Secretary, Department of Home Affairs and Comcare (Compensation) - [2024] AATA 592

Secretary, Department of Home Affairs and Comcare (Compensation) [2024] AATA 592 (20 March 2024)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2023/0593

GENERAL DIVISION )
Re: Secretary, Department of Home Affairs
Applicant

And: Comcare
Respondent
And: Derek Elias
Other Party
DIRECTION
TRIBUNAL:  Member W Frost
DATE OF CORRIGENDUM:            28 March 2024
PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the date of the Decision from ‘20 March 2023’ to ‘20 March 2024’ (as reflected in the Reasons for Decision).
…[SGD]………………………………
Member W Frost

Division:GENERAL DIVISION
File Number(s): 2023/0593
Re:Secretary, Department of Home Affairs
APPLICANT

AndComcare
RESPONDENT

AndDerek Elias
OTHER PARTY

DECISION
Tribunal:Member W Frost
Date:20 March 2023
Place:Canberra

Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and makes a decision in substitution for the decision so set aside that the Other Party did not suffer from a disease, as defined by section 5B of the Safety, Rehabilitation and Compensation Act 1988, in the period 10 November 2022 to 7 December 2022.
..[SGD]..........................................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – section 14 of the Safety, Rehabilitation and Compensation Act 1988 – definition of ‘injury’ under subsection 5A(1) SRC Act – definition of ‘disease’ under subsection 5B(1) – disease suffered by an employee – whether a disease was contributed to to a significant degree by employment – determining the meaning of ‘significant degree’ in section 5B SRC Act – ‘material contribution’ under section 5B SRC Act – contribution of workplace and employment factors – Department assisted rehabilitation – graduated return to work – Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) – psychological condition – adjustment disorder – chronic adjustment disorder – relevance of past psychiatric history – relevance of family psychiatric history – increased alcohol consumption – alcohol use disorder – reliability of witnesses – false or misleading evidence
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 42C, 43(1), 62A
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 36, 37, 67
Public Governance, Performance and Accountability Act 2013
Cases
Comcare v Canute (2005) 148 FCR 232
Comcare v Power (2015) 238 FCR 187
Prain v Comcare [2017] FCAFC 143
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Wiegand v Comcare [2002] FCA 1464
Woodhouse v Comcare [2021] FCAFC 95
Secondary Materials
Guideline on Persons Giving Expert and Opinion Evidence – Administrative Appeals Tribunal
REASONS FOR DECISION
Member W Frost
20 March 2024
INTRODUCTION

The Applicant, the Secretary of the Department of Home Affairs (Secretary), applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision by the Respondent, Comcare, affirming its determination accepting liability to pay Dr Derek Elias, being the Other Party in this proceeding, incapacity payments under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for the period 10 November 2022 to 7 December 2022, in respect of a previously accepted condition of ‘adjustment disorder with mixed anxiety and depression’.
To enliven the requirement to make incapacity payments under the SRC Act, Comcare had found that Dr Elias’ accepted condition was significantly contributed to by his employment at the Department of Home Affairs (Department) from 28 July 2021. As a result, and from that date, Dr Elias received incapacity payments due to his accepted workplace injury. Following the payment by Comcare of incapacity payments to Dr Elias for the relevant 28-day period in November and December 2022, the Department requested that Comcare reconsider its determination in relation to that period of time. The determination was affirmed by Comcare in January 2023. The Department then applied to the Tribunal for review of that decision, which is the subject of this proceeding.
The Tribunal has considered all documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and the additional documents taken into evidence in this proceeding, together with the parties’ submissions.[1] For the following reasons, the Tribunal sets aside Comcare’s reviewable decision because it is satisfied that Dr Elias did not suffer from a ‘disease’ pursuant to section 5B of the SRC Act during the period from 10 November 2022 to 7 December 2022. Comcare is therefore not liable to make incapacity payments to Dr Elias under section 19 of the SRC Act during that period.
[1] Exhibits 1 to 12.
ISSUES
The following issues were before the Tribunal for determination in this proceeding:
(a)was Dr Elias suffering from a ‘disease’, within the meaning of section 5B of the SRC Act, continuously for the period from 10 November 2022 to 7 December 2022? That is, did Dr Elias’ previously accepted condition retain the continuing characteristic of being ‘contributed to, to a significant degree’ by his employment with the Department?;
(b)if so, was Dr Elias incapacitated for work ‘as a result of’ the compensable disease during the period from 10 November 2022 to 7 December 2022?;
(c)if so, what is the amount per week, if any, that Dr Elias was able to earn in suitable employment during the period from 10 November 2022 to 7 December 2022, consistent with section 19 of the SRC Act?
BACKGROUND
Dr Elias is 57 years old.[2]
[2] Exhibit 1, pages 36 and 114-134.
In or around 2002, Dr Elias was awarded a PhD in Anthropology from the Australian National University.[3]
[3] Exhibit 4, page 470.
On 13 August 2018, Dr Elias commenced employment with the Department at the Executive Level 2 classification in the Australian Public Service (APS).[4]
[4] Exhibit 2, pages 94-96; Exhibit 3, pages 7 and 14-17.
On 20 August 2018, in a ‘Pre Placement Medical Assessment’ form, Dr Elias responded ‘No’ to questions regarding whether he had ‘ever received treatment or medical advice’ relevantly in relation to ‘Anxiety/Depression’ and ‘Other mental health issues’.[5] He signed the accompanying declaration acknowledging his understanding that ‘any false or misleading information may result in disciplinary action, up to and including termination of employment’.[6]
[5] Exhibit 3, pages 22-29.
[6] Ibid., page 25.
In November 2020, Dr Elias applied for the role of ‘Senior Director’, Regional Processing Contracts, and was appointed to that role with effect from in or around December 2020.[7]
[7] Exhibit 2, page 59.
In December 2020 and January 2021, Dr Elias was on approved ‘extended leave’, which was not sick leave or related to any psychological condition, but rather was ‘to attend to some overdue renovation work on my house and my body’.[8]
[8] Ibid., pages 63 and 67.
Since on or around 21 July 2021, Dr Elias has been absent from work at the Department.
On 28 July 2021, Dr Naoshaba Shafi, General Practitioner, recorded that Dr Elias had ‘Anxiety /Depression for past few months’, he ‘[d]oes a very stressful job’, and was ‘[d]rinking heavily and also to help with sleep’.[9] Dr Shafi further noted that Dr Elias was ‘on antidepressant in the past – about 20yrs ago’ and was content to trial one daily 50 milligram tablet of the antidepressant sertraline (known as ‘Zoloft’).[10] Dr Shafi prescribed 30 tablets of sertraline with five repeats, which were supplied between July and December 2021.[11]
[9] Exhibit 3, page 658.
[10] Ibid., page 658. See also Exhibit 3, pages 643 and 1007.
[11] Ibid., page 1007.
On 3 August 2021, Dr Shafi completed a Mental Health Care Plan for Dr Elias and diagnosed him with anxiety and depression.[12] Dr Shafi noted that this condition had been ‘worse for the past 8 months’. She again noted that Dr Elias does ‘a very stressful job’, he had been drinking ‘heavily for past few months’, which was recorded as being eight drinks daily, and had disturbed sleep.[13] On the same date, Dr Shafi completed a medical certificate stating that Dr Elias was unfit for work from 2 August 2021 to 3 September 2021.[14]
[12] Exhibit 2, pages 145-149.
[13] Ibid., pages 145-146.
[14] Ibid., page 168.
On 20 August 2021, Dr Shafi referred Dr Elias to Ms Karen Ely, Psychologist, pursuant to the Mental Health Care Plan.[15]
[15] Ibid., page 151.
On 30 August 2021, Dr Shafi completed a medical certificate stating that Dr Elias was unfit for work from that date to 1 October 2021.[16]
[16] Ibid., page 169.
On 28 September 2021, following two clinical interviews and psychotherapy sessions, Ms Ely made a psychological report and treatment plan which stated that Dr Elias ‘noted that he had previously sought assistance for depressive symptoms 15 years ago following his parents’ marital break-up’ and had mentioned his family’s past psychiatric history.[17] Ms Ely reported her findings as being ‘depressive symptoms including a sense of failure and hopelessness, difficulty concentrating, memory concerns, sleep disturbance and social withdrawal’, together with ‘symptoms of anxiety including constant rumination, distractibility, excessive worry about the future and his ability to provide for his family and irritability’.[18] Ms Ely also noted that the ‘significant increase in alcohol consumption and the related risky behaviour of drink driving is very concerning’.[19] Ms Ely diagnosed Dr Elias with an ‘Adjustment Disorder with mixed anxiety and depressed mood’ and noted that the symptoms ‘were not apparent until last year’, ‘the magnitude of Derek’s distress exceeds what would normally be expected in these circumstances’ and the symptoms relate to ‘an identifiable stressor i.e., workplace stress’.[20] Under the heading, ‘Treatment Progress’, Ms Ely noted that Dr Elias ‘has reported feeling less hopeless, more engaged and connected with his family, and more in control of the workplace situation’, together with reduced alcohol consumption, ‘however, it is still high at 6 drinks a day’.[21]
[17] Ibid., pages 24-28. See also Exhibit 3, pages 751-755 and Exhibit 4, pages 106-110.
[18] Exhibit 2, page 26.
[19] Ibid.
[20] Ibid., pages 26-27.
[21] Exhibit 2, page 28 and Exhibit 3, page 755.
On 1 October 2021, Dr Shafi completed a medical certificate stating that Dr Elias was unfit for work from that date to 29 October 2021, but could then return to work on a ‘gradual basis from 1/11/2021 for 2 days per week for 4 hours per day until 12/11/2021’, following which he would be further reviewed.[22] In her clinical notes of the same date, Dr Shafi recorded that Dr Elias ‘[n]eeds a gradual return to work certificate’.[23]
[22] Exhibit 2, page 170. See also Exhibit 3, page 757.
[23] Exhibit 3, page 660.
On 6 October 2021, Dr Elias submitted a Workers’ Compensation Claim to Comcare in relation to a condition he described as ‘Anxiety and depression, inability to attend work’.[24] Dr Elias stated that he first noticed his symptoms on 1 April 2020 and, in response to a question about what happened, reported that his condition was due to ‘[e]xcessive workload, constant overwork and lack of support leading to sleeplessness, anxiety and depression’.[25] In that claim form, Dr Elias answered no to a question about whether he had ever experienced a similar symptom, injury or illness, work-related or otherwise.[26]
[24] Exhibit 2, pages 29-35.
[25] Ibid., page 30.
[26] Ibid., page 31.
On 7 October 2021, Dr Elias alleges that he was notified that he would not be interviewed for an SES Band 1 role at the Department.[27] He felt ‘humiliated, disrespected and marginalised’ and considered that the Department ‘(whether intentionally or not) is trying to force my resignation so that I simply go away’.[28]
[27] Ibid., page 40.
[28] Ibid.
Also on 7 October 2021, Dr Shafi completed a medical certificate stating that Dr Elias was unfit for work from that date to 4 November 2021.[29]
[29] Ibid., pages 173-175. See also Exhibit 3, pages 671-673.
On 8 October 2021, Dr Andrew Thomson, Gastroenterologist, reported to Dr Shafi that Dr Elias has been ‘afflicted by anxiety and depression and his alcohol consumption has increased to at least twelve drinks per day! He has been troubled by looseness of stool and finds that he has bursts of multiple bowel motions (three or four at a time).’[30] Dr Thomson’s impression was that Dr Elias’ symptoms ‘may be attributable to his heavy alcohol consumption’, because it ‘is toxic to the small intestine in the sort of doses that he is ingesting and diarrhoea is often the clinical result’.[31]
[30] Exhibit 2, page 150. See also Exhibit 3, page 731.
[31] Ibid.
On 3 November 2021, Ms Ely reported to Dr Shafi, following the conclusion of the six allocated psychological sessions with Dr Elias, that he:[32]
displayed depressive symptoms including a sense of failure and hopelessness, difficulty concentrating, memory concerns, sleep disturbance and social withdrawal. He also displayed symptoms of anxiety including constant rumination, distractibility, excessive worry about the future and his ability to provide for his family, and irritability. He reported concerning alcohol consumption and related risky behaviour as well as socially withdrawing from his family resulting in him feeling very disconnected from them. A diagnosis of Adjustment Disorder with mixed anxiety and depressed mood 309.28 (F43.23) was made.
[32] Exhibit 2, page 152. See also Exhibit 3, page 748.
On 4 November 2021, Dr Shafi recorded in her clinical notes following a consultation with Dr Elias on the same date that he was ‘[f]eeling better in self since went off work’, he had been exercising, not smoking and had ‘less alcohol intake’.[33]
[33] Exhibit 3, page 660.
On 6 November 2021, Dr Shafi referred Dr Elias to Ms Ely for a further four psychological sessions under his Mental Health Care Plan.[34] Dr Shafi also completed a Mental Health Care Plan Review and noted that Dr Elias’ psychological condition ‘has been much better since been off work and seeing psychologist’, he had stopped smoking, reduced his alcohol intake, and had ‘better’, although still disturbed, sleep.[35] The ‘Mental Status Examination’ notes in the Mental Health Care Plan Review document from 6 November 2021 record that Dr Elias’ mood was ‘[b]ecoming more optimistic’, he was ‘[l]ess anxious than before’ and had more motivation.[36]
[34] Exhibit 2, pages 153-154.
[35] Ibid., pages 155-158.
[36] Exhibit 3, page 764.
On 13 November 2021, Dr Shafi completed a medical certificate stating that Dr Elias was unfit for work from 4 November 2021 to 2 December 2021.[37]
[37] Exhibit 2, page 171.See also Exhibit 3, pages 70-72 and 669-670.
On 24 November 2021, Dr Rajiv Siota, Psychiatrist, provided a report to Comcare following an examination of Dr Elias on 11 November 2021 pursuant to section 57 of the SRC Act, which relevantly set out the following:[38]
[38] Exhibit 2, pages 120-129.
He stated that about 17 years ago he was depressed while working in Thailand. He saw a psychiatrist for six months. At the time his parents had separated...He stated that it was successfully resolved and he has been mentally well since.
…
He stated that six months ago he was drinking 12 cans of beer per day and would drink most days for over one year. He currently has two cans of beer per day a couple of days per week.
…
In my opinion Mr Elias suffers from adjustment disorder with mixed anxiety and depressed mood (DSM-5, 309.28). He reports that following stressors at work he developed low mood with high levels of anxiety, disturbance in his sleep patterns, lack of enjoyment in activities, lack of concentration and motivation, and these symptoms affected his functioning significantly.
Since being away from the stressors there has been a significant improvement in his mental health. I believe that he fulfills the DSM-5 criteria for adjustment disorder with mixed anxiety and depressed mood.
…
Mr Elias has a good prognosis. I note that there has been a significant improvement since Mr Elias left work. I do not believe that his condition is resolved and he continues to have some symptoms.
…
He has noted a few facts and the ones that were significant were the alleged mistreatment by his manager…and his belief that illegal contracts were being signed and that the Department lied to the Senators. He stated that these factors affected his value system and he felt complicit and this further affected is mental health significantly. He also stated that he was overloaded at work.
…
The factors listed above have been major contributors to his mental health.
…
Mr Elias developed adjustment disorder with mixed anxiety and depressed mood following exposures to these factors. It has not completely resolved, and although he is not directly exposed to those factors he continues to ruminate about them and worry about them. I do not believe that the effects of those contributory factors have ceased.
…
There has been a significant improvement in his mental health with treatment and being away from the stressors.
…
There has been a significant improvement in his mental health since he has been off work. I do not believe he has regained work capacity to go back to his previous job. At this stage he is applying for positions elsewhere.
Also on 24 November 2021, Dr Siota provided a report to Comcare pursuant to section 36 of the SRC Act, which relevantly stated that:[39]
Yes, in my opinion Mr Elias continues to suffer from a psychological injury…I believe that his psychological injury continues to significantly contribute to his incapacity for pre-injury work.
…
I do not believe that Mr Elias would be able to go back to his previous role. At this stage he harbours a significant level of mistrust and anger against his section and I do not believe that he would be able to work there even if restrictions were provided.
…
He states that while there has been an improvement in his mental health he gets very anxious and upset when he thinks of work and struggle [sic] to sleep.
…
I believe Mr Elias has a good prognosis, I note that he is significantly better and continues to get better.
[39] Ibid., pages 130-138.
On 6 December 2021, Dr Shafi recorded in her clinical notes following a consultation with Dr Elias on the same date that he ‘[h]as been feeling better in self since been off work’ and was ‘[l]ess anxious’.[40]
[40] Ibid., page 166. See also Exhibit 2, pages 297-298 and Exhibit 3, page 661.
On 7 December 2021, following a consultation with Dr Elias on the same date, Ms Ely relevantly recorded in her clinical notes, under the heading ‘Presentation/Update’, that:[41]
[41] Exhibit 3, pages 910-911.
Still drinking and smoking – linked with cycles of irritation
Frustrating waiting on Comcare claim
…
Not doing well waiting for comcare
…
Experience at home affairs [sic] is “fading in rear mirror”
“not walking away from Home Affairs – “they need to be held accountable”
…
Anger inside me – slowly going EXCEPT when talking/thinking about depart = bitterness / anger still string [sic] – won’t go until closure
On 10 December 2021, Dr Shafi completed a medical certificate stating that Dr Elias was unfit for work from 6 December 2021 to 21 January 2022.[42]
[42] Exhibit 2, page 172. See also Exhibit 2, pages 299-300.
On 11 December 2021, Dr Shafi reported that Dr Elias ‘has been suffering from anxiety and depression for at least the past 12 months’, she was first consulted on 28 July 2021 and Dr Elias ‘feels his job is very stressful and the work environment contributes to his anxiety and depression’.[43] Dr Shafi noted that Dr Elias ‘suffered from anxiety/depression requiring antidepressant about 20 years ago’, although his ‘current condition is not an aggravation of a pre-existing or underlying condition’ and that workplace stress was ‘the main factor that has significantly contributed to Derek’s medical condition’.[44] Dr Shafi also stated that Dr Elias’ prognosis was ‘good if he does not return to the previous workplace and position’.[45]
[43] Exhibit 2, pages 161-162.
[44] Ibid., page 161.
[45] Ibid., page 162.

On 20 December 2021, Dr Siota provided a supplementary report to Comcare, which relevantly stated that:[46]
From what Mr Elias has reported it seemed that the contract negotiations which he perceived as illegal and rushed and not aligning with his own value system and [a] ‘waste of public money’ was what affected his mental health most significantly.
Whilst the attached documentation alludes to other factors like his expectation of a promotion and workload, they do not address the core issue that he has mentioned which is feeling complicit in illicit activities.
Based on the above I remain [of] the opinion that his mental health was most significantly affected around April 2020 when he was negotiating contracts which he perceived as illegal.
There has been a significant improvement in his mental health and at the time I saw him he was applying for jobs outside the Department and I had opined that he was fit to engage in occupational rehabilitation.
[46] Ibid., pages 176-177.
Also on 20 December 2021, Comcare made a determination accepting liability under the SRC Act for what it described as Dr Elias’ ‘adjustment disorder with mixed anxiety and depression’, which condition was deemed to have been sustained on 28 July 2021, being when he first presented to Dr Shafi with clinically identifiable symptoms.[47] Comcare approved the payment of compensation for Dr Elias’ medical expenses up to and including 22 January 2022, and incapacity up to and including 21 January 2022.[48]
[47] Ibid., pages 188-192.
[48] Ibid., page 188.
On 19 January 2022, Dr Shafi recorded in her clinical notes following a telephone consultation with Dr Elias on the same date that his mood was ‘stable’, he required a new prescription for sertraline and had an appointment with her on 21 January 2022 ‘for Comcare cert [sic]’.[49] On 20 January 2022, sertraline was supplied to Dr Elias.[50]
[49] Exhibit 3, page 662.
[50] Ibid., page 1008.
On 21 January 2022, Dr Shafi recorded in her clinical notes following a consultation with Dr Elias on the same date that he ‘[h]as been feeling very anxious as still has not been pain [sic] by Comcare’ and had ‘started drinking again’.[51] Dr Shafi increased Dr Elias’ Zoloft prescription from 50mg to ‘100mg daily’, which was supplied on 9 February 2022, with repeats in March, May, June and July 2022.[52]
[51] Ibid., page 662.
[52] Ibid., pages 662 and 1008.
On 1 February 2022, Ms Ely completed a Comcare Psychology Treatment Plan for Dr Elias, which proposed 12 to 16 sessions from August 2021 to May 2022 and relevantly stated that Dr Elias ‘is able to return to work’, but ‘absolutely’ not at the Department, and on a graduated return ‘due to the length of absence’.[53] Ms Ely also noted that Dr Elias was ‘no longer isolating self away from family; resumed sharing domestic and child care duties with partner; sleep concerns and alcohol consumption reduced however, not resolved’, and his ‘risky behaviours due to increase [sic] alcohol consumption’ and ‘social withdrawal’ were ‘much reduced’.[54]
[53] Exhibit 2, pages 255-257.
[54] Ibid., page 255.
On 14 February 2022, Dr Shafi recorded in her clinical notes following a consultation with Dr Elias on the same date that he had ‘been challenged by work about his anxiety and depression not being related to work’, noted that a ‘report’ had been ‘sent to Derek’, he ‘[h]as been very distressed with it’ and he had increased his ‘alcohol intake over the last few days’.[55]
[55] Exhibit 3, page 663.
On 21 February 2022, Dr Shafi completed a medical certificate stating that Dr Elias was unfit for work from that date to 21 March 2022.[56] In her clinical notes following a consultation with Dr Elias on the same date, Dr Shafi noted that he was ‘[f]rustrated with work situation’, the ‘Department has not offered any alternative work’, there was financial stress, and he ‘does not want to go back to previous work or employer’ because it ‘[w]ill affect his mental health’.[57] Dr Shafi also recorded that Dr Elias was ‘[h]appy to work part time in another area outside the department’.[58]
[56] Exhibit 2, pages 301-303. See also Exhibit 3, pages 674-676.
[57] Exhibit 3, page 663.
[58] Ibid.
On 23 February 2022, Ms Ely relevantly recorded that Dr Elias was ‘worried will need to go to rehab to stop drinking’ and wanted to ‘get off the medication – once dept [sic] stuff is sorted’.[59]
[59] Ibid., pages 913-914.
On 24 February 2022, a ‘Compensation Rehabilitation Assessment Report’ was prepared following an assessment of Dr Elias on 14 February 2022.[60] It was noted that Dr Elias ‘reported problems experienced of heavy alcohol consumption’, including ‘drinking approximately 14 cans of beer and ½ bottle of wine on 13/02/2022; as a coping strategy’.[61] Based on Dr Shafi’s opinion, the medical assessor stated that Dr Elias had no current work capacity and a further medical consultation was to be undertaken on 21 March 2022 to ‘confirm the return to work goal’.[62] The assessor further noted that Dr Elias was capable of undertaking a rehabilitation program based on his ‘desire to return to work with a new employer’, and endorsement was required at the ‘medical case conference’ on 21 March 2022 to confirm the ‘vocational goal’, with the expected date that was to be achieved said to be subject to review in ‘6 months’.[63]
[60] Ibid., pages 110-121.
[61] Ibid., page 116.
[62] Ibid., pages 110-111 and 114-115.
[63] Ibid., page 120.
On 25 February 2022, following the Secretary’s requested reconsideration, Comcare affirmed its determination accepting liability to pay compensation for Dr Elias’ ‘adjustment disorder with mixed anxiety and depression’.[64]
[64] Exhibit 2, pages 11-18, 232-238 and 258-260.
On 8 March 2022, Ms Ely relevantly recorded that Dr Elias had ‘not been too bady [sic] – happy with Comcare decision to uphold their determination’, ‘has taken a friend…into confidence re the situaation [sic] – he has good advice which has resulted in less worry – being more proactive in talking to the department about the way forward’.[65]
[65] Exhibit 3, pages 914-915.
On 9 March 2022, the Department informed Dr Elias that, pursuant to Dr Shafi’s recommendation that he not return to work with the Department, it would await receipt of the doctor’s opinion before deciding whether there was sufficient evidence to determine a rehabilitation program.[66]
[66] Ibid., page 103.
On 21 March 2022, Dr Shafi completed a medical certificate stating that Dr Elias was unfit for work from that date to 27 April 2022.[67] In her clinical notes following a consultation with Dr Elias on the same date, Dr Shafi relevantly noted that:[68]
BP [blood pressure] stable.
Has been going to gym regularly
Has lost about 2 kg over 2 months.
Nil smoking last 8 days and has reduced alcohol intake.
Has seen psychologist – nil report yet.
Seeing fortnightly – happy with progress.
[67] Exhibit 2, pages 308-309.
[68] Exhibit 3, page 664.
Mood has been better – feels related to no work stress and also zoloft 100mg helping.
On 26 April 2022, the Secretary applied to the Tribunal for review of Comcare’s decision accepting liability for Dr Elias’ condition (2022 Proceeding).[69]
[69] Exhibit 2, pages 6-10.
Between April 2022 and February 2023, Dr Shafi completed medical certificates stating that Dr Elias was unfit for work from 27 April 2022 to 7 March 2023.[70]
[70] Exhibit 2, pages 304-30 and Exhibit 1, pages 114-134.
On 27 April 2022, Dr Shafi recorded in her clinical notes following a consultation with Dr Elias on the same date that he his mood was ‘stable’, he was looking forward to moving to Queensland, the work ‘situation’ was ‘the same – does not have a job for him’ and ‘Comcare will look into other options’.[71]
[71] Exhibit 3, page 665.
On 28 April 2022, Dr Elias registered for a Return to Work Pilot program through Comcare, in which he participated between May and October 2022.[72]
[72] Exhibit 10, pages 822-825 and 836-846.
On 24 May 2022, Ms Ely relevantly recorded that Dr Elias had been ‘going well for “a while” – slight relapse’, the Department had ‘gone to AGS to appeal to ATT [sic] – found out 2 weeks ago – asking for rehab – havn’t [sic] signed consent form – very frustrated’, he was ‘constantly checking email to see if Dept [sic] has said something’ and felt like he had ‘been dragged back into sludge again’.[73]
[73] Exhibit 3, pages 919-920.
On 7 June 2022, Ms Ely relevantly recorded that Dr Elias was ‘[g]oing really well – has been formally advised that Dept [sic] are appealing to AAT – less frustration and worry because knows what is happening and feels he has agency over what he has to do’.[74] Dr Elias was reported to be ‘only drinking 1/2 bottle of wine a night – big improvement’, engaging more with his family and feeling ‘calmer’.[75]
[74] Ibid., pages 920-921.
[75] Ibid., page 921.
On 8 June 2022, Dr Elias emailed the Department noting that he ‘may be interested’ in ‘some part time jobs’ he had seen advertised and requested advice on how to proceed.[76]
[76] Ibid., page 256.
Also on 8 June 2022, Ms Ely, Psychologist, provided a treatment report to Dr Shafi, which noted that she had completed nine sessions with Dr Elias and relevantly stated that:[77]
Derek reported continued improvement in relation to symptom reduction until he experienced a short relapse. It is apparent that dealing with the Department is triggering for Derek, particularly when the flow of information is sporadic or non existent [sic]. When this happens, his frustration builds, rumination increases, sleep disturbances increase, and most importantly his alcohol consumption increases and he begins to withdraw from his family. Derek demonstrated good insight in recognising this change early and we worked on strategies to reverse the relapse which he seems to have done successfully. He is now reporting less drinking, less smoking, more sleep and connecting with his family again. Derek continues to demonstrate a more positive view of himself and his, and his family’s, future. He reports enjoying working with the Comcare provided Rehab person and is openly investigating different options for future employment.
…
I recommend that Derek continues with therapy until the AAT process has been completed. The focus of these sessions will continue to be acceptance of difficult feelings and relapse prevention strategies.
[77] Ibid., page 749.
In addition to the above treatment report, on 8 June 2022, Ms Ely made a psychological report and treatment plan in relation to Dr Elias, which also relevantly stated that:[78]
[78] Exhibit 4, pages 81-83.
Findings on Initial Examination
Derek displays depressive symptoms including a sense of failure and hopelessness, difficulty concentrating, memory concerns, sleep disturbance and social withdrawal. He also displays symptoms of anxiety including constant rumination, distractibility, excessive worry about the future and his ability to provide for his family, and irritability. The significant increase in alcohol consumption and the related risky behaviour of drink driving is very concerning. He is socially withdrawing from his family and reports feeling very disconnected from them. The symptoms are impacting on his life significantly as he has not been able to work. His reported action of withdrawing to the shed to smoke and drink heavily every night is impacting on his health, ability to work effectively, and disconnecting him from his family.
…
Diagnosis – Adjustment Disorder with mixed anxiety and depressed mood…
Progress report
We commenced a treatment plan including psychoeducation, sleep hygiene, stress management, cognitive behaviour therapy, defusion, perspective taking, mindfulness, and acceptance strategies. We focussed on Derek’s values and increasing value-driven behaviour.
Derek reported improvement in relation to symptom reduction including improved sleep, significant reduction in alcohol consumption, and importantly better communication with his wife about key issues. Progress was excellent until he experienced a recent short relapse. It is apparent that dealing with the Department is triggering for Derek, particularly when the flow of information is sporadic or non-existent. When this happens, his frustration builds, rumination increases, sleep disturbances increase, and most importantly his alcohol consumption increases, and he begins to withdraw from his family. Derek demonstrated good insight in recognising this change early and we worked on strategies to reverse the relapse which he seems to have done successfully. Derek is again reporting less drinking, less smoking, more sleep and connecting with his family again.
Derek demonstrates a definite change in how he sees himself and reports less negative self-talk and rumination. In particular, he continues to demonstrate a more positive view of himself and his, and his family’s, future. He reports finding meditation and breathing strategies very helpful. He reports enjoying working with the Comcare provided Rehab person and is openly investigating different options for future employment.
Opinion and Recommendations
Progress has been excellent in terms of symptom reduction. Derek has demonstrated that he can use a range of strategies to manage negative thinking and difficult emotions. The Department continues to be a trigger and Derek is aware of this and has strategies to use when dealing with them. The upcoming AAT hearing is potentially another trigger although at this point Derek reports feeling comfortable with the process.
The symptoms are no longer causing clinical distress. I believe that Derek could successfully return to the workplace however, not with the Department of Home Affairs.
It is recommended that Derek return to the workplace as quickly as possible. A graduated return to work i.e., reduced hours gradually built up over time to full time work would be advisable give[n] the amount of time that he has had out of the workplace.
It is recommended that Derek continue to therapy until the AAT process has been completed and he has successfully returned to the workplace. Therapy will be focussed on stress management, acceptance of difficult emotions, and relapse prevention strategies [emphasis in original]
On 14 June 2022, the Department emailed Dr Elias regarding the ‘really positive news’ that he was considering returning to work and that he should discuss a rehabilitation program with his doctor, noting that it was ‘happy to have one created if your GP advises you are fit to start undertaking a rehabilitation program’.[79]
[79] Exhibit 3, page 254.
On 25 June 2022, Dr Shafi recorded in her clinical notes following a consultation with Dr Elias on the same date that his mood ‘has been stable’ and he had experienced ‘[i]mprovement of symptom reduction since [he has] been off work’, although he ‘[g]ets frustrated with dealing with department’, feels there is ‘not enough information/progress’ and ‘[w]ould like to consider gradual return to work’.[80] In a medical certificate of the same date, Dr Shafi relevantly noted that Dr Elias was ‘feeling better in self and has [a] more positive attitude’ since being off work.[81]
[80] Ibid., page 667.
[81] Ibid., page 1055.
On 22 July 2022, Dr Shafi recorded in her clinical notes that Dr Elias had received ‘a lot of documents from the government and has made him more stressed’.[82]
[82] Ibid., page 667.
On 29 July 2022, Dr Shafi recorded in her clinical notes that Dr Elias’ mood was ‘the same’, he ‘[f]eels things progressing very slowly’ and that he needed a ‘script for Zoloft’, for which five repeats were also provided.[83] The following day, sertraline was supplied to Dr Elias and again on 30 September 2022.[84]
[83] Ibid., pages 668 and 1009.
[84] Exhibit 3, page 1009. Note that the period of supply runs to 7 October 2022 (see Exhibit 3, pages 1002-1009).
On 10 August 2022, following an appointment with Dr Elias of the same date, Ms Ely relevantly recorded the following in her clinical notes, under the heading ‘Presentation/Update’:[85]
“deep in litigation with dept” – lots of agitation when dealing with the dept
back to chain smoking and drinking – 12-15 beers, 1/2 pack – has improved more recently to 4 beers and 3-4 cigarettes
impacted on sleep – no sleep – discussed medication with GP
4^th case manager at home affairs;
positive meeting with Comcare rehab guy
house on market today – family fully engage with moving process
[85] Exhibit 9, page 688.
expressed desire to “get off” medication (Sertra)
On 11 August 2022, Dr Elias applied for employment outside the Department as a ‘Swimming Instructor – Casual’.[86]
[86] Exhibit 10, page 820.
On 26 August 2022, Dr Shafi recorded in her clinical notes that ‘[w]ork situation the same’, ‘[n]ot much progress’, Dr Elias had been seeing a psychologist and his mood was ‘the same’.[87]
[87] Exhibit 3, page 1013.
On 20 September 2022, Dr Shafi recorded in her clinical notes that Dr Elias had ‘not smoked for past 6 days’, had ‘also reduced alcohol intake’ and was ‘[f]eeling better in self’. Dr Shafi also noted ‘[w]ork situation the same’ and Dr Elias ‘[a]pparently has tribunal this week’.[88]
[88] Exhibit 3, page 1014.
On or around 18 October 2022, Dr Elias submitted information for a Claim for Time Off Work form for the period 19 October 2022 to 17 November 2022.[89]
[89] Exhibit 10, pages 881-883.
On 18 October 2022, following an appointment with Dr Elias of the same date, Ms Ely relevantly recorded the following in her clinical notes, under the heading ‘Presentation/Update’:[90]
“lots happening” – discussion with AAT and Comcare – “philosophically aligned”
reported that dept are stating “alcohol abuse dx”
reported “good spells of not drinking or smoking”
reported house has been on the market for 6 wks – some worry but not anxiety – reported tiring though
sleep impacted and increased drinking when receive emails from dept
[90] Exhibit 9, pages 689-690.
reported that he heard that 3 weeks ago former staff member committed suicide – single mum with teenage son – wants dept to be “accountable for their actions”
On 25 October 2022, a Closure Report was completed by ‘Your Future Career and Wellbeing’ regarding Dr Elias’ participation in the Return to Work Pilot program.[91] The report noted that Dr Elias’ ‘Capacity at Referral’ on 29 April 2022 was as set out in Dr Shafi’s medical certificate from 27 April 2022, referred to above in these reasons, which recapitulated his initial symptoms and stated that he was ‘feeling better in self and has more positive attitude’ since being off work, although he feels his mental state will relapse if he returned to his previous employment.[92] The Closure Report listed ‘[n]o change’ to Dr Elias’ ‘Capacity at Closure’.[93] The case summary section of the report noted that ‘[w]ith the outcome of the tribunal outside of his control this is resulting in a great source of stress for Derek’.[94] Additionally, the ‘Barriers’ were stated to be ‘[f]inancial stress and uncertainty regarding the outcome of the pending tribunal [proceedings]’.[95] Both the ‘Overview’ and Recommendations’ sections relevantly noted that:[96]
Derek found the Birkman session “…super helpful…”, it indicated a preference for working outside and provided Derek with several potential career directions to investigate and led to the discussion regarding roles that he could work in, in the interim. Derek made some progress with these options however, he felt that he couldn’t progress with them as he was waiting on the result of a tribunal process.
This was a common theme throughout the program. Derek is keen to get his life and career back on track but feels that he is unable to progress until the tribunal process is complete.
Derek would benefit greatly by gaining greater clarity regarding how long the tribunal process will take which his Career Coach believes will enable him to better focus and work on his job search including other areas of his life that are within his control.
[91] Exhibit 3, pages 270-275.
[92] Ibid., pages 271 and 665.
[93] Ibid., page 271.
[94] Ibid., page 273.
[95] Ibid.
[96] Ibid., pages 272-274.

On 26 October 2022, the Department sent Dr Elias a notice pursuant to section 36 of the SRC Act, requiring him to attend a medical assessment on 25 November 2022 regarding his capability to undertake a rehabilitation program.[97]
[97] Ibid., pages 278-281.
On 17 November 2022, Dr Shafi recorded in her clinical notes that Dr Elias had a ‘legal meeting tomorrow’ and has ‘been feeling very stressed and anxious’, noting that the Department had ‘been calling him an alcoholic with history of alcohol abuse’ and that he ‘only drinks alcohol when stressed due to work issues’.[98] Dr Shafi noted that they had a ‘[l]ong discussion about current problems with comcare’ and ‘[w]ants him to see their psychiatrist’.[99]
[98] Ibid., page 1015.
[99] Ibid.
On or around 18 November 2022, Dr Elias submitted information for a Claim for Time Off Work form for the period 17 November 2022 to 13 December 2022.[100]
[100] Exhibit 10, pages 887-889.
On 23 November 2022, following Dr Elias’ request for reconsideration of the Department’s determination made under section 36 of the SRC Act, Comcare revoked that determination and found that the purpose of the medical assessment was for collateral purposes and ‘not for the assessment of your capability of undertaking a rehabilitation program’, in circumstances where earlier assessments of 21 February 2022 and 11 November 2021 ‘indicate that you have the capacity to participate in a rehabilitation program’.[101]
[101] Exhibit 3, pages 287-292.
On 30 November 2022, Comcare made a determination accepting liability for incapacity payments to Dr Elias under section 19 of the SRC Act for the period from 10 November 2022 to 7 December 2022, in relation to his accepted condition of an ‘adjustment disorder with mixed anxiety and depression’.[102] Since July 2021, Comcare had been making such payments to Dr Elias after accepting liability to pay him compensation under the SRC Act.[103]
[102] Exhibit 1, pages 54-55.
[103] Exhibit 1, pages 188-192 and Exhibit 2, pages 84-107.
On 13 December 2022, Dr Shafi recorded in her clinical notes that Dr Elias’ mood was ‘stable’ but he ‘gets anxious with work related things’.[104] She also noted that Dr Elias had ‘been exercising, going to gym’ and his alcohol intake ‘has reduced considerably’.[105]
[104] Exhibit 3, page 1016.
[105] Ibid.
On 22 December 2022, following an appointment with Dr Elias of the same date, Ms Ely relevantly recorded the following in her clinical notes, under the heading ‘Presentation/Update’:[106]
reminder re lawyer letter – seeking causes for stress/anxiety
Dept wrote to Comcare to cease payments b/c not participating in rehab – psychiatrist apt for ax for alcohol abuse dx
agitated when talking about dept
v. distressed when talking about treatment by dept and lawyer - “why do they control the tempo and the process?”
symptom review: continuing thoughts, drinking – usually 2 glasses with dinner but a lot on Sat night; sleeping – no sleep Sat but otherwise OK;
house sold yesterday – in laws visiting
[106] Exhibit 9, pages 690-691.
“legal work taking up time and emotional energy and mental capacity”
On 5 January 2023, following the Secretary’s request for reconsideration, Comcare affirmed its determination accepting liability to pay Dr Elias incapacity payments from 10 November 2022 to 7 December 2022 under section 19 of the SRC Act.[107]
[107] Exhibit 1, pages 56-61 and 65-73.
On 10 January 2023, Dr Shafi recorded in her clinical notes that Dr Elias was moving to Queensland ‘tomorrow’, he has ‘been looking forward to the move and change’ and ‘[h]ence feels mental health is better’.[108] Dr Shafi also relevantly noted that Dr Elias was ‘anxious / depressed 2 weeks ago - when department wanted to stop the compensation payment’, although ‘Comcare apparently overruled it’.[109]
[108] Exhibit 3, page 1017.
[109] Ibid.
On 1 February 2023, the Secretary applied to the Tribunal for review of Comcare’s decision affirming the determination to pay Dr Elias incapacity payments in the period 10 November 2022 to 7 December 2022, being the decision the subject of this Tribunal proceeding (2023 Proceeding).[110]
[110] Exhibit 1, pages 4-6.
On 2 February 2023, following an appointment with Dr Elias of the same date, Ms Ely relevantly recorded in her clinical notes that Dr Elias had ‘enrolled in PT course’ and this was the ‘first time concentrating on anything other than legal matters for some time’, his health and sleeping were ‘mostly good except when dealing with dept’ and he ‘continues to get agitated when dealing with dept and acknowledged that the drinking strategy is not ideal but it is controlled now’.[111]
[111] Exhibit 9, page 692.
On 23 February 2023, following an appointment with Dr Elias of the same date, Ms Ely relevantly recorded in her clinical notes that the interventions for Dr Elias were to ‘focus on the positives’ and to ‘restrict time spent on legal stuff and only focus on it during that time’.[112]
[112] Ibid., pages 692-693.
On 9 March 2023, following an appointment with Dr Elias of the same date, Ms Ely relevantly recorded in her clinical notes that he was ‘“up and down” – legal stuff still taking up a lot of time’, but was ‘feeling positive about life with the exception of the dept and the legal stuff’.[113]
[113] Ibid., pages 693-694.
On 21 March 2023, the Department emailed Dr Elias a determination made under subsection 37(1) of the SRC Act to provide him with the following rehabilitation program:[114]
1.You are required to participate in treatment as medically recommended in relation to any medical condition(s) that may be affecting your capacity for work.
2.A return to different EL2 duties with the Department at a different building in the ACT working with different people, including a new supervisor, on a graduated basis, commencing as soon as possible. The Department is also taking into consideration accommodating a home based gradual return to work. Further details will be provided shortly including confirmation of your new duties and supervisor.
[114] Exhibit 3, pages 175-176.
On 5 April 2023, Dr Shafi completed a medical certificate stating that Dr Elias was unfit for work from that date to 3 May 2023.[115]
[115] Exhibit 3, pages 238-239.
On 28 April 2023, the Department informed Dr Elias that it was proposing to make a decision, pursuant to section 37 of the SRC Act, for him to commence in an identified position within the Tactical Capability Branch at the Department, ‘with new duties and a new supervisor’.[116]
[116] Ibid., pages 490-491.
Also on 28 April 2023, and following Dr Elias’ request for reconsideration, Comcare affirmed the Department’s determination of 21 March 2023 that he undertake a rehabilitation program pursuant to section 37 of the SRC Act.[117]
[117] Ibid., pages 494-252.
On 31 May 2023, Dr Shafi completed a medical certificate stating that Dr Elias was unfit for work from that date to 29 June 2023.[118]
[118] Ibid., pages 255-256.
On 19 June 2023, the Tribunal made a decision in the 2022 Proceeding, pursuant to section 42C of the AAT Act, following agreement between the parties as to the terms of a decision of the Tribunal.[119] In accordance with the parties’ signed terms of agreement, the Tribunal affirmed the reviewable decision dated 25 February 2022, being Comcare’s decision to accept liability for Dr Elias’ condition, on the following relevant bases:[120]
(a)that a significant factor that contributed to the onset of Dr Elias’ ailment was employment and therefore, from 28 July 2021, the ailment constituted a disease within the meaning of section 5B of the SRC Act; and
(b)Comcare is liable to pay compensation to Dr Elias pursuant to section 19 of the SRC Act in the period 28 July 2021 to 22 January 2022.
[119] Ibid., pages 1098-1099.
[120] Ibid., page 1099.
For completeness, the Tribunal sets out its notations from the decision of 19 June 2023 in the 2022 Proceeding, detailing the parties’ agreement as to the following:[121]
[121] Ibid.
The terms of agreement the subject of this decision do not reflect any acknowledgement whatsoever that the Applicant (or any of its employees, servants or agents) engaged in the conduct alleged by the Other Party.
The Applicant disputes the factual bases on which the Other Party's claim is based, but accepts that a perception held by an employee (regardless of objectively proven facts) is sufficient to establish liability under section 5B of the SRC Act regardless of whether the employee's perception is unreasonable or irrational (Wiegand v Comcare [2002] FCA 1464).
The Applicant's consent to the terms of agreement the subject of this decision does not constitute agreement to any of the factual assertions made by the Other Party, and does not operate to limit the Applicant’s ability to challenge any of those factual assertions in any forum.
To the date of this decision, the Other Party has not suffered any other disease (as defined in sections 4 and 5B of the SRC Act) during his Commonwealth employment.
While the 2022 Proceeding resolved, the Tribunal held a hearing over five days in September and November 2023 in relation to the 2023 Proceeding.
LEGISLATION
Subsection 14(1) of the SRC Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Subsection 5A(1) of the SRC Act relevantly defines ‘injury’ to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, 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;…
For the purposes of applying subsection 5A(1)(a) of the SRC Act in relation to a ‘disease suffered by an employee’, section 5B of the SRC Act regarding the definition of ‘disease’ states that:
(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. [emphasis in original]
Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also provides that ‘aggravation’ includes ‘acceleration or recurrence’.
Section 62A of the AAT Act states that a person commits an offence, punishable by imprisonment for 12 months or 60 penalty units, or both, if:
(a)the person appears as a witness before the Tribunal; and
(b)the person gives evidence; and
(c)the person does so knowing that the evidence is false or misleading.
EVIDENCE
Lay evidence
Dr Elias
The Tribunal has considered the written statements made by Dr Elias dated 8 October 2021, 16 February 2022 and 1 September 2023, together with the oral evidence he gave at the Tribunal hearing.[122] He made an affirmation regarding the truthfulness of that evidence.
[122] Exhibit 2, pages 38-40 and 246-250, Exhibit 4, pages 618-619 and Exhibit 9, pages 201-278 and 316-414.
Dr Elias described to the Tribunal why he found his job at the Department to be stressful from March 2020 to July 2021. Dr Elias said this included the renewal process for offshore regional processing contracts, his interactions with his then supervisor, a heavy workload around the COVID-19 pandemic, and an inability to oversee and guarantee the delivery of services under contracts worth significant amounts of money that he was to approve.
Dr Elias told the Tribunal that, in 2020, he would ‘work starting sometimes at 2 am, finishing sometimes at 2 am’, but ‘not every day’. He generally worked between 60 and 80 hours each week during this time.
Dr Elias said he found his job stressful in 2021 because it was ‘characterised by grim discoveries’ regarding ‘the contract negotiations that we were doing, the payments that we’d made, the services that were being rendered’, together with ‘the fact that I believe there was also a major probity breach on 21 July, which was the last time I was in the office, as well as, I guess, some deceit on our part in terms of negotiations’ with contracting parties. Dr Elias told the Tribunal that the ‘tempo of the work again ebbed and flowed’, and was ‘nowhere near as difficult as it was in 2020, but the nature of the things that I was discovering, or perceived to discover, was increasingly alarming’. To this end, Dr Elias said that ‘I was very concerned about the waste and use of public moneys, payments, negotiations of course, both good faith on our part, plus discoveries about negotiations in the past’, but ‘of particular concern was the probity breach on 21 July which I basically saw as the last straw’. He later gave evidence that ‘the ruminations and my distress and anxiety about what I was discovering was really the greatest concern, because I didn’t know how to resolve that’.
Counsel for Dr Elias referred him to the agreed fact in this proceeding that he perceived on or about 28 July 2021 that during 2020 he had not had adequate training and experience to perform his role, including undertaking and finalising contract negotiations. Dr Elias told the Tribunal that ‘it was very important that everybody was compliant with’ a requirement to have qualifications in contract management, ‘so that everybody working in that area was suitably qualified’, although ‘[u]nfortunately I wasn’t…I had no experience in that space’.
Dr Elias told the Tribunal that, during 2020 and 2021, he experienced skin issues, high blood pressure, sleeplessness and ‘uncontrollable diarrhoea’, with the latter two continuing ‘to this day’. He also ‘became very socially withdrawn’, including from his immediate family, and ‘took up drinking again and cigarette smoking’ around March 2020. Dr Elias acknowledged that he drank ‘[t]oo much’ during a typical week, starting in March 2020, and ‘certainly more’ than the recommended daily amount. He ‘tended to drink more’ during ‘periods of high tempo’ and his drinking was ‘pretty much constant’ until late 2020, and then resumed after returning to work in February 2021.
Dr Elias disagreed with the evidence of Ms Sullivan, his former supervisor, regarding his son waking him during the night to attend the toilet. Dr Elias told the Tribunal ‘my son would always wake up my wife’ and ‘would never wake me up…I was already usually awake by then, at that time, or working’. He later told the Tribunal that he agreed that he would have told Ms Sullivan that his son woke him up during the night to go to the bathroom, but also that he ‘would have been awake many of the times’ and was ‘usually under the blanket…reading and answering emails’.
Dr Elias told the Tribunal that, as at July 2021, he was ‘coping with work with great difficulty’ and ‘would frequently reflect that I didn’t know if I’d be able to get to work on a specific day’. He disagreed with the Department’s contention that his job was not especially stressful in the months leading up to July 2021, because there were ‘periods of stress’. Dr Elias said he ‘[s]omewhat’ agreed with Ms Sullivan’s evidence that in 2021 he was very focused and concerned about being promoted to a senior executive service band one level, because he ‘was focused on getting out of regional processing’. Dr Elias denied Ms Sullivan’s evidence that he told her he would sue the Department for not promoting him.
Dr Elias confirmed that Ms Karen Ely, Psychologist, treated him from August 2021 up until April or May 2023 and that he was referred to her by Dr Shafi. They consulted weekly or every ten days which then ‘tapered out’ to monthly. The nature of the treatment provided was psychological counselling. Dr Elias found this ‘helpful’ because it allowed him to ‘express some of the concerns that I had’, particularly regarding sleeplessness and perceptions about what occurred in the Department. He stopped seeing Ms Ely in early 2023, in part because ‘at that time, given the stressors from the department were increasing – I felt that I needed to have someone more immediate’. Dr Elias now receives psychological counselling from Ms Robyn Farley.
Counsel for Dr Elias asked him what ruminations he has had relating to his employment between early 2020 and July 2021. He told the Tribunal ‘I continue to ruminate now about things that happened in 2021’, ‘plus new things today’.
Dr Elias was referred to forms he completed and provided to Dr Ewer, Psychiatrist, for their consultation in January 2023, in which Dr Elias reported his current symptoms to be sleeplessness, lack of motivation, confusion, stress and victimisation. He told the Tribunal that he was confused about ‘why I was attending a voluntary independent medical examination’, ‘the purposes of which it was not intended’ and also ‘why the department has chosen never to support me in terms of rehabilitation’. Dr Elias said he reported victimisation because he ‘felt the department had done nothing but attack me since the day I left work’ and he cannot understand on what evidence that is based. Dr Elias also reported feeling worthless in or around January 2023 ‘because I felt that I was getting nowhere with my employer, who continued to refuse to rehabilitate me’ and he started to consider how he ‘could ever get back to work if nobody was going to assist me’, together with the length of time he had been out of the workplace. Dr Elias confirmed that he had applied for jobs outside of the Department since leaving work in July 2021. He also confirmed that he wanted to return to work ‘when medically fit to do so’.
By way of cross-examination, Dr Elias was referred to his examination-in-chief in which he said he wanted to have staff in Nauru in 2020 to observe that contractors were delivering services, and was asked whether he accepted this was not a matter he had put in writing in any of the documents authored by him that were before the Tribunal. Dr Elias said, ‘[p]ossibly not’ and he was ‘just answering the questions’. It was also put to Dr Elias that he had not provided evidence in writing in this proceeding regarding the probity concerns he raised in oral evidence at the hearing. He told the Tribunal he had ‘referenced them – those in a general way’, but not ‘to that level of detail’. Dr Elias agreed that he also had not provided written evidence regarding what he referred to in oral evidence as ‘discoveries’ he made in 2021. He further agreed to having provided new details about his moral concerns in 2021 that were not detailed in any document in these proceedings.
Dr Elias was asked about the probity issue that he did not want to be complicit in, which he raised in examination-in-chief, and confirmed to the Tribunal that this matter did not directly involve the branch he worked in at the Department, but that he became aware of it when attending a meeting. Following a related question, Dr Elias denied that he was at the time an ‘EL2’ in the Department, but said he was a ‘Senior Director’. He also disagreed that his classification was at the Executive Level 2 position when asked directly about this issue by Counsel and reiterated that he was a ‘Senior Director’ and could not recall his APS classification. He subsequently told the Tribunal he ‘could be’ an ‘EL2’ and then said that ‘I was an EL level 2’, but that he had entered into an individual flexibility agreement to be a ‘Senior Director’; he assumed this did not change his APS classification, but was unsure and unfamiliar with it. Finally, Dr Elias confirmed that, in 2021, he would have been ‘classified as an EL2’.

Dr Elias told the Tribunal he agreed that, as an employee of the Department, he had an ongoing obligation to report any potential misuse of Commonwealth funds and that he was obliged to report any potential breaches of the Commonwealth procurement rules or the Public Governance, Performance and Accountability Act 2013 (PGPA). Dr Elias also agreed that he was aware when performing duties at the Department that there were other avenues through which to raise complaints, such as making a public interest disclosure, reporting to the Australian Commission for Law Enforcement and Integrity or referring a matter to the Commonwealth Ombudsman. He was also aware at the time he was performing work duties of his mandatory reporting obligations as an employee of the Department.
Counsel for the Secretary referred Dr Elias to an email he sent to the Department’s Chief Operating Officer on 1 August 2023, in which he referred to the then upcoming Tribunal hearing in September 2023 and said ‘I would respectfully suggest you and I discuss confidentially via in person or other means (as you may suggest) to canvass a resolution as there are still a few options available (including an NDA) but the window is rapidly closing’.[123] Dr Elias told the Tribunal he was referring to the then recently announced review of offshore regional processing contracts running ‘only for a short period of time’. He was taken to the following paragraph in his email which relevantly stated that he ‘would like to resolve these issues’ and ‘[i]f we cannot then I have prepared a brief for the Secretary which I am intending to send to him next week pending your response’.[124] Dr Elias told the Tribunal he had not yet sent the foreshadowed ‘brief’ to the Secretary. He agreed that his email was conveying that if he could resolve the issues raised with the Chief Operating Officer he would not need to send the brief to the Secretary. In the context of Dr Elias referring in his email to a ‘resolution’ and a non-disclosure agreement, he also agreed with Counsel’s proposition that, regardless of any resolution of the Tribunal proceedings, he was obliged to raise any serious ethical concerns regarding the Department. It was put to Dr Elias that one interpretation of the email is that he was suggesting to the Chief Operating Officer that he would not send information relevant to the contracts review to the Secretary if he received financial compensation. Dr Elias told the Tribunal he did not recall writing about financial compensation and subsequently disagreed that this was one interpretation of the email. He disagreed that it might have involved corruption if he had received a financial settlement with a non-disclosure agreement preventing him from sending information about the Department’s contracting processes.
[123] Exhibit 9, pages 101-102.
[124] Ibid.
Counsel for the Secretary continued to press Dr Elias about his intention in referring in the email to not disclosing something. Dr Elias’ multiple answers were tangential, but he finally told the Tribunal that he was ‘lining up trying to find out which jurisdiction my concerns lay within’. Dr Elias disagreed that he was suggesting in the email that he would remain quiet about the contracts process if he could resolve the Tribunal proceedings with the Department. When it was put to Dr Elias that his reference to the window ‘rapidly closing’ was not related to the contracts review, he told the Tribunal that ‘I was trying to understand would they be including me as an employee for the review or should I contact them individually’. Counsel then put to Dr Elias that his reference was to the proceedings, because the review had only been announced the day before his email to the Department. He replied, ‘I’d only heard about it a day before’ and later said that ‘these things were coming together and I originally thought that we were going to discuss my concerns with what happened at the department in the prior proceedings. I didn’t know we were going to discuss it now’. Dr Elias later said that there were ‘more issues’ he was seeking to resolve in addition to the contracts review and the Tribunal proceedings. When he was subsequently asked whether these were two of the issues he sought to resolve, Dr Elias denied that he was seeking to resolve the proceedings, but rather ‘I wanted to resolve the issues which had led to my mental condition’, some of which may have been relevant to the contracts review and the proceedings and other processes.
Counsel for the Secretary put to Dr Elias that his email to the Chief Operating Officer of the Department was an attempt to obtain a payment for his non-cooperation with the offshore contracts review. He disagreed and told the Tribunal ‘that’s wrong’. It was further put to Dr Elias that the email was an example of attempted corruption by him. He again disagreed.
Dr Elias did agree that when he was working at the Department he was obliged to report any misconduct by other employees and that he had made no written report to anyone at the Department of any misconduct before he went off work in July 2021, including regarding probity or contractual issues or specific allegations of bullying. He told the Tribunal no reference was made to any particular work issues in 2020 or early 2021 to Dr Shafi because they were ‘sensitive’, and he reported that he was ‘stressed’. Dr Elias said that he possibly did not report to Dr Shafi all of the matters he had described in his examination-in-chief regarding the effects upon him of the work events.
Dr Elias acknowledged that he ‘probably had an obligation’ to report his supervisor if that person was screaming and swearing at him, and also an obligation as an Assistant Secretary in the Department to ensure the safety and wellbeing of staff in his branch. He also agreed that if he had told two of his colleagues about any such issues they would have their own obligation to report that behaviour. Dr Elias subsequently disagreed with this proposition, because ‘when I raised those issues with them they were again [in a] social setting and as friends’. When it was put to Dr Elias that he was disagreeing that his friends had their own obligations so as to protect them, he replied ‘I don’t know how they’d interpret their obligations’. He later also disagreed that he was protecting those colleagues and, despite his earlier evidence, told the Tribunal he did not know whether they had an obligation to report alleged misconduct. Dr Elias denied having never told these two colleagues in 2020 that his then supervisor was screaming or swearing at him, but agreed that they had not informed him of any related report they had made, although they ‘counselled me to do that myself’.
Dr Elias agreed that one complaint he had about his supervisor was that Dr Elias did not want to do work he considered unnecessary, but he disagreed that he had raised this issue with his two friends from the Department. When it was put to Dr Elias that they had told him to address this issue with his supervisor, Dr Elias said, ‘[t]he screaming and swearing, yes’. He subsequently told the Tribunal he ‘might have mentioned that I was concerned about extra tasks to them’.
Dr Elias was referred to his earlier evidence regarding leaving work shortly after discovering a probity issue. He told the Tribunal that, as the contract administrator, he was ‘forbidden to have anything to do with the procurement of enduring capability’, they ‘had all signed probity declarations within the workplace’ and received training on this matter. However, Dr Elias said, he was brought into a meeting regarding that procurement on 21 July 2021. He did not report this to his then supervisor, Ms Sullivan, but said he was not required to report it to anyone because she ‘was in the room’.
Dr Elias agreed that his statement accompanying the workers’ compensation claim in 2021 was intended to capture the matters he said were relevant to that claim. He was asked to identify in that statement reference to this significant probity issue. Dr Elias agreed there was no such reference, but later said he did not know whether he could raise issues regarding probity and contract renewal in that form ‘because of their sensitivity’. Dr Elias was taken to his statement accompanying the workers’ compensation claim from 2021 that he had ‘no skills or capacity in complex procurement’.[125] He agreed with this statement. However, Dr Elias also agreed that, when he commenced working at the Department in 2018, he was assigned to its Property and Major Contracts Division.[126] Dr Elias further agreed that, before he commenced employment with the Department, he had sought to be paid at the highest increment for an Executive Level 2 officer, and that the CV he provided referred to his experience negotiating over 100 research contracts and as Chief Executive Officer of a company managing ‘teams who wrote the tenders’ for contracts.[127] He also agreed that he applied for the role of ‘Senior Director, Regional Processing Contracts’ with the Department in 2020.[128] Dr Elias agreed that the ‘EOI’ for that role stated that to be successful in the job the person will have ‘demonstrated contract performance and management experience’, with the ‘Overview’ stating that the role was ‘responsible for contract performance and management functions for a number of high risk, high value, high profile regional processing contracts operating in PNG and Nauru’.[129] He further agreed to applying for the role because he considered he could demonstrate contract performance and management experience and said this was ‘because I’d been doing it for six months’.
[125] Exhibit 2, page 38.
[126] Exhibit 3, page 16.
[127] Ibid., pages 18-19.
[128] Exhibit 2, pages 56-57.
[129] Ibid., page 56.
Dr Elias’ ‘Statement of Claims’ from 2020 for the Senior Director role referred to him being ‘the Administrator of four core High Risk High Value (HRHV) contracts with a combined value of over 1.5 billion dollars’.[130] However, his statement accompanying the workers’ compensation claim from 2021 referred to him being tasked ‘to lead the rapid procurement of over 3 billion dollars of high risk high value regional processing contracts’.[131] Dr Elias explained this difference as being due to some $500 million worth of contracts being renewed, and that he had become aware that he was ‘still responsible for managing the residual of contracts’ which had ‘previously been in the regional processing space’. He ‘did a quick calculation of the cumulative value’ of the contracts to reach the higher amount by 2021. In this regard, Dr Elias agreed that, having been acting in the role of Assistant Secretary for 12 months from December 2019 to December 2020 at the time of his application for the Senior Director role, he had ‘underestimated’ the combined value of the contracts by $1.5 billion, but said this was because it was ‘a very difficult one to keep on top of because it changes’, almost on a ‘weekly basis’, and ‘[y]ou can only refer to the contract value when AusTender changes the value’. Dr Elias subsequently agreed that these contracts were renewed every six months, but disagreed that the contract value would be the value of the actual six-month contract and said it was ‘the contract amendment added to the value of the existing contract’.
[130] Ibid., page 58.
[131] Ibid., page 38.
Counsel for the Secretary referred Dr Elias to the passage in his ‘Statement of Claims’ from 2020, that he was ‘at ease working at scale with large financial volumes and within hotly contested policy settings’.[132] Dr Elias agreed that in August 2018, when he commenced employment with the Department, he was comfortable working at scale with large financial volumes, but said he had ‘never worked on large-volume contracts in a department or the APS’.
[132] Ibid., page 58.
Dr Elias confirmed that, as referred to in his Statement of Claims from 2020, at that time he had ensured that his ‘teams are aware of, and adhere to, appropriate accountability, probity and Public Service Standards in discharging the day to day management of such large sums of public monies’.[133] When pressed on this issue, Dr Elias said ‘I did my best’, and accepted that he should have qualified the statement that he ensured his teams were aware of the aforementioned obligations. However despite this, he then told the Tribunal he would ‘still say, “I ensure”’. Dr Elias agreed that the Department had made available training in contracting and procurement, but he was taking approved time off in lieu at that time.
[133] Ibid.
Dr Elias was again referred to his statement accompanying the workers’ compensation claim and the passage that the contract ‘tasking came with the promise of higher duties and an implicit understanding that there would be a permanent promotion’.[134] He agreed that, in 2020, he understood that he would be promoted if he took the job. Dr Elias also agreed that, approximately eight weeks after he commenced employment at the Department in August 2018, he started working on an application for three SES Band 1 roles. He recalled his earlier evidence that his first role with the Department was not really related to contracts and procurement. In this regard, Counsel took Dr Elias to his CV from October 2018, which stated that from August 2018 he had led ‘coordination across both branches of the Division and 12 substantive EL2’s and their sections in all scrutiny, reporting and strategic responses in the management of both onshore and offshore contracts with a total value of over 5 billion dollars’.[135] Dr Elias told the Tribunal this was his role at that time in the Department.
[134] Ibid., page 38.
[135] Exhibit 9, page 7.
Dr Elias was referred to an entry in his CV from 2018 in relation to a job early in his career, in which he stated that he was a ‘team leader’, and agreed this was at the APS5 level and this position was not at a SES Band 1 level, nor was anyone in the relevant organisation at that level. He told the Tribunal he did not know why, in later CVs, he stated that his role was at the ‘SES Band 1 equivalent’, but then said that his contract was a SES Band 1 level.
Dr Elias confirmed to the Tribunal that he has been reimbursed by Comcare for all medical treatment and medication in relation to his accepted condition and has not been refused any requested medical treatment. Dr Elias agreed that, at least by October 2021, he was at times doing quite a bit better and had wanted to go to the Department’s International Division on a graduated return to work basis and had discussed this with Dr Shafi.
Dr Elias accepted that in or around February 2022, the Department was seeking to contact him to discuss rehabilitation. At around that time, the Department requested a reconsideration of Comcare’s acceptance of Dr Elias’ workers’ compensation claim that led to the 2022 Proceeding. He agreed that the Department had disputed a lot of the factual matters he had put forward in that claim, including contending that he had made wilful and false claims. Dr Elias agreed that he thought the Department was conducting itself in a ‘deliberately vexatious manner’, but also agreed that at that time it had sought to engage with him regarding rehabilitation.[136] He agreed that the vexatiousness he referred to in his statement from February 2022 related to the substance of the Department’s request for reconsideration of Comcare’s determination.
[136] Exhibit 2, page 246.
Dr Elias agreed that, in March 2022, the Department informed him that it was going to prepare a return to work plan for him. He could not recall why this did not proceed. However, when Counsel referred to Dr Elias providing a medical certificate from Dr Shafi saying he was not fit to return to the Department as the reason the plan did not proceed, Dr Elias remembered this event. Dr Elias repeatedly told the Tribunal he could not recall whether, since March 2022, he has presented a medical certificate stating that he is fit to return to work at the Department, despite him receiving medical certificates monthly from Dr Shafi and being required to provide them to the Department. Dr Elias agreed that, during the Comcare rehabilitation pilot program in which he participated from April to October 2022, he had said that he felt that ‘his life is somewhat “on hold” until the tribunal [sic] matter regarding his claim is finalised’.[137]
[137] Exhibit 3, page 626.
Counsel for the Secretary referred Dr Elias to his earlier testimony that a probity issue on 21 July 2021, which led him to immediately leave work. Dr Elias confirmed that he did not seek any legal advice from the Department, including its probity adviser, or advice from any other entity, regarding their opinion of whether or not there was an issue. He also agreed that he was possibly sending emails from his work account later in the day on 21 July 2021, including an email expressing interest in a separate role at the Department.[138] When it was put to Dr Elias that he was not so shocked by this probity issue that he had to go home and not return to work, he told the Tribunal that the ‘gravity of what happened was something I ruminated over a long period of time and continue to do so’. Dr Elias agreed that, as at after that meeting on 21 July 2021, he did not have a strong moral objection to continuing to work at the Department.
[138] Exhibit 9, page 95.
Counsel put to Dr Elias that the statement in his expression of interest email of 21 July 2021, that his ‘15 years of international experience at the United Nations was at the level of Ambassador’, was an exaggeration. He maintained that he was ‘at the level of an ambassador’ and that he had that job title. However, after multiple further questions, Dr Elias finally told the Tribunal that he did not have the job title of ambassador. He denied that stating he had experience at the level of an ambassador was intended to convey a misleading impression.
Dr Elias agreed that he sent emails to people in the Department on 22 July 2021 and did not, at any time, put anything in writing to his then supervisor, Ms Sullivan, regarding the alleged probity issue that arose the preceding day.
Dr Elias recalled seeing Dr Thompson, Gastroenterologist, in October 2021 and telling him that he was drinking at least 12 alcoholic drinks each day. Dr Elias told the Tribunal Dr Thompson ‘may’ have told him that he considered Dr Elias’ gastric symptoms could be attributable to his heavy alcohol consumption, and recalled that Dr Thompson had told him that alcohol is toxic to the small intestine and that diarrhoea is often the clinical result. Dr Elias also agreed that he told Dr Siota that, in around April 2020, he again took up drinking alcohol and sometimes drank to excess. Dr Elias rejected the proposition that he only developed mood symptoms after he started consuming excessive amounts of alcohol. Dr Elias recalled making a declaration to the Department when he commenced employment that he would notify it of changes in his alcohol intake, finances and health, but did not recall whether he submitted a change of circumstances form at any time up until November 2021 in relation to his excessive drinking. Dr Elias also agreed that he did not provide any notification before November 2021 regarding any new mood symptoms he was suffering, but agreed that he was obliged to do so.
Dr Elias was referred to the Pre Placement Medical Assessment he completed around the time he commenced employment with the Department in August 2018.[139] He agreed that he had declared in that form that all information was truthful and accurate and that failure to disclose, or inaccurate disclosure of certain information, may result in his ‘medical’ being deemed as unclassified and may impact on the final decision regarding employment.[140] Dr Elias told the Tribunal it was correct, as he marked in that form, that he had never received treatment or medical advice for anxiety, depression or other mental health issues.[141] However, he agreed that, three years later, he had told Dr Siota about having previously seeing a psychiatrist for six months. Dr Elias also maintained that it was correct that he had never received treatment or medical advice for any mental health issue. In this regard, Dr Elias told the Tribunal he had previously attended a doctor ‘because I was feeling depressed. He did not say that I had clinical depression, or any mental health issues. We had counselling about me feeling, small ‘d’, not clinical’. Dr Elias was then asked why he had mentioned this matter to Dr Shafi and Dr Siota when they asked about past treatment, but had not indicated the same in the form. He told the Tribunal that the doctors asked lots of questions, ‘more than just ticking a box’. When it was put to Dr Elias that it was even easier to tick a box than answer a question he said, ‘I don’t know’. He agreed that there was also space on the employment-related form for comments.
[139] Exhibit 3, pages 22-29.
[140] Ibid., page 23.
[141] Ibid., page 25.

The Tribunal is satisfied that Dr Elias’ condition did not retain the characteristic of being significantly contributed to by his employment in the period 10 November to 7 December 2022 and therefore ceased to be compensable under the SRC Act. In this regard, the Tribunal accepts and gives strong weight to the evidence of Dr Ewer in this proceeding, which it has found to be comprehensive and aligned to the overwhelming majority of independent documentary evidence before the Tribunal set out above in these reasons.
It was apparent from Dr Ewer’s evidence that he undertook a thorough analysis of the available evidence, in contrast to other practitioners in this proceeding. Dr Ewer diagnosed Dr Elias with a chronic adjustment disorder with depressed and anxious mood. He was the only medical practitioner to opine that Dr Elias’ condition was ‘chronic’, noting particularly that Dr Siota’s unchanged opinion was that Dr Elias continued to suffer from an adjustment disorder, although he acknowledged that such a condition usually remits within at least 12 months. Dr Ewer was also the only practitioner to fully consider the effects of Dr Elias’ alcohol consumption, and diagnosed him with a resolved alcohol use disorder. He also identified Dr Elias’ genetic predisposition to becoming psychologically unwell given his family history, in addition to his own historical psychiatric illness. Dr Ewer opined that the workplace factors were making a ‘small’ contribution to Dr Elias’ condition during the relevant period in late 2022 and that the Tribunal proceedings were playing a ‘significant’ role, together with a significant contribution from Dr Elias’ past psychiatric and family history. Unlike Dr Siota, Dr Ewer noted that the recency of any psychiatric family history was not a determinative factor because it is genetic and an important factor was whether it was a first degree relative, such as a parent, as it was for Dr Elias.
Additionally, in Dr Ewer’s written report he recorded his concerns regarding Dr Elias’ ability to accurately recall and report his history at the medical examination in January 2023. Having subsequently read the transcript of Dr Elias’ evidence in this proceeding, Dr Ewer told the Tribunal that he considered there were concerns about Dr Elias’ reliability as a historian and it ‘really did make me concerned about his ability to reliably recall and report was has happened’. Dr Ewer’s opinion was that, if the workplace events occurred as described by Dr Elias, they were still contributing to his condition, albeit to a ‘small’ degree and in contrast to the legal dispute with the Department. For the avoidance of doubt, while the Tribunal has made findings regarding Dr Elias’ credit, and expressed grave reservations about his evidence, it accepts Dr Ewer’s opinion that employment continued to contribute to Dr Elias’ condition in the period 10 November 2022 to 7 December 2022, but that it was not making the required significant contribution under the SRC Act at that time.
The comprehensiveness and detail of the analysis undertaken by Dr Ewer was most clearly demonstrated in the three-step process he outlined to the Tribunal at the hearing, and that is set out above in these reasons, to reach his conclusion regarding the contributory elements to Dr Elias’ condition in late 2022. The use and interpretation of contemporaneous medical records from before, during and after the relevant period of time that were before the Tribunal demonstrated Dr Ewer’s command of the subject and how those events and clinical notes led to his considered opinion. In summary, Dr Ewer told the Tribunal, Dr Elias’ deterioration related to factors predominantly due to the Tribunal proceedings and possibly his finances, and he did not identify much evidence that when Dr Elias did deteriorate that any of the medical experts were recording symptoms related to the perceived work events. Under cross-examination from Dr Elias’ Counsel, Dr Ewer opined that ‘the work factors are still playing a role even though it’s now a smaller role and other factors have overtaken it’. He later told the Tribunal that the employment contribution was small and the other relevant factors, being the legal processes and Dr Elias’ past and family psychiatric history, were significant contributors to his condition. This accords with the Tribunal’s view of the evidence, which indicates that Dr Elias continued to suffer from the condition, but that his employment was no longer making a significant contribution to that condition by at least 10 November 2022. There had been a significant improvement in Dr Elias’ mental health by late 2021, as also noted by both Dr Shafi and Dr Siota, and when his symptoms arose again they were related to other factors, most predominantly the Department’s request in February 2022 for review of Comcare’s determination to accept liability in relation to the condition and the subsequent Tribunal proceedings commenced by the Department seeking review of two Comcare decisions related to Dr Elias’ condition.
In contrast to Dr Ewer’s evidence, the Tribunal places minimal weight on Dr Siota’s evidence. While Dr Siota agreed that the Tribunal proceedings have had a significant impact on Dr Elias, he said that he ‘perhaps’ disagreed that Dr Elias’ past psychiatric and family history were significant, because these factors were ‘only a risk’. Despite this opinion, and in accordance with Dr Ewer’s opinion regarding genetic predisposition, Dr Siota referred to ‘research evidence’ suggesting that ‘if you have a family member, mum or dad, with a mental illness, you are likely to have a mental illness; you are at high risk to have a mental illness’. Dr Siota’s further equivocal evidence was that there was a ‘higher risk’ due to genetic predisposition, but that family history was ‘perhaps not a significant contributor in this instance’. In relation to his diagnosis of adjustment disorder, Dr Siota noted that, by definition, once the stressors are removed this disorder remits within six months, but that sometimes ‘when you’re going through legal processes, the stressors never remit because you are reminded every day of what’s happening’. However, this opinion did not accord with the contemporaneous medical records of what was significantly contributing to Dr Elias’ condition at the relevant time. In this regard, Dr Siota’s reports from 2021 did not refer to any specific documents that he had reviewed in reaching his opinion provided to the Tribunal. However, Dr Siota told the Tribunal that it was incorrect to deduce from that omission that he had not considered the material he had been provided for his assessment. It was not until the 2023 report that Dr Siota specifically set out the material he had reviewed for a further assessment of Dr Elias. Despite this, Dr Siota was unaware that Dr Elias’ previous general practitioner had recorded him as having an alcohol use disorder and did not know about the reference in clinical records to Dr Elias’ active past history of alcohol abuse.
In this regard, Dr Siota’s reports were deficient in a number of respects, which deficiency appeared to have been identified by Comcare after it received his first report regarding Dr Elias in 2021.[178] For example, while Dr Elias had told Dr Siota about his significant drinking from around April 2022, Dr Siota told the Tribunal he did not consider this to be a relevant factor to include when asked to document in his report any other factors or issues, other than employment, affecting Dr Elias’ claimed medical condition. Additionally, Dr Siota agreed that the only information referenced in his report was information supporting a conclusion that there was an employment contribution to Dr Elias’ condition. In this regard, Dr Siota could not recall being provided with information prepared by the Department which contested the contribution from employment.
[178] Exhibit 10, page 875.
Additionally, Dr Siota’s report of 24 November 2021 referred to Dr Elias having a ‘good prognosis’, there having been a ‘significant improvement in his mental health’ and that he was ‘significantly better and continues to get better’. He also agreed with the proposition that it was not usual for a person with an adjustment disorder to have a significant impairment in their occupational functioning for more than 12 months. To this end, Dr Siota agreed that, by late November 2021, Dr Elias was significantly better, looking for other jobs and could undertake rehabilitation for work. Given Dr Siota’s answer about Dr Elias’ psychological state in late November 2021, Counsel for the Secretary asked him what made Dr Elias become very much worse after this point in time. It is worth noting that, on 4 February 2022, the Department requested a review of Comcare’s determination to accept liability to pay compensation in relation to Dr Elias’ condition.[179] Dr Siota told the Tribunal that ‘what would’ve made him get worse would be the ongoing, recurrent legal matters and the financial matters he has told me about’. To further emphasise this point, Dr Siota said that it was possible, if those two matters had not arisen, that Dr Elias’ earlier trajectory, referred to in his November 2021 report, would have continued. Despite this opinion acknowledging the significant contribution from the legal processes, Dr Siota resisted embracing the proposition that Dr Elias’ employment was no longer also making a significant contribution.
[179] Exhibit 2, page 11.
With respect, the Tribunal finds this opinion to be inconsistent with the evidence in this proceeding, detailed above in these reasons and as analysed by Dr Ewer. For example, Dr Siota acknowledged Dr Elias had a good prognosis in November 2021 and that a significant change occurring after that time was the initiation of legal proceedings by the Secretary. He told the Tribunal that Dr Elias was ‘getting better’, but that ‘following the legal processes it got significantly worse’, such that the ‘legal process is a significant factor’. However, despite this opinion and his aforementioned evidence, Dr Siota did not provide a persuasive reason as to why he maintained that the employment contribution was also a significant contributor to Dr Elias’ condition in the period 10 November to 7 December 2022. Finally, the Tribunal also notes that Dr Siota’s opinion about the significant contribution from employment relied almost exclusively on what Dr Elias had told him. As set out above, the Tribunal has made adverse findings regarding Dr Elias’ credit. For all of these reasons, the Tribunal places minimal weight on Dr Siota’s opinion in this proceeding.
The Tribunal affords no weight to Ms Ely’s opinion in relation to the elements contributing to Dr Elias’ condition in the relevant period in late 2022. Ms Ely is Dr Elias’ treating psychologist and understandably relied exclusively on what he told her about his mental state. She did not conduct a full review of the medical records relating to Dr Elias, she did not have any records from his general practitioner or the Department and did not perform any psychometric testing. She also did not provide a report in the required form in this Tribunal proceeding. Ms Ely acknowledged that she did not have any particular expertise in considering questions of causation using legal tests in a workers’ compensation setting or assessing capacity for work. She was unaware that Dr Ewer had diagnosed Dr Elias as having had an alcohol use disorder. Ms Ely relied wholly on the information provided to her by Dr Elias. As a result, the Tribunal’s findings on Dr Elias’ credit necessarily undercut the value of Ms Ely’s opinion. To this end, Ms Ely agreed that the accuracy of the information provided to a psychologist would impact on the accuracy of their diagnosis and opinion on a person’s capacity to return to work. For all of these reasons, the Tribunal can, with respect, attribute no weight to Ms Ely’s evidence.
It is however noteworthy that, in early March 2022, just after Comcare affirmed its determination to accept liability in relation to Dr Elias’ condition, Ms Ely recorded that he was not too bad, happy with Comcare’s decision and had less worry.[180] However, in May 2022, Ms Ely recorded that Dr Elias had a ‘slight relapse’ after ‘going well for a while’, and noted that the Department had recently commenced the 2022 Proceeding.[181] In June 2022, Ms Ely was reporting excellent progress ‘in terms of symptom reduction’, such that they are ‘no longer causing clinical distress’.[182] However, in August 2022, Ms Ely recorded that Dr Elias was ‘deep in litigation’ with the Department and he had ‘lots of agitation when dealing with the dept’.[183] By December 2022, Ms Ely recorded that Dr Elias was very distressed when talking about ‘treatment by dept and lawyer’ and that he was asking why they ‘control the tempo and the process’. She also noted that Dr Elias had stated the legal work was taking up ‘time and emotional energy and mental capacity’.[184] The Tribunal finds that these contemporaneous clinical entries from Ms Ely demonstrate that Dr Elias’ condition was not being contributed to, to a significant degree, by his employment by at least 10 November 2022, but that the degree of the employment contribution had reduced to below the requisite level to establish liability under the SRC Act, and had been overtaken by other factors, most predominantly the Tribunal proceedings.
[180] Exhibit 3, pages 914-915.
[181] Ibid., pages 919-920.
[182] Exhibit 4, pages 81-83.
[183] Exhibit 9, page 688.
[184] Ibid., pages 690-691.
In relation to the evidence of Dr Shafi, who is Dr Elias’ treating general practitioner, she conceded that she had no specialisation regarding alcohol use disorder and deferred to a psychiatrist in that regard. Dr Shafi was not told by Dr Elias about his alcohol intake in 2020, nor did he mention any psychological issues during those visits. Dr Shafi agreed that the Tribunal proceedings are what led to Dr Elias not being able to attend work at the Department. Dr Shafi had minimal information aside from that provided to her by Dr Elias. She completed medical certificates for Dr Elias based on his information. Due predominantly to the Tribunal’s findings regarding Dr Elias’ credit, the Tribunal respectfully gives little weight to Dr Shafi’s evidence.
However, as with Ms Ely’s clinical notes, Dr Shafi’s contemporaneous medical records of her consultations with Dr Elias are illuminating and demonstrate the evolution of the contributing factors to his condition from 2021 and into 2022. Similarly to Dr Siota’s opinion in late November 2021 that Dr Elias could commence rehabilitation, in October 2021 Dr Shafi opined that Dr Elias could undertake a graduated return to work from November 2021. In early November 2021, Dr Shafi also recorded that Dr Elias had been much better since being off work, he was more optimistic, less anxious, had stopped smoking and reduced his alcohol intake.[185] Again, in early December 2021, Dr Shafi recorded that Dr Elias had been ‘feeling better in self since been off work’ and was less anxious.[186] In January 2022, Dr Shafi recorded that Dr Elias was feeling very anxious, not because of work factors, but due to having not been paid by Comcare.[187] In mid-February 2022, shortly after the Department had sought review of Comcare’s determination accepting liability in relation to Dr Elias’ condition, Dr Shafi recorded that he was ‘very distressed’ in relation to the challenge regarding contribution from employment.[188] In March 2022, Dr Shafi recorded that Dr Elias’ mood had been better and that he felt this was ‘related to no work stress’.[189] Later, in November 2022, Dr Shafi recorded that Dr Elias had a ‘legal meeting tomorrow’ and had been ‘feeling very stressed and anxious’, with the Department having referred to his alcohol use.[190] While noting the Tribunal’s findings regarding the reliability of the information provided by Dr Elias, the clinical records of Dr Shafi support a finding that Dr Elias’ employment was not making a significant contribution to his condition in the relevant period from 10 November 2022 to 7 December 2022. Rather, it is evident that other factors, most relevantly the Tribunal proceedings, were the significant contributors to his condition by at least late 2022.
[185] Exhibit 2, pages 155-158 and Exhibit 3, page 764.
[186] Exhibit 2, page 166.
[187] Exhibit 3, page 662.
[188] Ibid., page 663.
[189] Ibid., page 664.
[190] Ibid., page 1015.
Having regard to the accepted medical evidence of Dr Ewer, the Tribunal is not satisfied that Dr Elias continued to suffer from a ‘disease’ in accordance with the SRC Act such as to enliven Comcare’s liability to pay him compensation in the period 10 November to 7 December 2022. Having weighed all the evidence in this proceeding, the Tribunal is satisfied on the balance of probabilities that Dr Elias’ condition, or ailment, was not contributed to, to a significant degree, by his employment with the Department in the period 10 November 2022 to 7 December 2022. Therefore, the Tribunal finds that Dr Elias did not suffer from a ‘disease’ under the SRC Act during the relevant period of time before the Tribunal in this proceeding.
For completeness, the Tribunal has considered the matters set out in subsection 5B(2) of the SRC Act that may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment. These matters are: the duration of the employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; any activities of the employee not related to the employment; and any other matters affecting the employee’s health. Having regard to the matters set out in this provision, the evidence set out above in these reasons and the above findings, the Tribunal finds that Dr Elias’ ailment was not contributed to, to a significant degree, by his employment with the Department. The Tribunal has accepted the comprehensive and detailed evidence of Dr Ewer that Dr Elias’ employment did not continue to make the requisite significant contribution to his ailment during the relevant period of time in this proceeding, being 10 November 2022 to 7 December 2022.
Having regard to all of the above, the Tribunal is satisfied that Dr Elias was not suffering from a ‘disease’ under section 5B of the SRC Act during the relevant period under review. For these reasons, the Secretary’s application to the Tribunal is successful and Comcare is not liable to pay compensation to Dr Elias pursuant to section 14 of the SRC Act or, therefore, section 19, in relation to the period 10 November 2022 to 7 December 2022.
Costs
Under section 67 of the SRC Act, where the Tribunal makes a decision setting aside a reviewable decision, and makes a decision in substitution for the reviewable decision that is more favourable to the claimant, the Tribunal may, subject to that section, order that the costs of the proceeding incurred by the claimant, or a part of those costs, shall be paid by the responsible authority, here being Comcare. The parties did not make any substantive submissions on the issue of costs in this proceeding. Unless the Tribunal is informed that the parties have reached agreement as to the issue of costs following publication of this decision, the Tribunal will receive any submissions from the Secretary regarding this issue within 21 days of the date of this decision, from Comcare within 28 days and from Dr Elias within 35 days of the date of the decision.
DECISION
Pursuant to subsection 43(1)(c) of the AAT Act, the Tribunal sets aside the decision under review and makes a decision in substitution for the decision so set aside that the Other Party did not suffer from a disease, as defined by section 5B of the SRC Act, in the period 10 November 2022 to 7 December 2022.

I certify that the preceding 291 (two-hundred and ninety one) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

..[SGD]......................................................................
Associate
Dated: 20 March 2024

Date(s) of hearing:

13, 14, 15 and 19 September 2023 and 7 November 2023

Date final submissions received:

21 December 2023

Counsel for Applicant:
Ms Sarah Wright

Solicitor for Applicant:

Ms Jenny Davenport, Australian Government Solicitor

Counsel for Respondent:

Ms Josie Dempster

Solicitor for Respondent:

Mr Abe Ghaleb, McInnes Wilson Lawyers

Counsel for Other Party:

Mr Andrew Berger KC

Solicitor for Other Party:

Mr Richard Faulks, Sneddon, Hall and Gallop Lawyers

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2023/0593
GENERAL DIVISION	)

Date(s) of hearing:	13, 14, 15 and 19 September 2023 and 7 November 2023
Date final submissions received:	21 December 2023
Counsel for Applicant:	Ms Sarah Wright
Solicitor for Applicant:	Ms Jenny Davenport, Australian Government Solicitor
Counsel for Respondent:	Ms Josie Dempster
Solicitor for Respondent:	Mr Abe Ghaleb, McInnes Wilson Lawyers
Counsel for Other Party:	Mr Andrew Berger KC
Solicitor for Other Party:	Mr Richard Faulks, Sneddon, Hall and Gallop Lawyers