incident of that date, and he received that statement “very shortly” after that date;
·the next occasion on which he saw the applicant after the incident of 29 March 2011 was not until 18 April 2011.
As regards the applicant’s handwritten statement of 29 March 2011 (set out in paragraph 11 above), Dr de Jong agreed that that statement does not indicate that the applicant’s response to what he described as a threat by Mr McCamish involved “intense fear, helplessness or horror”. He added:
“ … by the time that he had made the statement and had seen the GP, and I saw him, there was plenty of symptoms indicating that this man was very, very stressed.” (Transcript, p 92)
Dr de Jong was referred to a report, dated 20 March 2011, in relation to the applicant, provided by him to Dr Oleshko, in which he stated (inter alia):
“ I think it is clear that he has slipped back into depression feeling overwhelmed by financial stressors, his inability to have normal sexual relations with his younger partner and generally suffering from low self esteem and feeling hard done by.” (Part of Exhibit R8)
It was put to Dr de Jong that, according to the Diagnostic and Statistical Manual of Mental Disorders (4^th ed) (“DSM-IV”), one should be careful, before making a diagnosis of acute stress disorder, that the person’s symptoms are “not merely an exacerbation of a pre-existing Axis I or Axis II disorder”. Dr de Jong responded:
“ Well, it is a bit more – it’s not as black and white. You can have comorbidity. You can have depression in various forms, and I think Mr Vittiglia’s depression are – had been fluctuating. Self-esteem is a factor which comes into it as well, and – so you can have – if there is a significant trigger which is recognised as a trigger big enough to unsettle someone, you can have both diagnoses.
Yes?‑‑‑So the – and I felt that – therefore I left it in that way, that that incident was an abnormal situation which unsettled him significantly.
Yes. And that’s based again on the history – based only on the history that he has given you?‑‑‑Sure.” (Transcript, p 95)
In re-examination Dr de Jong was asked to explain the difference between his diagnosis of acute stress disorder following the incident of 29 March 2011 and the applicant’s pre-existing psychiatric condition. His evidence was as follows:
“ And then in relation to the incident 29 March 2011, and you’ve now diagnosed him with the acute stress disorder, can you really explain the difference between that diagnosis and where he was previously?‑‑‑Well, I think in the diagnosis of stress disorder there is a whole set of different symptoms come to the forefront as well: being dazed, detached, the recollections, flashbacks of the incidents, and nightmares; waking up and going through the motion of seeing that particular incident. Sort of there’s a whole range of new type of symptoms in addition to what he had, to some degree, experienced in the past, yes.
And in terms of coming up with that diagnosis, you just – I guess what symptoms had you based that on at – obviously you had seen Mr Vittiglia after the incident, and you’ve seen him ongoing since that point?‑‑‑Yes, yes.
Would you say that your diagnosis – would you make any further clarifying points on that diagnosis and the symptoms that you based that upon?‑‑‑He was hyper-vigilant; found it enormously difficult to sleep. As I said, he could not stop thinking about the incident, and very few – and little things that reminded him of the situation would make him anxious, agitated. He felt very low and, yes
And this carried through throughout your appointments with him in 2011?‑‑‑Yes, yes, yes; sense of injustice; sense of things; how can it be that it is not resolved in any way; confusion, and that was for many, many months was present.
And in your opinion all of this would reach that diagnosis of an acute stress disorder?‑‑‑Well, as I said, I felt he was bullied, you see, and to what extent, you know – the DSM-IV criteria, they are sort of leading – they help to formulate our thoughts here, but I felt that the – as it was described to me, the incident was nasty enough for someone to be unsettled. And I think at some stage Mr Vittiglia also felt threatened by the whole event and what has happened, and I felt that for me that was enough, with the symptoms which I have explained already, as a working diagnosis at that time, yes.” (Transcript, p 99)
In response to a question from the Tribunal as to whether the applicant might have suffered an exacerbation of a pre-existing chronic anxiety condition as a result of the incident of 29 March 2011, Dr de Jong said:
“ Well, you could look at it like that, of course, … But I felt, knowing Mr Vittiglia, and knowing his clinical course, of course, that what happened there and those events were very significant and were a triggering factor…” (Transcript, p102)
Dr Iryna Oleshko
Dr Oleshko is the applicant’s treating general practitioner. She confirmed that she had prepared a report, dated 3 August 2011, regarding the applicant at the request of the applicant’s solicitors. That report states as follows:
“ …
Report basis:
The report is based on details obtained from the patient during clinical interview and clinical examination/assessment of the patient during his visits to our surgery.
…
The following report includes the answers for seven questions.
1.The dates of his attendance upon our surgery with respect to his injury.
Mr Vittiglia initially has been regarding this problem the same day after the incident. He was seen by Dr Thomson who referred him to our practice psychologist C Ariza and gave him certificate off work from 29/03 to 01/04.
As I am aware, later, after some phone discussion with a representative of the employer, the certificate was changed to ‘fit for work from 29/3 to 31/03’ but Mr Vittiglia says he was not aware about it. The initial drafts of the both certificates are present in the patients’s notes.
Following the next 4/12 till the present time (from 31/03/2011 to 03/08/2011) Mr Vittiglia came to see me 17 times.
Also, he came for the appointments with the practice registered psychologist and mental health care nurse.
2.My findings at those attendance (sic)
Mr Vittiglia was extremely distressed and obviously was not able to continue his normal duties. On 31/03/2011 I reviewed him together with our Medical Director – Dr Brenda Murrison and our opinion was that Mr Vittiglia was obviously not able to work and needs treatment.
3.My summary of Mr Vittiglia’s current symptoms and complaints.
Mr Vittiglia experiences a wide range of symptoms of anxiety and depression which severely impair his functioning. Currently he has low mood, low energy, loss of focus and concentration, severe sleep disturbance, appetite changes, episodes of panic, lack of motivation, hopelessness.
4.My diagnosis as to his injury/condition.
The eventual diagnosis should be established upon a specialist’s expertise but summarising the client’s symptoms they could be classified as either adjustment disorder with depressive mood or depression/anxiety, as well as port-traumatic stress disorder.
5.My opinion, based upon the information I have obtained from the client, as to the factors giving rise to his stress injury, separating to the extent I can those factors into work and non-work categories.
In my opinion, the current client’s condition is caused by the stress incident happened (sic) at work. Before the accident, Mr Vittiglia has been stable and despite on (sic) some stresses he had at work and at home he was always functioning well and never showed any signs of functioning impairment. There is no point to list the non-work stressful events in this report since they did not have any significant effect on the client’s condition and as I aware (sic) Mr Vittiglia has been coping well with those events.
6.My opinion as to treatment, including psychological counselling and/or possible specialist oversight, other treatment and/or medication Mr Vittiglia likely requires with respect to his injury.
Mr Vittiglia needs to continue prescribed medication which should be regularly reviewed and adjusted according to the client’s needs.
It is necessary to be under a specialist observation considering the prolonged and significant nature of the disability and it is critical for Mr Vittiglia to have a regular CBT sessions with a person registered to perform this intervention – either a psychologist or a mental health nurse. Mr Vittiglia definitely requires vocational rehabilitation.
7.My opinion as to the extent that the client’s injury/condition:
a) currently impairs his capacity to carry out the full range of his pre-injury duties as a trade assistant with John Holland Group;
At the moment Mr Vittiglia is not able to perform his duties due to severe impact of his symptoms on his functioning.
and
b) is likely to impair that capacity in the future.
With the proper treatment and vocational rehabilitation Mr Vittiglia is expected eventually to regain his normal level of pre-disability functioning but this type of psychological trauma tends to be a disability which requires a thorough long-time treatment and support for the patient.” (Exhibit A4)

In cross-examination Dr Oleshko was referred to a report by Dr de Jong to her, dated 20 March 2011, which described the applicant as having “slipped back into depression”. She initially said that she had not seen that report but she subsequently said that she thought that she had seen that report but was not sure when. She said that the opinion she expressed in her report of 3 August 2011 that, prior to the incident of 29 March 2011, the applicant was “always functioning well and never showed any signs of functioning impairment”, was her own opinion and had no regard to the fact that the applicant was seeing Dr de Jong prior to that incident.
In response to questions from the Tribunal, Dr Oleshko said that she first saw the applicant on 4 January 2011 and subsequently saw him on five occasions prior to the incident of 29 March 2011, and that she was aware that he was then suffering from depression, and that Dr de Jong wanted her to prescribe his medication. She added that the applicant was then “more or less, stable” and was “more or less, able to manage all the situations”.
Dr Anthony Mander
Dr Mander, Consultant Psychiatrist confirmed that he had prepared three reports regarding the applicant, dated 3 June 2011, 30 November 2011 and 12 December 2011.
Dr Mander’s report of 3 June 2011, which was addressed to the respondent, states as follows:
“ Thank you for your letter of 31 May 2011 asking for a report on this claimant. I saw him at the offices of Next Health on the afternoon of Wednesday, 1 June 2011. I established he understood the purpose of the review although there were some difficulties with the interview. The claimant’s response to me was significantly impaired. There was no affective range, a paucity of speech and significant difficulty for him in recalling dates and timelines.
…
REVIEWED DOCUMENTS
·Workers’ Compensation Claim Form and associated medical certificate. I notice the general practitioner has given a diagnosis of post traumatic stress disorder
·Jobfit Confidential Medical Report dated 24 November 2010
·Certificate form (sic) Dr Ernst De Jong, the claimant’s treating Psychiatrist, dated 26 November 2010
·Work Focus Assessment dated 9 May 2011
·Statements of Riccardo Vittiglia dated 29 March 2011, Adam Ash dated 29 March 2011, Ryan Carrington dated 30 March 2011, Darren McConish (sic) dated 29 March 2011 and Stuart McQueen dated 29 March 2011.
CIRCUMSTANCES LEADING TO CLAIM
He told me he had worked for his current employer since November 2010. He said that they ‘treat me like dirt’, ‘they are assholes’, ‘they kept saying I was useless’, ‘they made me sweep the footpath and kept asking “where are you?”’ However, he could not be specific with incidents or dates. He said ‘I was working well’, ‘doing good’ and he denied being under any disciplinary action.
Of crucial importance is his acknowledgment that his psychiatric problems were evident at least a month before the incident which led to him ceasing work. I had difficulty following his description of the events of 29 March but his statement says that he had been asked to get a drill and to be careful about his eyes and he alleges ‘Macca’ said ‘be careful around here because some cunt might want to drill your eye out and skull-fuck you’. He says in his statement ‘I could not understand why he would threaten me like that’ and when he returned from getting some drill bits ‘Macca’ is alleged to have said ‘I am just trying to look after you’ but the claimant’s view was that this was ‘another threat’.
PSYCHOLOGICAL RESPONSE
For the sake of clarity I will begin by describing his psychological history prior to starting with his current employer. Again he was very unsure of dates. He initially told me he had been depressed for five years and when I asked him to describe what he meant by depression he looked blankly at me. Further probing revealed that his depression occurred after his wife left him but towards the end of the interview he changed his story and said the depression began before she left. Hence his history of depression may be substantially more than five years.
Further probing led to him saying that treatment by Dr De Jong with Cymbalta led to a complete resolution of his symptoms within six months. No doubt Dr De Jong could confirm this. He said that he has subsequently seen Dr de Jong for an annual check-up.
Symptoms recurred approximately a month before the incident in March. Despite him making general statements about the way he was treated at work I could not identify any triggering events. However, if the severity of his depression led to the lack of responsiveness I saw today it may well be that he was significantly impaired in the workplace. This would have been difficult, and potentially dangerous, for his work colleagues.
In addition to treating him for depression Dr De Jong diagnosed attention deficit disorder. This condition has to be present from childhood and causes significant problems in concentration with increased impulsivity and distractibility. Some of the things he told me, along with his description of his response to the stimulant dexamphetamine, was consistent with this diagnosis.
He currently gets good and bad days. His medication has been changed to Pristiq (for a few months). He can be tearful for no reason, has difficulty sleeping and ruminates. He is moody, aggressive and has decreased motivation. He has significant impairment of his concentration ‘I can’t seem to remember’. He gets some symptoms of high arousal including sweating, palpitations ‘I hear my heart pumping’ and occasional nightmares (although not lately). He said his appetite is variable and he is socially withdrawn.
With respect to the incident he told me ‘I don’t feel like a man’. ‘I don’t feel strong like I used to be’. He described himself as previously being confident. He cannot go back to work ‘the thought of it makes me sick’. ‘I don’t want to see that guy’. When discussing work in general he said that he does not want to talk to anyone and the only time he gets out is when his partner ‘drags’ him out for a walk or to go shopping.
He told me that he had to stop seeing a psychologist ‘they did not want to pay’. He denies a problem with alcohol or illicit drugs.
The other stressor of note is his sister’s recent diagnosis of cancer. He was unable to talk to me about this in detail but told me she is dying. This diagnosis was made after he ceased work.
In summing up he said ‘I don’t know why it affected me the way it did’. ‘At first I got angry, then it got worse. I had to go’.
PAST PERSONAL HISTORY
He was born in Bunbury and has a brother and sister. His parents are both dead. His father died in 1992 and the death of his mother 5 or 6 years ago likely either precipitated his depression or made an ongoing depressive illness worse.
He describes school as being ‘okay’ leaving after Year 10. He has done many jobs but describes himself as being good with people. He worked for TGE for two years and BHP for five years. He was with Armaguard as a road crew leader for 16 years.
He has never married. He has been with his partner two years, they have no children.
MENTAL STATE EXAMINATION
As already noted he was seriously impaired. This was obvious immediately on meeting him in the waiting room. His affect was unresponsive and he said little, verging on poverty of speech. He struggled throughout the interview often replying ‘I don’t know’. He appeared significantly depressed. He was orientated in time place and person and reality testing was intact.
SUPPLEMENTARY INFORMATION
Mr McQueen notes the claimant was asked to get a drill from the stores but had no drill bits when he arrived back. He was asked to get out of the way because of sparks coming from the grinder and the supervisor said ‘if he were to poke him the eye with his drill bit his mono goggles would be ineffective’. The claimant is noted to have been ‘visibly shaking and not making any sense’. ‘The psych said he had a panic attack’.
Mr McConish (sic) was the leading hand organising the job with five other workers, including the claimant. He again notes the claimant returned to the job with the drill but no bits and the claimant is said to have argued when being asked to move back because of sparks. Mr McConish (sic) saying to him ‘what if sparks get in your eyes?’ He goes on ‘I said joking with him “if I poked one out and skull-fucked you the monos would not be enough protection”.’ He states he was only joking. Later it is noted the claimant was not carrying out his job of spotting, potentially putting the crew at risk.
Mr Carrington interviewed the claimant and he notes that when asking him to clarify what had occurred ‘he seemed to clam up and said that everything he needed to say was in his written statement. I found this to be somewhat evasive behaviour however, given that he was demonstrably upset I cut the meeting short’. Mr Carrington notes that ‘Darren McComish (sic) in the context of discussing the sparks and the risk to the claimant’s eyes appears to have lost his cool at this point and told Riccardo that he would poke one of his eyes out and skull-fuck him’. He concludes ‘an apology in this circumstance would be the common sense approach to this situation’. ‘Darren has expressed a willingness to apologise and admits his behaviour was not appropriate’.
Adam Ash notes that Mr McConish (sic) had talked to the claimant about his ‘lack of visual contact and the fact that he was sitting down on the job and not spotting him correctly’. He witnessed the two of them later and states ‘there was no aggressive body language between the two’.
The certificate from Dr De Jong confirms he has treated the claimant for depression and ADHD, and is currently taking Cymbalta (an antidepressant), Dexamphetamine (a stimulant), and Diazepam (an anxiolytic).
OPINION
The claimant has serious depressive illness which will no doubt be intensively treated by his psychiatrist. However, I see no connection with work.
His problems began at least four weeks before the incident in March. The various statements show the work incident was minor and indeed the claimant himself cannot understand why he reacted in the way he did. The explanation of course is that he was already depressed and therefore prone to misunderstanding situations and react adversely. The description of him sitting at the roadside, not doing his spotting job, is consistent with the same psychomotor retardation I observed today.
He cannot identify a particular precipitant, although talks in general terms about the way he was treated. I lay no weight on that on the basis he had been relapsing for some time. He would be prone to misinterpret what was happening around him. There may indeed be no precipitant as depression can recur spontaneously in an individual that is vulnerable.
He cannot have post traumatic stress disorder. This diagnosis can only stand where certain circumstances occur that meet specific criteria. That is not the case in this instance.
The claimant is not fit for work and indeed would be a liability. It may take several months of treatment before he is fit to return.
In answer to your specific questions:
1.What is the history of the employee’s condition(s) as reported to you?
Although the claimant believes work was responsible for precipitating his mental health problems, he was becoming unwell for at least a month prior to the incident in March. His condition is best seen as a recurrence of a depressive illness which has caused him periodic problems over at least the last five years.
2.From what specific condition(s) does the employee currently suffer from (sic)? Please provide a short description of the condition(s) including its known aetiology and progression (please include clinical signs and symptoms to support your conclusion).
Major depressive illness. He has depressed mood, psychomotor retardation, and a restricted affect. He has had problems with appetite, sleep, motivation and socialisation.
3.What is the intensity/severity of the employee’s current clinical signs and symptoms?
It is severe. The cognitive impairment at the level he demonstrates only occurs in more severe episodes. He is not suicidal but this may of course change.
4.On the balance of probability as distinct from possibility, is the condition(s) currently suffered by the employee related to:
a.   the reported stress associated with his accepted work related injury;
b.   a pre-existing congenital, constitutional or underlying condition including any personality disorder predisposition;
c.   family issues;
d.   lifestyle issues or life traumas;
e.   financial issues;
f.    other health issues;
g.   other factors unrelated to work.
In answering the question, please indicate the contributing factor(s).
There is no contribution from his work history and in particular the event at the end of March. It was too minor to be considered capable of causing a psychiatric illness even in a fragile individual. In any case, he had been becoming ill for at least a month prior to that. Although I could not identify any clear precipitants, this is not unusual as depression can occur spontaneously. Although he cannot accurately date the onset of his original episode of depression, nor describe his mental state since, he has a history going back at least five years.
5.Do you believe that the employee’s condition(s) would have arisen in the absence of his work related injury at John Holland, that is, as an inevitable consequence of non work-related factors? Please explain.
Yes. It follows that in the absence of a contribution from work that (sic) other factors must be responsible, or the condition has occurred spontaneously. This would then have likely been the case even if not working.
6.Are there any aspects of clinical examination which tend to suggest that the employee is:
a.   voluntarily exaggerating his symptoms
b.   displaying symptoms and examination findings inconsistent with the claimed condition(s); and/or
c.   suffering from abnormal illness behaviour.
No. He has a classic presentation of a very severe illness. I expect his treating psychiatrist is taking that seriously especially as he has known him for many years.
7.In your opinion, does the employee currently have:
a.   a capacity to engage in any work;
b.   a capacity to engage in his pre-injury work duties; or
c.   no capacity to engage in any work.
He has no work capacity currently.
8.If the employee currently has an incapacity to engage in any work, please describe:
a.   the reason(s) for his incapacity; and
b.   the likely duration of the incapacity.
Although he is impaired in terms of energy, mood and motivation, the most obvious problems are his cognitive difficulties. He cannot respond to instructions, is unable to carry out a simple conversation and would be a liability within his work crew.
Making an estimate of time to recovery is difficult. Statistically 50% of individuals with depression recover by one year. His recovery might occur more quickly based on his history (if reliable). His initial episode, after the death of his mother, resolved after six months’ treatment. The best predictor of the future is the past. I would be surprised though if he was back at work in any capacity before the end of this year.
…”(T17)
Dr Mander’s report of 30 November 2011, which is addressed to the respondent’s solicitors, states as follows:
” Thank you for your letter of 28 November 2011 enclosing further documents and asking me to address further questions. I have reviewed and summarised what I consider to be the most important items from the provided material. I have then provided an explanation of how I reasoned the connection, or otherwise, between the claimant’s mental state and the events at work. Finally, I have stated my conclusions and answered your questions.
REVIEWED DOCUMENTS
·Relevant extracts of documents produced under summons by Dr Foster & Associates.
·      Documents produced under summons by Brecken Health.
·      Documents produced under summons by Dr de Jong.
·      Reports of Dr de Jong dated 30 July 2011 and 14 August 2011.
·      Report of Dr Oleshko dated 3 August 2011.
·Guidelines for persons giving expert opinion and evidence published by the Administrative Appeals Tribunal.
REVIEW OF DOCUMENTS PRIOR TO ALLEGED THREAT ON 29 MARCH 2011
General practice notes begin in 2000 and reveal a psychologically fragile man.
·26/2/2000 ─ Tired, not sleeping properly and ‘admits to being highly strung and stressed at work’.
·12/4/2000 ─ Further stress at work with two weeks off ‘exhibiting depressive mood’, ‘suggest trial of anti-depressant’.
·15/2/2003 ─ Tired with work stress.
·4/4/2003 ─Stress is ++ work. Unable to leave because needs work. Finding it hard to make decisions and concentrate. Prescribed the anti-depressant Cipramil.
·28/9/2005 ─ Settling after bereavement. Mood swings ++. Depressed and affecting relationships. Prescribed the anti-depressant Lexapro.
·26/10/2005 ─ Still feels flat with poor sleep pattern ‘long discussion re issues of bereavement, separation from partner’. Prescribed the anti-depressant Efexor.
·13/1/2006 ─ Feels generally better but ‘still up and down’.
·15/5/2007 ─ Recurrence of depression and anxiety. Has counselling. Continued on Efexor.
·16/4/2008 ─ Isolated from friends, poor concentration, difficulty at work, depressed at times.
·5/5/2008 ─ Describes himself as never happy, isolated and can’t be bothered. He has mood swings and is forgetful. He struggles with concentration and has some obsessive symptoms. It is recorded that he had engaged in anabolic steroid use ‘a few years on and off’. (Handwritten notes of Dr de Jong).
·10/6/2008 ─ No go, no interest, anhedonia, concentration poor.
·30/6/2008 and onwards ─ Mood lifted such that by 5 December 2008 he wrote to Dr Bowyer stating ‘I feel his depression is in remission’.
There was a gap of about a year and then a series of additional entries through 2010.
·8/2/2010 ─ No feeling, hopeless. Following this Dr de Jong wrote to Dr Bowyer stating that the claimant had reduced his Efexor the previous October and subsequently he was ‘a bit moody’. His medication was changed to Cymbalta and his Dexamphetamine, which was prescribed for ADHD in 2008, was continued.
·26/7/2010 ─ His GP records that he is under investigation at work in terms of allegations against him, that he is very anxious about this and ‘may lose work’, ‘Unable to relax’.
·In late 2010 he lost his job and now tells Dr de Jong that he has ‘been harassed for 5 years’. He also had financial difficulties and importantly Dr de Jong records ‘? Some paranoid ideation’.
·8/12/2010 ─ Dr de Jong wrote to Dr Bowyer noting low self esteem, difficulty sleeping and ruminating.
·27/1/2011 ─ Dr Oleshko notes ‘mood swings for the last 6 months’.
According to Dr de Jong the claimant was applying for jobs and (sic) in December 2010. In March 2011 he records the claimant had been working for 2-3 months. Hence, he started in early 2011 not November 2010, as he told me.
He saw Dr de Jong in March 2011. A letter was sent to the claimant’s new GP, Dr Oleshko, the letter being dated 20 March 2011. I assume that the handwritten notes dated 21 March 2011 relate to that same consultation. He told Dr de Jong he was not being treated well at work and everyone seemed to dislike him. He was feeling tired and fatigued, had sleep problems, lack of interest, was isolated and seeing himself ‘in a victim role’. It was the claimant’s sister who alerted Dr de Jong to difficulties with the claimant who is ‘not proactive when his mental health is deteriorating’. He concluded ‘I think it is clear that he has slipped back into depression, feeling overwhelmed by financial stressors, his inability to have normal sexual relations with his younger partner and generally suffering from low self-esteem and feeling hard done by’. Yet again, his anti-depressant was changed, this time to Pristiq.
INCIDENT 29 MARCH 2011
As I stated in my previous report he alleges he was threatened by ‘Macca’ who said ‘be careful around here because some cunt might want to drill your eye out and skull-fuck you’.
PSYCHIATRIC STATUS POST INCIDENT
Dr Thompson (sic) records ‘symptoms of panic attack’ following the incident at work. He was seen by Dr Oleshko the following day and she records poor sleep, early morning wakening, depressed mood, anxious with irritability, compulsive behaviour. She writes ‘delusions’ but I am certain she means no delusions. She also notes ongoing relationship and financial problems in addition to ‘stress at work’. On 7 April 2011 she diagnoses him as having post-traumatic stress disorder and on 12 April 2011 refers him back to Dr de Jong who notes in his letter of 18 April 2011 ‘remains angry, puzzled and overwhelmed’.
Subsequent entries by the GP and Dr de Jong confirm his ongoing psychiatric symptoms and, later in 2011, of his sister and uncle being in hospital.
RELATIONSHIP OF WORK TO PSYCHIATRIC DISORDER
In order to clarify my reasoning in this case I thought it would be useful to you to outline some typical scenarios and then show where Mr Vittiglia fits.
1.An individual without a premorbid psychiatric history presents with a claim for stress related problems following a work related incident. The first question to be answered is whether he has a psychiatric diagnosis, and if so, is it clearly related to work. In making that assessment one takes into account an individual’s personality, the way they perceive the incident and the incident itself. Personal and professional experience is used to consider the impact of the incident and I also use what I call the common sense test. This is simply what I think the man in the street would say if I presented them with the story. Finally, the psychiatric response has to make sense as a reaction to the claimed incident. For instance, a physical threat would not lead to an obsessive compulsive disorder as there is no such proven link in the literature. This simple scenario obviously does not apply to Mr Vittiglia.
2.An individual presents with a convincing past psychiatric history, in remission at the time of an alleged incident. The assessment process is similar to 1 above though the past psychiatric history potentially conveys a vulnerability and one might then reason a lesser level of seriousness of the alleged incident to be sufficient to precipitate a psychiatric disorder. This is not an all or none phenomena as some individuals with past psychiatric histories show significant personal strength and one is evaluating the importance of that versus a proven pre-disposition and trying to reason a link, or otherwise, with a precipitating event. Again that is clearly not the case here.
3.An individual presents who is already symptomatic. It is clear that the alleged incident cannot therefore, have precipitated a psychiatric illness. The question is whether the alleged incident has exacerbated the condition and worsened the outcome. It is not sufficient to simplistically ask whether the condition has worsened subsequent to the incident. Such reasoning is a case of ‘ad hog ergo propter hoc’ (because it follows it therefore must be connected). One has to consider what the trajectory would have been without the alleged incident (which might, in any case, include worsening over time) and then compare the actual trajectory. This scenario is the one that applies to Mr Vittiglia but is in actual fact more complex. Pre-existing psychiatric illness, especially in the context of personality vulnerabilities can lead to an otherwise insignificant event being interpreted by the individual in sinister ways, including that of threat. I will argue that this is the situation with Mr Vittiglia.
SUPPLEMENATRY INFORMATION
Dr Oleshko, in her report of 3 August 2011 reports that, after the incident, the claimant was distressed with anxiety and depression and that ‘before the accident Mr Vittiglia has been stable and despite on [sic] some stresses he had at work and home he was always functioning well and never showed any signs of functioning [sic] impairment.’.
Dr de Jong, in his report of 30 July 2011, considered the diagnosis following the incident at work was of ‘acute stress disorder’ although he noted financial stresses and a sister with a terminal illness as relevant non-work factors. In a further report of 14 August 2011 he states that the only symptoms at the relevant time were ‘fatigue and sleep disturbance’.
OPINION
Mr Vittiglia has an extensive past psychiatric history and was not psychiatrically stable at the time of the alleged incident. General practice notes, as far back as 2000, show him to have various difficulties at work, symptoms consistent with depression and needing anti-depressants. He was also given an additional comorbid diagnosis of attention deficit disorder for which he has had stimulant treatment since 2008.
Additional to his past psychiatric history he has significant personality factors operating. He has had problems with colleagues at work, is referred to as ‘paranoid’ and, after losing his job in 2010, he concluded he had been badly treated for at least the previous 5 years.
Contrary to statements by Dr de Jong that premorbid symptoms were only those of fatigue and tiredness, he records (on 20 March 2011) sleep disturbance, no sexual interest and a series of relevant perceptions about other individuals and how they view hm. Dr de Jong’s own summary was that he had become depressed and it is no small matter to refer to him as ‘overwhelmed’. This hardly accords with his report of 14 August 2011 which appears to play down his symptomatology.
In summary, Mr Vittiglia has had long term problems in his relationships with others, his interpretations of their intent and his mood stability. His mood can hardly have been assisted by his long term sexual problems with his younger partner, financial difficulties and later the death of his sister from cancer. By 20/21 March he was clearly relapsing and his treating psychiatrist is unequivocal about the diagnosis. The claimant’s statements ‘everybody hates me’, ‘treat me like shit’ and ‘it has to be me’ represent part of his pre-existing personality make up, likely worsened by depression which is well known to lead to negative thinking.
The incident on 29 March probably should not have occurred, but there is some face validity to the claim it represents a normal way of communicating which was culturally appropriate, the intent was to protect the claimant. There is no doubt the claimant took it seriously and there is contemporaneous evidence to suggest that he had a panic attack at that point.
In the absence of Mr Vittiglia’s depression and pre-existing personality difficulties, one would have anticipated that a simple apology would have remedied this matter. However, the claimant has continued to consider himself under threat despite no such threat existing.
The various documents make it clear that the incident on 29 March could not have caused his depressive illness which is recorded as being present by 21 March. Other documents establish he symptoms occurred some time in mid to late 2010, perhaps associated with changes he decided to make to his anti-depressants. Dismissal from his employment could hardly have helped.
Unemployment, financial stresses and relationship problems would all be at the higher end of those life events considered to be stressful and likely to drive depression. His symptoms were not sufficiently severe to prevent him getting alternative work and indeed his GP thought he was doing alright when in March 2011 she reports he is ‘feeling good’. Nevertheless within a couple of weeks his symptoms were significant representing a rapid deterioration over a short period of time. If this rapid deterioration over less than 3 weeks is projected forward one can surmise his subsequent course has not been demonstrably different from what might have been predicted prior to the alleged incident on 29 March.
CONCLUSION
Mr Vittiglia had prodromal symptoms from late 2010 although his ability to get a job in December 2010/January 2011, and his GP’s report of 4 March 2011, suggest his symptoms were under reasonable control. He deteriorated rapidly over a short period of time so that by 21 March 2011 he was considered to be ‘overwhelmed’ at assessment by his psychiatrist. Further worsening is predictable and one could use the analogy of a skier going downhill recognising their descent cannot suddenly be halted. As a result Mr Vittiglia’s illness (and personality characteristics) led to him reading more into the situation on 29 March than might otherwise be warranted. This is not unusual in depression.
It is likely that, when fit enough, his Graduated Return To Work Program will have to be with an alternative work crew or employer. However, Mr Vittiglia has shown himself to be an individual who has chronic problems in his relationships with others and there is a high risk of similar occurrences in the future.
In answer to your specific questions:
2.1Having regard to the material provided, do you consider that the applicant’s employment with the respondent contributed to, to a significant degree, to (sic) the onset, acceleration or aggravation of the applicant’s underlying pre-existing psychological condition?
No. He was relapsing prior to 29 March. The trajectory of that relapse measured from 4 March to 21 March was significant and dramatic such that his psychiatrist described him as ‘overwhelmed’. Projecting that trajectory forward leads to the conclusion that he was heading for a severe relapse which would have occurred irrespective of the alleged incident on 29 March. Given his illness and his personality structure, many ordinary events could have been misinterpreted by him. I am not surprised that he seeks to lay the blame on that incident. This is referred to as ‘search after meaning’ when an individual tries to make sense of why they are feeling the way they do. In that regard, his judgement is suspect.
2.2If it did not, do you consider that the applicant’s employment with the respondent contributed to, to a significant degree to (sic) the onset, acceleration or aggravation of some psychological condition separate and distinct from the applicant’s underlying, pre-existing condition?
No. He has a serious depressive illness. Whilst this episode has been more severe than previous episodes, it is consistent with the way he has been described in medical notes since at least 2000. It was likely only a matter of time before he had a significant depressive episode and his history in that regard is quite typical.
2.3Dr de Jong has diagnosed the applicant as suffering an ‘acute stress disorder’. Please comment on this diagnosis having regard to the longitudinal history of the applicant’s underlying, pre-existing psychological condition as demonstrated in the material produced under summons.
Dr de Jong’s view is, in my view, misplaced. Had there been no pre-existing psychiatric problems, and the individual was convinced they were under threat, then this diagnosis would be legitimate. However, the more reasonable way of interpreting this is that the panic attack he had on site was more likely as a result of his depressive illness (the two often pre-existing) and there is no need to invoke a separate diagnosis. Psychiatry uses a hierarchical diagnostic system so that, if the symptoms can be accounted for by one diagnosis, that is the diagnosis put forward. This recognises the degree of overlay that exists and the reliance in psychiatry on symptom descriptions. It prevents spurious diagnoses being put forward.
2.4If you consider that the applicant suffered some condition which was contributed to, to a significant degree, by his employment have the effects of a pre-existing or non-work related condition overtaken the effects of any work-related condition due to non-work related events (for example the death of his sister in August 2011)?
If the plaintiff was able to successfully argue his condition transiently worsened (the evidence being the panic attack on site) as a result of the alleged incident then I would say, despite that, the ongoing trajectory was consistent with that identified well before the incident. He has chronic factors operating that would worsen his outcome, including his financial state and his relationship with his partner. With regard to his relationship with his partner it is recorded that she is not working and if that is still the case then no doubt their financial situation is part of this. His sisters’ illness and death (and other family rifts referred to as associated with her death) would be a major factor in continuing to embed, and potentially worsen, his depression. Bereavement (he is said to have been close to his sister) is one of the top four stressful life events as documented in studies carried out in the 1960s.
…” (Part of Exhibit R10)

Dr Mander’s report of 12 December 2011, which is addressed to the respondent’s solicitors, states as follows:
" Thank you for your letter of 12 December 2011 subsequent to our telephone conversation on 05 December 2011.
I answer your questions as follows:
1.1If you accept that the applicant suffered a panic attack that was significantly contributed to by his employment with the respondent on 29 March 2011, please explain the effects of such an attack.
A panic attack is a constellation of symptoms. It is not a diagnosis and is therefore not a psychiatric disorder. It is estimated that 10% of the population in a given year experience a panic attack. It can also occur in many psychiatric conditions. It is characterised by the acute onset of severe symptoms of anxiety which include rapid heart rate, hyper-ventilation, churning in the stomach, breathing difficulties, sweating, numbness and shakes and at it its most extreme muscle contractions occur. The rapidity of onset and symptom severity is such that sufferers almost invariably think that something serious is wrong with them and that they are having a heart attack or stroke.
1.2Please advise how long the effects of a ‘panic attack’ would render the applicant incapacitated for work.
A panic attack would not necessarily render an individual unable to work. The severe manifestations of the attack last 10-20 minutes although it is not unusual for the individual to feel ‘washed out’ and having ongoing raised levels of arousal for the rest of that day. Individuals who know what a panic attack is and who have had them in the past will often work through them. In the absence of a previous experience of panic then giving an individual the day off would usually be sufficient unless the panic attack is part of another psychiatric disorder or constituted a disorder in its own right which would be termed panic disorder. Panic disorder differs from a panic attack inasmuch as the individual is subjected to frequent panic attacks, they are uncontrollable, and in between times the sufferer has a raised level of fear of a further attack such that there is avoidance and/or impairment in carrying out their daily living tasks.
1.3Please advise of any medical treatment required as a result of a ‘panic attack’ on 29 March 2011. What is the period for which the applicant would require such medical treatment arising from the panic attack?
A single panic attack does not require treatment. If it was part of an underlying psychiatric condition then treatment of that condition would lead to the propensity for panic being brought under control.
…” (Exhibit R11)
In his oral evidence-in-chief Dr Mander opined that the applicant had not suffered acute stress disorder or post traumatic stress disorder as a result of the incident of 29 March 2011 because Criterion A in the DSM-IV diagnostic criteria for each of those disorders was not satisfied in that that incident itself was not sufficiently traumatic and the applicant’s response to it did not involve “intense fear, helplessness or horror”. He added that the applicant’s “symptom constellation” following that incident was more consistent with a diagnosis of depression than a diagnosis of acute stress disorder or post traumatic stress disorder.
Dr Mander referred to Dr de Jong’s report of 20 March 2011 in which it was stated that the applicant had “slipped back into depression feeling overwhelmed by financial stressors, his inability to have normal sexual relations with his younger partner and generally suffering from low self esteem and feeling hard done by”. He added:
“ The issue for me was that, given that description on 20 March, there had been a documented deterioration in this man’s mental state. ‘Overwhelmed’ is a significant word for a psychiatrist to be using with regards to a patient that they know well.
… So it’s nine days before the incident on the work side (sic). That deterioration is important, because a man with pre-existing psychiatric illness, there’s a lot of potential for him to be affected by those symptoms and in turn for that to affect the way that he is functioning.” (Transcript, p 166)
Dr Mander was referred to the three “scenarios” described in his report of 30 November 2011. His evidence was as follows:
“ Can I just ask you, finally, you’ve addressed in your second report, Doctor, a series of scenarios in relation to – I may be paraphrasing here, but – in a very sloppy way – but cause and effect between events and subsequent psychiatric experiences. And this is at pages 3 and 4 of your report. It may be put to you that – the scenario that, ‘Look, Mr Vittiglia was able to work right up until 29 March. He has this incident which is – at least involves quite forcely (sic) language. He then says that, as a result of that forceful language, he becomes upset and, from then on, he’s not able to work. And that it, I assume, will be put to you, clearly, that event must have had some impact on the change in the nature of his psychiatric condition. What would you say in response to that? --- The reason I put this part into this report is to explain why I reached the conclusion that perhaps, nine times out of 10, I wouldn’t reach. More often than not, when you’re in a situation like this, it is exactly as you’ve just described it. A person has pre-existing psychiatric problems; an event happens. You consider that the pre-existing psychiatrist (sic) problem actually leads to the misunderstanding or misinterpreting what happened and then they worsen. And as I say, nine times out of 10, I wouldn’t have a difficulty with that. And I would say, ‘Look, that - this has worsened the condition’. What makes me doubt that on this occasion is the trajectory of his deterioration prior to this event. I think that’s critical, as I say, to – I think I use the analogy of a skier going downhill. He’s already deteriorating at a rapid rate, which seems to me, from a common sense perspective, the more reasonable reason as to why things went the way they did. I do accept that we’re missing the critical information, which is, objectively, how was he that morning before the incident or, at the latest, the previous day, because that would add something to this whole – or trying to make this clear. But that’s what led to me writing that, because the conclusions I’m drawing here, as I say, are different from perhaps what I might conclude in a similar situation.” (Transcript, pp 167–168)
Dr Mander then gave the following evidence in response to questions from the Tribunal:
“ THE D.PRESIDENT: Could I just come in on that point? So given that there – he was already in a downward spiral or trajectory or whatever phrase you want to use, might this incident have accelerated that trajectory?‑‑‑Well, that’s what I – that’s exactly what I was trying to look as – is could you – could see that? If the trajectory is down ..... it deteriorates much more rapidly, then yes, that would be the issue. It worsened his condition. But I couldn’t see that. I can’t – as I say, to go from being well to being overwhelmed in two weeks, that’s dramatic. I suppose I’m more so influenced by a research I did on drug withdrawals myself about 20 years ago, which is the – about the only time, as a doctor, you get actually to see relapse in real life with bipolar rather than uni-polar depression. But you do. You see this. In some people, it’s dramatic change, in the study I did, within four weeks, and in some cases, within a few days. And we’re talking about people who had been well for decades and were taken off their medication abruptly. That’s one thing. And the other thing that was clear from that study was that once that deteriorating had started, even taking somebody out of the study, putting them back on their medication didn’t stop that deterioration. So looking at this, that’s exactly what I was trying to do. I was asking myself, ‘Is this rate of deterioration clearly different after the event on the 29^th or not?’ I couldn’t satisfy myself that it was clearly different.
The GP seemed to be satisfied that it was and ?‑‑‑I understand.
 Dr Jong (sic) seemed to be satisfied that it was?‑‑‑We’re entitled to different opinions.
And you say, nine times out of 10, you would have thought the same?‑‑‑Correct.
But what’s so special about this one?‑‑‑I think it’s – there’s two things that make this different from my point of view. The first is the assessment by the GP early in March, where she says he’s very good. And he also told me that he had done very well. He said, in the previous year, that he had done well. So that’s critical where you don’t usually have a, if you like, a point in time where you can say, ‘Look, it appears that his illness was under control’. I didn’t just accept that. I also looked at was there any other evidence to establish he was doing well at that point, and the evidence was he had lost his job the previous year and didn’t have a major relapse. And I would have expected he would. He’s said to have had financial problems, which I would fully expect if he had lost his job. And again, it didn’t lead to a full blown relapse. You know, if there was a full blown relapse, you would expect to see it in the notes. The psychiatrist would be seeing him more often. There would be much greater, potentially, doses of medication being given. So there’s this objective evidence that kind of says, ‘Okay, well, what the GP is seeing at this point – it does appear to be backed up by the clinical record and backed up by the claimant himself when he described what that was like for him’. So that’s the first important point. And the second important point is, again, you don’t normally have a situation where there’s a further medical assessment within a short space of time which is so different. And as I say, I’m – I was struck by Dr De Jong’s assessment around about 20, 21 March. So in that two weeks, there appears to have been a dramatic change in this man’s mental state.” (Transcript, pp 168–169)
In cross-examination Dr Mander accepted that his statement in his report of 30 November 2011 in relation to “scenario” 2 set out in that report, namely, “… that is clearly not the case here”, was an “overstatement”.
The Evidence of the Lay Witnesses
Darren McCamish
Mr McCamish confirmed that he had made a statement, dated 22 December 2011, for the purpose of this proceeding and that its contents are true and correct. He also confirmed that he had made a handwritten statement on 29 March 2011 (set out in paragraph 13 above) regarding the relevant incident involving him and the applicant on that date, which he provided to Mr McQueen.
Mr McCamish’s statement of 22 December 2011 is as follows:
“ …
1I was employed by the respondent, John Holland Pty Ltd at the Worsley Alumina Efficiency Growth Project (‘the Project’) for about 18 months from March 2010 to September 2011.
2I commenced in March 2010 in the role of Pipe Fitter and was promoted to Leading Hand in about December 2010. Brad McFarland replaced me as Leading Hand in March 2011 after an exchange between myself and Riccardo Vittiglia (‘Ric’) which I have addressed below. I continued working in the role of Pipe Fitter until September 2011.
3I am currently working at the Project for a new employer, Monadelphous as a Pipe Fitter.
4I worked with Ric at the Project from about December 2010 until March 2011. I was the Leading Hand of the crew in which he was a Trades Assistant (‘TA’).
5Leading up to March 2011, when Ric ceased work on the Project, my experience with Ric was that he was not a very good performing TA. It was a common occurrence that Ric would go ‘walk about’ and I would not see him for a few hours. I had no idea where he was going. Often times he would say he was going to the toilet and then I would not see him for a number of hours. This was a regular occurrence. Leading up to March 2011 it was busy period on the Project. As a Leading Hand it was part of my role to justify the hours worked and ensure the proper flow of work.
6Overall I also got the impression that Ric did not always give the job his full concentration leading up to the date he ceased working in March 2011.
7I recall there was an occasion when Ric was supposed to be spotting an EWP, which is an Elevated Work Platform. The EWP was heading in a direction where it was likely to connect with a live line. Ric was not keeping watch as he was supposed to. My supervisor, Stuart McQueen (‘Stuart’) was in the vicinity and saw this happening and was able to call out to the EWP. This occurred shortly before the conversation between Ric and me on 29 March 2011. This is an example of the level of concentration I observed Ric would bring to the job from time to time.
8My observation of Ric more generally was that he was not a shy or reserved man on site. I would say Ric certainly ‘gave as good as he got’. For example, one day (I cannot recall the specific day) one of the guys (a boiler maker) wanted Ric to help him carry some gear. This was part of Ric’s role as a TA. Ric just looked at the boiler maker and said, ‘I don’t help gays’. Ric was joking around but this is an example of the banter he would engage in. Luckily the boiler maker was not gay and did not take offence to this.
9On 29 March 2011, a conversation took place between Ric and I which I have outlined in a statement dated 29 March 2011. I understand this statement is contained in the T-documents at T12.
10When Stuart called me on 29 March 2011 and told me Ric had been in his office and I had to provide a statement, I was very surprised. I could not believe it when Stuart called me up for a statement. When Ric and I were having the conversation earlier that day, he was not visibly upset at all. My observation of him was that it was as if nothing had happened. I thought Ric took it as the jest that it was. I was not physically aggressive towards him. I did not get the impression Ric was fearful or actually took my words seriously.
11Whilst I was frustrated at Ric at this point because of his work performance, I do not consider our conversation was so over the top when considered in the context of the types of conversations that go on at construction sites. It was not unusual for that type of exchange to take place on a construction site between two blokes. It was my way of trying to get a safety point across to Ric.
12To the best of my recollection, after the initial conversation with Ric on 29 March 2011 which he is now taking issue with, I think Ric had actually come back to get back to work, maybe half an hour later. I approached him to find out where he had been as it was a common occurrence that he would just disappear without notice. I would have probably said something in a ‘blokey light hearted knock around’ type manner like ‘where the fuck have you been?’.
13Ric then said words to the effect, ‘fuck this, I am going to report you to the supervisor’. I was shocked when he reacted the way he did. After that I got a phone call from Stuart saying I had to make a statement as I mentioned above. My impression was that as Ric was older than the usual TA, he did not like to be asked about his whereabouts or be accountable to others as is usually the case in that role.
14I have not seen or heard from Ric since 29 March 2011.” (Exhibit R5)
It is unnecessary to refer in detail to Mr McCamish’s oral evidence in these reasons.
Stuart McQueen
Mr McQueen confirmed that he had made a statement, dated 21 December 2011, for the purpose of this proceeding and that its contents are true and correct. That statement is as follows:
“ …
1I have been employed by the respondent, John Holland Pty Ltd, since 20 November 2010.
2From 20 November 2010 to present I have been employed by the respondent on the Worsley Alumina Efficiency Growth Project (‘the Project’). I started in the role of Supervisor until I was promoted to Superintendent 3 months ago.
3In the course of this employment I had dealings with Riccardo Vittiglia known to me as ‘Ric’. During this time I was Ric’s supervisor.
4Ric started in my team in December 2010.
5I ran a crew of about 15 men which included two Trades Assistants (‘TA’). Ric was employed on the project as one of the TAs.
6I was struck by the fact that Ric was much older than the usual TA. The TA is a fairly menial job usually done by someone quite junior or young.
7My impression was that from the very beginning of Ric’s time with John Holland, he considered a number of the jobs given to him to be ‘beneath him’. He appeared reluctant to do anything he was asked to do. Ric seemed to me to be disgruntled with his position as a TA from day one and had seemed to think that his experience and age would mean that he would be given some increased responsibility.
8After Ric had started, I experienced some significant performance issues with him. Rick’s performance issues included disappearing without notice where the crew spent up to an hour or more looking for him on occasions in addition to a more general perception that he was a lazy worker. I have been able to locate a number of diary entries where I made a note about his performance. For example on 22 February 2011, my diary entry indicates I told Ric ‘to sort his life out start helping lads with pack up at end of day’. Attached and marked Attachment 'A’ is a copy of that note. A further example is on 3 March 2011 where Ric had walked into a ‘drop zone’ where he was not supposed to be and I had to speak with him the following day about his conduct. Attached and marked attachment ‘B’ is a copy of that diary entry.
9I ran a close knit crew. If there was any weak leak (sic), it needed to be identified and dealt with quite quickly. I was getting feedback from the members of my crew that Ric was disappearing on numerous occasions
10On one occasion when I went to site (I cannot recall the specific date) and asked where Ric was, the crew informed me that they had not seen him for 3 hours. On other occasions I would phone him and his usual excuse was he was at the toilet. I raised this with him a number on a numbers (sic) of occasions and had to explain that his role as a TA was to support the tradesmen.
11At one point (the specific date I cannot recall), Rick had to go for a random drug and alcohol test. He came up as a fall (sic). He said to me he was on quite strong medication and that is why he failed.
12Through his time working in my crew, I gained the impression Ric seemed slightly in his own world. When doing things such as ‘pre-starts’ I could see Ric’s attention just was not there.
13When Ric had been informally counselled about his performance issues by me, he disclosed that he was suffering from medical problems and mentioned that his medication made him moody and gave him mood swings (as an explanation for his actions). I did not go into depth as to what the medical problems were.
14My assessment as Ric’s front line manager was that I expected someone of his age to have a higher degree of common sense or that he would be wiser or more switched on.
15For example, we had a lot of issues where people were leaving the work front to go to lunch early. Our work front was quite a distance from the lunch area. I went to work front and he was not there, after I gave instructions to the crew that no one was to leave early. I phoned him up after, I was told by the crew he walked off, and I asked where he was. He said he was at the toilet and then explained he was at the toilet at the lunch room. I walked over and realised that to get to the lunch room he had to walk past two other closer toilets. When I raised this with him and my earlier instruction that workers were not to leave early from the work front, he exploded, stating that ‘I am 43 year old man I should not have to ask for permission to go to the toilet’. This was about 3 or 4 days before he ceased work. I had to calm him down.
16Also one point around this time, Ric was tasked with being a spotter for an Elevated Work Platform (‘EWP’). The whole point of a spotter is that they are required to keep spot. This is largely as a safety precaution. On one occasion I was walking towards the EWP and I saw Ric sitting down and looking away from the EWP and not concentrating on the job. As I walked up to EWP, it was apparent it was nearing an area which, if it continued without notice from the spotter, would result in damage to pipe work. I shouted to the EWP driver to stop which prevented the damage. After this I had to take Ric aside and explain the dangers of his actions. He looked at me with what I saw as blankness from him. This event also occurred quite close to the time he ceased work, probably the same week. A lot of these sorts of things were happening close to the time he ceased work.
17Other members of the crew had come to me saying they did not want to be working with Ric. I spent more time managing Ric leading up to the cessation of his employment.
18Around 4 days or so prior to 29 March 2011, I sat down with Jeremy Slater (‘Jeremy’), my supervisor, to raise the performance issues I had been having with Ric. Jeremy and I asked Ric to come in with us after I raised the issues with Jeremy. We spoke to Ric, informally, about him walking off job and disappearing. I had spoken to Ric prior to this and let him know I would be speaking to Jeremy. Ric did not think he did anything wrong. He kept stating to Jeremy and I words to the effect that, he was trying to do the right thing. I cannot recall the exact conversation. However, I think the performance management process was made quite clear and the fact that if instigated it may include a verbal warning, a written warning, a final written warning then dismissal. Having considered my diary notes, I recall Jeremy and I also had an earlier meeting with Ric on 4 March 2011 in which we raised an issue with his performance. At that meeting he was informed that if he did not improve his performance he will be give (sic) a written warning. Attached and marked Attachment ‘C’ is a copy of my diary note for 4 March 2011.
19Had Ric not left on 29 March 2011 and his poor performance continued, the next step would have been ‘putting pen to paper’ and involving HR in a formal process to performance manage Ric.
20I did not witness the exchange between Darren McCormish (sic) (‘Darren’) and Ric on 29 March 2011. However, a number of things took place on that day after the exchange as I have explained below. Attached and marked Attachment ‘D’ is my diary note for 29 March 2011.
21Shortly after the exchange took place, I had a missed call from Ric on my phone. I was dealing with another issue at that time. By the time I picked up the missed call, I received a phone call from Jeremy to say Ric had been in to see him. He asked me to come to his office. When I got to Jeremy’s office Ric had left back (sic) out to the site. Jeremy indicated to me that Ric had been in to see him to explain what had happened with Darren. Jeremy wanted to know what the altercation was about. I said I did not know.
22After I spoke with Jeremy, I phoned Ric and asked him where he was and asked him to come to see me. When Ric came to see me he explained there had been an altercation between him and Darren. At this point in time, Ric was not visibly shaken about the exchange with Darren. The tone of the conversation was more so that he said he was unhappy about being spoken to like he had been by Darren.
23Ric said to me words to the effect, ‘I want to make a statement’. I took him up to the office and got a statement form and put him at the end desk between myself and a safety representative. (Steve Witherick (‘Steve’)). After he completed the statement, I then read the statement. Also after he wrote the statement, he said he wanted to go to the medical centre because his leg hurt.
24Steve took him to the medical centre. I understand from speaking with Steve shortly after they attended the medical centre, that his leg was checked and there was nothing wrong with it. Steve then brought Ric back to office and said to me that he thought Ric had to go home as he was not safe to be on site. I asked what he meant by that and he said he did not think his mind was on the job.
25After Steve said that, I asked Steve to keep Ric in the office while I went to my two up boss, Daniel Dick (who was Jeremy’s boss). I explained to Daniel what had gone one (sic) and showed him Ric’s statement. I am not sure but I think he may have phoned Ryan Carrington (HR manager) at that point. Again I am not sure, but I think at this point I took Daniel over to the office and introduced him to Ric.
26To the best of my recollection, Daniel then took Ric down to Ryan’s office.
27That was the last occasion on which I saw or heard from Ric.
28As I said, there was no issue in my mind of Ric being upset when I initially saw him compared to the attitude he displayed to Steve after they attended the medical centre away from my presence. When I had initially met with Ric, he just indicated he had an altercation with Darren and he did not expect to be spoken to like that. There was no sign of shock or anything like that. He was not happy he was spoken to like he was from Darren. He seemed to change his attitude from when he came from sick bay to main office to see Ryan.
29As far as I am aware, the relationship between Darren and Ric had been much the same as the relationship between Daren (sic) as leading hand and the rest of the crew members. To my knowledge, he did not treat anyone differently.
30I am also surprised at what Ric says is now his reaction to the comments of Darren. The conversation between Darren and Ric on 29 March 2011 was not out of the ordinary in terms of the language that can be used on the work site between colleagues from time to time. Being on a construction site, there is a fair bit of banter that goes on. Ric certainly used to give as good as he got. For example, at close out meetings, if individuals were late there would be banter about ‘did someone wake you up’. On a number of occasions, because it was known Ric would disappear, it would be brought up at these meetings. Ric would respond with much the same language and digs. He would stand up for himself.” (Exhibit R9)

It is unnecessary to refer in detail to Mr McQueen’s oral evidence in these reasons.
Ryan Carrington
Mr Carrington confirmed that he had made a statement, dated 23 December 2011, for the purpose of this proceeding and that its contents are true and correct. He also confirmed that he had written a Management Journal entry, dated 30 March 2011, regarding a discussion held on 29 March 2011 in relation to an incident involving the applicant and Darren McCamish which had occurred on that date (set out in paragraph 14 above).
Mr Carrington’s statement of 23 December 2011 is as follows:
“ …
1I have been employed by the respondent, John Holland Pty Ltd, since 1 February 2009.
2I currently hold the position of HR Operations Manager for Western Australia. I have been in this position since September 2011.
3From 10 February 2009 to 31 August 2011, I was mobilised by the respondent as HR/IR Manager on the Worsley Alumina Efficiency and Growth Project (‘the Project’). I worked on site at the Project during this period.
4I have worked in the construction industry since 2005 and before that I was employed by Energy Australia in Sydney since 2001.
5I first had dealings with Riccardo Vittiglia on 29 March 2011 in the course of my employment as HR/IR Manager at the Project. Riccardo attended my office to provide a written statement regarding an exchange that occurred in his work area that morning between Riccardo and Darren McCamish (‘Darren’). I understand this statement appears at T10 of the Tribunal’s T-documents.
6On 30 March 2011 I made a contemporaneous note of Riccardo’s attendance at my office and the events which followed. I understand this appears at T13 of the T-documents. I have not repeated the contents of my note here. I provide the following comments to assist in providing an understanding of the nature of the relevant work site at the Project, the work undertaken and the nature of the industry in general.
7The work undertaken by the workers at the Project site was dirty, hard, ‘brown field’ work. The scope of work on the Project for John Holland was ‘Brownfields’ work in so far as employees were working in a live operating plant. It was an alumina plant. From time to time, the workers could find themselves working close to steam pipes that reach temperatures of about 200 degrees Celsius or near to areas which contain caustic vapours and liquids so it was essential that safety procedures were rigorously followed.
8The work on the project was carried out in an outdoor environment in the sun. It is dirty, tough, hot work. It would not be unusual for it to be 35 to 40 degrees on site. The workers were involved in tasks such as welding, cutting, installing structural steel, working with cranes, metal work etc. It was heavy work. It was often carried out in confined spaces or at heights, for example on Elevated Work Platforms (EWPs).
9On site there is predominantly only male workers/crew members. I would generally describe the men working on site as ‘hardened’. They do a tough physical job in a tough environment. They work in an industry which is a ‘man’s man’ industry. In my experience, I would describe it as a ‘blokey, non PC environment’. The typical worker is a down to earth ‘blokey bloke’. They also need to be physical fit and strong. All potential workers are put through a 2 hour medical test, including musculoskeletal testing. Even a high BMI is enough to refuse to employ a potential worker because of the inherent requirements of the job.
10Whilst Riccardo was not excessively large, he was strong looking. He would not have been able to do the work if he was weak or fragile. To my recollection Darren was physically smaller than Riccardo, although Darren was not notably small.
11In my experience in the industry, it is normal for the language that the guys use on site to be very rough. It is not unusual for people swear (sic) on site and conversations are usual laced with swearing. There is nothing extraordinary about the site at the Project where I had been for 2½ years over any of the other sites I have worked at over the last 6 years. The behaviour at this site was consistent with that which I have experienced at other sites over the last 6 years.
12In my experience, the guys on a site would rarely bring problems to management; they would often work it out in the fields and would often prefer to deal with it that way. In my experience as a HR person that often makes it more difficult to investigate complaints because no one talks about it.
13In the present case, I consider that the words spoken by Darren were consistent with the way the guys in the field spoke to each other on occasion.
14I do not tolerate bullying and harassment and come down hard on that sort of behaviour. I do not consider the exchange from Darren fell into that category. I consider it would have fallen in to the category of a low level conflict in the workplace. In my experience, low level conflict from time to time is a constant when you have 700 blue collar workers working together. We push our workforce hard. We drive a productive workforce. They are always under pressure to finish a job on time and safely.
15Nevertheless, I investigated the issue and it was apparent it was not part of any systemic behaviour. It was a one off, off the cuff comment more out of frustration by Darren than anything else. Given the work site environment and the people involved, it would not be unusual for a worker to articulate his position in that manner. This type of thing would happen often on a work site. It was not an out of the ordinary communication. Nevertheless, I spoke to him about his communication style.
16My frank impression of the situation involving Riccardo and Darren, having spoken with a number of the relevant parties and having had experience in the industry, was that, Riccardo did something that was viewed as stupid in relation to obtaining the drill and standing in the line of grinding sparks, Darren got frustrated and was saying words to Riccardo in a manner he thought to be in a light hearted joking manner to get his point across in relation to the safety concern. As I understand the situation having spoken to Darren, Darren did not mean it in any serious manner. This was reflected in Darren’s response to me after we spoke, where he suggested that, if Riccardo was upset he would apologise to him.” (Exhibit R6)
It is unnecessary to refer in detail to Mr Carrington’s oral evidence in these reasons.
The Relevant Legislation
Pursuant to s 14(1) and Part VIII of the SRC Act, the respondent is “liable to pay compensation in accordance with [that] Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
Section 4(1) of the SRC Act relevantly provides:
“ 4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease has the meaning given by section 5B
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury has the meaning given by section 5A.
…
significant degree has the meaning given by subsection 5B(3).
…”
Sections 5A and 5B of the SRC Act relevantly provide:
“ 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.
…
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.”
Section 7(4) of the SRC Act provides:
“ For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
The Issue
The issue for the Tribunal’s determination is whether the applicant suffered a “disease”, being a mental “ailment”, or an “aggravation” of a mental ailment, that was “contributed to, to a significant degree, by” his employment by the respondent, within the meaning of s 5B of the SRC Act, and thereby suffered an “injury” (as defined in s 5A(1)), within the meaning of s 14(1) of that Act.
Analysis
Did the applicant suffer a mental “ailment” or an “aggravation” of a mental ailment, within the meaning of the SRC Act, on or after 29 March 2011?
Having regard to:
·Dr Bowyer’s clinical notes for the period 2003-2010 (Exhibit R7);
·Dr de Jong’s clinical notes for the period from 5 May 2008 to 21 March 2011 (Exhibit R4); and
·Dr Oleshko’s clinical notes for the period from 4 January 2011 to 15 March 2011 (Exhibit R3);
the Tribunal is satisfied that the applicant was suffering from periodic episodes of anxiety and depression throughout the period from 2003 to 21 March 2011 and that, accordingly, he was suffering from a mental “ailment”, as defined in s 4(1) of the SRC Act, in that period.
The question arises as to whether or not the applicant suffered a further mental “ailment”, or an “aggravation” of a pre-existing mental ailment, with the meaning of the SRC Act, on or after 29 March 2011. The medical evidence before the Tribunal in relation to that question may be summarised as follows:
·Dr de Jong opined that, by reason of the abovementioned workplace incident involving Mr McCamish and the applicant on 29 March 2011, the applicant initially suffered acute stress disorder and subsequently post traumatic stress disorder”;
·Dr Oleshko opined that, by reason of the abovementioned workplace incident of 29 March 2011, the applicant suffered a “wide range of symptoms of anxiety and depression” which “could be classified as either adjustment disorder with depressive mood or depression/anxiety” or “post-traumatic stress disorder”;
·Dr Mander opined that the applicant has not suffered acute stress disorder or post traumatic stress disorder but that he suffers from major depressive illness which pre-dates the abovementioned workplace incident of 29 March 2011 and which was not aggravated by that incident.
The Tribunal agrees with Dr Mander’s opinion that the applicant has not suffered acute stress disorder or post traumatic stress disorder. Criterion A of the diagnostic criteria for each of those disorders, as set out in DSM-IV, is as follows:
“A. The person has been exposed to a traumatic event in which both of the following were present:
(1)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2)the person’s response involved intense fear, helplessness, or horror”. (Exhibit R12)
Having regard to the evidence before it, the Tribunal is not satisfied that the applicant’s response to the words spoken by, and the accompanying actions of, Darren McCamish in the incident of 29 March 2011, as described by the applicant in his handwritten statement of 29 March 2011 (see paragraph 11 above) and in his oral evidence (see paragraph 15 above), involved “intense fear, helplessness, or horror”, within the meaning of Criterion A(2) of the abovementioned DSM-IV diagnostic criteria. Having regard to the applicant’s handwritten statement and his oral evidence, the Tribunal is satisfied that the applicant’s response to Mr McCamish’s words and actions involved his feeling confused, at a loss to understand, shocked, upset and aggrieved. That collective response, in the Tribunal’s opinion, falls well short of a response involving “intense fear, helplessness, or horror” which is required in order to satisfy Criterion A(2).
The Tribunal, however, is satisfied, on the basis of the applicant’s evidence and the evidence of Dr de Jong and Dr Oleshko, that the applicant did experience clinically significant symptoms of anxiety and depression, which went beyond “the boundaries of normal mental functioning and behaviour” (Comcare v Mooi (1996) 69 FCR 439 at 444), as a result of the abovementioned workplace incident of 29 March 2011. Those symptoms were described by Dr Oleshko in her report of 3 August 2011 (see paragraph 27 above) as follows:
“ Mr Vittiglia was extremely distressed and obviously was not able to continue his normal duties…
Mr Vittiglia experiences a wide range of symptoms of anxiety and depression which severely impair his functioning. Currently he has low mood, low energy, loss of focus and concentration, severe sleep disturbance, appetite changes, episodes of panic, lack of motivation, hopelessness.”
The Tribunal notes Dr Mander’s opinion (based on Dr Oleshko’s clinical note of 4 March 2011 and Dr de Jong’s report of 20 March 2011) that the applicant’s pre-existing depressive condition had significantly deteriorated, by reason of non-work-related factors, in the short period of about two weeks prior to 20 March 2011, and his further opinion that the “trajectory” of the “rapid deterioration” of the applicant’s depressive condition, which was continuing as at 20 March 2011, was not accelerated by, or contributed to by, the workplace incident involving Mr McCamish on 29 March 2011.
The Tribunal does not accept Dr Mander’s analysis. In the Tribunal’s opinion, the flaw in Dr Mander’s analysis is the inference which he apparently drew from Dr Oleshko’s clinical note of 4 March 2011 (that the applicant was “feeling good”) and Dr de Jong’s report of 20 March 2011 (that the applicant had “slipped back into depression feeling overwhelmed by financial stressors, his inability to have normal sexual relations with his younger partner and generally suffering from low self esteem and feeling hard done by”) that, as at 20 and 29 March 2011, the applicant was in an ongoing “trajectory” of “rapid deterioration” of his depressive condition. That inference is, however, inconsistent with the opinion of the applicant’s treating general practitioner, Dr Oleshko, and the opinion of his treating psychiatrist, Dr de Jong. Dr Oleshko’s opinion was that, in the period leading up to 29 March 2011, the applicant’s psychiatric condition was generally stable and he was generally able to function despite some work and domestic stresses. Dr de Jong’s evidence was that, in the period prior to 29 March 2011, the applicant’s depression “had been fluctuating”, and he noted in his report of 20 March 2011 that the applicant had then come to see him for a “review appointment” (that is, not by reason of a specific referral by his general practitioner) and that he had “only changed his antidepressant until his next review”. In the Tribunal’s opinion, those comments by Dr de Jong in his report of 20 March 2011 do not suggest that he regarded the applicant’s depressive condition as then being in a “trajectory” of “rapid deterioration”.
The Tribunal notes that Dr Mander, in his analysis, seemed to attach great significance to Dr de Jong’s use of the term “overwhelmed” in his report of 20 March 2011 when describing the applicant’s “slipp(ing) back into depression” by reason of financial stressors and other non-work-related factors. The Tribunal also notes, however, that Dr de Jong again used the term “overwhelmed” in his report of 30 July 2011 when describing the applicant’s reaction to the workplace incident of 29 March 2011.
The Tribunal attaches great weight to the evidence of the applicant’s treating medical practitioners, Dr de Jong and Dr Oleshko, and it prefers their evidence to that of Dr Mander. Although there may be some inconsistency between the evidence of Dr de Jong and the evidence of Dr Oleshko regarding the state of the applicant’s depressive/anxiety condition in the period leading up to 29 March 2011, they are in agreement that the applicant suffered a significant deterioration in his existing mental condition on 29 March 2011 by reason of the workplace incident involving Mr McCamish on that date. On the basis of the evidence of Dr de Jong and Dr Oleshko, the Tribunal is satisfied, and finds, that on 29 March 2011, by reason of the workplace incident involving Mr McCamish on that date, the applicant suffered a significant deterioration in his existing mental condition. Although it is unnecessary for the Tribunal to make a finding as to the precise diagnosis of the mental condition which the applicant suffered on 29 March 2011, the Tribunal expresses the opinion that the most appropriate description of the mental condition suffered by the applicant on that date is an aggravation of his existing depressive/anxiety condition. The Tribunal notes that, although that was not Dr de Jong’s preferred diagnosis, he did not regard that description of the mental condition suffered by the applicant as a result of the workplace incident on 29 March 2011 as inappropriate (see paragraph 26 above).
Accordingly, the Tribunal finds that the applicant suffered an “aggravation” of a mental “ailment” (namely, a depressive/anxiety condition), within the meaning of the SRC Act, on 29 March 2011.
Was the aggravation of the applicant’s depressive/anxiety condition, which was suffered by him on 29 March 2011, “contributed to, to a significant degree, by” his employment by the respondent, within the meaning of s 5B(1) of the SRC Act?
Having regard to the evidence of Dr de Jong and Dr Oleshko, the Tribunal is satisfied that the abovementioned workplace incident of 29 March 2011 precipitated the abovementioned aggravation of the depressive/anxiety condition which the applicant suffered on that date. Accordingly, the Tribunal is satisfied that that aggravation was contributed to, to at least a “significant degree” (as defined in s 5B(3) of the SRC Act), by the applicant’s employment by the respondent.
The Tribunal finds, therefore, that the aggravation of the depressive/anxiety condition suffered by the applicant on 29 March 2011 is a “disease” as defined in s 5B(1) of the SRC Act.
There being no suggestion that the abovementioned disease suffered by the applicant was suffered by him “as a result of disciplinary action taken … in respect of [his] employment” (within the meaning of the exclusionary proviso to the definition of “injury” in s 5A(1) of the SRC Act), it follows that that disease is an “injury” as defined in s 5A(1).

Accordingly, the Tribunal finds that the applicant has suffered an “injury”, within the meaning of s 14(1) of the SRC Act. Pursuant to s 7(4) of the SRC Act, the applicant is taken to have sustained that injury on 29 March 2011 (being the date on which he first sought medical treatment (from Dr Thomson) for the aggravation of his depressive/anxiety condition, and the date when that aggravation first resulted in his impairment and incapacity for work).
Conclusion
The Tribunal concludes, therefore, that, pursuant to s 14(1) and Part VIII of the SRC Act, the respondent is liable to pay compensation, in accordance with that Act, to the applicant in respect of a mental injury, namely, aggravation of depressive/anxiety condition, suffered by him on 29 March 2011.
Decision
For the above reasons, the Tribunal sets aside the decision under review and, in substitution therefor, decides that, pursuant to s 14(1) and Part VIII of the SRC Act, the respondent is liable to pay compensation, in accordance with that Act, to the applicant in respect of a mental injury, namely, aggravation of depressive/anxiety condition, suffered by him on 29 March 2011.

I certify that the preceding 66 (sixty six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member.

.....[sgd DBrodie].........................
Associate
Dated 13 April 2012

Dates of hearing 23-25 January 2012

Representative of the Applicant Mr A Stewart

Solicitors for the Applicant Chapmans

Representative of the Respondent Mr B Dube

Solicitors for the Respondent Sparke Helmore

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2709
Re	Riccardo Vittiglia
APPLICANT
And	John Holland Pty Ltd
RESPONDENT

Tribunal	Deputy President S D Hotop Dr J Chaney, Member
Date	13 April 2012
Place	Perth

Dates of hearing	23-25 January 2012
Representative of the Applicant	Mr A Stewart
Solicitors for the Applicant	Chapmans
Representative of the Respondent	Mr B Dube
Solicitors for the Respondent	Sparke Helmore