SRGF and Comcare (Compensation) - [2024] AATA 1818

SRGF and Comcare (Compensation) [2024] AATA 1818 (31 May 2024)
Division:GENERAL DIVISION
File Number(s): 2022/9569, 2023/0996
Re:SRGF
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member O'Donovan
Date:31 May 2024
Place:Canberra

The decisions under review are affirmed.
……………[SGD]……………
Senior Member O'Donovan
Catchwords
Workers compensation – claim for anxiety, depression agoraphobia – stress induced psychological symptoms mistaken for neurological symptoms – ethical dilemmas at work contributing to psychological issues – unreasonable contact outside of work hours – stress from supervisory responsibilities – no medical report supporting relationship with work until several years after resignation – validity of data analysis provided without expert support – constitutional condition where work just the setting – deemed work contribution under section 7 – meaning of the phrase ‘in the place where the employee ordinarily employed’ - decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A, 5B, 7, 14
Public Service Act 1999 (Cth)
Workmen’s Compensation (Occupational Diseases) Convention (Revised) 1934
Compensation (Commonwealth Employees) Act 1971 (Cth)
Cases
Honchera and Comcare [2016] AATA 33
Abrahams v Comcare [2006] FCA 1829
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369
Tippett v Australian Postal Corporation [1998] FCA 335 ('Tippett')
Mellor v Australian Postal Corporation [2009] FCA 504 ('Mellor')
Comcare v Reardon [2015] FCA 1166 at [31]
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 Australian Postal Corporation v Bessey [2001] FCA 266
REASONS FOR DECISION
Senior Member O'Donovan
INTRODUCTION

The applicant was employed in the Australian Public Service (APS) from 2013 until his resignation in late 2021. When he commenced in the APS he was mentally and physically well, but did have a past history of treatment for depression. By the time the applicant submitted his resignation in December 2021 his mental health had declined to the point where he was struggling to leave his room.
Following his resignation, the applicant submitted two claims for workers’ compensation.
The first was submitted on 1 April 2022. The applicant’s injury was identified as ‘major depressive disorder, major anxiety, chronic fatigue’. He stated that he first noticed symptoms on 20 June 2014. In response to the question ‘what happened and how were you injured?’ the applicant responded: ‘I was worn down by stress in the workplace and the ethical shortcomings of the Australian Public Service’.
The second claim was submitted on 11 December 2022. The applicant’s injury was identified as ‘Major Depression and Anxiety’. The applicant advised that he first noticed symptoms on 13 August 2019. In response to the question ‘what happened and how were you injured?’ the applicant identified the following as the causal events:
(a)Continual out of hours contact by SES personnel; and
(b)Continual interruption of periods of leave (including medical leave) by SES personnel.
Comcare denied both claims.
In relation to the first claim (2022/9569) Comcare:
(a)relied upon section 53 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) (a reasonable notice of claim provision) as excluding the payment of compensation,
(b)accepted that the applicant was suffering from an ailment but denied that it was contributed to, to a significant degree, by the applicant’s employment.
In relation to the second claim (2023/0996) Comcare:
(a)Relied upon section 53 of the SRC Act as excluding the payment of compensation;
(b)Accepted that the applicant was suffering from an ailment but denied that it was contributed to, to a significant degree, by the applicant’s employment;
Leaving aside for the time being arguments which have emerged concerning the section 7 deeming provisions of the SRC Act which are discussed later, and the section 53 notice provision arguments, resolution of the substantive claims involves trying to reach a proper understanding of the applicant’s mental health over the last 40 years. The respondent’s position is that the applicant has been a long-term sufferer of a constitutional mood disorder which manifested both before and after he joined the APS. It was left untreated for a lengthy period and his symptoms worsened. This happened in a work setting, but was not caused by work. The applicant’s problems are constitutional.
The applicant, on the other hand, contends that he was psychologically well growing up. He had one episode of depression shortly after commencing his study at university, however this resolved with appropriate treatment which was assisted by giving up regular use of marijuana. He then had a brief period of post-viral fatigue in 2012, but entered the APS fit and well in 2013. However, by 2014 he developed severe anxiety in response to stress and disillusionment. Then as work pressure increased, particularly between 2017 and 2019, his symptoms worsened leading to a significant mental breakdown in 2019 with severe symptoms of depression and anxiety in the years following. Although his mental state has improved significantly since it reached its lowest ebb in 2021, he has been unable to work full time since 2019, or at all since May 2020.
If the applicant’s view of the matter is accepted, then the applicant’s employment contributed to his mental ailments to a significant degree. If the respondent’s view is accepted, then it is not liable as the applicant’s symptoms are the product of a constitutional condition and work did not significantly contribute to the onset or worsening of his condition, it was merely the setting in which the condition manifested.
The respondent’s position is supported by a detailed report from consulting psychiatrist Dr Ventura. However, it must be acknowledged that the report of Dr Ventura is not without its issues and the time available to Dr Ventura to form a view was relatively short. The volume of relevant material is significant.
The applicant’s position is supported by his GP Dr Mohanadas and to a limited extent by a report by consulting psychiatrist Dr Teoh. Dr Teoh’s report, however, is superficial and the applicant did not urge reliance on it. The applicant’s GP’s report suffers from the difficulty that, when she originally expressed a view, it was not supportive of a relationship between the applicant’s mental health and his employment. She changed her view following review of an extensive array of material provided by the applicant directed at persuading her of a link between his condition and his employment. This provides at least one ground for approaching the views expressed in the report with caution.
Answering the question of the relationship between the applicant’s work and his ongoing medical conditions between 2014 and 2020 is complicated by the fact that it was never properly explored by his treating doctors at any point while the applicant was working. The contemporaneous notes made by treating doctors are mostly ambiguous and the reports prepared at the time do not comment on the link.
In bringing the claims the applicant is asking doctors who were not treating him at the time to diagnose past conditions and hypothesise about the contributing factors to them. This contributes greatly to the difficulty of the task of satisfying the Tribunal of the workplace connection. It is inevitably an attempt to reconstruct the past. In most circumstances, I would approach attempts by an applicant to reconstruct a narrative about the past with significant scepticism – both as to the motives of the applicant and the truth of the reconstruction. This matter is however unusual. The applicant frankly admitted that in making his claim he was trying to reconstruct his understanding of his psychological development. He presents as someone genuinely trying to satisfy himself about his psychological health before he joined the public service, in order to better understand what problem is manifesting today. The applicant is sincere in his view that he wasn’t sick when he joined the APS, and the APS made him sick.
The difficulties the applicant faces are compounded by the range of diagnoses that have been suggested to him. Indeed, it is difficult to pinpoint the time when he became psychologically unwell. The diagnoses include attention deficit hyperactivity disorder (ADHD), autism spectrum disorder (ASD), major depressive disorder (MDD) with depressed and anxious mood, anxiety disorder and migraine-induced vertigo. Some of those diagnoses strongly imply that the applicant’s current psychological presentation is the product of a constitutional disorder, or disorders, rather than a condition brought on or aggravated by his work. For perfectly sensible reasons, unrelated to his compensation claim, the applicant does not want to accept such characterisations if they do not line up with the history of the development of his condition. Importantly for present purposes, if those characterisations are not soundly based, then there are implications for whether the applicant’s symptoms experienced during his time in the APS can be properly characterised as evidence of a constitutional disorder simply manifesting itself in the environment in which he finds himself.
As a consequence of these difficulties, resolution of this matter is not simply a case of choosing which medical report is to be preferred. It is necessary to spend some effort trying to understand the applicant’s psychological development up to the point when he joined the APS as a graduate in 2013. Then it is necessary to consider at what point he became psychologically unwell.
Once the applicant’s constitutional pre-disposition is understood, along with the progress of the condition, the events which followed in the APS can be assessed to determine whether they are events contributing to the applicant’s undoubted psychological decline, or whether his employment is just the setting in which his condition began to manifest and worsen. When the psychological history is properly understood then the views of the doctors can be considered.
If, following that exercise, I am affirmatively satisfied that the applicant’s employment did not contribute to a significant degree to the ailments he developed over the course of his working life, and his employment was only the setting for its onset, then the applicant cannot succeed. If, however, I am simply unpersuaded that the applicant’s employment contributed to a significant degree to his employment, then I need to consider whether he benefits from the deeming provisions in subsections 7(2) or 7(3) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
If the applicant succeeds in satisfying me that his employment did contribute to his conditions to a significant degree, then I must consider whether his claim is excluded by section 53 of the SRC Act in light of the delays in bringing the claim.
Summary
Having examined the applicant’s history very carefully, I am not satisfied that the psychological decline, which manifested during the period of his employment and became very pronounced in 2019, was contributed to by his employment to a significant degree.
It is notable that none of the applicant’s treating doctors identified the applicant’s work as significantly contributing to the symptoms which he was suffering from at the relevant times. Even in 2019, when the applicant was put off work by a sympathetic and well-regarded psychiatrist, no report states that there is a link between the applicant’s work and the condition he was suffering from. Importantly, time away from work has not diminished the applicant’s symptoms. His decline and subsequent improvement do not appear to correlate with periods of absence from his work. Therefore, I am not satisfied on the evidence before me that the applicant’s mental ailment was contributed to, to a significant degree, by his employment.
In those circumstances I have considered whether the applicant benefits from the deeming provisions in section 7 of the SRC Act. For the reasons set out in the paragraphs from ‎300 to ‎325 below, I am satisfied that he does not. Consequently, the decisions under review are affirmed.
Evidence
In making my decision I have had regard to the material set out in the exhibits list annexed to this decision. In addition the following witnesses gave evidence at the hearing:
(a)The applicant
(b)Dr Antonella Ventura.
Fact finding principles
There are some general comments I wish to make about my approach to the evidence in this matter before I begin the process of specific fact finding.
Trying to reconstruct the causes of a psychological ailment when a person’s psychological development might be relevant and where events in the distant past are implicated is an inherently difficult task. If there are insufficient records recording the applicant’s state of mind at the relevant times, then it requires a witness to recall accurately not just events from long ago but also his state of mind at the relevant times. The difficulties in the process are magnified in this case by specific doubts I hold about the reliability of the applicant’s recall. In this case, the applicant has conceded that he has a poor memory of his childhood[1] and, as a consequence, much of his evidence about his social functioning prior to entering the public service is reconstructed from other materials rather than specific recall of events. In addition, as the applicant submits, his depressive condition makes it easier to access more negative memories than positive ones.[2] Consequently, his memories of his time in the public service are overwhelmingly negative (as are the reports of his childhood given to doctors).
[1] Hearing Bundle, 505.
[2] Applicants closing submissions, 32-33.
By contrast, on a fair reading of the documentary material, there appear to be significant periods where the applicant was an enthusiastic, positive contributor to the work of the agencies in which he was employed and periods where he was genuinely engaged with the work at hand. These periods extended well beyond 2013.
Given the differences between the documentary record and the applicant’s reporting of his state of mind, I am not satisfied that the applicant now has an accurate perception of how well he was functioning mentally during these periods and how he was responding to the work he was involved in. For example, the applicant gave evidence about his reaction to what was occurring in the Clean Energy Regulator after the government changed in September 2013 and the ‘carbon tax’ was abolished. The evidence was that this event caused him to lose faith in the organisation and had a profound influence on his mental functioning. The contemporaneous documents available, however, paint a different picture. In 2014 the applicant applied for the Departmental Liaison Officer position which would have placed him in the Minister’s office working closely on the new government’s alternative to the ‘carbon tax’.[3] The applicant left the Clean Energy Regulator in 2015 after being unsuccessful in a promotion round. However, he applied for a job in the Clean Energy Regulator in early 2016. His opening statement in that job application was ‘I am seeking the position of Assistant manager in the Business Investment team at the Clean Energy Regulator (CER) due to the strong alignment of my personal values with those of the agency.’ The applicant signed the declaration that the information he provided in the form was true and correct.
[3] ST13, 239.
This is not to suggest that the applicant did not have any genuine misgivings about the work he did at the Clean Energy Regulator or the change in focus following the change in government. It does however make it difficult to accept that any misgivings were inducing a significant mental crisis. To the extent that the applicant recalls it that way, I do not accept that evidence. I suspect that the memories he has of his state of mind during his career have been affected by his subsequent episodes of serious mental illness. This is not to question his honesty, merely to highlight the limits of the reliability of his recall. In many workers’ compensation matters this would not be significant. There would be contemporaneous records which corroborate the oral evidence that difficulties were arising because of work. However, in this case the records do not provide any significant support.
This is very important in a context where the applicant was receiving medical care for significant symptoms from 2014. It is possible that many or all of his symptoms were work-related psychological symptoms. However, there is limited contemporaneous medical evidence supportive of the proposition that the applicant’s symptoms initially were psychological, and were significantly contributed to by his work. Consequently, the applicant is asking the Tribunal and the medical experts in this case to look back at the symptoms he was experiencing in the past, diagnose the condition and determine whether or not the applicant’s work was significantly contributing to them. Accurate recall of his state of mind at the time is essential if the contemporaneous diagnosis is to be discarded and a fresh diagnosis adopted. In the present case I am not satisfied that the applicant is able to recall his mental state with a level of precision that I can have the necessary degree of confidence in.
The second general comment I wish to make at the outset is on the use of data and its interpretation. The applicant has access to biometric data from his apple watch, phone contact data, work attendance data and building swipe data. He has prepared numerous graphs to emphasise certain associations he believes are established by the data.
I have provided a summary of the applicant’s contentions in relation to each data set in a schedule to this decision. I have done so to reassure the applicant that I have examined this material carefully and to highlight what conclusions I can reasonably draw from the material and what I cannot.
There are some facts I am willing to find based on the data. There were periods at work where the applicant was regularly contacted outside of working hours by his supervisors. The applicant did, almost from the beginning of his career, report directly to SES officers. The applicant did have periods where he worked long days and on weekends. The applicant’s stress levels at work when he was employed at the Department of Finance were consistently elevated.
These facts however, either separately or in combination, do not lead inexorably to the conclusion that the applicant’s employment contributed to a significant degree to the psychological ailments that he has suffered from. Many people over the course of their working lives have experienced some or all of the circumstances described and have not developed any psychological symptoms as a consequence.
Accordingly, it is not sufficient for the applicant to establish that these were the conditions under which he worked. The question which I need to address is whether, in this particular case, the applicant’s employment did in fact contribute to a significant degree to the ailments from which he suffers.
In drawing appropriate conclusions, I am very dependent upon the reports of medical experts.
Because there is so little contemporaneous support from medical experts linking the applicant’s symptoms to a contribution from his employment, the applicant seeks to combine biometric data with published articles and asks me to reach conclusions about his health issues and their causes at specific points in time. Generally speaking, I am reluctant to do that. It would be unusual for the Tribunal to reach its own conclusion about the causes of a psychological ailment without the assistance of expert evidence. The Tribunal depends on experts in their field to provide assurance about the quality of data and explain how it can be related to existing knowledge to reach a conclusion. In the absence of such expert evidence I am reluctant to use biometric data in combination with published articles to make a diagnosis myself. I am not in a position to determine whether the applicant has fairly interrogated the datasets he presents or provided a balanced survey of the literature. In those circumstances I am reluctant to draw conclusions independent of the expert medical reports that have been provided.

However, where the material the applicant has provided establishes facts which are inconsistent with the facts upon which any expert reports have relied, then I have discounted the conclusions in those reports appropriately.
Facts
The following are my findings of fact. To the extent that any might be controversial I have identified the evidence on which the conclusion is based.
The applicant was born on 30 June 1981.
There are two starkly different pictures of his childhood and adolescence which emerge from the evidence.
When the applicant gave reports to psychiatrists about his early life, the picture which emerges is one of psychological difficulties being present and developing from an early age. The first recorded account of his childhood I could identify was given to his psychiatrist Dr Lean on 13 August 2019. He recorded:
[SRGF] showed me a longitudinal graph of his situation from 2014 although his concerns date back much further – childhood really. He had seen my colleague, Dr Stephen Roseman in 2003.
Social Anxiety Disorder/Depression.
[SRGF] has struggled with social interaction all his life. Fortunately he had done well academically although he has succeeded best at distance education.
In adolescence he had a period of substance use and some aberrant behaviour and had a two year relationship – they remain friends.
[SRGF] has a difficult personal story to tell, his mother and many before has suffered MDD [Major Depressive Disorder], his father was emotionally unavailable – scientific statistician. His family broke up when he was seven, he remained with his mother and older sibling, both angry.
In reviewing [SRGF]’s diagnosis, he probably has Cluster c personality difficulties – anxious avoidant, with General Anxiety Disorder and secondary Major Depressive Disorder. He also has Chronic Fatigue Syndrome and headaches F.I. [SRGF] has trialled many antidepressants. [SRGF] has not done well with psychology – he feels he knows a lot/understand a lot of CBT [cognitive behavioural therapy].
His report to Comcare’s psychiatrist Dr Ventura was in a similar vein:
[The applicant] told me that his father possibly has an Autistic spectrum disorder but he has never been diagnosed. His half-brother and nephew had been diagnosed with ADHD. His mother has been diagnosed and treated for depression. Mr The applicant was born and raised in Canberra. His parents separated when he was 7 years old. He told me that he has had negative views of himself and he has been obsessed with self-control all of his life. He thought that he was impulsive and interrupted others in primary school. He reported that he has very little if no memory of primary school. I asked Mr The applicant if he experienced any childhood trauma. He told me that he could not recall any. When I asked him how he got on with his parents he replied “I made porridge every morning”. Mr The applicant told me that he thought that he had very few friends but after looking at school photos he believes that he may have had some. He said he had limited memories of his high school when he spoke to Dr Lean but now he believes that he has a good memory of school days after looking at photos. He told me that he makes lists of things when he remembers them and that he is “recreating a sense of myself”…
Mr The applicant told me that he has never felt the need for friendships or emotional connections. He sees relationships as a list of duties.
The rather bleak picture of the applicant’s childhood and adolescence that emerges from these reports is only part of the evidence relating to this period of the applicant’s life. In 2022 the applicant appears to have formed the view that as a consequence of his longstanding depression as an adult he formed an unrealistically negative view of his younger self which is reflected in his reports to the psychiatrists. The applicant now submits that the Tribunal (and anyone expressing an opinion about the causes of his current psychological condition), should consider a more balanced picture which emerges from photos and school reports and other information about his childhood.
The applicant has provided a large number of school reports. While there may be some selection bias in what has been presented to the Tribunal, a consistent picture emerges of a student who has no difficulties working with and associating with others.
The applicant has also undertaken a form of data analysis on the school reports looking for indications of ADHD. There are comments in the school reports consistent with inattention and impulsivity as well as focussed efforts. Comments noting these features increased over the course of the applicant’s schooling.
The applicant also provided to the Tribunal photos of himself as a child and adolescent which demonstrated ‘normal social functioning’. He engaged in dress-ups and attended the birthday parties of other children. He engaged in sport including team sports. He attended his high school formal with a partner, and he identified himself as being part of a friendship group in high school. Dr Ventura was cautious about the conclusions which could be drawn from a selection of photographs. In much the same way that Facebook posts may not give a true picture of a person’s mental functioning, photographs have a tendency to record happy times. I accept that note of caution from Dr Ventura but I am also willing to accept that at least until year 10, the applicant was not noticeably socially phobic and anxiety was not a dominant feature of his presentation to others.
No clear picture of the applicant emerges from his college reports, although his academic performance appeared to slip.
I am satisfied that during childhood the applicant did not exhibit signs of social anxiety. He coped well with school, hit milestones in a normal way. He may have had inner struggles particularly at home, but there was nothing that was manifesting as an anxiety disorder at the point at which he left school.
After graduating from Canberra College the applicant commenced an IT and Economics degree at ANU. It was at this point that there was a marked decline in the applicant’s mental health. He withdrew from the ANU and switched to an Arts degree at Charles Sturt University. This was not a success either. By his own admission he made poor choices in relation to who he spent time with, and he regularly used marijuana. He attended his GP, Dr Reeve, in October 2001. Dr Reeve records that that the applicant was suffering from depression and social phobia. The applicant was prescribed fluvoxamine under the brand name Luvox. Luvox is a selective serotonin reuptake inhibitor (SSRI). It is used to treat depression as well as obsessive compulsive disorder. The evidence suggests that it was prescribed in the applicant’s case for depression. The applicant took Luvox from December 2001 to January 2003 (having initially tried citalopram, another anti-depressant) from August to December 2001. On 6 March 2003 the applicant switched to paroxetine, which is also an SSRI. It is used to treat major depressive disorder and obsessive compulsive disorder as well as social anxiety disorder, panic disorder, PTSD and generalised anxiety disorder. There is no evidence available about why the applicant’s medication was changed. The applicant continued on paroxetine until September 2004. During this period the applicant saw psychiatrist Dr Rosenman from around January 2002 until around July 2004.
On the applicant’s account, this episode of depression passed when he ceased using marijuana, changed his peer group and felt he had a clearer purpose in his life. He switched to a Theology degree at Charles Sturt University and performed noticeably better in that degree. He returned to attending university on campus to do Honours at Charles Sturt. In 2008 the applicant graduated with a Bachelor of Theology.
He then enrolled in an Arts/Asian studies degree at ANU. The reports on his performance from his lecturers at this time are excellent. The applicant appears to have enjoyed good health during this period. He was working for an accounting firm and studying full time. His academic results were outstanding. If the applicant was suffering from any social anxiety there is no evidence of it. He participated in conversational French, and travelled to New Zealand and to Syria.[4]
[4] T54, 150.
However, in 2012 the applicant began reporting fatigue symptoms.
On 5 September 2012 he reported to GP Dr Syeda Tausif that he had ‘tiredness and lethargy’. A week later he reported ‘feeling dizzy’ and reported tiredness and lethargy. A week after that he reported to another GP Dr Reeve, that he had ongoing fatigue potentially related to a viral illness. He also reported that he had been ‘tired for years’.[5]
[5] Hearing Bundle R7, 770.
Dr Reeve offered the applicant a prescription for the anti-depressant Zoloft but the applicant denied he was suffering from depression.
I am not prepared to treat these attendances as simply the product of a transient viral illness, which is how the applicant wishes to have them treated. The fatigue the applicant is reporting is not transient. It is significant that he reports having been ‘tired for years’. The fact that Zoloft was offered suggests that Dr Reeve identified a psychological component to the applicant’s condition and that the condition was not transitory.
The applicant led evidence to demonstrate that his social functioning was good at this point. He tendered data about:
(a)The number of phone messages to friends
(b)The content of phone messages and the nature of social interactions
The texts and emails, although small in number, are suggestive of a friendship group and a willingness to initiate and attend small gatherings with others. Data also shows (assuming that the data has been reliably selected) that messages to and from friends declined from 2011 to 2021. The pattern was however non-linear. It went up in 2016 for example when compared to 2015, and then dropped very significantly in 2017 as compared to 2016. This is significant when considering whether the applicant suffered an episode of social anxiety or depression in 2014.
I accept that when the applicant commenced with the Australian Public Service (APS) in 2013 that he was psychologically well (but not entirely symptom free) and had been for some time. The applicant did however have a family history of depression (his mother) and ADHD (nephew) and possible ASD (his father). The applicant had suffered a significant episode of depression himself in 2002, and had a history of suffering fatigue.
Working life in the APS
The applicant was employed by the Clean Energy Regulator from 4 February 2013 to 6 September 2015. He was initially employed as a graduate but acted on higher duties as an APS 6 from 1 April 2014.
His initial performance was excellent. By August 2013 he had clearly distinguished himself as an employee who senior executives could rely on. Senior managers supported him being placed in his preferred areas for graduate rotations.[6] The applicant worked long days at various times in 2014 but he also had periods to recuperate.[7]
[6] The applicant now regards his interactions with the SES as inappropriate [see AAT[7]], but there is no document that suggests that the attention was anything other than favourable and that, at the time, the applicant was able to deal with it successfully.
[7] Hearing Bundle A1, 5.
In April 2014 he developed symptoms which were serious enough that he sought medical assistance. On 21 April 2014 the applicant presented to his GP reporting tiredness and lethargy. He also reported suffering from imbalance as well as ringing in his ears. He was referred for a CT brain scan. No significant abnormality was detected.
At this point in time the applicant is clearly conscious that he has an issue with his mood, but he does not attribute it to his work. In an exchange with his supervisor on 1 May 2014 he says:
…Only issue is my general sense of apathy and annoyance – I’ll get over it. Nothing to do with you or the team/CER! It’s good to have achieved something fairly standout after a fair break, so hopefully I’ll stop moping! [8]
[8] Applicant 19[3].
The applicant also expressed a willingness to keep working despite the symptoms, which suggests that he did not see his symptoms as being caused by work. When his supervisor texted him prior to the CT scan saying:
Well make sure you get everything checked properly, and only come in if you are certain you feel up to it.
the applicant replied
I’m not convinced I’ll feel better in a hurry – hence I will come in. My 50% beats the APS average 6 anyhow. Probably arrive around 10.
His supervisor was clearly concerned about him coming in and encouraged him not to come in:
…I don’t want you feeling stressed and unwell at the same time. [9]
[9] AAT [6]
The applicant has taken this as indicating that his supervisor connected his work with his symptoms but that is an overreading of this text. It is at least as likely that the applicant’s supervisor was simply concerned that if the applicant was unwell, performing stressful work at the same time risked a worsening of the applicant’s otherwise independent symptoms.
In June 2014 the applicant was seen by Consultant Neurologist Dr Colin Andrews. At that time he was complaining of increasing symptoms over the last three months of:
(a)Being off balance;
(b)Being vague and faint;
(c)Fatigue;
(d)Nausea;
(e)Joint pain and low back pain;
(f)Gait disturbance;
(g)Headache; and
(h)Sometimes an unusual feeling of a release in his head when going off to sleep.
At that point in time the applicant had been recording his symptoms for a few weeks. Fatigue was a comparatively rare symptom; imbalance was the most common. Symptoms were most severe during the day but did present between 10:00pm and 1:00am.[10]
[10] Hearing Bundle A10, 322.
Dr Andrews ordered a brain MRI and, it would seem, prescribed the anti-depressant Endep. The prescription however was not to address symptoms of depression but to deal with his neurological symptoms. The applicant’s symptoms responded to Endep but had the side effect of sedation. Dr Andrews felt the applicant’s condition was ‘probably migraine vertigo’. Dr Andrews continued to treat the applicant’s symptoms – in particular the balance issues, headaches and muscle tension. The symptoms appeared to respond.
It is not obvious that the applicant’s condition at this point in time was a psychological illness. The applicant describes physical symptoms including migraine and imbalance and the specialist’s diagnosis was migraine vertigo. There is nothing in documents available at the time that supports the hypothesis that Dr Andrews was misdiagnosing a social phobia or a depressive disorder.
In fact, what is known about the applicant’s functioning at the time points away from him suffering symptoms of social anxiety.
For example, a colleague commented on the applicant looking unwell in June 2014. The evidence of this comes in the form of a text exchange. Given that the exchange involves the applicant setting up a social interaction, it is not suggestive of anxiety or depression. However, the colleague notes that on some occasions the applicant looks ‘quite pale and tired and clammy maybe?’[11] The applicant is clearly unwell but it is difficult on the evidence available to be confident about the nature of the illness.
[11] Applicant 20[17].
In this period there is no suggestion that either the applicant or Dr Andrews drew a link between the applicant’s symptoms and his work. In August 2014 the applicant reported on his work in favourable terms to Dr Andrews. He was applying for jobs within the Clean Energy Regulator and was seeking promotion. His supervisor was aware that the applicant was having migraines investigated but again there is no suggestion that work was causing the symptoms.[12]
[12] Applicant 20[3].
There is some evidence of low-level disgruntlement on the part of the applicant around September 2014 but it is extremely mild and not suggestive of any mood disorder.[13] In December 2014 the applicant’s supervisor prepared a reference for him in relation to a job at Treasury he was applying for. The reference paints a picture of the applicant as a person functioning socially at a high level. The reference stated:
[SRGF] is very good at developing and supporting productive working relationships. As part of my team (and particularly in relation to costing new policy proposals) [SRGF] has needed to access information from a broad range of stakeholders that enable a comprehensive costing of government policy…[SRGF] has achieved this because he is able to communicate his need effectively…[SRGF]’s interactions in these initiatives are based on professionalism and high-quality outputs that result in sustained relationships; he can find the right information at the right time because he knows who to contact, and importantly, the contacts trust him.[14]
[13] AAT1[14].
[14] ST5 287.
The applicant said similar things about himself in his application noting his liaison skills and ability to access his networks including the graduate network in the Clean Energy Regulator.[15]
[15] ST5 292.
At this point the evidence favours the conclusion that the applicant is suffering from a neurological ailment consistent with migraine vertigo that does not have a relationship with work. I am not satisfied, even with the benefit of hindsight, that the applicant was suffering from major depressive disorder, major anxiety or chronic fatigue. There is no contemporaneous evidence that the applicant thought he was suffering from those conditions at the time or that any condition he was suffering from was related to work.
In 2015 the applicant missed out on a promotion within the Clean Energy Regulator. He subsequently took a position with the Department of Infrastructure. There is no basis for concluding that the applicant was suffering from a compensable ailment at the point at which he changed jobs. There is no contemporaneous evidence that the applicant felt he was working for an organisation that was creating ethical dilemmas for him.
After leaving the Clean Energy Regulator the applicant’s symptoms began to change. It is worth noting that at this point in time:
(a)The applicant’s social life seems to be intact;[16]
(b)Is not working excessive hours; and
(c)Is not being contacted out of hours and on weekends by supervisors.[17]
[16] Hearing bundle A7, 237 – note that excluding texts to ‘Fiona’ all other texts in 2016 are significantly up on 2012.
[17] T58 253.
On 18 January 2016 the applicant returned to Dr Andrews for review. Dr Andrews reported ‘his headaches are reasonable but he feels as though he is anxious and has lost confidence. He works in the public service. He often feels tense.’ The applicant’s medication changed from Endep to Sandomigran.
It is reasonable to conclude that the applicant’s symptoms at this point in time began to include anxiety symptoms. The descriptions of the symptoms at the time were equally consistent with work being the setting in which symptoms manifested, or the cause of the symptoms themselves. Dr Andrews did not identify work as a factor and did not put the applicant off work as a way of dealing with his symptoms.
The applicant’s employer at this time was aware that he suffered from migraines and there was at least some potential for light exposure to trigger them.[18] Beyond that, there is no evidence that the applicant raised any concerns about work affecting his health.
[18] AAT [1].
In April 2016 he presented to Dr Andrews for review. He reported that he was still getting headaches, but they were probably not as bad as previously. However, some were severe enough that he needed time off work. He reported that he ‘feels generally more positive’.
In May 2016 the applicant reported modest improvement in his headaches.

In August 2016 the applicant reported improvements in his headaches and noted he was ‘happy in his new job’ which at that point in time was the Department of Education. He had started that job in July 2016.
In January 2017 he reported to Dr Andrews again for review of chronic headaches and a foggy head. He moved to the Department of Prime Minister and Cabinet around that time. His performance was perceived as mixed in this period and he found the job stressful. The applicant now characterises this period of work as disillusioning as a result of PM&C being just a ‘vote buying exercise’, but this view has a revisionist quality to it. There are no contemporaneous complaints about the nature of the work reported to the applicant’s treating professionals.
In April 2017 he reported that he was still getting some headaches and ‘his productivity was now up to about 70% of what it should be’. The applicant’s medication was changed to Topomax. On 18 April 2017 the Applicant advised his supervisor via email that he was not feeling well and on 19 April 2017 the applicant noted he was struggling to adjust to some new medicine and asked to take the week off.
In May 2017 the applicant reported to Dr Andrews that he had not been able to work for the last month due to headaches. He was also reporting problems with migraines to his supervisors.[19] At this point the applicant’s social anxiety begins to increase.
[19] Applicant 20[6].
On 22 June 2017 the applicant presented to Dr Andrews for review. Dr Andrews recorded that the applicant was still getting his migraines and he was still remaining stressed, was trying to avoid people, and was very introverted. Even travelling on a bus close to people upsets him’. Dr Andrews recommended that the applicant begin taking Zoloft again, and prescribed it.
At this point I am satisfied that the applicant was suffering from a psychological condition outside the bounds of normal functioning. Symptoms were manifesting at work but also outside of work: hence the applicant’s reaction to sitting close to other people on a bus. The cause of the condition is not explored by Dr Andrews. He does not identify work as the cause, nor does he give the applicant time off work. Given that these symptoms are being reported after a long absence from work in May 2017,[20] and are reported as present inside and outside of work, it is difficult to identify what is contributing to the decline in the applicant’s social functioning. It is possible that work is operating on the applicant’s pre-existing vulnerabilities, but that is not a theory which the applicant posits to his treating doctors, and it is not a theory any of his doctors volunteer at the time. What is known about the applicant’s mental health at this point is at least as consistent with work being the setting for the decline rather than a contributing factor to the decline.
[20] Hearing Bundle R5, 516.
On 25 June 2017 the applicant reported to his General Practitioner (Dr Reeve) that he was coming off Topomax [a migraine preventer] and also that he was feeling increased anxiety and depression.
In July 2017 the applicant moved to the Department of Finance. It is important to note that, prior to the move to the Department of Finance, the applicant’s anxiety increased in a setting where he was not being contacted out of hours by supervisors or had special reporting arrangements directly to members of the SES.
On 21 July 2017 the applicant reported to Dr Andrews that his ‘moods are much better’. He was recorded as being ‘at a new job’.
In September 2017 he was receiving favourable reviews from his supervisor. For example, one supervisor reported:
Since his return to the SDO [SRGF] has actively sought out, taken additional responsibility and delivered both strategic, operational and tactical products and deliverables.[21]
[21] A6, 220.
The applicant also appears to have developed a close relationship with his supervisor [XA] (who he already knew from the Clean Energy Regulator). The Tribunal did not have the benefit of any evidence from [XA] but the documentary material suggests that [XA] was both supportive of, and dependent on, the applicant. This manifested as very high expectations regarding the applicant’s availability outside of normal working hours. Examination of the text messages suggests a close and friendly relationship but one that the applicant now feels involved inappropriate demands.
On 20 October 2017 the applicant reported to Dr Andrews that his ‘headaches are under control’. He also reported ‘his depression is going very well on the Zoloft’. There is no talk of anxiety.
On 16 December 2017 the applicant presented to his GP Dr Pyakurel, requesting a script for sertraline’ and reported ‘feels positive after being on the medication’.
In January 2018 the applicant reported to Dr Andrews that his headaches returned following ceasing medication.
In this period the applicant remained a critical support to senior executives within his Division. However, his ability to successfully manage teams was becoming an issue. It is unclear whether the applicant’s underlying anxiety condition meant he noticed symptoms when supervising, or whether the need to supervise caused stress which, in turn, aggravated his condition.
The applicant acknowledged that he needed to decide on the ‘extent to which I would be physically and mentally capable of developing the necessary resilience to effectively lead and manage the performance of a team.’[22] Given the passage of time it is difficult to be certain of the significance of this statement, but it can be read as an acknowledgement that he is not constitutionally suited to leading a team.
[22] Applicant 19[7].
It is however clear that the applicant’s health was becoming an issue. In his 2018/19 Performance Agreement he listed for the first time a Health and Wellbeing goal to ‘Prioritise work-life balance to build resilience to better manage periods of stress or illness’.
In this period the applicant was working some long hours, but the pattern was mixed. Between 18 May 2018 and 29 May 2018 he had 11 days away from work. He then worked some long days, the longest being 9 hours and 21 minutes and some short days, the shortest being around 2 hours. He was then called to do jury duty in early July 2018,[23] which disrupted his work patterns resulting in some late work and some weekend work, but also some days where he was completely absent from the office. While on jury duty the applicant texted his mother at 9pm indicating that he was just leaving work. She was concerned about the hours he was working.[24] It is however worth noting that the late evening text was following work with the Department that had commenced in the middle of the afternoon. He did not attend work for the next 5 days and then attended on Sunday for about 2 hours. The applicant was off work from 20 July 2018 to 30 July 2018.
[23] Applicant 10[24].
[24] A6, 176.
On 25 July 2018 the applicant reported to his GP Dr Reeve as follows:
Been off work – nausea exhaustion and fluish.
The longest day the applicant had worked in the 10 days prior to that period of leave was 8 hours and 47 minutes.[25] From this distance it is difficult to determine whether the symptoms were caused by work, jury duty, a virus, or some combination of all three.
[25] Applicant 10[24].
On 27 July 2018 Dr Andrews notes that the applicant reported that his ‘headaches are reasonable. He is getting a bit of depression and fatigue. He finds his job ok but finds sometimes managing the staff can be difficult.’ He was switched from Zoloft [sertraline] to Prozac [fluoxetine] in the hope it would address fatigue. Consideration was also being given to the introduction of Parnate [tranylcypromine sulfate] used for the treatment of mood disorders.
Again, there is no identification of work as the cause of symptoms, or a recommendation from Dr Andrews that the applicant cease work or change employment or modify his duties.
On 30 July 2018 the applicant advised he would be working ‘shorter days for a while – 10-4ish’.[26]
[26] Applicant 10[17].
On 3 August 2018 the applicant had a weekly performance discussion with his manager. Under the subject heading of Emerging Issues, his supervisor noted ‘Health – may need to rebaseline stress levels.’[27] From that point the applicant reported on work hours to his supervisor on a weekly basis in the hope of sustaining a work/life balance.
[27] ST4 138.
There is evidence that the applicant was concerned about chronic fatigue symptoms at this point in time.[28]
[28] Applicant 20[7].
On 30 August 2018 Dr Andrews recorded only mild improvement from the switch to Parnate and noted the applicant seemed to have some fibromyalgia as well.
In the second half of 2018, after hours availability (at least at certain times) was expected of the applicant.[29]
[29] Applicant 13[1], [2].
As at the end of 2018 the applicant was displaying an array of psychological symptoms. I am satisfied that there were periods in 2018 where the applicant was working long hours including in the lead up to Christmas[30] and experiencing stress as a result of having to manage a team. The long hours were, however, balanced by substantial periods of leave. For example, the applicant had almost 1 month off between 10 December 2018 and 7 January 2019.
[30] Applicant 10[26].
At no point does Dr Andrews report that the applicant’s psychological condition is being caused by, aggravated by, or significantly contributed to by his work. He does not suggest that the applicant take time off work in order to address a psychological condition.
Dr Andrews retired and in January 2019 the applicant commenced seeing Dr Ram Malhotra – also a neurologist – on 31 January 2019.
Dr Malhotra recorded the following history:
…more than four years history of migraine which started with vertigo without headache and was started on Endep which worked for a while and stopped as he developed anxiety. He then went on Sandomigran and Cardilox soon after that. By that time vertigo had gone but was having severe fatigue. He tried it for a year or so and then tried Topamax for a very short period of time and stopped as he developed bad anxiety. He then tried Zoloft which had a bit of positive impact but had fatigue. A diagnosis of chronic fatigue was suggested and was started on Lyrica and Prozac. He still feels exhausted all the time. He gets through whole day at work but when goes home he crashes very much. [SRGF] does not have much vertigo and headache now.
It is notable that the history which the applicant gives is of varying and changing symptoms against a background of regular changes to medication. Anxiety is a symptom that is reported as linked to the use of Endep and then Topomax. Fatigue is a dominant symptom associated with Sandomigran. Work is not mentioned as a cause or even a factor associated with changes in symptoms.
The applicant reported symptoms of constantly getting fatigue, weight gain, muscle ache, exhaustion, restless legs and joint pain. Neurological examination and limb examination were both normal.
In February 2019 the applicant raised with his supervisor concerns that ‘balance between work and not-work is not being actively managed’.[31]
[31] Applicant 20[9].
At this time (around March 2019) a colleague in the applicant’s work group was involved in a fraud on the Commonwealth. The applicant had no involvement in the fraud or in identifying it. He did however raise ethical concerns in relation to another project which he perceived was being managed in a way which involved a conflict of interest.[32] His supervisor disagreed that there was a conflict of interest and explained to him why.[33] There was never any suggestion at the time that this caused the applicant any significant concern or resulted in a change to his symptoms.
[32] AAT[40] and [41].
[33] AAT[77].
On 3 May 2019 in a weekly performance meeting with his Band 2 SES the applicant identified his health as an issue.[34]
[34] ST4, 241.
The applicant also volunteered in an interview for a job at the Bureau of Meteorology that he had gone close to burn out previously and so monitors his hours closely for the benefit of his health.
On 14 May 2019 the applicant requested that he no longer to be included in Friday afternoon SES meetings.[35]
[35] Applicant 20[13].
On 17 May 2019 the applicant requested a work from home arrangement for 2 days per week. He identified two bases for seeking the arrangement. The first was to improve his work focus, the second was his health. His health issue was described in this way:
Health: an issue with my health, that does not impact performance, may be better managed in a home environment.[36]
[36] ST4, 242.
The work from home arrangement was approved.
On 24 July 2019 Dr Malhotra reported on the applicant to his GP Dr Reeve in the following terms:
…He is being reviewed for more than four years history of migraine which started with vertigo without headache and was started on Endep which worked for him but he is having ongoing symptoms of anxiety.
The current symptoms are fatigue, ache and pains and waking up in the night. He has to consciously relax and when he wakes up in the morning he is super tense everywhere.
[SRGF] has strong family history of anxiety and depression and went to a Psychiatrist 15 years ago and was on medication also.
I had started him on Clonidine 50mg nocte, changed Prozac to Mirtazepine 15mg nocte and started Melatonin 10mg nocte.
[SRGF] still has a lot of muscle tension and his weight has gone up. He does not think the anxiety or muscle tension has gone down. He does not wake up in the night anymore since he stopped Prozac. [SRGF] has done meditation and it has helped a lot. [SRGF] is still waiting for appointment to see the psychiatrist. [SRGF] is not having any of the headache and dizziness and is having pure muscle tension and anxiety.
I have stopped Mirtazepine, started Citalopram 10mg nocte and increased the dose of Clonidine to 100mcg at bed time and continued Melatonin 10mg nocte and will refer [SRGF] to Dr Bruce Lean for further management of anxiety and review him in three months time.
Dr Reeve referred the applicant to Dr Lean, psychiatrist, on 30 July 2019.
When Dr Lean saw the applicant he issued a medical certificate stating the applicant was unfit for work. The applicant took an extended period of time off work by using up all of his available recreation leave and personal leave. He did not resume work until March 2020, and then only on a restricted basis.
Dr Lean reported on 27 August 2019 as follows:
…the applicant has struggled with social interactions all his life. …The applicant was prescribed Brintellix [for MDD] and it was recommended he continue taking Cipramil, melatonin and Clonidine [adhd].
While the report is brief, it conveys the view that Dr Lean believes he is treating a deep-seated problem (‘the applicant has struggled with social interactions all his life’). Regrettably, Dr Lean does not explain what has prompted him to put the applicant off work and what the relationship is between the symptoms that the applicant is experiencing and the work he is undertaking. The applicant was clearly suffering from an ailment and he needed to be away from work to deal with it. But whether work was significantly contributing to the applicant’s ailment is not a matter which Dr Lean ever addresses.
It was clear by 24 September 2019 that a significant period of leave was going to be required.[37] The applicant’s supervisors continued to contact him with work questions while he was on leave.[38]
[37] AAT [163].
[38] Applicant 16[7].
On 30 January 2020 Dr Lean concluded that the applicant suffered from major depression and anxiety as well as ADHD – inattentive type, and that the applicant’s condition of depression and anxiety had deteriorated ‘over recent time’. He was certified unfit for work until ‘around Easter 2020’ from which time he would be fit to work 3 days, initially from home.’
The applicant being absent from work did not result in any significant improvement in his symptoms.
In February 2020 [XA] took steps to get the applicant working again on limited hours and from home.[39] That appears to be consistent with medical advice.[40]
[39] AAT [43].
[40] Applicant 17[2].
On 2 March 2020 the applicant was certified fit for 3-5 hours per week with no capacity to attend meetings. He performed duties for a small number of hours between March 2020 and May 2020 but issues about returning to work remained. The restriction on him attending meetings was not observed by his employer and the applicant attended at least one meeting. This was a highly stressful experience for the applicant.
The applicant’s absence from work did not produce a resolution or reduction in his symptoms. In relation to the prospect of returning to work he reported ‘I’m getting overly stressed/anxious about work and the idea of having to deal with people’. He advised Dr Lean:
I still feel really overwhelmed whenever I think about work. It feels like lack of control – like a snowball that will catch me up in meaningless deadlines and fake relationships.
Anxiety other than work wasn’t too bad before, but I think things like being in a shopping centre are a little better now.
The applicant was recording notes about his mental state in this period. For example, in May 2020 he recorded:
Slightest stress and I’m more confused, depressed and anxious
Irritation 1: work: need to escape from interaction (fear of relationships)
Irritation 2: family: reminder and direct trigger of anxiety
Doing myself damage at work at the moment. [41]
[41] Hearing Bundle A3, 35. 4
The applicant’s reporting of anxiety at this point is associated with interactions with people both inside and outside of work. It is unclear whether work is harmful because he is required to interact when socially anxious or whether there is something more specific going on.
The applicant’s notes of an interaction with Dr Lean around this time also contain a reference that refers without context to ‘s36’. The applicant says this is a reference to section 36 of the SRC Act (the rehabilitation provision in that Act). It is accompanied by a note to ‘be careful’.[42] The applicant’s evidence is that he was warned by Dr Lean to be careful about disclosing a work connection and Dr Lean referred to the section 36 rehabilitation provisions of the SRC Act which could be used with section 29(3)(d) of the Public Service Act1999 (Cth) to end his employment. This, the applicant submits, is sufficient explanation for Dr Lean never overtly drawing a connection between the applicant’s condition and his employment.
[42] Ibid 13.
I am doubtful that the applicant is remembering the interaction accurately. At the point in time when the applicant had that meeting with Dr Lean, he had not made a claim for workers’ compensation and section 36 had no possible application to his circumstances. Indeed, the applicant gives convincing evidence that he had no idea that the SRC Act could have any relevance to his case until shortly before he made his claim. It does not make sense that Dr Lean would warn the applicant about something that could not possibly affect him. Other possibilities suggest themselves. It could for example be a reference to s 36 of the Mental Health Act 2015 (ACT), which deals with involuntary mental health assessments. I do not accept that the applicant accurately recalls statements by Dr Lean consistent with the applicant’s condition having been caused by work and encouraging him to deliberately conceal that connection in order to protect the applicant’s ongoing employment.
By the end of May 2020 the applicant decided that he could not continue to attend work. His last day of paid employment was 27 May 2020.
To support himself the applicant decided to apply for the disability support pension.
Ceasing work did not initially assist the applicant’s symptoms. The applicant’s worst month for high heart rate notifications was the month after he stopped work: June 2020.