Tervel and Comcare (Compensation)

[2019] AATA 1304

Tervel and Comcare (Compensation) [2019] AATA 1304 (28 May 2019)

Division:GENERAL DIVISION

File Number:           2016/2733

Re:Ms Evelina Tervel

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr P W Taylor SC, Senior Member

Date:28 May 2019

Place:Sydney

The 23 March 2016 decision under review is set aside. In substitution for that decision, the Tribunal decides that as at 1 September 2015 Ms Tervel continued to suffer a disease that had been materially contributed to by her employment. That disease therefore constituted an injury for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth). That injury resulted in incapacity for work up to at least 1 September 2015.

........................[sgd]..…..................

Mr P W Taylor SC, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – claim for medical expenses and incapacity payments in respect of Major Depressive Disorder – compensation claim made under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether applicant continues to suffer a “disease” materially contributed to by her employment – whether applicant has an ongoing incapacity for work as a result of her depressive condition – decision under review set aside and substituted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 20, 24, 27

CASES

Bromham and Comcare [2017] AATA 1515

Cheung v Administrative Appeals Tribunal [2009] FCA 241; 176 FCR 20

Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187

Goodricke and Comcare [2017] AATA 1249

Hocking and Australian Postal Corporation [2002] AATA 963

Hopkins and Comcare [2016] AATA 742

HSDR and Comcare [2017] AATA 779

Ilsley v Wattyl Australia Pty Ltd [1997] FCA 427; (1997) 144 ALR 510

Kavas and Comcare [2011] AATA 935

Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84

LYHH and Comcare [2017] AATA 1586

Prain and Comcare [2016] AATA 459

Shales and Commonwealth Bank of Australia [2017] AATA 1369

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253

Wiegand v Comcare Australia [2002] FCA 1464; (2002) 72 ALD 795

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

28 May 2019

1. Ms Tervel worked for the Child Support Agency within the Department of Human Services between April 2003 and October 2006.  During that time she suffered work related injuries - a shoulder strain injury (in May 2004) and later (in October 2006) a depressive disorder - that ultimately resulted in her ceasing work, and being assessed as unlikely to be able to return to work.

2. In a 27 October 2008 consent decision, this Tribunal:

   (a)affirmed Comcare’s 7 November 2007 decision that Ms Tervel had no continuing entitlement to compensation for either incapacity or medical expenses (under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) ss 16 & 19) in relation to the May 2004 shoulder and arm muscle strain injury; and

   (b)determined that Comcare was liable to pay Ms Tervel compensation (under SRC Act s 14) for an “injury” (specifically, a major depressive disorder that had been materially contributed to by her employment) that she suffered on 16 October 2006 (the date when she last attended work).

3. In July 2010 the Child Support Agency (CSA) terminated Ms Tervel’s employment. That decision was based on a 16 February 2010 report from Ms Tervel’s treating psychiatrist, Dr Mary-Anne Friend. Dr Friend opined that (i) Ms Tervel’s depressive condition had persisted since 2005, (ii) her symptoms were unlikely to resolve in the near future, and (iii) because of her ongoing psychiatric illness (and irrespective of any complaints of chronic pain) Ms Tervel was unlikely to be able to return to work in the foreseeable future.

4. Following the 2010 termination of Ms Tervel’s employment, and up until September 2015, Comcare continued to make compensation payments under SRC ss 16 and 20 in relation to Ms Tervel’s depressive disorder. But in a 1 September 2015 decision, Comcare denied it had any further compensation liability to Ms Tervel in relation to her depressive disorder. Comcare adhered to that refusal in the 23 March 2016 affirmation decision that is the subject of these review proceedings:- see paragraph 84 below.

   THE COMPETING CONTENTIONS

5. Comcare’s March 2016 affirmation decision principally relied on a 23 April 2015 report from Dr Michael Hong, a consultant psychiatrist. (I discuss Dr Hong’s report, and his evidence, later in these reasons:- see paragraphs 76 to 81 and 96 to 106 below). In its contentions statement, Comcare attributed to Dr Hong the view that Ms Tervel’s current condition (ie. at the time of his April 2015 report) was attributable to “chronic pain and physical injuries” and that (since the 1 September 2015 decision) they were no longer appropriately to be regarded as work related contributors to her condition. However, at the beginning of the review hearing, when asked to explain precisely what was meant by the terms “chronic pain” and “physical injuries”, Comcare said that they included “physical injuries that were previously accepted” as compensable. Although that explanation would tend to include the accepted October 2006 injury and to suggest it continued to contribute causally to Ms Tervel’s psychiatric disorder, Comcare’s position was that it did not, and that in the absence of such a continuing contribution her disorder had ceased to be compensable for the purposes of the SRC Act. Comcare’s contention relied on the decision and reasoning in Prain v Comcare [2017] FCAFC 143. In that case it had been held that the impact of the worker’s employment in materially contributing to an inherently time limited adjustment disorder had, over time, been “crowded out” by the causative impact of other factors unrelated to employment.

6. In advancing its contention, Comcare accepted that the March 2016 decision, if it were to be upheld in the review proceedings, required satisfaction that the material employment contribution recognised in the October 2008 Tribunal decision, had actually ceased. At least implicitly, Comcare accepted that the requisite satisfaction was unlikely to be able to be achieved unless subsequent events provided a sufficient evidentiary basis for such a conclusion:- see Hocking and Australian Postal Corporation [2002] AATA 963 at [15]-[18].

7. For her part, Ms Tervel submitted the October 2008 decision established that her depressive disorder constituted an “injury” for the purposes of the SRC Act, and that decision was not amenable to contradiction in the present proceedings. That submission is difficult to reconcile with the decision of the Full Court of the Federal Court of Australia in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253. In that case, 18 months after accepting Mr Hannaford had contracted a compensable disease, Comcare determined that his compensation entitlement had ceased. Ultimately the substantive basis for that decision was a finding that Mr Hannaford had never in fact contracted the disease. In rejecting the proposition that the initial liability acceptance decision could not be contradicted, Heerey J (at [8]) and Conti J (at [57]) said the following:

   [8] The text, structure and underlying policy of the SRC Act do not suggest that a determination under s 14 permanently enshrines every finding of fact on which the determination was based. Mr Hannaford’s case concedes that a reconsideration under s 62 (and AAT review of the making or declining of such reconsideration) of a s 14 determination would be available. This would necessarily include the reconsideration of any finding of fact. Section 62 reconsideration is not subject to any time limit. The argument then must be reduced to saying that Telstra (or the AAT on review) cannot do under, for example, a reconsideration of a s 16 determination exactly the same thing as it could under a s 14 determination. Such a degree of formalism, reminiscent of the old common law forms of action, does not fit well with a modern, practical statutory scheme for the compensation of injured workers.

   [57]  In my opinion, it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker … under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers’ compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) “[s]ubject to this Part …” are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.

8. Ms Tervel submitted that the decision in Telstra v Hannaford was distinguishable from the present case, because the October 2008 decision was a Tribunal decision, rather than a Comcare decision. But the suggested distinction does not address the real substance of the reasoning set out in the passages I have set out above and is, in any event, inconsistent with the subsequent Federal Court decision in Cheung v Administrative Appeals Tribunal [2009] FCA 241; 176 FCR 20. In that case Ms Cheung unsuccessfully complained that the Tribunal had failed to adhere to the factual basis of an earlier Tribunal decision in her favour. In rejecting the complaint Bennett J noted that, although the Tribunal should not generally allow relitigation of previously decided matters, they did not give rise to any binding estoppel. Her Honour said this:

   [54] The discretion to reopen an issue is not limited to circumstances where an applicant’s medical condition has changed. There is no such limitation in the SRC Act. The SRC Act is also silent on the use to be made of previous determinations, reconsideration decisions and Tribunal decisions. Ms Cheung submits that the discretion not to reopen issues determined by a previous Tribunal should be exercised where there has been no change in the medical condition of the applicant but only a new medical opinion in respect of that condition. That is a matter within the discretion of the determining authority and, later, the Tribunal. In this case, the 2008 Tribunal was aware of the 2001 Tribunal decision and the nature of the medical complaints with which it dealt. It was entitled to exercise its discretion to consider afresh the issue of Ms Cheung’s injuries and the liability said to flow from those injuries.

   …

   [56] The Tribunal is not excluded from revisiting and making its own findings on questions of fact that have been the subject of findings by a prior Tribunal in an application to review a different reviewable decision. Until the subsequent decision is made, the earlier decision remains in operation.

9. Ms Tervel also said that the satisfaction required to affirm the March 2016 decision could not be achieved by reliance on evidence that did no more than cast doubt on the existence of a continuing causal contribution:- see Bromham and Comcare [2017] AATA 1515 at [41]; Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187 at [63]-[68]. In that context, Ms Tervel submitted that once she had suffered a relevant “injury” then under SRC Act s 14 (although perhaps, more accurately, SRC Act ss 16 & 20:- seeLees v Comcare [1999] FCA 753; (1999) 56 ALD 84 at [27] & [34]) she had an ongoing entitlement to compensation where that injury “results in … incapacity”. The “results in” / “as a result of” / “in relation to” criteria in those various provisions required only that the injury remained an effective, rather than the sole or dominant, cause of current incapacity (or requirement for treatment). They were criteria that could be satisfied even if other factors had aggravated the effect or duration of the original injury:- Ilsley v Wattyl Australia Pty Ltd [1997] FCA 427; (1997) 75 FCR 1; (1997) 144 ALR 510 at [515]; Kavas and Comcare [2011] AATA 935 at [41]-[43]. That latter proposition is consistent with SRC Act s 7(6) which requires a work incapacity to be taken to have resulted from a disease where, but for the disease, the incapacity would either not have occurred, would have occurred significantly later than it did, or would have been significantly less.

10. In its 31 October 2017 statement of issues, Comcare also formulated the matter to be determined in the review proceedings as whether the accepted October 2006 injury had “resulted in” current incapacity or treatment need, or whether its effect had ceased.  However, in its July 2018 outline submissions, Comcare contended that the causation standard required to set aside the March 2016 decision, was satisfaction that the accepted injury contributed to a “material degree” in Ms Tervel’s ongoing incapacity.  Comcare’s latter submission is consistent with propositions expressed in some other decisions (see Goodricke and Comcare [2017] AATA 1249 at [8], [53] & [54]; HSDR and Comcare [2017] AATA 779 at [37]; LYHH and Comcare [2017] AATA 1586 at [22]-[23]. But the submission risks conflating several distinct factual scenarios. If the factual issue involved is whether or not the originally accepted disease was in fact contributed to by employment, the contribution standard required is, necessarily, one of materiality (under the pre 2007 SRC Act provisions). If the issue is one where the allegedly incapacitating ailment / disease was contracted after the cessation of employment, and allegedly as a result of the effects of an earlier employment related “injury”, again the causative threshold necessary to characterise the “disease” as an injury would require satisfaction that the employment had made a material contribution:- seeComcare v Power [2015] FCA 1502; (2015) 238 FCR 187 at [74]-[83]. However, if the issue in the proceedings is simply whether the accepted, and subsisting, disease condition continues to have an incapacitating effect, there is no explicit materiality requirement:- see HSDR and Comcare supra at [40]-[43]. 

11. If it were necessary to resolve the apparent tension between the “as a result of” criterion and the “material contribution” proposition in dealing with Comcare’s March 2016 cessation of entitlement decision, I would favour the view that the “material contribution” criterion is relevant to the classification of a disease as a compensable injury for the purposes of the (pre 2007 version of) the SRC Act. But it is not the relevant criterion in determining whether such an injury results in contemporary incapacity or treatment need.  However, it is not in my view necessary to reach a concluded view on that question in resolving the present proceedings. As will appear later in these reasons, the depressive disorder that incapacitated Ms Tervel at the time of the October 2008 decision never resolved, and continued to incapacitate her, right up until the time of the March 2016 decision. Its effect, in that regard, was both actual and material. Characterisation of employment as a material contribution to a disease (or incapacity) does not require satisfaction that it was a major or dominant cause, nor that there was no “non-employment” contribution:- Wiegand v Comcare Australia [2002] FCA 1464; (2002) 72 ALD 795 at [23] & [34]; Hopkins and Comcare [2016] AATA 742 at [196]. Even if it be the case (as I consider the evidence establishes) that Ms Tervel’s depressive condition arose in 2005 / 2006 out of her erroneous perception of the significance of the physical symptoms she suffered in relation to her workplace equipment and activities, the evidence comfortably establishes that she had actually had those difficulties. Accordingly, her depressive condition nevertheless may, and should, be regarded as having been materially contributed to by her employment:- Wiegand v Comcare Australia supra – at [24]-[26]. Ms Tervel’s circumstances, where her disorder arose after, and substantially because of, her reaction to those difficulties, are distinguishable from those in cases where the claimant worker had pre-existing depressive conditions or pain syndromes, and where the compensable injury was either in the nature of an aggravation of those conditions or characterised as an “adjustment disorder” (i.e. an inherently time limited disorder):- see LYHH and Comcare [2017] AATA 1586, Goodricke and Comcare [2017] AATA 1249 and Prain and Comcare [2016] AATA 459.

    THE 2004 TO 2006 BACKGROUND

12. It is necessary to outline the underlying sequence of events, before further addressing the parties competing contentions in relation to the March 2016 decision.

13. May 2003 to July 2004:- Ms Tervel began to experience back and neck pain at work.  During the following months various modifications were made to her work station equipment.  Despite those changes she complained that her neck, shoulder and back pain had become worse, and that she had begun to suffer from headaches. In July 2004 Ms Tervel lodged, and Comcare accepted, a claim relating to her shoulder strain injury.  However, she continued full-time work until January 2005.

14. January to December 2005:- In early January 2005, as a result of her ongoing neck and shoulder pain, Ms Tervel reduced her work to three days a week. She described herself as having become depressed and anxious as a result of her pain. But, she embarked on an eleven week conditioning program involving supervised and unsupervised exercise therapy. After completing that program, at the end of March 2005, she increased her work attendance to 4 days a week.  When she was re-assessed in early June 2005, Ms Tervel described her psychological state as improved, but fragile. (The history set out in later reports indicates Ms Tervel undertook some brief psychological counselling in July 2005).  Comcare’s rehabilitation consultant recommended that Ms Tervel remain on her reduced working hours for another 8 weeks, and be assessed by a clinical psychologist, with a view to undertaking cognitive behavioural therapy.

15. In August 2005 Ms Tervel was separately assessed by an occupational physician and a clinical psychologist. The physician reported that Ms Tervel had no ongoing physical injury, and that the principal limitation on her work ability was her perception of the severity and significance of her pain. The clinical psychologist (Ms Campbell) expressed a similar view. It was that Ms Tervel had a chronic pain problem, which satisfied the diagnostic criteria for “Pain Disorder with Psychological Factors”, and may have been contributed to by aspects of her underlying personality.  She opined that Ms Tervel would likely benefit from pain management therapy. 

16. Between late September and early November 2005, Ms Tervel (i) was assessed as capable of returning to full-time work, (ii) attended a number of cognitive behavioural therapy sessions (although the counsellor reported that Ms Tervel was dismissive of their benefit), and (iii) was required to undertake a rehabilitation program that contemplated her return to full time work by early December 2005. 

1. At the end of December 2005 she had completed three weeks of full time work, without any reported difficulty. And although Ms Tervel’s GP reported on 10 January 2006 that she still continued to have shoulder aches and pains and occasional headaches, they had reduced to an acceptable level and she was able “to perform her pre-injury duties comfortably”.

2. February to October 2006:- During the early part of February 2006 Ms Tervel reported a flare up of her neck pain and was certified as unfit for work for several days. By late February 2006 she had returned to working four days a week, but was still continuing to experience pain in her neck, right shoulder and upper back.

3. In the course of an assessment by an occupational physician (Dr Virginia Pascall) on 20 March 2006, Ms Tervel reported that she had begun to have increased difficulty in managing her pain. She was experiencing pain in the shoulder blades that progressed up to her neck and resulted in bad headaches. The headaches were so bad that she was unable to move or even talk. She reported that she had become depressed.  In her 12 April 2006 report Dr Pascall expressed concern that Ms Tervel’s anxiety about her pain symptoms was a barrier to her recovery and had itself led to her being substantially depressed. She speculated that Ms Tervel’s anxiety and depression appeared to be related to an underlying personality trait, and recommended a referral to a psychologist.  Dr Pascall considered that Ms Tervel was not then capable of returning to full-time work and recommended that she reduce her daily work hours, but spread them over five days. That recommendation was implemented in a return to work program, formulated at the beginning of May 2006.

4. The recommended psychologist referral and assessment occurred in mid-June 2006.  The psychologist reported that Ms Tervel presented as “moderately anxious”, with “moderate to severe depression”, and recommended a multi session course of psychological counselling.   Prior to that recommendation being implemented, there were various reports suggesting that Ms Tervel’s condition had regressed, including a report of occasions in late June and early July 2006 when Ms Tervel had become distressed at work, because of her pain. 

5. As a result of those reported incidents, Ms Tervel was again assessed by Dr Pascall.  Her report of 26 July 2006 included the observation that, “in terms of her physical injuries”, Ms Tervel’s shoulder and neck problem had almost resolved, and was quite minor.  A more significant problem was that she had developed sensitivity in the nature of a Complex Regional Pain Syndrome. Dr Pascall considered that Ms Tervel’s anxiety stimulated physical responses in her arms. This included heightened levels of perceived pain and that in turn escalated her anxiety. Dr Pascall opined that Ms Tervel could not yet return to full-time work, because she would likely rapidly tense up her shoulder and arm muscles and would very soon experience a significant exacerbation of pain. She explained that, in her opinion, Ms Tervel’s “primary attitudinal factors are controlled by her anxiety and the consequent depression that ensues because she cannot control the perception of pain and other symptoms in her body”. In the context of that opinion, she alluded to the possibility that aspects of Ms Tervel’s underlying personality traits were contributing to her inability to control her pain sensitivity. No doubt for both of those reasons, Dr Pascall recommended that Ms Tervel continue with the previously recommended psychological counselling. Dr Pascall concluded that Ms Tervel should be able to undertake a graduated return to work plan (progressing from her then current five days a week, six hours a day regime) with a view to returning to normal full-time hours.

6. Ms Tervel reported that her pain symptoms had somewhat improved during the latter part of July and early August 2006.  She continued working under her six hour a day regime until late August 2006, when she took three weeks recreation leave.  On her return from leave she reported feeling well, and her general practitioner increased her work hours, under her return to work plan, to 7 hours a day. But within a few days of embarking on that stage of her return to work plan Ms Tervel complained of increased pain and significant related distress.  She had various days off work in the latter part of September, and again in early October 2006. These reported difficulties led to a further psychologist’s assessment and report.

7. The 11 October 2006 psychologist’s report presented an assessment of Ms Tervel during her participation in cognitive behaviour pain management sessions during July and August 2006. The report contained a conclusion that Ms Tervel’s current symptoms (apparently as at the end of August 2006) satisfied the diagnostic criteria for a “Generalised Anxiety Disorder”. The history recited in the report attributed to Ms Tervel an acknowledgement that she had been experiencing excessive anxiety and worry for a number of years before she started working at the CSA.  Her current condition, where she presented as pain focussed, had been aggravated (although the more accurate term would be “contributed to”) by her employment (specifically a perceived lack of support), the workers compensation process related to her neck and shoulder injury claim and personal issues, including a recent separation from her husband. The report noted that, despite her difficulties, Ms Tervel had been working only about 30 minutes less than her pre-injury hours, and expressed the view that she had good prospects of returning to full time work, whilst at the same time being likely to benefit from continued pain management therapy and anti-depressant medication.

8. Two days after that optimistic prognosis, Ms Tervel participated in a meeting about her return to work plan, and the duties she would undertake.  Prior to the meeting she had submitted a recreation leave application, and this was a matter she raised during the meeting, apparently attaching some importance to it. The following Monday Ms Tervel was told that her leave application had been refused. She was described as having become “very distressed” at the refusal – a reaction perhaps consistent with the comment (attributed to her in the 11 October 2006 psychologist’s report) that she felt unsupported at work.  She consulted her general practitioner later the same day.  He certified Ms Tervel as unfit to work for the rest of the month. A fortnight later, he issued a certificate of unfitness for a further month, and thereafter Ms Tervel did not in fact ever return to work.

9. The comment in the 26 July 2006 physician’s report (that Ms Tervel’s neck and shoulder problem had resolved to being “quite minor) was complemented by two later reports - the 7 November 2006 report of another occupational physician (Dr Chase), and an 11 December 2006 report of an orthopaedic surgeon.  The latter report recorded physical examination findings that Ms Tervel had a full range of movement, and no symptoms of injury or physical restriction.  Dr Chase’s report opined that Ms Tervel was physically able to perform her usual work. Any barriers to her return to work arose from her “pain behaviours and anxiety”. That observation complemented the psychologist’s October 2006 opinion that Ms Tervel suffered from a clinically significant “Generalised Anxiety Disorder”.

10. In relation to that matter, the 7 November 2006 report contradicted the optimistic prognosis contained in the earlier psychologist’s report of 11 October 2006.  Dr Chase’s report noted that during the course of the examination (on 3 November 2006), Ms Tervel had made it quite clear she had no intention of returning to work at the CSA. He characterised Ms Tervel as having rejected medication and pain management therapy, and doubted that any future interventions were likely to be successful in getting her back to full time work.

11. November 2006:- In mid-November 2006, Ms Tervel formally requested that her diagnosed anxiety / depressive disorder be regarded as having developed as a secondary consequence of the May 2004 injury. She claimed to have suffered from anxiety and depression since the beginning of 2005, and attributed this to the “chronic pain accompanying, her neck and shoulder injury condition”.

    THE 2007 CLAIM DECISIONS

12. By about mid-April 2007 Ms Tervel’s general practitioner had certified her as fit to return to work three days a week. In a further occupational physician’s report by Dr Lowy that Comcare obtained following his examination of Ms Tervel on 12 April 2007, she was described as wanting to return to work but uncertain about her ability to cope. The physician (Dr Lowy) attributed to her a description of her physical symptoms as having been minimal, and not requiring any medication, for several months. He reported a normal musculoskeletal system with no evidence of current soft tissue injury, and opined that she was fully fit to embark on a graded return to full-time work.  However, he also recorded that Ms Tervel was concerned about what might happen on her return to work, and Dr Lowy suggested she consult with her GP about the possibility of being referred for treatment for what he alluded to as her “propensity to nervous condition with depressive symptoms”.

13. Following that report Comcare wrote to Ms Tervel on 8 May 2007. The letter did two things. First of all it accepted the 11 October 2006 “Generalised Anxiety Disorder” diagnosis, but rejected that aspect of her claim on the basis that it had been contributed to by her dissatisfaction at not being given a work role more appropriate to her skills, and thus more challenging and satisfying.  Comcare characterised this as a failure to obtain a benefit, and regarded it as a causal reason that operated to exclude the claim, under the then definition of “injury” in the SRC Act.

14. The second thing Comcare did in the 8 May 2007 letter was to indicate to Ms Tervel the likely rejection of the neck and shoulder injury aspect of her claim, in relation to treatment expenses and incapacity for work (under SRC Act ss 16 & 19). The reason for this indication was, in reality, the combined effect of the April, July and November 2006 occupational physician’s reports, and the most recent (12 April 2007) report. The letter offered Ms Tervel an opportunity to provide further medical evidence to support that aspect of her claim.

15. Subsequently, in a 25 July 2007 decision, Comcare also rejected Ms Tervel’s neck / shoulder claim, on the basis that (having regard to the various reports of 7 November 2006, 11 December 2006 and April 2007) the injury had fully resolved.

16. Ms Tervel requested reconsideration of both the May and July 2007 decisions.  Comcare’s reconsideration decisions were subsequently evidenced in letters dated 7 and 13 November 2007. 

17. The 7 November 2007 decision letter addressed Ms Tervel’s neck and shoulder condition / injury. It relied on the essentially unanimous specialist views, expressed in the consultant physician’s reports of November 2006 and April 2007, as well as the orthopaedic surgeon’s report of 11 December 2006, that Ms Tervel had no current physical injury affecting her neck and shoulder. The adoption of these views led to the conclusion that the claim, in so far as it involved an asserted entitlement to ongoing compensation for treatment and incapacity, was rejected.

18. The 13 November 2007 letter addressed Ms Tervel’s claim that she had a compensable anxiety & depression condition.  By the time of this reconsideration decision Comcare had obtained a number of reports that addressed Ms Tervel’s psychological state. These reports included the following:-

    (a)12 April 2006:-  Dr Virginia Pascall, occupational physician

    (b)16 June 2006:- Liz Canli, registered psychologist

    (c)27 July 2006:- Dr Virginia Pascall, occupational physician

    (d)11 October 2006:- Liz Canli, registered psychologist

    (e)18 December 2006:- Dr Michael Prior, consultant psychiatrist

    (f)16 February 2007:- Liz Canli, registered psychologist

    (g)14 May 2007:- Dr Janelle Miller, psychiatrist.

19. Dr Pascall’s 12 April 2006 report was (as its date suggests) primarily concerned to assess the existence and extent of any injury that would account for Ms Tervel’s shoulder and neck pain. Dr Pascall noted the unremarkable findings in a December 2014 MRI examination, and the full range of painless neck movement Ms Tervel displayed on examination. She expressed concern that Ms Tervel had a significant mood disturbance (which she later described as anxiety that was “very high” and “a little out of control”) that was aggravating her problems. The nature of that aggravation was that Ms Tervel’s anxiety led her to “over interpret her body sensations as being indicative of injury” (rather than mere overworking). Dr Pascall contemplated the possibility that, unless appropriately addressed, Ms Tervel’s anxiety level could prove to be an insurmountable obstacle to her recovery.

20. The first of the Canli reports was in the nature of an initial psychological assessment, and was based on a two hour consultation with Ms Tervel on 1 June 2006.  After setting out details of Ms Tervel’s history, her self-reported symptoms, and the results of three “self-assessment” test tools she administered, Ms Canli described Ms Tervel’s presentation as “moderately anxious” with “moderate to severe depression”. She recommended Ms Tervel attend a number of psychological counselling sessions.

21. The second of the Canli reports was a summary of Ms Tervel’s presentation at, and participation in, the July and August 2006 counselling sessions Ms Canli had recommended.  In this report, after describing the substance of the matters covered in the counselling sessions, Ms Canli opined that Ms Tervel satisfied the DSM-IV diagnostic criteria for Generalised Anxiety Disorder.  However, Ms Canli also attributed to Ms Tervel an imprecise history of having experienced excessive anxiety and worry for “a number of years”. As a result of that information, Ms Canli ventured the diffident opinion that Ms Tervel probably had some pre-existing condition. Despite expressing that probability, Ms Canli nevertheless considered that Ms Tervel’s condition had been aggravated (again the context suggests that the more accurate expression would be “contributed to”) by her CSA employment.

22. Dr Prior’s 18 December 2006 report seems likely to have been commissioned by Comcare in response to Ms Canli’s recommendation (at the end of her October 2016 report) that Ms Tervel undergo a personality assessment “to further determine whether her condition is also caused by her personality traits”.  In his report Dr Prior recorded Ms Tervel’s history, including her denials of any past history of depression, anxiety or dysthymia. In the light of those denials he particularly noted her recollection that her “affective” symptoms had started about a year after she first began experiencing neck and shoulder pain (i.e. during 2005) and that her “anxiety” symptoms began about six months later, and gradually increased over time. In response to Dr Prior’s question as to why Ms Tervel had stopped work in October 2006, she responded that the reason was her increasing pain perception, and consequent increasing depression and anxiety. Dr Prior expressed the view that Ms Tervel had developed an Adjustment Disorder with Depressed and Anxious Mood as a result of her pain and physical limitations.  He considered that the adjustment disorder has been complicated by a Non-Melancholic Major Depressive Episode.  In relation to those disorders he went on to observe that they tended to occur “in individuals with significant obsessive / perfectionistic personality traits”. So far as Ms Tervel’s work capacity was concerned, Dr Prior considered that she was not fit for work, and was significantly affected by her depressed mood and anxiety symptoms. 

23. Ms Canli’s February 2007 report was essentially a reactive summary of Mr Tervel’s attendance at further counselling sessions. It specifically described Ms Tervel’s hostility towards the CSA as a result of the 13 October 2006 return to work meeting, and the refusal of her leave application. It also described Ms Tervel as “very angry” about the contents of the adverse 7 November 2006 consultant physician’s report. Ms Canli’s apparent surprise at the extent of Ms Tervel’s obvious hostility appears to underly the repetition of her previous recommendation – that Ms Tervel undergo a “psychological personality assessment”.

24. That recommendation, read in the light of Dr Prior’s comments, may also explain Comcare’s commissioning of Dr Miller’s 14 May 2007 report. Ms Tervel substantially repeated to Dr Miller the explanation she had given Dr Prior for leaving work in October 2016 – that her symptoms had become more severe in the months before she left the workplace, and she was anxious about the conditions and circumstances in which she would have been required to increase her return to work activities at that time. Dr Miller recorded that Ms Tervel was clearly anxious and depressed during the consultation.  She expressed the view that the most likely diagnosis for Ms Tervel’s condition was Major Depressive Episode with some melancholic features.  In the light of the history she had obtained Dr Miller considered that the condition probably had its onset in 2005, became severe in the months leading up to Ms Tervel’s workplace departure in October 2006, and had become chronic.  Dr Miller added that Ms Tervel’s persistent complaints of pain might be either a manifestation of her depressive illness or warrant the additional diagnosis of Pain Disorder with Contributory Physical and Psychological Factors. Dr Miller concluded that it was “reasonable” to attribute Ms Tervel’s depressive condition to her employment, despite the absence of any evidence of ongoing musculoskeletal pathology.

25. Perhaps rather surprisingly, Comcare’s 13 November 2007 decision did not refer to the psychiatric reports of either Dr Prior or Dr Miller.  Instead it relied principally on Ms Canli’s reports of 11 October 2006 and 6 February 2007. In so doing it applied essentially the same reasoning process as that involved in the 8 May 2007 decision. It accepted Ms Canli’s 11 October 2006 “Generalised Anxiety Order” diagnosis. But it also had regard to parts of Ms Canli’s 11 October 2006 report (where Mr Tervel had expressed frustration at not having been allocated to a more satisfying role within the CSA) and her 16 February report (where she had described Ms Tervel’s reaction to the 13 October 2006 return to work meeting). Comcare interpreted those passages as justifying the conclusion that an operative cause of Ms Tervel’s diagnosed condition was her failure “to obtain a promotion … or benefit in connection with” her employment. The effect of that conclusion was to preclude Ms Tervel’s condition from characterisation as a compensable “injury”, having regard to the then current SRC Act provisions.

    2008 - THE AAT REVIEW APPLICATION AND DECISION

26. On 25 January 2008 Ms Tervel lodged applications at the Tribunal to review Comcare’s 7 and 13 November 2007 decisions. The application relating to the 7 November 2007 decision was rather ambitious, given the contents of the April, July and November 2006 occupational physician’s reports, and the most recent (12 April 2007) report. 

27. On the other hand, my earlier description of the reports relied on, and the reasoning contained, in Comcare’s 13 November 2007 decision, suggests there was ample justification for the application to review that decision. In the following months, other information provided further justification.  That information included the following additional reports:- 

    (a)2 January 2008:-  Dr Kathryn Lovric, consultant psychiatrist

    (b)24 April 2008:-  Dr Burman, consultant psychiatrist

    (c)27 May 2008:-  Dr Clark, consultant psychiatrist

    (d)19 June 2008:-  Dr Virginia Pascall, occupational physician

    (e)9 August 2008:-  Dr Champion, rheumatologist

    (f)17 October 2009:-  Dr Anne-Marie Friend, consultant psychiatrist

1. In January 2008 Dr Lovric had been asked to assess Ms Tervel as a follow up to Dr Miller’s 16 May 2007 assessment, and Dr Miller’s opinion that Ms Tervel would likely be fit to undertake a graduated return to work by July or August 2007.  Dr Lovric recorded Ms Tervel’s denial of any past history of depression, anxiety or any other psychiatric symptoms, and noted Dr Miller’s previous diagnosis. Based on the history of Ms Tervel’s complaints, Dr Lovric opined that Ms Tervel had probably became frankly depressed in 2006 and developed symptoms that satisfied the Major Depressive Episode diagnostic criteria. Dr Lovric thought that Ms Tervel’s January 2007 presentation had significantly improved since May 2007, but she did not believe that Ms Tervel was yet ready to resume work.  She had suffered from a Major Depressive Disorder (that was in partial remission) and a Chronic Pain Disorder with problems associated with psychological factors that were difficult to assess. Dr Lovric perhaps lamented that both Ms Tervel’s (by then) long period off work, and her current perception of chronic pain, were poor prognostic factors in relation to the prospect of Ms Tervel’s recovery and return to work.

2. Dr Lovric’s report did not specifically venture into exploration of the factors that had causally contributed to Ms Tervel’s disorder.  They were discussed by Dr Burman in his 24 April 2008 report. The condensed history set out in Dr Burman’s report broadly reflected the timing and sequence of events set out in Ms Canli’s various reports (as referred to above). It was supplemented by Ms Tervel’s disclosure that, following Dr Miller’s report, she had begun to consult her own treating psychiatrist (Dr Friend) in about June 2007.  Since then she had periods when she was “often quite happy”. But she also had other periods where she had at least moderate, and often severe, depression. Dr Burman noted that Ms Tervel could not identify any non-work-related issues that would have made her unhappy. She told Dr Burman (contrary to the information contained in Ms Canli’s reports) that her marriage had been happy prior to her 2004 injury and subsequent disorder. Dr Burman considered that there were two appropriate diagnoses for Ms Tervel’s disorder (i) Major Depressive Episode, with Melancholic Features and (ii) Pain Disorder. In that regard, later in his report Dr Burman specifically accepted Dr Lovric’s opinion that Ms Tervel had been frankly depressed in 2006 and then developed the symptoms that satisfied the Major Depressive Episode diagnostic criteria. 

3. In relation to the cause of Ms Tervel’s disorder, Dr Burman acknowledged that there was no “clear cut evidence” that Ms Tervel had a relevant pre-existing condition. But he opined that her pain syndrome had taken hold after “a relatively small environmental stimulus” and he thought the onset of her disorder could therefore only be reasonably explained by some underlying “constitutional tendency”. Dr Burman noted various apparent inaccuracies and inconsistencies in aspects of Ms Tervel’s history. He said those matters made it “very difficult to be certain of the features of the onset of this illness”. His ultimate view, which he described as having been reached “on balance” was that some underlying psychological / psychiatric illness “or pre-disposition to” such an illness (and not her CSA employment) was the cause of her diagnosed disorder. He considered it was “possible” that “she had some of the criteria of this illness” when she started to complain of pains in relation to her neck and shoulder in the early part of 2004.

4. Dr Burman’s diffident views about the causal contribution of Ms Tervel’s employment to her depressive disorder were substantially contradicted by those of Drs Clark and Pascall.  Dr Clark, a consultant forensic psychiatrist retained by Ms Tervel’s legal representative, provided two reports in 2008. Only one of them (a 27 May 2008 report) was in evidence.  That report was confined to an assessment of Ms Tervel’s “whole person impairment” and was clearly a complement to his (unavailable) principal report. In the 27 May 2008 report, Dr Clark described Ms Tervel’s diagnosed disorder as “Severe Depression”. (I assume that was the diagnosis recorded in Dr Clark’s other 2008 report, and that it was based on substantially the same history as that recorded in Dr Burman’s report).  Dr Clark went on to state that her disorder was “primarily” psychological (i.e. unaccompanied by an underlying physical pathology), had reached the stage of “maximal medical improvement” and had occurred in an individual whose history provided no evidence of any pre-existing psychological disorder.

5. Dr Pascall assessed Ms Tervel in mid May 2008. At the time, Dr Pascall was aware of Dr Prior’s “Adjustment Disorder” diagnosis, and gave careful consideration to Dr Burman’s report. She disagreed with the former, but agreed with both Dr Burman’s diagnosis, and his impression that Ms Tervel had some underlying predisposition towards a psychological disorder. But in a very long and thorough report (of 19 June 2008) she ultimately expressed three significant conclusions. The first was to the effect that Ms Tervel’s anxiety and depression disorder had probably become the major component of her difficulties by late December 2004, was likely a significant component of her presentation in August 2005 and had become readily apparent by June 2006 (when Dr Pascall first saw Ms Tervel). The second conclusion was that there was no clear evidence Ms Tervel had suffered from any depressive disorder prior to her CSA employment. The third conclusion was that, notwithstanding any predisposition Ms Tervel may have had towards the psychological disorder that developed (including matrimonial discord that Ms Tervel had reported as having existed for many years prior to her CSA employment) aspects of her employment at CSA had contributed to her disorder, and her psychiatric disorder could not be regarded as a new condition that superseded her original musculoskeletal complaint. Those factors included (i) the physical problems she initially encountered, which Dr Pascall regarded Ms Tervel as having “rationalised” into being the reason for her ongoing difficulties, and (ii) the stressful nature of the work in which she had been involved. 

6. Dr Champion was a rheumatologist who had also been retained by Ms Tervel’s legal advisers. Like Dr Clark, he appears to have provided two reports, but only one of  the reports was in evidence in the review proceedings. Nevertheless, that 9 August 2008 report readily reveals the substance of his opinion about the causal contribution of Ms Tervel’s CSA work to her psychiatric disorder.  First of all he dismissed Dr Burman’s view (that Ms Tervel’s disorder was not relevantly work related) as essentially speculative.  Second, he discussed Dr Pascall’s long report of June 2008. He characterised Dr Pascall as having inappropriately emphasised psychological rather than physical factors, and ultimately attributed to her the view that Ms Tervel’s work related condition had ceased.  Dr Champion’s understanding of the real thrust of Dr Pascall’s report was, in my view, inaccurate.  Dr Pascall had concluded that Ms Tervel’s actual physical injury had ceased.  There is very little evidence (indeed none in the contemporaneous expert evidence) to support a contrary view. Dr Champion implicitly accepted that reality when he conceded that Dr Pascall’s “hypothesis” regarding Ms Tervel’s “somatisation” of her pain complaints to the workplace conditions was “a very difficult hypothesis to support (or refute for that matter)”.  The more important point to note is that Dr Pascall did not in fact conclude that Ms Tervel’s disorder was unrelated to her work. Indeed her conclusion - that the disorder was an outgrowth from, and not a matter that superseded, the original musculoskeletal injury - is quite inconsistent with such a conclusion.  The correct position is, as it seems to me, that both Drs Pascall and Champion agreed (though apparently for significantly different reasons) that Ms Tervel’s work conditions (and more specifically, their effect in causing her neck and shoulder pain) were an operative cause of her psychological / psychiatric disorder.

7. On 17 October 2008, Dr Anne Marie Friend, the psychiatrist Ms Tervel had been regularly consulting with since about mid-2007, provided a very brief report. In that report she recorded having been treating Ms Tervel for “major depressive disorder” and opined that Ms Tervel’s ongoing symptoms were significant enough to cause her to be unfit to return to work.

8. It can readily be concluded that the 27 October 2008 consent decision (see paragraph 2 above) reflected Comcare’s considered evaluation of the totality of the then available evidence, including the comprehensive and considered reports of a significant number of medical specialists. Prior to the additional reports that were obtained in the first half of 2008, Comcare had (at least implicitly) accepted that Ms Tervel had a significant psychological / psychiatric disorder and that it had been causally contributed to by her CSA work, specifically the circumstance relating to her May 2004 claim.  In 2007 Comcare had rejected Ms Tervel’s November 2006 disorder claim solely on the basis that it had also been contributed to by her failure to obtain a benefit in October 2006. The detailed history so comprehensively set out in the reports of Drs Lovric and Pascall, particularly in Dr Pascall’s June 2008 report, tended to establish that Ms Tervel’s psychological disorder have been established well before the contentious October 2006 return to work meeting, and removed the basis for Comcare’s previous refusal decisions.

9. A few days after the consent decision, Dr Lovric provided a further report assessing Ms Tervel’s fitness for work. A large part of Dr Lovric’s 5 November 2008 report set out Ms Tervel’s account of her visit to Bulgaria in mid-2008, the hospital treatment she received there (including a change of antidepressant medication and a consequential improvement in her mood), and her reported decline since returning to Australia. However, Dr Lovric noted that Ms Tervel (i) had consulted Dr Friend only once since June 2008, (ii) saw her psychologist once a month (iii) reported fluctuating levels of pain about three times a week, but for which she typically took no analgesic, and (iv) was not motivated to return to work. Dr Lovric commented that Ms Tervel presented as not apparently depressed and demonstrating a range of appropriate affects. Dr Lovric thought Ms Tervel was significantly downplaying the positive mood improvement that she had experienced with her changed anti-depressant medication, did not believe that Ms Tervel was currently as depressed as she asserted, thought she was exaggerating her current symptomatology, and characterised her as not being motivated to return to work. Nevertheless, Dr Lovric expressed the view that Ms Tervel was “quite entrenched in her sick role”, and thought it extremely unlikely her symptoms were going to remit to the point where she would ever be able to return to work. 

   2009 & 2010 - EVENTS LEADING TO EMPLOYMENT TERMINATION

10. In April 2009 Ms Tervel lodged claims for lump sum compensation for permanent impairment arising from her anxiety and depression disorder and from an injury that was inconsistently referred to as a “neck and back injury” and a “cervical spine injury”.   Unsurprisingly, in view of the October 2008 consent decision (and the medical evidence which no doubt influenced the decision), in early June 2009 Comcare rejected the permanent impairment claim in so far as it related to Ms Tervel’s accepted “neck and back injury” and her (asserted, but unaccepted) “cervical spine injury”. Comcare adhered to that rejection in a 9 December 2009 reconsideration decision.

11. In considering the impairment claim relating to Ms Tervel’s depressive condition, Comcare commissioned a report from another psychiatrist, Dr Anne-Marie Rees. Comcare provided her with many of the medical reports it had previously obtained, but not the psychiatric assessment reports of Dr Lovric, Dr Miller or Dr Burman. Neither did Comcare provide Dr Rees with Dr Pascall’s comprehensive report of 19 June 2008.

12. Dr Rees interviewed Ms Tervel on 26 June 2009 and provided a report dated 6 July 2009.  In that report Dr Rees noted suggestions in earlier reports that Ms Tervel had some degree of pre-employment anxiety. But, relying on the account she had obtained from Ms Tervel during their interview, she had no information to confirm that suggestion or evidence that Ms Tervel had suffered any childhood trauma. Both of those were matters that Dr Rees expected would have been readily apparent if the suggestion of pre-existing anxiety had been justified.

13. In relation to Ms Tervel’s current diagnosis, work capacity and degree of permanent impairment, Dr Rees expressed definite conclusions. She agreed that Ms Tervel’s disorder satisfied at least the diagnostic criteria for Major Depressive Disorder and perhaps also separate Anxiety and Chronic Pain Disorders. She regarded Ms Tervel as having no work capacity and a 20% “whole person” impairment. Dr Rees ultimately expressed a similarly clear conclusion that Ms Tervel’s disorder(s) were work related, because they were triggered by “the problems with the ergonomics of her work station”.  The matters that troubled Dr Rees were apprehensions about the accuracy of Ms Tervel’s claims (at one point in her report she alluded to possible “malingering”) and the extent to which Ms Tervel’s condition was being “perpetuated” by factors unrelated to her employment.  Dr Rees described it as a “very complex case” and expressed the view that the chronicity of Ms Tervel’s disorder was “quite unexplainable”, given her view that Ms Tervel’s CSA employment was no longer an ongoing factor that was currently contributing to her condition.  Nevertheless, she characterised Ms Tervel’s mood disorder as a chronic condition that had become “entrenched”.

14. The nuanced views expressed in Dr Rees’ 6 July 2009 report (that employment was not a currently contributing factor to Ms Tervel’s disorder, but that her current condition was not different from her original disorder) were the subject of a clarification request by Comcare.  That request invited Dr Rees to express a view as to whether the degree of impairment attributable to Ms Tervel’s employment would be more accurately addressed with regard to the contents of Ms Canli’s June 2006 report, rather than Ms Tervel’s presentation in mid-2009.  In her 7 August 2009 supplementary report Dr Rees rejected that suggestion. She expressed the view that Ms Tervel’s worsened condition as at 2009 was simply consistent with the chronic nature of her disorder, and that it was inherently likely her level of functioning would deteriorate over time. 

15. It was in the context of these reports that in September 2009 Comcare accepted Ms Tervel’s claim for lump sum impairment compensation (under SRC Act ss 24 & 27) relating to her depressive disorder. That decision involved a determination that Ms Tervel’s depressive disorder involved a 20% “whole person impairment. The determination resulted in Ms Tervel being awarded compensation totalling $59,850.

16. Three months later Comcare renewed its attempts to ascertain Ms Tervel’s ability to return to work, and arranged for a further assessment by Dr Rees. That assessment occurred on 14 December 2009, three weeks after Ms Tervel gave birth to her son, and a day before her treating psychiatrist (Dr Friend) had arranged for her hospitalisation in a mother and baby psychiatric unit. The assessment was the subject of Dr Rees’ 21 December 2009 report to the CSA. At the outset of the report Dr Rees recorded that Ms Tervel presented her with Dr Friend’s most recent (8 December 2009) report, and her opinion that Ms Tervel was “significantly unwell”. Later in the report Dr Rees recounted Ms Tervel’s recent history of (i) having had continued problems, (ii) currently feeling both desperate and guilty about the birth of her son, (iii) significant weight gain, and (iv) cessation of anti-depressant medication (at least since the birth). Dr Rees described Ms Tervel’s presentation as slightly dishevelled, severely depressed and apparently “quite hopeless”.

17. Dr Rees noted that whilst Ms Tervel denied any previous psychiatric illness or personality vulnerability, Ms Canli’s 11 October 2006 report (see paragraph 37 above), had opined that the contrary was the probable reality. Dr Rees nevertheless described Ms Tervel’s current condition (which she again diagnosed as a Major Depressive Episode and Chronic Pain Disorder) as having had its onset during Ms Tervel’s CSA employment.  Ms Tervel’s currently severe depression was primarily related to the stresses of the peri-natal period, but her depressive illness had been a chronic condition for several years prior to 2006 and was likely to continue long term.  Dr Rees thought that Ms Tervel was currently unfit to return to work, and it was very unlikely that she would be able to do so at any time within the next few years. 

18. In the light of that report, in January 2010 the Child Support Agency began the process of terminating Ms Tervel’s employment because of her ongoing incapacity. First of all, it wrote to Comcare and summarised the history of Ms Tervel’s conditions, and the many attempts to secure her return to work.  In that history the CSA pointed out (i) Ms Tervel’s lack of success in being able to implement the cognitive behavioural therapy treatment recommendations that had been made as far back as 2005, and (ii) Dr Miller’s 14 May 2007 opinion that, even if Ms Tervel’s then current depression were to respond to treatment and she went into remission, she would be at increased risk of a depressive relapse, particularly during periods of increased personal stress. Secondly, the CSA obtained a comprehensive report from Ms Tervel’s treating psychologist, Dr Friend.

19. In her 16 February 2010 report Dr Friend said she had first been consulted by Ms Tervel in June 2007 with complaints of persistent depression since 2003, and neck and back pain she attributed to prolonged periods sitting at a computer. Her pain symptoms had become worse over time and she had experienced various related symptoms - insomnia, anxiety with panic attacks, and palpitations. Dr Friend recorded her initial diagnosis of Major Depressive Disorder with melancholic features. She then briefly outlined various aspects of her later dealings with Ms Tervel. She recorded that Ms Tervel had always denied any pre 2003 experience of depression. She specifically referred to Ms Tervel’s February 2008 visit to her family in Bulgaria.  Prior to the trip Ms Tervel had put on 26 kg in weight and was taking anti-depressants daily.  Whilst she was away she obtained some psychiatric treatment and her mood improved, but her depression had immediately recurred after her return. By the time of Ms Tervel’s October 2008 consultation with Dr Friend, her condition was much the same as it had been previously. 

20. In the light of that history, Dr Friend considered that Ms Tervel continued to experience symptoms of Major Depressive Disorder, and was likely to remain depressed and anxious.  Dr Friend considered that Ms Tervel was not capable of functioning in her previous work role.  She thought that Ms Tervel’s psychiatric illness was, in itself, so incapacitating that she was not able to return to work, irrespective of any chronic pain. Dr Friend said Ms Tervel would not be able to return to work in the foreseeable future and she had significant doubts that she would ever be able to return to work.

21. Having considered Ms Tervel’s rehabilitation history, and the most recent medical reports, Comcare indicated its support for Ms Tervel’s medical retirement.  CSA then wrote to the Public Service superannuation fund trustee and outlined the basis on which it was seeking agreement for Ms Tervel’s invalidity retirement. That letter provided a comprehensive overview of Ms Tervel’s work and attempted rehabilitation history. It placed particular reliance on Dr Friend’s 16 February 2010 report, and attached no real significance to (i) Dr Lovric’s November 2008 scepticism of Mr Tervel’s account of her symptoms, (ii) Ms Canli’s suggestion that Ms Tervel likely had some pre-employment condition, or (iii) the contribution of postnatal stresses to the apparent severity of Ms Tervel’s condition after November 2009. Subsequently, the CSA terminated Ms Tervel’s employment, with effect from 1 July 2010. 

    2011 TO DECEMBER 2014

1. In late 2011 or early 2012 Ms Tervel’s husband lost his job, and subsequently developed severe depression. That development, against the background of Ms Tervel’s own depressive condition, strained their relationship, to the point where, around August 2012 they decided to separate. (However, they continued to cohabit until August 2014).   Sometime around mid-2012 Ms Tervel was diagnosed as suffering from both chronic fatigue syndrome and fibromyalgia. The latter condition being one that she described as additional to the “chronic pain syndrome” that had affected her “for the last 10 years”. 

2. Following the initial chronic fatigue syndrome diagnosis Ms Tervel was assessed and treated at the UNSW Fatigue Clinic. That fact is attested to in a 10 September 2012 letter from her treating psychologist, Dr Robinson. In the letter Dr Robinson reported that although Ms Tervel’s level of depression had improved, the combined effect of her recent diagnosis, marital separation and financial difficulties had been to raise her stress to an extremely high level, and necessitate ongoing assistance with childcare, especially given her son’s behavioural difficulties. (By May 2013 her then three and half year old son had been diagnosed with Global Developmental Delay). 

3. A few days later, on 24 September 2012, Comcare re-determined the amount of Ms Tervel’s ongoing injury compensation entitlement. A consequence of that decision was Comcare’s claim to recover what it calculated as an $87,584 overpayment. Ms Tervel eventually responded to that claim in a submission she sent to Comcare in late May 2013. Part of that response included a report from Professor Andrew Lloyd. He was an infectious diseases consultant at the Prince of Wales Hospital, and his 11 March 2003 report summarised his assessment of the significance of her chronic fatigue syndrome and fibromyalgia diagnoses. Professor Lloyd expressed the view that Ms Tervel’s “fibromyalgia” was in fact a reasonably appropriate label for the chronic pain syndrome that had affected Ms Tervel from “approximately 2003”. In that sense, he clearly did not regard it as a new or supervening condition. In relation to the chronic fatigue syndrome, Professor Lloyd took from Ms Tervel’s history an understanding that she had first noticed the onset of “prominent fatigue” since around 2010 / 2011. He recorded her confidence that this fatigue was not “a manifestation of worsened pain control, nor of worsened mood disorder”. Against that background Professor Lloyd noted that Ms Tervel’s history was complex, but expressed the view that her chronic fatigue syndrome was a separate condition “superimposed on the background of chronic pain and disorder”. He advised a four point management/treatment strategy involving (i) analgesia to control her pain symptoms, (ii) good sleep hygiene (no daytime naps), (iii) psychological intervention to assist in pragmatic management of her mood disorder, and (iv) pacing her activities so as to recognise and avoid crossing her fatigue threshold.

4. In her May 2013 submission letter to Comcare, in addition to providing Professor Lloyd’s report, Ms Tervel outlined her husband’s changed circumstances and reported that their relationship had recently become “particularly challenging”. She described the effort and expense involved in addressing her son’s condition, and the impact of what she described as “long standing severe depression and anxiety”, a condition that was a recurring one  requiring “close and persistent management”. Specifically addressing the effect of Comcare’s September 2012 overpayment decision, she said she had “no words to express the stress this has been causing me for the past months”, and reported that she had suffered frequent anxiety attacks and depression which, after a period of “slight” improvement, had again become more severe. 

5. In the early part of 2014, Comcare indicated its intention to review Ms Tervel’s possible entitlement to compensation for a “cervical spine condition”, in the light of that injury claim having been advanced as a basis for Ms Tervel’s permanent incapacity claim:- see paragraph 53 above. In August 2014 Comcare formally rejected the claim, relying essentially on the specialist medical reports that had been obtained prior to the October 2008 consent decision, and that had provided the obvious background to that decision.

6. By that time, which was almost two years after the September 2012 decision, Comcare’s final position in relation to the overpayment claim had not been finally resolved. In late 2014 Ms Tervel addressed it in a further submission to Comcare. In that submission she reported an ongoing struggle with her health and said that “body pain” restricted her use of a computer to “10 to 15 minutes at a time a couple of days a week”. She said that she was affected by severe depression, lack of motivation, chronic fatigue, and months of illness with chest infections.  Ms Tervel reported that “a year or two ago” she had been in such a state of panic, with worry over her financial situation and frequent anxiety, that she could hardly leave the house. But with the assistance of a new psychologist, and what she called her “energy healing” studies, she felt she had made some progress from her previous state of “terror, anxiety and deep depression”.

7. For some months prior to receiving Ms Tervel’s final overpayment submission in early December 2014, there was some concern within Comcare about the true extent of Ms Tervel’s need for ongoing treatment, and about the potential impact of other matters (specifically, her chronic fatigue syndrome) thought to be unrelated to Ms Tervel’s CSA employment, or her current capacity and treatment needs. Despite those concerns, and based on periodic reports from Ms Tervel’s general practitioner (and the psychological counsellor she was seeing) that confirmed her ongoing depression, Comcare continued to provide Ms Tervel with compensation for a range of treatment related expenses, including pharmaceuticals, psychological counselling, chiropractic treatment and presentations to her general practitioner. Indeed, on 16 December 2014, despite finally rejecting Ms Tervel’s debt overpayment submissions, Comcare approved further psychological counselling sessions up to mid-January 2015.

   EVENTS IN 2015

8. Early in 2015 a review of its treatment expense compensation payments relating to Ms Tervel caused Comcare to question whether her current psychological treatment was for a condition that was related to her previous CSA employment and, if so, whether the treatment was effective. The question was thought to have been raised by the observations that (i) here was a period between 2006 - 2009 when Ms Tervel was not recorded as having required any form of treatment, (ii) her last chiropractic and physiotherapy sessions appeared to have been in late 2013, and (iii) there had been an apparently significant upsurge in the number of Ms Tervel’s psychological counselling sessions in 2013 and 2014. 

9. It is doubtful whether these concerns were actually justified. The proposition that Ms Tervel had not accessed any form of treatment between 2006 and 2009 is contradicted by the reports of Ms Canli, and the fact of Ms Tervel’s regular attendances with Dr Friend from June 2007 onwards. In any event, the proposition borders on the fringes of irrelevance when regard is had to the unequivocal diagnoses evident in the various psychiatric reports that preceded the October 2008 consent decision: Dr Friend’s report of February 2010, and Ms Tervel’s incapacity related termination of employment in July 2010.

10. A similar doubt applies to the significance of the observation that Ms Tervel’s physiotherapy and chiropractic treatments appear to have ended in late 2013.  That doubt arises partly because of the October 2008 consent decision, and its determination that Ms Tervel had no ongoing shoulder pain injury. It also arises because, in so far as the chiropractic treatment related to a cervical spine injury, that was not a condition for which Comcare had accepted liability as a work related injury (see the 4 March 2014 letter referred to above).

11. The observation about a significant increase in Ms Tervel’s psychological counselling attendances after the latter part of 2013, was apparently accurate. But that occurred in the context of the significant additional stressors to which Ms Tervel had been subject both at the time of, and subsequent to, Comcare’s compensation overpayment decision of September 2012, and the prolonged consideration of Ms Tervel’s waiver request.

12. Whatever the objective justification for the questions Comcare raised in February 2015, they were addressed in a further psychiatric assessment of Ms Tervel in April 2015. That assessment was done by another consultant psychiatrist, Dr Michael Hong, and is the subject of his 23 April 2015 report.  Dr Hong was provided with some of the more relevant medical reports from 2006 to 2014. They included Dr Prior’s 18 December 2006 report (see paragraph 38 above), Dr Miller’s 16 May 2007 report (see paragraph 40 above), Dr Lovric’s 2 January 2008 report (see paragraph 44 above), Dr Rees’ 6 July 2009 report (see paragraph 55 above), and Dr Friend’s 16 February 2010 report (see paragraph 62 above).

13. It follows from the contents of those various reports, and the summary set out in his own report, that Dr Hong was well aware of Ms Tervel’s significant history of chronic pain (since at least Dr Prior’s December 2006 diagnosis) and its role as the precipitant for her depression and anxiety (see Dr Miller’s May 2007 report), and that her symptoms had become “quite entrenched” by the time of Dr Rees’ July 2009 report.  Dr Hong was also aware of Ms Tervel’s chronic fatigue syndrome and fibromyalgia diagnoses and some details of her marital separation, but not, it would seem, the full extent of the anxiety and depression she had asserted throughout 2013 and 2014:- see paragraphs 67 to 70 above.

14. Dr Hong recorded that Ms Tervel reported having “generalised pain all over her body” that had become constant in the last few years.  Her depression and anxiety, whilst previously severe, irrespective of her pain levels, had gradually improved to a point where they largely correlated with her pain severity. But she was unable to identify any specific trigger for a recent (but unparticularised) episode of anxiety and depression.

15. Dr Hong derived from Ms Tervel’s history and presentation that she had experienced a period of severe depression that had improved over time, but that she was still subject to both depression and anxiety, to a mild to moderate extent. He thought the appropriate diagnosis was likely to be Major Depressive Disorder (mild-to-moderate) also mild-to-moderate anxiety with entrenched avoidance behaviour. In relation to the latter, Dr Hong commented that Ms Tervel’s own estimation of the extent of her psychological impairment seemed excessive, compared to her mental state examination, but he attributed the discrepancy to her “entrenched avoidant behaviour and self-doubt”.

16. Dr Hong considered that Ms Tervel’s psychiatric condition was related to her chronic pain and her “physical injuries and physical impairments”. He concluded that Ms Tervel’s psychiatric condition required continuing treatment, deprived her of any current work capacity, and was a continuing work related injury “if it is determined that her physical injuries are employment related”. In response to specific additional questions about whether any “other factors” affected Mr Tervel’s current work capacity, Dr Hong added his view that her incapacity “relates predominantly to her chronic fatigue”, but he added the explanation that it was itself (i) related to her depression, and (ii) contributed to by her “entrenched avoidant behaviour”.

17. A difficulty with Dr Hong’s report is the imprecision of his expression “physical injuries and physical impairments”, and thus of the real thrust of his reasoning. It is reasonably apparent, from his response to the “other factor” question addressed in his report, that he regarded Ms Tervel’s 2012 chronic fatigue syndrome diagnosis as one of the physical injuries contributing to her depression and anxiety.  But it is also clear, from earlier parts of his report, that he understood her history included a “sprain” injury “in the right upper limb” that occurred in 2004, and had progressively developed into “generalised pain”. He also regarded her “fibromyalgia” as contributing to limiting her work capacity.

18. Despite its imprecision, Dr Hong’s conditional linking of Ms Tervel’s psychiatric condition with her “physical injuries” prompted Comcare to obtain a further assessment of the latter.  That assessment was contained in a 9 June 2015 report from Associate Professor Nigel Hope, an orthopaedic surgeon. He recorded Ms Tervel’s history of occupationally induced “cervical and right upper limb pain” in 2004, and her contemporary complaint of moderate stabbing pain that radiated from her neck into both shoulders and occasionally into the arms. Professor Hope noted that MRI examination provided no evidence of significant pathology. His physical examination of Ms Tervel also found nothing to indicate any ongoing physical injury. She had some “moderate non-specific non-significant right cervical tenderness” but normal alignment of her cervical spine, shoulders and lower limbs.  She had a full range of motion with normal upper limb neurological examination findings.  Based on that information, Professor Hope stated confidently that Ms Tervel had no significant orthopaedic problem in her cervical spine, upper limbs, or thoracic and lumbar spine. He further opined that, although he did not regard her as exaggerating,  guarded or inconsistent in her presentation, there was no structural cause for her pain and she did not suffer from any specific physical condition. Consistent with those views, Professor Hope considered that Ms Tervel’s past CSA employment was not a contributor to her contemporary symptoms, her original injury condition had resolved and she was physically capable of returning to work.

19. Professor Hope’s report was to substantially the same effect as those of the many orthopaedic surgeons and occupational physicians who had previously examined Ms Tervel and could find no physical explanation for her ongoing pain symptoms. Indeed Comcare had previously rejected Ms Tervel’s “cervical spine injury” claim on precisely that basis:- see paragraph 69 above. The October 2008 consent decision had also rejected Ms Tervel’s claim for any ongoing compensation entitlement in relation to her “shoulder and arm muscle strain” injury.  There is therefore, some apparent incongruity in relying on Professor Hope’s report as a basis for rejecting Ms Tervel’s ongoing entitlement for compensation in relation to a psychiatric injury that Dr Hong had characterised as ongoing and requiring indefinite treatment.

    THE BASIS FOR COMCARE’S SEPTEMBER 2015 AND MARCH 2016 DECISIONS

20. Comcare wrote to Ms Tervel on 15 June 2015. The letter was based primarily on Professor Hope’s report. It informed Ms Tervel that Comcare proposed to terminate her ongoing compensation entitlement. Comcare communicated its decision to that effect in a further latter of 1 September 2015. That letter explained that the decision was based partly on Professor Hope’s report and partly on the view (implicitly derived from Dr Hong’s April 2015 report) that there were “significant other” (i.e. non-employment related) factors affecting her health. The most significant of those was said to be Ms Tervel’s “pain condition”, which Comcare’s letter described as the “main contributor” to her current incapacity and treatment needs.

21. Comcare’s use of the term “main contributor” in the 1 September 2015 letter was probably a reference back to Dr Hong’s report response to a specific question as to whether there were any “other factors” affecting Ms Tervel’s work capacity. His response was that her incapacity “relates predominantly to her chronic fatigue syndrome, which is related to her depression. There is also a contribution from her entrenched avoidant behaviour”. That response was inherently ambiguous but, more importantly, it needed to be evaluated against the context of the opinions Dr Hong had expressed earlier in his report. There he had concluded that Ms Tervel’s diagnosed psychiatric condition was related to her chronic pain. He noted that she had a history of chronic pain stretching back to 2004, obviously long before the chronic fatigue syndrome diagnosis of June 2012.

22. Despite the questionable justification that Dr Hong’s report provided for the reasoning contained in the 1 September 2015 letter, Comcare adhered to substantially the same view in the 23 March 2016 decision that is the subject of the present review proceedings.  In that letter Comcare relied principally on Dr Hong’s 23 April 2015 report, and apparently interpreted it as justifying the conclusion that Ms Tervel’s psychiatric condition was related to a chronic pain condition or syndrome. Comcare then based its decision on the proposition that it had never accepted liability for “chronic pain” as a compensable work related injury.

23. Comcare’s two and a half page statement of reasons was an inevitably compressed analysis of the long and complicated history of Ms Tervel’s condition. But by basing itself on a particular interpretation of Dr Hong’s report, and by characterising Ms Tervel’s complaint of chronic pain as involving an injury different from the 11 May 2004 and 16 October 2006 injuries that had been the subject of the October 2008 consent decision, its compression involved a distinct oversimplification. It did not properly reflect Dr Hong’s view (contained in earlier sections of his report) that Ms Tervel had a Depressive Disorder that had appeared in 2005 and been a consequence of her chronic pain. That disorder had neither been resolved nor superseded by another condition.  Her depressive condition was such as to both require indefinite treatment and deprive her of any current work capacity.  Neither did the reasoning in the Comcare decision adequately reflect either the history underlying either Dr Hong’s report or those of the medical specialists, whose opinions had influenced the October 2008 consent decision that recognised the work related nature of Ms Tervel’s depressive condition. In particular, it failed to recognise the force of Dr Greer’s October 2015 submission that Ms Tervel had a long history of chronic pain, and that the history significantly pre-dated her chronic fatigue diagnosis in June 2012.

    PRE-EMPLOYMENT CONDITIONS

24. A consistent feature of the history set out in the many psychiatric and psychological assessments of Ms Tervel is her reported disavowal of any significant injury or anxiety prior to her CSA employment in April 2003.  This is recorded in the reports of:

    (a)Dr Prior (18 December 2006) – see paragraph 38 above

    (b)Dr Lovric (2 January 2008) - see paragraph 44 above

    (c)Dr Rees (6 July 2009) - see paragraph 55 above

    (d)Dr Rees (21 December 2009) – see paragraph 59 above.

25. There was some scepticism of the accuracy of that history.  In her October 2006 report Ms Canli thought it probable, and in her June 2008 report Dr Pascall (perhaps somewhat diffidently) thought it possible that Ms Tervel had some pre-existing condition:- see paragraphs 37 & 48 above.  But both had concluded that Ms Tervel’s presentation to them involved a work related depressive condition and, in the case of Dr Pascall’s June 2008 report, one that was unlikely to resolve unless and until Ms Tervel better understood the nature of her condition and accepted appropriate psychiatric treatment, including appropriate antidepressant medication.

26. In the review proceedings, Comcare sought to provide an evidentiary contradiction of that benign picture of Ms Tervel’s history. That attempt involved:

    (a)evidence of Ms Tervel’s chiropractic treatment as far back as October 1999

    (b)evidence of Ms Tervel’s attendance on various general practitioners in May, August and September 2003, with complaints of shoulder, neck and back pain, particularly after being involved in a motor vehicle accident in August 2003.

1. It is difficult to attach any real significance to Ms Tervel’s pre-employment chiropractic treatment.  The contemporary records reveal that she first presented with a history of back pain and headaches that she associated with both sinusitis and the weather. An x-ray examination of both her cervical and lumbar spine was essentially unremarkable. A subsequent report of 14 March 2001, described Ms Tervel as having suffered from frequent headaches and intermittent back pain. But over the course of her attendances both the incidence and the intensity of her complaints had decreased, and her spinal strength and mobility had improved.  Consistent with that report, she appears to have had no further chiropractic treatment between March 2001 and early 2004 - apart from a three week period in February 2003, and one off attendances in May and August 2003 (a few days after the car accident). The cryptic notes of those latter attendances are basically indecipherable, and there is no adequate evidentiary basis to regard them as matters of significance. That view is broadly consistent with the views expressed by Dr Pascall, in her June 2008 report.  In the course of that long report Dr Pascall reviewed imaging of Ms Tervel’s cervical and thoracic spine and some of Ms Tervel’s past complaints of lumbar spine pain. Dr Pascall noted that there was minor degenerative change in Ms Tervel’s cervical spine, some more significant degenerative change in her thoracic spine and some history of possible lumbar spine degeneration. But Dr Pascall discounted all of these as likely to have been significant contributors to Ms Tervel’s condition.  She thought that no pathology in either Ms Tervel’s cervical or thoracic spine accounted for her pain symptoms, and she also thought that any lumbar spine discomfort was most likely attributable to Ms Tervel’s increasingly sedentary behaviour and “somatisation of normal … sensations”, rather than to any aggravation of an underlying degenerative condition.  It is very clear from Dr Pascall’s report that she considered Ms Tervel had a significant psychiatric condition, related to her CSA employment, and one that had effectively become apparent by late 2005, and “well established” / “pronounced” throughout 2006.

2. Much the same may be said of the various GP consultations to which Comcare pointed.  There is a single brief (and isolated) note of a complaint of back pain on 1 May 2003, the day before Ms Tervel made her next visit to the chiropractor. On the occasion of Ms Tervel’s attendance, the day after her August 2003 car accident, she reported discomfort on the left-side of her neck and lower back, as well as a history of migraine headaches.  Clinical examination revealed no indication of any cervical spine injury or neurological deficit, despite some muscle tenderness. However, a CT scan of her cervical spine was arranged. The result of that scan was normal, as disclosed in the attendance note of 23 September 2003. In addition, although Ms Tervel complained of burning pain in her neck muscles and a three week history of daily headaches, clinical examination revealed that she had a full range of cervical spine movements. There appears to have been no further GP or chiropractic attendances of any significance until mid-2004.

3. The bare fact of Ms Tervel’s history of chiropractic treatment was known to Comcare by at least early March 2006. It was at that time she sought compensation for chiropractic treatment, and the fact that she had previously found it helpful was one of the reasons why consideration was given, at that time, to Comcare funding future treatment costs.  Perhaps more significantly, in her June 19 June 2008 report Dr Pascall had considered both Ms Tervel’s history of back complaints and chiropractic treatment, as well as the consultations around the time of the August 2003 motor vehicle accident.  It may be that Dr Pascal had limited information about the nature and extent of Ms Tervel’s pre-employment chiropractic treatment. But it is quite clear from Dr Pascall’s report that she was alert to the possible causal significance of Ms Tervel’s pre-employment history.  It is also clear that Dr Pascall thoroughly considered the available evidence relating to the potential causes of Ms Tervel’s spinal pain complaints. Notwithstanding her awareness of the chiropractic treatment history, the 2003 GP attendances, and her own suspicions about the likelihood of Ms Tervel having had some pre-CSA employment vulnerability, Dr Pascall was quite emphatic in her views. These were that (i) Ms Tervel’s psychological condition became well established at an early stage of her CSA employment, (ii) was a consequence of her original musculoskeletal complaint, (iii) was not superseded by the effects of the August 2003 motor vehicle accident and, (iv) was properly characterised as a work related condition, notwithstanding that her original musculoskeletal complaint was, in reality, a temporary condition of short duration.

   MALINGERING AND EXAGGERATION

4. It is readily apparent from at least some of the medical reports that Ms Tervel was not regarded as an impressively consistent and reliable historian. At the end of 2008 Dr Lovric had expressed concern to that effect:- see paragraph 52 above.  In her June 2008 report Dr Pascall had commented on Ms Tervel’s apparent unreliability as a historian, particularly in the light of the adverse comments Dr Burman had made in his report. However, Dr Pascall recorded her doubt that Ms Tervel was being intentionally obtuse or evasive.  Her view was that Ms Tervel’s condition itself predisposed her to “nullify any factors that are contradictory to her paradigm of significant physical pathology caused by work related factors”.

5. Much the same view is apparent in Dr Friend’s attendance note of 12 June 2009. It records Ms Tervel’s continued attribution of pain to her CSA work experience, and the influence of her chiropractor’s opinions (apparently linking physical pain to her emotional state) in preference to the opinions and diagnoses of her medical advisers. That pre-occupation with the significance of her workplace experience, her receptiveness to chiropractic advice linking emotions and pain, her “invested interest” in being sick, and Ms Tervel’s resistance to medical advice about the real nature of her condition, is again evident in a note of a telephone discussion in late November 2010 between Dr Friend and Ms Tervel’s treating psychologist, Dr Robinson.  About three months after that discussion, Dr Robinson took the matter up with Ms Tervel’s chiropractor. She obtained from him a history where Ms Tervel sometimes presented with severe muscular spasms and sometimes (but not consistently) with symptoms suggestive of nerve damage or compromise. Irrespective of the existence of observable physical signs, Ms Tervel typically reported the same level of pain. In the light of this history Dr Robinson asked the chiropractor for his view about the likelihood that Ms Tervel was deliberately exaggerating her symptoms. But, despite conceding that Ms Tervel’s presentation and complaints did not “fit any logical category at all” he was quite unsure that Ms Tervel was intentionally exaggerating.  His doubt related to the fact that she inconsistently presented both with and without physical signs related to her pain complaints.  And, in that context, it may not be irrelevant to note that it was only a few months later when Ms Tervel was formally diagnosed with chronic fatigue syndrome:-  see paragraph 68 above.

   DR HONG’S 2016 REPORT AND HEARING EVIDENCE

6. Dr Hong re-assessed Ms Tervel in late November 2016, and provided a further report dated 19 December 2016.  His report addressed Ms Tervel’s intervening history, some of the medical reports he had previously considered, and a number of medical reports additional to those he had specifically noted in his 2015 report.  Those additional reports included:

   (a)Dr Pascall’s reports of 12 April 2006 and 19 June 2008:- see paragraphs 19, 35 & 48 above.

   (b)Dr Friend’s report of  16 February  2010 – (apparently reporting that Ms Tervel’s psychological symptoms had improved but that she was experiencing some side effects from her psychiatric medication); and

   (c)Dr Champion’s 9 August 2008 report – see paragraph 49 above.

7. The intervening history Dr Hong obtained from Ms Tervel included an unexplained period of exacerbated pain in the first half of 2016. That had triggered a worsening in her depressive condition and increased anxiety – neither of which had improved despite the lessening of her pain symptoms in the latter half of 2016. This appears to have led Dr Hong to the view that Ms Tervel suffered from “melancholic depression”. He speculated that either her exacerbated physical symptoms had caused deterioration in her psychiatric condition, or her psychiatric deterioration had exacerbated her physical symptoms.  But whichever of those possibilities was the more accurate, and consistent with the views summarised in the preceding section of these reasons, Dr Hong rejected the idea that there was any proper basis to conclude that Ms Tervel was either intentionally or unintentionally exaggerating her symptoms.

8. In addition to that intervening history, Dr Hong took the following information from the various reports provided to him:- (i) the inconclusive suggestion that Ms Tervel had experienced some kind of pre-employment stress related disorder, (ii) the suggestion of pre-employment marital discord, (iii) the recorded onset of a significant depressive illness in 2005, following the onset of a pain condition in 2004 and, (iv) the typical absence from the various post-employment diagnostic reports of consideration of any significant pre-employment discord or disorder.

9. Dr Hong summarised the effect of his 2015 opinion as being that Ms Tervel’s psychiatric condition had developed “in the context of her physical conditions and chronic pain”.  He adhered to that view in his December 2016 report, and to his specific diagnosis of Major Depressive Disorder (with mild to moderate anxiety), although he went on to add an additional characterisation of her depression as “melancholic” (thereby agreeing with the views previously expressed by Drs Friend, Miller and Burman). Despite noting that “melancholic depression” had a strong genetic underpinning, Dr Hong rejected the idea that Ms Tervel’s condition could be characterised as indicative of any pre-employment psychiatric condition.

10. Dr Hong adhered to his previously expressed view that Ms Tervel’s “Major Depressive Disorder” had been triggered by her physical symptoms (and “to a degree has been maintained by her physical conditions and chronic pain”). He also adhered to his 2015 opinion that Ms Tervel’s psychiatric condition would be attributable to her CSA employment “if” her physical conditions and chronic pain were attributable (at least partly) to her employment. But he also opined that the deterioration in Ms Tervel’s psychiatric condition in 2016 was unrelated to any work place factors.

11. The key to Dr Hong’s opinion appears to be his view that Ms Tervel’s psychiatric condition was wholly reactive to “significant physical injury and chronic pain”, and could only be work related if her “physical injuries” were related to her CSA employment.  He addressed that contingency by considering (i) her 2003 “repetitive stress injury”, and what he described as her “subsequently … diagnosed” (ii) chronic fatigue syndrome, and (iii) fibromyalgia.  Dr Hong implicitly discounted the significance of “repetitive stress injury” as having any ongoing causative significance. His reasoning was influenced partly by the lapse of time since Ms Tervel had ended her CSA work, partly by the potential significance of the “subsequently … diagnosed” chronic fatigue syndrome and fibromyalgia, and partly because of the 2016 deterioration in her psychiatric condition “unrelated to any work factors”.  In relation to the “subsequently … diagnosed” conditions, Dr Hong regarded the possible causal connection between them and Ms Tervel’s CSA employment as beyond his area of expertise.

12. One difficulty with Dr Hong’s opinion is the accuracy of his characterisation of Ms Tervel’s fibromyalgia as a “subsequently … diagnosed” condition, and his consideration that there was no basis (at least within his area of expertise) to attribute either of those conditions to Ms Tervel’s CSA employment. That difficulty arises with regard to Professor Lloyd’s March 2013 report:- see paragraph 67 above. In that report Professor Lloyd had indeed apparently disavowed any causal connection between Ms Tervel’s employment and her chronic fatigue syndrome. But he also applied the “fibromyalgia” label to the pain condition which Ms Tervel had been complaining about since 2004.  And that view, whilst consistent with the fact that the formal diagnosis appears not to have been made until sometime in 2012, points to an underlying likelihood that Ms Tervel’s pain condition had first manifested during the time, and as a result of her CSA employment.

13. The related difficulty with Dr Hong’s opinion is that it does not seem to take into account the significant view, expressed in many of the earlier medical reports, that although Ms Tervel’s psychiatric condition had developed in response to her initial physical injuries in 2004, it had later come to be maintained because of her tendency to “somatisation”, and without any significant ongoing contribution from those injuries.  Apprehensions about that likely development of Ms Tervel’s condition had been articulated by Dr Pascall in her 12 April 2006 report (see paragraph 35 above).  By the time of Dr Pascall’s 26 July 2006 report, those apprehensions had become far more substantial. At that time, despite Ms Tervel’s physical injury symptoms being “quite minor”, Dr Pascall described Ms Tervel’s anxiety as having escalated to the point where it was itself contributing to her pain perception and resulting in her feeling overwhelmed by her perception of her bodily symptoms and her inability to control them:-  see paragraph 21 above. 

14. That characterisation of Ms Tervel’s condition is also reasonably apparent in Dr Miller’s 16 May 2007 report. Dr Hong’s brief reference to Dr Miller’s report seems principally to have been for the purpose of identifying Ms Tervel’s original physical injury and “chronic pain” as the “major precipitating factors” for Ms Tervel’s depression. It is not readily apparent from the contents of Dr Hong’s report that he fully appreciated either (i) Dr Miller’s recognition that there was “no ongoing musculoskeletal pathology that could account for” Ms Tervel’s condition, or (ii) Dr Miller’s consideration that Ms Tervel’s psersistent pain complaints could be either a manifestation of her depression, or a separate disorder:-  see paragraph 40 above.  Moreover, Dr Miller’s opinion, in so far as it tended to suggest that the continuity of Ms Tervel’s psychiatric condition was unrelated to any ongoing pain causing physical pathology, was subsequently substantially corroborated by Dr Lovric’s 2 January 2008 report, and by Dr Clark in his 27 May 2008 report. In the latter report Dr Clark had characterised Ms Tervel’s condition as “primarily psychological”:- see paragraph 47 above. That view was in turn substantially consistent with the view that Dr Pascall expressed in her 19 June 2008 report (see paragraph 48 above) and with Dr Lovric’s November 2008 view that Ms Tervel had by then become “quite entrenched in her sick role”:- see paragraph 52 above.

15. Finally, the complexity of Ms Tervel’s condition in 2015, and the question whether it could properly be regarded as resulting from her work related injury, despite her withdrawal from any work activities since October 2006, had been the very point that Comcare had queried with Dr Rees in mid-2009  That query had resulted in Dr Rees’ unequivocal view that Ms Tervel’s then subsisting condition was simply consistent with the chronic nature of her psychological disorder, and its inherent propensity to deteriorate over time:- see paragraph 57 above.

16. The whole thrust of the more significant psychiatric assessment reports (and those of Dr Pascall) from about mid 2006 through to Dr Friend’s 16 February 2010 report (see paragraph 62 above) was that Ms Tervel was likely to, and did, develop an entrenched depressive condition that was likely to lead to ongoing depression and anxiety of sufficient severity as to render her wholly unfit to work, irrespective of any (pathologically caused) chronic pain. In the light of that view (starkly expressed in Dr Friend’s February 2010 report), it is unfortunate that Dr Hong did not address it explicitly in either of his reports.  The misfortune is the greater because Dr Hong made it clear in his oral evidence that he considered Ms Tervel continued to suffer from essentially the same depressive condition that had been consistently reported as having begun in 2005. That view was consistent with the wording he used in his December 2016 report, where he described the intervening history he had obtained from Ms Tervel as evidencing an “exacerbation” / “deterioration” of her depressive condition. Moreover, Dr Hong acknowledged in his oral evidence that once a depressive condition had been triggered (for example by a pain condition) it could persist for some time. If the depressive condition was accurately described as melancholic, its inherent characteristic was a propensity for spontaneous resolution and recurrence. But in the case of Ms Tervel’s depressive condition he accepted that (i) it had been triggered by the 2004 injury and ensuing pain, and (ii) on the history known to him it had never subsequently resolved. 

    DR SMITH’S REPORT AND EVIDENCE

17. Dr Hong’s scepticism about the work related nature of Ms Tervell’s depressive condition was not shared by Dr Selwyn Smith, a consultant psychiatrist retained by Ms Tervel’s legal representatives in September 2016. In his report Dr Smith included a very abbreviated history which taken on its own, tended to detract from confidence about the accuracy of his understanding of the precise sequence of events involved.  However, his report also included a broadly sequential review of the various reports (to which I have referred earlier in these reasons) from (i) the psychologists Ms Tervel consulted in 2005 and 2007 (see paragraphs 15, 16, 20, 23, 36 & 37 above) (ii) the psychiatrists Drs Clark, Friend, Hong, Lovric, Miller and Rees (see paragraphs 47, 62, 76, 44, 40 and 57 above) and (iii) Professor Lloyd (see paragraph 67 above). Those reports did not include all the reports that had been provided by their respective authors, neither did they include the detailed reports from Dr Pascall, with their comprehensive histories. Nevertheless, it is appropriate to conclude that Dr Smith proceeded on the basis of a reasonably accurate understanding of the history of the onset of Ms Tervel’s physical symptoms (in about 2004), the development of her psychiatric condition (in about 2005), her departure from work (in October 2006) and her subsequent chronic fatigue syndrome and fibromyalgia diagnoses (in about 2012 / 2013).

18. Dr Smith agreed with the consistently stated psychiatric opinions that Ms Tervel had a Major Depressive Disorder.  But unlike Dr Hong, although consistent with the views that had been expressed by Drs Miller (2007), Lovric (2008) Burman (2008), Pascall (2008) and Rees (2009), he considered that Ms Tervel’s psychiatric condition also merited diagnosis as Chronic Pain Disorder (or Somatic Symptom Disorder – according to the more recent diagnostic classification in DSM-V). Also, again unlike Dr Hong, Dr Smith had no difficulty in attributing Ms Tervel’s condition to her CSA employment. But he did so with an imprecise reference to “work related incidents” and “work related experiences” and, in some respects the reasoning underlying Dr Smith’s opinion was neither well expressed nor consistent with a proper understanding of aspects of Ms Tervel’s history.  Four examples will suffice to illustrate that point.  First of all, Dr Smith’s reference to “work related incidents” obtained its greatest specificity when he attached particular significance to her complaint about a work chair that had been provided to her. If Dr Smith had been provided with Dr Pascall’s 19 June 2008 report he could not reasonably have attached any real importance to that aspect of Ms Tervel’s history.  Secondly, Dr Smith’s reference to “work related experiences” if it alluded to non-physical injury or pain complaints was a matter which, although extensively discussed in Dr Pascall’s June 2008 report, had not figured significantly in any psychiatric report as a causal contributor to Ms Tervel’s condition.  Indeed, in Dr Lovric’s November 2008 report (which was not provided to Dr Smith), Ms Tervel’s dissatisfaction with the nature of her work at the CSA was characterised as a disincentive for her to attempt to return to work, rather than as a causal contributor to her depressive condition. A third example is Dr Smith’s asserted opinion that Ms Tervel’s chronic fatigue was “more closely related to her depression”.  He gave no reason for that assertion and, in so far as the suggested relationship between depression and chronic fatigue syndrome was one of cause and effect, it is neither one that he explicitly advanced nor one that can be readily reconciled with the contents of Professor Lloyd’s 2013 report. In that report Professor Lloyd, tolerably clearly, regarded Ms Tervel’s chronic fatigue as a superimposed, rather than a consequential condition. A fourth example is the imprecision and ambiguity in Dr Smith’s disagreement with Dr Hong that Ms Tervel’s “fibromyalgia” (along with chronic fatigue) was the predominant reason for Ms Tervel’s incapacity. The imprecision in Dr Smith’s view is that he appears to regard Ms Tervel’s “fibromyalgia” as a condition distinct from the pain syndrome which he diagnosed, and which Professor Lloyd had agreed was an acceptable label for the generalised pain about which Ms Tervel had complained as far back as “approximately 2003”.  Furthermore, in his oral evidence Dr Smith effectively discounted Ms Tervel’s chronic fatigue syndrome diagnosis as subsidiary to her previously diagnosed depressive condition, which he (along with all the previous psychiatrists) regarded as well-established and wholly disabling. The ambiguity in Dr Smith’s view was that, in so far as it appeared to distinguish between “fibromyalgia” and chronic pain, it tended to be inconsistent with his own earlier link between Ms Tervel’s anxiety and her perception of ongoing pain. That link had been made in the following passage of Dr Smith’s report:

    Ms Tervel, as a result of her adverse work related experiences, developed somatic symptoms that she experienced as distressing and which resulted in significant disruption to her daily life. She experienced a marked degree of anxiety about her ongoing pain and the seriousness of her symptoms. Her symptoms were predominantly related to her pain with restrictions of movement to the extent that she had marked difficulty in undertaking her work.

1. In the course of his oral evidence and specifically in connection with Dr Lovric’s 2 January 2008 diagnosis of chronic pain disorder, Dr Smith returned to the substance of the reasoning contained in this passage of his report. He explained that the pain syndrome (which both he and Dr Lovric identified) broadly described a person who had some disruptive physical symptoms but who had disproportionate thoughts about the seriousness and significance of those symptoms, and correspondingly disproportionate behaviour. And in Ms Tervel’s case he regarded her as having a chronic, severe and persisting somatic / pain symptom disorder that contributed to her depression and anxiety and was wholly disabling. That view is, in reality, coincident with the concerns that Dr Pascall had voiced, at considerable length in both her July 2006 and June 2008 reports:-  see paragraphs 21 & 48 above.  It is consistent with the view expressed by Dr Lovric (in her November 2008 report) that Ms Tervel had become “entrenched” in her sick role:-  see paragraph 52 above. And it is consistent with the “general thrust” of the various reports up to the time of Dr Friend’s February 2010 report – as I indicated earlier:- see paragraph 106 above.

2. Ultimately, the essential point of difference between Drs Hong and Smith was their respective understanding of Ms Tervel’s “fibromyalgia” condition, and the extent to which her chronic fatigue syndrome caused or contributed to her current depressive condition.  Notwithstanding some imprecision in Dr Smith’s evidence, he appears ultimately (like Dr Hong) to have regarded Ms Tervel’s “fibromyalgia” to be a label most appropriately applied to her pain perceptions at the time of (and following) the formal diagnosis (in 2012 / 2013). Addressing the causal significance of the condition, on the basis of that understanding, Dr Smith regarded it as not adding meaningfully to her, already well established, depressive and somatic disorders.  For similar reasons, Dr Smith discounted the contemporaneous chronic fatigue syndrome diagnosis.  Dr Hong, on the other hand, appears (at least in his written reports) to have regarded these two conditions as the predominant causal factors in Ms Tervel’s ongoing depressive presentation. As I have indicated earlier, Dr Smith’s view, rather than Dr Hong’s view, is consistent with the views expressed in all of the psychiatric opinions prior to 2012, and more in line with the 2013 opinion of Professor Lloyd, in his description of the history and significance of Ms Tervel’s “fibromyalgia” and chronic fatigue syndrome. 

   DR MCGILL’S EVIDENCE – “FIBROMYALGIA”?

3. That consistency can also be contributed to by some of the views expressed by Associate Professor Neil McGill, an eminent rheumatologist who examined Ms Tervel, on Comcare’s behalf, in July 2017.  His 26 July 2017 report, like that of Dr Smith, contained an abridged history that he reported having been obtained from Ms Tervel.  However, in a later section of the report Dr McGill acknowledged the contents of a very large number of medical reports (including almost all those that I have referred to earlier in these reasons), and it is apparent that he proceeded on the basis of a history that substantially agreed with the understandings of both Drs Smith and Hong. However, it is clear that Associate Professor McGill, unlike Dr Smith, had been provided with not only Dr Pascall’s 19 June 2008 report, but also some of the contemporaneous notes of Ms Tervel’s various attendances between July 2003 and mid 2004 (to which I referred in paragraphs 88 to 93 above). One additional aspect of the history, to which Dr McGill attached some significance (in discounting the idea that Ms Tervel had any significant physical disorder) was that, as at May 2006, she had been a competitive basketball player, and generally physically active.

4. Dr McGill’s physical examination of Ms Tervel, his review of various imaging studies, and what he referred to as “repeated assessments by a variety of specialists”, identified no physical abnormality, other than some restricted spinal movements. On that basis, whilst not disputing that Ms Tervel had developed neck, and later widespread, pain during the period of her CSA work in 2004 and 2005, Dr McGill considered it unlikely her CSA employment had “caused a physical disorder”, and he thought it implausible that there was any “physical mechanism” that could link her current symptoms to that employment. Dr McGill went on to doubt (apparently unlike Professor Lloyd) that the “fibromyalgia” label was appropriate to apply to Ms Tervel’s condition – because she did not report (to him, at any rate) widespread tenderness.

5. Thorough as was Associate Professor McGill’s evaluation of Ms Tervel’s physical condition it was of limited utility, except to the extent it tended to complement the view that the “fibromyalgia” label had been applied, somewhat loosely, to the pain syndrome about which Ms Tervel had complained since about 2005, and which had prompted the various “pain syndrome” diagnoses (for example, by Drs Burman, Lovric, Miller, Pascall and Rees). The otherwise essentially limited utility of Dr McGill’s evidence relates to the background where, as far back as October 2008, there really had been no persuasive evidence favouring, and considerable evidence contradicting, the proposition that Ms Tervel had any ongoing physical disorder. A fair view of Dr McGill’s report reveals his contemplation that (i) the more probable explanation for Ms Tervel’s reported ongoing physical symptoms lay in her subjective perceptions and, (ii) his acknowledgement that the distinction between (involuntary) exaggeration and psychological / psychiatric disorder was a matter to be assessed by others.

   COMCARE’S CHALLENGES TO DR SMITH’S OPINION

6. Comcare cross examined Dr Smith by highlighting (i) some evidence suggesting that Ms Tervel’s marital difficulties long preceded her CSA employment and (ii) the cumulative stressors that had affected Ms Tervel, principally prior to the 2010 termination of her employment, and subsequently. (These included the 2009 birth of her son, periods of separation from her husband, her husband’s unemployment, developmental issues with her son, and her financial difficulties). Dr Smith agreed that all of these matters could potentially have contributed to her depressive condition. But that possibility does not detract from the underlying reality that Ms Tervel’s depressive condition, according to the consistently recorded psychiatric assessments, had become florid by some time in 2006, was then wholly incapacitating, and had not resolved.

7. Comcare also asked Dr Smith to take into consideration the history of Ms Tervel’s pre CSA employment, and 2003 / 2004 chiropractic and medical consultations (broadly as I have outlined them earlier in these reasons:- see paragraphs 88 to 93 above).  Unsurprisingly, in view of the limited information that was put to him, Dr Smith was reluctant to express any view about their significance to his opinion. And, having regard to the comprehensive discussion and assessment undertaken in Dr Pascall’s June 2008 report, Dr Smith’s reluctance cannot be used to contribute to a conclusion contrary to the views expressed in Dr Pascall’s report:-  see paragraph 93 above.

8. The final challenge that Comcare made to Dr Smith’s opinion was that Ms Tervel’s current condition simply could not be regarded, some twelve years after she last worked, as relevantly contributed to by her employment. Dr Smith demurred and considered that it was unrealistic to divorce Ms Tervel’s current situation from her employment history. In that view, Dr Smith was doing no more than recognising the force of the consistent and repeated previous psychiatric assessments – to the effect that Ms Tervel’s accepted work related injury in 2004 had contributed to the onset of depressive and somatic disorders that had become entrenched and had never resolved, notwithstanding the resolution of her physical injury, and the absence of any ongoing compensable incapacity associated with that physical injury.

   THE DIFFERING PSYCHIATRIC DISORDER DIAGNOSES

9. In its March 2016 decision Comcare had distinguished between Ms Tervel’s depressive disorder and her “chronic pain syndrome” and had emphasised that the latter had never been accepted as a compensable injury for the purposes of the SRC Act. In its outline submissions in the review proceedings however, Comcare expressly accepted (consistent with Dr Hong’s evidence:- see paragraph 106 above) that Ms Tervel continued to suffer from the psychological condition that had been the subject of the October 2008 consent decision. Furthermore, Comcare submitted that nothing turned on any variation in the psychiatric diagnoses that had been made. They were all said to “exist along a continuum of anxiety / depressive disorders”. 

10. Although the generality of that submission did not explicitly extend to include the various “pain syndrome” / “pain disorder” diagnoses to which I have referred earlier in these reasons, it is consistent with the view that the variations in precise diagnostic description of a disease injury should not be regarded as determinative:- see Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253 at [11], [58]-[60]; Shales and Commonwealth Bank of Australia [2017] AATA 1369 at [134]. Consequently, the submission should be taken to extend to those diagnoses. This is because, properly understood, those pain syndrome / disorder diagnoses were essentially complementary to her depressive disorder and explained its causal link with Ms Tervel’s employment. That view - that Ms Tervel’s pain perception had contributed to her depression - was essentially the one that had been expressed by Dr Miller in her May 2007 report. And although Dr Miller had expressed the view that there was no underlying physical pathology that could account for Ms Tervel’s pain perception, the reality of that perception, and its origin in Ms Tervel’s “rationalisation” (see Dr Pascall’s June 2008 report) of her pain perception as being indicative of underlying physical injury, was not disputed. Using the diagnostic language subsequently preferred by Dr Smith, Ms Tervel had developed a somatic disorder that had been triggered by her employment (and specifically her original physical strain injury) and had thereafter contributed to her ongoing depression.

    CONCLUSION

11. Comcare was correct in pointing to many aspects in the complexity of Ms Tervel’s personal circumstances, particularly from late 2011 onwards, as likely to have contributed to the severity of her depressive disorder. Comcare was also correct in questioning whether aspects of Ms Tervel’s pre-employment circumstances had contributed to her depressive condition. But the existence of potentially contributing factors of those kinds does not provide a persuasive basis for arriving at satisfaction that, by September 2015, Ms Tervel’s accepted injury (the depressive condition properly recognised in the October 2008 decision) no longer resulted in any incapacity. Comcare’s contention to the contrary ultimately really depended on (i) the proposition, extracted from Dr Hong’s April 2015 report, and advanced in the March 2016 decision reasons, that Ms Tervel’s “avoidant behaviour extends beyond (her) psychological injury” and, (ii) a proposition, extracted from Dr Rees’ July 2009 report, that employment was not “an ongoing factor that is contributing to her condition. The fundamental difficulty in accepting either of these views as determinatively favouring Comcare’s March 2016 decision is that both Drs Hong and Rees (and indeed, Comcare itself) accepted that Ms Tervel continued to suffer from a depressive condition that had become entrenched, had never resolved, and had not been superseded by a different condition. As I pointed out earlier in these reasons, the likelihood of that entrenchment had consistently been predicted, and its mechanism lay in the physical injury that first occurred in 2004, Ms Tervel’s rationalisation / somatisation about the real underlying causes of that injury, and the resultant depression and anxiety.  For those reasons, the proper conclusion to reach is that the totality of the evidence does not lead to satisfaction that (i) in September 2015, Ms Tervel was suffering from a different ailment / disease from the one that had previously existed (i.e. in October 2006 and 2008), (ii) her ongoing ailment / disease had not been materially contributed to by her employment and, (iii) her ongoing ailment / disease did not result in her continuing incapacity:-  see further paragraph 11 above.

    DECISION

12. The decision under review is set aside. In substitution for that decision, the Tribunal decides that as at 1 September 2015 Ms Tervel continued to suffer a disease that had been materially contributed to by her employment and that disease therefore constituted an injury that resulted in incapacity for work at that time.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

..............................[sgd]..............................

Associate

Dated: 28 May 2019

Dates of hearing:	23 July 2018 24 July 2018 25 July 2018
Counsel for the Applicant:	Mr B Hilliard
Solicitors for the Applicant:	Ms L Meys and Mr M Hyland, LHD Lawyers
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Ms A Fernandes, Sparke Helmore Lawyers