Theacos and Comcare (Compensation)

Theacos and Comcare (Compensation) [2019] AATA 5248 (6 December 2019)
Division:GENERAL DIVISION
File Numbers: 2016/1730
Re:Andrew Theacos
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:6 December 2019
Place:Sydney

The decision made by the delegate of the Respondent on 10 February 2016, affirming the determination made 7 October 2015, is affirmed.
...........................[sgd].............................................
Deputy President J W Constance
CATCHWORDS
WORKERS’ COMPENSATION – application for review of decision affirming determination that Applicant not presently entitled to payments for incapacity and medical expenses in respect of accepted injury – major depression – where Applicant has history of substance use disorder – whether Applicant continues to suffer from accepted injury – whether Tribunal satisfied on the balance of probabilities that Applicant’s employment ceased to contribute to a significant degree to accepted injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502
REASONS FOR DECISION
Deputy President J W Constance
6 December 2019
A: INTRODUCTION

Mr Theacos was an employee of the State Rail Authority of New South Wales, and thereafter the Australian Rail Track Corporation (the ARTC), from 1993 until 13 February 2013.[1]
[1] Exhibit R1 at 192.
In 2011, Mr Theacos made a claim for compensation for an injury, being a severe anxiety disorder caused by his employment, which was first noticed by him on 7 March 2011.[2] The claim was made in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
[2] Exhibit R1 at 31.
Comcare rejected the claim. Mr Theacos then applied to the Tribunal to review this decision. On 21 January 2013, by agreement of the parties, the Tribunal decided that:
The Applicant [Mr Theacos] suffers ‘major depression’ (the injury) being a ‘disease’ that was significantly contributed to by his employment with the Australian Rail Track Corporation Ltd, deemed to have been sustained on 9 March 2011 …[3]
By reason of this decision, Comcare paid compensation to Mr Theacos in respect of his loss of earnings and medical and hospital expenses.
[3] Exhibit R1 at 190.
On 7 October 2015, Comcare determined that Mr Theacos was no longer entitled to compensation for loss of income and treatment expenses in respect of the injury.[4] This decision was made on the basis that the delegate was not satisfied that any condition Mr Theacos continued to suffer was related to his previous employment, nor that any such condition incapacitated him for employment. This determination was affirmed by Comcare on 10 February 2016 (the reviewable decision).[5]
[4] Exhibit R1 at 455.
[5] Exhibit R1 at 481.
On 5 April 2016, Mr Theacos applied to the Tribunal to review the reviewable decision.[6]
[6] Exhibit R1 at 1.
B: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Subsection 5A(1) provides:
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Disease is defined in section 5B:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
C: ISSUES FOR DETERMINATION
The following issues arise for determination in this application:
(a)Has Mr Theacos suffered Major Depression at any time or times since 7 October 2015, and, if so, when?
(b)If yes, on the balance of probabilities, did Mr Theacos' employment by the ARTC cease to contribute to a “significant degree” to his suffering Major Depression at all, or any, of these times?
D: EVIDENCE
Evidence of Mr Theacos
Mr Theacos is an Australian of Greek heritage.
In January 1993, Mr Theacos was employed by the State Rail Authority as a Junior Station Assistant at Gosford Station. A few weeks after he commenced work, fellow employees began taunting him about his ethnicity. When speaking to him, many of his co-workers, including the Station Masters, referred to him as a “wog”. This developed to the point that most of those working with him referred to him as a “wog”, rather than using his name. This caused him to feel angry and vulnerable.
In 1994, Mr Theacos made a verbal complaint to the Business Manager at Gosford Station concerning his treatment by one of the Station Masters. He told the Business Manager that he was “being victimised and racially discriminated against” by the Station Master every time they worked the same shift.[7] Mr Theacos was told by the Business Manager not to worry about his treatment and to “get on with” his job.[8] The behaviour of the Station Master towards Mr Theacos did not change.
[7] Exhibit A1 at [12].
[8] Exhibit A1 at [13].
In approximately mid-1994, Mr Theacos requested the Head Station Master to transfer him away from duties at Gosford Station. This request was granted, and soon thereafter Mr Theacos commenced working at Gosford Signal Box.
Sometime later, the signalmen began to verbally abuse him, including by calling him a “wog”. This happened regularly and at times made Mr Theacos so upset and angry that he would walk out of the signal box to calm down.
Towards the end of 1994, following a threat of violence towards him by another staff member, Mr Theacos was transferred to another signal box. Approximately two months later, Mr Theacos began working at various signal boxes in the Newcastle area.
Mr Theacos cannot recall any form of harassment directed towards him between 1995 and 1999, except for rare occasions when he was assistant to a particular signalman he had worked with previously. This signalman referred to Mr Theacos as a “wog” and never by his given name.
In approximately 1999, Mr Theacos was promoted to the position of Safe Working and Station Assistant at Broadmeadow Centralised Train Control (BCTC). His duties in that position were to assist the Area Controller. He worked shift work, comprising day, afternoon and night shifts. Approximately 18 people were rostered on for each of the three shifts.
When Mr Theacos commenced working at BCTC, one of the signalmen with whom he had worked at the Gosford Signal Box was working as an Area Controller. This Area Controller continued to refer to Mr Theacos as a “wog” or “the wog” to his face and in conversation with other employees. Within a few weeks approximately one-third of Mr Theacos’ fellow workers stopped calling him by his name and commenced referring to him as a “wog”.
Approximately one year later, Mr Theacos made a verbal complaint to the manager of BCTC concerning the racial vilification he was experiencing from fellow employees on a daily basis. Notwithstanding this complaint, the racial slurs continued.
In approximately mid-2001, Mr Theacos was promoted to a new position at Werris Creek Station. During the time he worked at this station, none of his fellow workers victimised or bullied him although at times he was referred to as a “wog” when he spoke to former co-workers by telephone.
In approximately February 2002, Mr Theacos was again promoted and started work at Junee Station. He did not experience any problems when working there.
In late 2002, Mr Theacos was again promoted and was transferred back to BCTC to commence in his new position. The Area Controller and other employees frequently referred to him as a “wog”. The situation worsened to the point that Mr Theacos began to wear headphones at work to block out the abusive comments. On one occasion another staff member engraved a ruler belonging to Mr Theacos with the word “wog”. When Mr Theacos purchased a replacement ruler it was again engraved in the same manner.
In 2006, the ARTC was awarded a lease for the operation and maintenance of land and rail infrastructure previously operated and maintained by the State Rail Authority. As part of this transition, Mr Theacos took up a position with the ARTC at the Broadmeadow Network Control Centre (the BNCC). When Mr Theacos started work at the BNCC, requests for shift-swaps between Network Controllers were generally approved without question. He took part in these swaps and also regularly worked the overtime requested by management.
During his employment, Mr Theacos took part in annual performance reviews and so far as he is aware all reviews were positive and management did not raise any problems in relation to his work practices.
In January 2009, Mr Theacos decided to reduce the amount of overtime he worked for family reasons. From February of that year he began to refuse offers of overtime during weekends and school holidays. Immediately, three of his managers began to question his requests for shift-swaps and he found it difficult to obtain the swaps he requested. This had never occurred previously.
In November 2009, an incident occurred when Mr Theacos asked his manager why his shift-swap request had been refused. The manager was abusive towards Mr Theacos in front of other employees and accused him of doing night-shifts so he could sleep. Mr Theacos felt shocked, humiliated and angry as a result. Later that day he received an email from management which did not address his earlier requests for information about his employer’s fatigue and rostering policies.
Immediately following this incident, Mr Theacos felt hopeless, anxious and stressed. He was unable to go to work for his shift later that day and instead consulted his general practitioner. He also sent an email to his employer setting out why he felt that he was being subjected to victimisation, bullying and discrimination.
On 18 November 2009, Mr Theacos attended a meeting with management to discuss the issues he had raised. This meeting did not allay his concerns.
Following this meeting, Mr Theacos felt that he was being ostracised in his workplace. He said that co-workers would only talk to him when he telephoned them, even though they worked in close proximity to his workstation. Others expressed their anger towards him claiming they could no longer sleep when they were rostered on night shift with him. He said that this treatment continued until he ceased working with the ARTC.[9]
[9] Exhibit A1 at [93]-[94].
During 2010 and 2011, further incidents occurred which Mr Theacos regarded as “micro-management” by his employer. These included allegations that he had been asleep at work, that he had not submitted required sick leave certificates, and that his rate of absenteeism could result in disciplinary proceedings.
On 9 March 2011, Mr Theacos consulted Dr Henderson, his general practitioner, who prescribed him antidepressant medication. Subsequently, Dr Henderson issued a number of certificates of unfitness for work. Mr Theacos has not returned to work since.
On 15 March 2011, Mr Theacos was notified by his employer that no further action would be taken against him in respect of the alleged failure to lodge the necessary leave forms and his alleged absenteeism.[10]
[10] Exhibit A1, Annexure ”Q”.
On 1 April 2011, Mr Theacos again wrote to his employer raising his concerns as to the way he had been treated at work during the previous two years. He complained of “the constant racial taunts and slurs that were made towards [him] by various colleagues and superiors”.[11] He also complained of staff deliberately failing to communicate with him.
[11] Exhibit A1 at [113].
Around 8 April 2011, Mr Theacos was advised by a member of the human resources team that he should transfer to another station or leave the ARTC and reapply for a job in Western Australia.
On 13 April 2011, Mr Theacos lodged with his employer a claim for workers’ compensation. The injury claimed was “severe anxiety disorder”.[12]
[12] Exhibit R1 at 32.
I accept the evidence of Mr Theacos set out in the foregoing twenty-six paragraphs.
Evidence of Mr Theacos as to his drug use
In his statement of 16 February 2018, Mr Theacos provided the following information as to his use of illicit drugs and prescription drugs not prescribed to him:
101In either December 2010 or January 2011, I was given medication, dexamphetamine, from [redacted] who suffers from ADHD. I began taking one or two of these tablets orally in the afternoon prior to commencing work, and the medication kept me alert during the evening shift. I also began talking (sic) the medication before every night shift, as I did not want to fall asleep because I believed that management were trying to catch me sleeping. To the best of my knowledge, I took his medication over a period approximately four months, until April 2011. I did not take it every day.
…
123In approximately May 2011, I began smoking marijuana daily, taking ice daily, and gambling, as these activities temporarily relieved me of my feelings of depression and anxiety. I smoked one joint of marijuana in the day, and one at night, but I hid this fact from my family. I bought $100-$200 of ice each week and took it orally every day. After taking ice, I slept approximately 3-4 hours a day, and sometimes did not sleep at all.
…
133In approximately September 2011, [my partner] threw all my prescribed medication out of the house, as I was not taking it as prescribed by my doctor. From approximately May 2011, I had continued to smoke marijuana and take ice daily, and gamble on a regular basis.
134In approximately October 2011, [my partner] telephoned a rehabilitation clinic and I was admitted to South Pacific Private Hospital for depression and ice addiction.
135I stayed in hospital for approximately four to five weeks. During this time, [my partner] corresponded with Ms Metcalfe from ARTC, regarding my stay in hospital for depression.
136When I finished at my rehabilitation clinic and left hospital in November, I felt detoxified. I was beginning to cope with my depression and I was waking up in the morning at a regular time each day.
137In December 2011, I believed that my health had normalised and was considering returning to work. At this same time, Ms Metcalfe was telephoning me every week requesting that I sign medical releases, which I did not sign.
138In early January 2012, [my partner] telephoned Ms Metcalfe to find out what was happening in respect of my employment status and Ms Metcalfe told her that I had been medically retired by ARTC on 22 December 2011. ARTC then forwarded an email and letter to inform me of the same. After learning that ARTC had medically retired me, I immediately reverted to taking ice and marijuana. I took ice and marijuana on a regular basis, from this time until approximately April 2012. During this time, I spent an approximate $5000-$6000 and drugs, borrowing money from family and spending the family savings.
…
140In approximately mid-April 2012 [my partner], again, booked me into South Pacific Private Hospital to rehabilitate. I stayed in hospital for three days, detoxified, and came home. My family was back at home when I returned.
141Since that time, I have not bought or taken any illicit drugs. Whilst I was employed by ARTC I did take dexamphetamine on occasions, as set out in paragraph 101 above. It was [redacted]’s prescription medication for Attention Deficit Disorder. I took the drug to help me stay awake during a night shift.
142Prior to ceasing my employment with ARTC on a few occasions I also used speed. For example I went to see AC-DC in concert and had some speed. I did not use speed more than a handful of time (sic), as I knew that ARTC had random drug and alcohol testing at work and a positive result would result in immediate dismissal. I was tested a number of times. I also witnessed a number of employees being dismissed due to failing a drug test.
143From May 2011 to October 2011 I was struggling with an ice addiction and, on the advice of Dr Henderson, I was referred to Dr Hinton, psychiatrist.
…
145Occasionally, I would take dexamphetamine to help give myself a ‘lift’ when I went to work …
…
147On or about 25 August 2014, I ceased taking my prescribed medication and started using speed, cocaine and cannabis. Around mid-September 2014, I was admitted to hospital for substance abuse and pathological jealousy …
…
149I have also developed a dependence on cocaine, cannabis and alprazolam which was not present prior to my workplace events. Antidepressants were not effective in stabilising my state of mind. Around December 2015 due to my substance abuse, I was given a trial of Atomoxetine while also continuing my treatment with quetiapine, which gradually increased throughout the year …
During the hearing, Mr Theacos was cross-examined at length concerning his drug-taking. I am not satisfied that his evidence in this regard, as set out in his statement, was reliable.
When he gave evidence at the hearing, on several occasions Mr Theacos claimed to have given medical practitioners details of his drug use which they did not record in their respective reports. It is unlikely that so many experienced professionals would have failed to record such relevant information.
In addition to the information provided in his written statement, at the hearing Mr Theacos gave evidence as set out in the following four paragraphs. This evidence related to his use of illicit drugs prior to his ceasing work in March 2011.
Prior to March 2011, Mr Theacos had obtained illicit drugs from two different suppliers. One was a relative he had known “for a very long time”.[13] The other was an associate he met in a tavern.
[13] Transcript, 20 February 2018, at 78.
The relative provided Mr Theacos with ice and marijuana. Mr Theacos used amphetamines and marijuana with this person on occasions throughout the time they had known each other.
Mr Theacos obtained cocaine and ice from the associate he met in the tavern. The associate supplied the drugs to Mr Theacos by visiting him at his home and at times by meeting him elsewhere.[14]
[14] Transcript, 20 February 2018, at 75-79.
In answer to questions from Counsel for Comcare, Mr Theacos described his drug use in 2010 as follows:
Tell us what you were using in 2010. We know you were using marijuana, what else we are using? --- Yes. There were certain periods I went, like - I was using drugs for like, two months, three months. I don’t recall, it was just on and off. Sometimes I went for two weeks straight and I did it, then I stopped for a couple of weeks and then I did it again for a couple of weeks, and then ---
And did that include speed or ice and things of that nature? --- Yes, whatever it was at the time. Whatever.
Whatever was available at the time? --- Yes.
And did that cause problems with you and your wife? --- Yes.
And is that some of the stress and anxiety you reported to Dr Patell in 2010 related to that? --- I don’t recall.[15]
[15] Transcript, 20 February 2018, at 70.

At the hearing on 19 February 2018, Mr Theacos gave sworn evidence that he had not “bought or taken any illicit drugs” since mid-April 2012 when he was admitted to South Pacific Private Hospital. This evidence was contained in his statement made 16 February 2018[16] and verified by him on 19 February 2018.[17] However, he said also that the substance abuse for which he was treated in December 2015[18] included the abuse of cocaine and cannabis as well as prescription drugs.
[16] Exhibit A1 at [140]-[141]; see paragraph 37 of these reasons.
[17] Transcript, 19 February 2018, at 4.
[18] See paragraph 37 of these reasons.
Evidence of Ms Milsteed, Mr Theacos’ former partner
Ms Milsteed provided a statement dated 18 May 2018[19] and gave evidence at the hearing.
[19] Exhibit A2.
Ms Milsteed and Mr Theacos were in a relationship from 1999 until May 2017.
In her statement, Ms Milsteed corroborated the evidence given by Mr Theacos concerning the manner in which he was treated in his workplace prior to March 2011. She observed that over this time his mood changed and he became short-tempered with her and with their children.[20]
[20] Exhibit A2, at 6-7.
From about March 2011, when he was diagnosed with severe anxiety and depression, Mr Theacos’ health deteriorated and he became increasingly withdrawn.
Ms Milsteed was not aware of Mr Theacos regularly taking illicit drugs before May 2011. She gave evidence that he began taking those drugs regularly from about May 2011 although he did not tell her of this until months later.[21] From about September 2011, Ms Milsteed started enquiring as to the treatment available for him, and began drug-testing him with kits procured from the pharmacy.
[21] Exhibit A2 at [38].
Mr Theacos was admitted to Toronto Private Hospital in mid-2014. Ms Milsteed said that since then he has not taken any illicit drugs. After his admission on that occasion Ms Milsteed continued to drug test him to ensure that he had not re-commenced using drugs.
In her statement, Ms Milsteed said that Mr Theacos’ “behaviour and health has remained the same since approximately 2014. Since leaving work until [May 2018], Andrew has been anxious and is constantly down and depressed”.[22]
[22] Exhibit A2 at [55].
When she gave evidence, Ms Milsteed said:
·she knew Mr Theacos had taken a relative’s medication, which she knew was an amphetamine, on a couple of occasions before May 2011;[23]
·he never engaged in doctor shopping as she attended nearly all of his appointments with him;[24]
·on a couple of occasions he took temazepam, which had been prescribed for her;[25]
·he gets his dates confused as to the times he was using illicit drugs;[26]
·contrary to Dr Hinton’s records,[27] Mr Theacos was not using amphetamine daily for the eight weeks prior to 11 August 2011;[28]
·he may have relapsed into taking illicit drugs once after he was admitted to Toronto Private Hospital in June-July 2014;[29]
·she did not recall whether Mr Theacos relapsed into illicit drug use around every two months,[30] as reported by Dr Haydon on 1 November 2014.[31]
[23] Transcript, 10 December 2018, at 7.
[24] Transcript, 10 December 2018, at 8.
[25] Transcript, 10 December 2018, at 9.
[26] Transcript, 10 December 2018, at 10.
[27] Exhibit R1 at 144.
[28] Transcript, 10 December 2018, at 12.
[29] Transcript, 10 December 2018, at 19
[30] Transcript, 10 December 2018, at 21.
[31] Exhibit R1 at 364.
E. EVIDENCE OF MEDICAL PROFESSIONALS
Report of Dr Dowda, Senior Occupational Physician, 10 June 2011[32]
[32] Exhibit R1 at 105.
Dr Dowda examined Mr Theacos on 2 June 2011 to assess his fitness for duty.
Dr Dowda reported that on presentation Mr Theacos had “symptoms which are highly suggestive of anxiety and depression which is significantly affecting his lifestyle and his occupational capacity at this time”.[33]
Report of Dr Zsadanyi, Consultant Psychiatrist, 1 July 2011[34]
[33] Exhibit R1 at 108.
[34] Exhibit R1 at 120.
Mr Theacos was assessed by Dr Zsadanyi on 15 June 2011 at the request of Comcare.
Dr Zsadanyi diagnosed Mr Theacos as suffering an Adjustment Disorder with Mixed Anxiety and Depressive symptoms. The probable causative factors were identified as the treatment Mr Theacos received in the workplace.
Clinical Discharge Summary, South Pacific Private Hospital, 14 November 2011[35]
[35] Exhibit A6 at 2.
Under the heading “History of Presenting Problems”, the Summary (signed by Dr Teoh) recorded, in part:
Andrew was admitted to address symptoms of depression and poly-substance abuse (methamphetamine, speed, cocaine).
During the past two weeks Andrew has smoked approximately 4 cones of marijuana daily, nil for three days. He smoked marijuana between ages 18 – 26 and had been clean for twelve years until two months ago. Apart from a two-week detox, Andrew has used Speed most days over the past four months, nil for three days. Prior to five months ago he had used Speed 2–3 times annually since he was 18 years old. Andrew had been a moderate drinker throughout his adult life. Seven months ago he binged on alcohol over a two-week period and has been sober since that time.
The diagnosis noted was Major Depression and poly-substance dependence (methamphetamine, speed, cocaine).
Report of Dr Hinton, Psychiatrist, 30 January 2013[36]
[36] Exhibit A6 at 4.
On 30 January 2013, Dr Hinton wrote to Mr Theacos’ general practitioner, Dr Henderson, informing him that Mr Theacos had possibly been abusing benzodiazepines and engaging in doctor shopping. Dr Hinton requested that Dr Henderson not prescribe any benzodiazepines to Mr Theacos due to his dependency on them.
Report of Ms Richards-Horder, Clinical Psychologist, 27 September 2014[37]
[37] Exhibit A6 at 5(a).
Ms Richards-Horder was first consulted by Mr Theacos in March 2013 on referral by his general practitioner, Dr Haydon. As of September 2014, she had consulted with him on 12 occasions; he had failed to attend six appointments without notice. She described his engagement with treatment as “sporadic”.
Ms Richards-Horder agreed with the diagnosis that Mr Theacos suffered the dual conditions of Major Depressive Disorder and Substance Use Disorder. She regarded the latter as the more significant in determining a prognosis at that time. She reported that she was aware that Mr Theacos was not always completely open with his practitioners and that there had been times when he had provided different information to Dr Blackwell and to herself.
Reports and clinical notes of Dr Blackwell, Consultant Psychiatrist[38]
[38] Exhibit R5 at 89-117.
Mr Theacos consulted Dr Blackwell intermittently from March 2013 until October 2014. She provided several reports and copies of her clinical notes.
On 25 March 2013, Dr Blackwell noted that Mr Theacos had improved in his presentation and “overall, was no longer withdrawing from benzos/other drugs. … Seems motivated to maintain abstinence from illicit drugs and detox from benzos”.[39]
[39] Exhibit R5 at 89.
On 3 April 2013, Dr Blackwell decided it was necessary to again admit Mr Theacos to the mental health unit of Warner’s Bay Private Hospital as it had not been possible to stabilise his medications as an outpatient and he was at risk of benzodiazepine withdrawal.[40] On 1 May 2013, she noted that he appeared to be detoxed from benzodiazepine.[41]
[40] Exhibit R5 at 91.
[41] Exhibit R5 at 92.
In a report to Dr Haydon on 14 November 2013, Dr Blackwell expressed concern regarding Mr Theacos’ irregular attendance at appointments made for him. At that time he appeared not to be engaged in substance misuse and was compliant with his prescribed medications. He remained significantly depressed. Dr Blackwell reported also that Mr Theacos had been difficult to manage due to his inconsistency in attending appointments and his not following through on agreed treatment plans.[42]
[42] Exhibit R5 at 94.
On 12 February 2014, Dr Blackwell noted significant improvement in Mr Theacos’ condition over the preceding four weeks.[43] At that time he denied any drug use.
[43] Exhibit R5 at 95.
On 17 March 2014, Mr Theacos informed Dr Blackwell that he had been using illicit drugs since his consultation the previous month. He had regained access to his keycard which he used to obtain drugs. He was continuing to use speed, cocaine and marijuana.[44]
[44] Exhibit R5 at 98.
On 6 August 2014, Dr Blackwell reported that Mr Theacos appeared to be making “pleasing progress” and engaging with his treatment plan.[45]
[45] Exhibit R5 at 104.
On 24 September 2014, Dr Blackwell reported that for the previous month Mr Theacos had stopped taking his prescribed medication and had been using speed, cocaine and cannabis. It appeared that he had suffered a relapse of his delusional disorder and substance abuse.[46]
[46] Exhibit R5 at 108.
On 29 September 2014, Dr Blackwell advised Mr Theacos that, by reason of his failure to attend appointments, she was unable to continue to be his psychiatrist.[47] To assist him, Dr Blackwell continued to consult with Mr Theacos for the next three weeks.[48]
[47] Exhibit R5 at 109.
[48] Exhibit R5 at 116.
During a consultation on 13 October 2014, Mr Theacos advised Dr Blackwell that, for the first time, he had disposed of his stash of illicit substances.[49]
[49] Exhibit R5 at 113.
Report of Dr De Saxe, Consultant Psychiatrist, 4 December 2014
On 28 November 2014, Dr De Saxe examined Mr Theacos at the request of Comcare.
In the opinion of Dr De Saxe, Mr Theacos was suffering “Major Depression with psychotic features, chronic, in partial remission at time of assessment”.[50] In his view, the factor contributing most to Mr Theacos’ condition was his state of unemployment.
[50] Exhibit R1 at 377.
Reports of Dr Newnham, Psychiatrist
Mr Theacos first consulted Dr Newnham in January 2015, on referral by his general practitioner, Dr Haydon. Dr Newnham provided reports dated 4 May 2015, 25 November 2015, 4 December 2015 and 6 January 2016.[51]
[51] Exhibit R1 at 414; Exhibit A6 at 21-24.
Dr Newnham referred Mr Theacos to a Mr Constable, Psychologist, in March 2015 for treatment of “his ongoing urge to use cocaine and also to assist him with getting some daily structure in his life”.[52] At the time, Dr Newnham was treating Mr Theacos for serious substance abuse which, in her opinion, was probably a direct result of an underlying Attention Deficit Disorder.
[52] Exhibit A6 at 9.
On 4 May 2015, in response to a request from Comcare for a report in relation to Mr Theacos’ condition,[53] Dr Newnham recorded Mr Theacos as suffering from major depressive disorder, in partial remission, as a result of the circumstances surrounding his 2011 claim. She repeated her belief that Mr Theacos had a pre-existing psychiatric condition, namely Attention Deficit Disorder, which she said had been greatly aggravated and accelerated by the factors relating to his employment by the ARTC.[54]
[53] Exhibit R1 at 416.
[54] Exhibit R1 at 414.
On 25 November 2015, Dr Newnham reported to Dr Haydon that Mr Theacos had taken a couple of his friend’s alprazolam tablets and had requested a prescription for this drug. His request was refused. Dr Newnham expressed the view that Mr Theacos “clearly has a mood disorder characterised more by instability than pervasive depression”.[55]
[55] Exhibit A6 at 21.
Dr Newnham provided the reports of 4 December 2015 and 6 January 2016 to Mr Theacos’ solicitors.
On 4 December 2015, Dr Newnham reported, in part:
Mr Theacos does have a pre-existing condition, ie Attention Deficit Disorder. He no doubt has a pre-existing vulnerability to mood disorder, including pre-existing vulnerability to Bipolar II Disorder. There has been however, a significant interaction between his vulnerabilities and his working environment which has led to the current manifestation of the symptoms and his present disability.[56]
[56] Exhibit A6 at 23.
In her report of 6 January 2016, after having seen Mr Theacos for six sessions over the course of the preceding twelve months, Dr Newnham expressly disagreed with the diagnosis made by Dr Vickery in July 2015 that Mr Theacos was suffering from Delusional Disorder and Major Depressive Disorder, both in remission. She confirmed her opinion that Mr Theacos’ workplace injury continued to contribute to his psychiatric conditions, being Bipolar II Disorder and Attention Deficit Disorder.[57]
[57] Exhibit A6 at 24.
Reports of Dr Vickery, Psychiatrist
Dr Vickery examined Mr Theacos on 25 November 2011, 7 April 2014 and 27 April 2015, on each occasion at the request of Comcare or his employer, and provided reports dated 25 November 2011,[58] 8 May 2015[59] and 3 July 2015.[60]
[58] Exhibit R1 at 526.
[59] Exhibit R1 at 421.
[60] Exhibit R1 at 444.
On 8 May 2015, Dr Vickery reported that he found no evidence of Mr Theacos having psychiatric incapacity in his clinical examination on 27 April 2015. His diagnosis was:
·Substance Abuse (in remission);
·Learning Disorder and Attention Deficit Disorder (in remission);
·Delusional Disorder (in remission); and
·Major Depressive Disorder (in remission).[61]
[61] Exhibit R1 at 425.
In the opinion of Dr Vickery, Mr Theacos’ psychiatric conditions went into remission in early 2015 and, at the time of his examination in April 2015, Mr Theacos’ employment no longer continued to contribute to any psychiatric condition.
Report of Dr Haydon, General Practitioner, 12 March 2016[62]
[62] Exhibit A6 at 32.
Mr Theacos attended the surgery at which Dr Haydon practised from July 2003. He initially presented with the claimed workplace injury on 9 March 2011. He first consulted Dr Haydon in relation to this matter on 30 August 2012.
At the first consultation, Dr Haydon believed Mr Theacos was using temazapam excessively and she declined to issue a script for this at the time. She noted also during subsequent reviews in the period from 2012 to 2015 that he misused prescription and non-prescription drugs to self-manage severe nocturnal insomnia.
Dr Haydon reported it was possible that Mr Theacos had a pre-existing vulnerability to a psychological diagnosis, including depression, however it appeared that the expression of this vulnerability coincided with the significant work-related stressors which led to his presentation in 2011. Dr Haydon reported difficulty in accurately assessing whether Mr Theacos would have presented with a diagnosis of depression if the workplace events had not occurred, however this was a possibility. Significant contributors to Mr Theacos’ delayed and incomplete recovery included poor compliance with medication, misuse of prescribed medications, inconsistent attendance with psychology and psychiatry specialists, and recurrent return to illicit drug use.
Dr Haydon believed Mr Theacos’ previous workplace environment was not likely an ongoing factor. Other factors affecting his mood during this time included drug use, marital issues, and financial stressors.
Evidence of Dr Teoh, Consultant Psychiatrist & Physician in Addiction Medicine
Dr Teoh treated Mr Theacos in April 2012 when he was admitted to South Pacific Private Hospital. Dr Teoh further examined Mr Theacos on 27 October 2015 and 9 December 2016 at the request of his solicitors. Dr Teoh provided reports dated 17 September 2012,[63] 28 October 2015,[64] 20 December 2016,[65] 1 February 2018[66] and 18 June 2018,[67] and gave evidence at the hearing.
[63] Exhibit R1 at 176.
[64] Exhibit A6 at 15.
[65] Exhibit A3.
[66] Exhibit A4.
[67] Exhibit A5.
In April 2012, Mr Theacos presented at South Pacific Private Hospital with a history of depression and substance abuse, including cannabis use. At the time of his admission he had been using cannabis for the past seven months, having abstained for the previous twelve years.
Dr Teoh diagnosed Mr Theacos as suffering Major Depression, Attention Deficit Hyperactivity Disorder and Polysubstance Abuse. Dr Teoh was of the opinion that bullying and harassment at work had aggravated Mr Theacos’ psychiatric condition, which had become chronic. He concluded that Mr Theacos’ incapacity at the time was a result of workplace stress, which had aggravated his pre-existing condition.[68]
[68] Exhibit R1 at 179-180.
When Dr Teoh examined Mr Theacos in October 2015 he made a diagnosis of Chronic Adjustment Disorder with Mixed Depressed and Anxious Mood. This was consistent with the injury he suffered as a result of his work environment. There were no other overt external factors contributing to his psychiatric condition. His prognosis was poor.[69]
[69] Exhibit A6 at 15.
Mr Theacos was again examined by Dr Teoh in December 2016. At that time, Mr Theacos reported to Dr Teoh that he had abstained from using drugs for the previous two years.
When providing his report of 20 December 2016,[70] Dr Teoh considered a report of Mr Haralambous to which I shall refer later in these reasons. He agreed with Mr Haralambous that Mr Theacos had a history of Attention Deficit Disorder and Chronic Substance Abuse Disorder.
[70] Exhibit A3.
On 20 December 2016, Dr Teoh reported, in part:
As a specialist in Addiction Medicine and ADD, it is my view that the relationship of Mr Theacos’ Substance Use Disorder to his psychiatric disorders is complex.
Mr Theacos has a history of Attention Deficit Disorder as a child. He was treated with stimulant medication. He had learning difficulties. He had then developed a Substance Use Disorder, which is not uncommon in patients with ADHD (up to 70% of patients with ADHD develop a secondary addiction Substance Use Disorder).
…
It is my opinion that the stressors at work had precipitated a significant depression consistent with a diagnosis of Major Depression.
…
His depressive symptoms cannot be simply explained by his Substance Use Disorder. He has abstained from using drugs for two years. …
It is my opinion that the stressors in relation to the bullying and harassment as a result of his employment have been a substantial contributing factor to his condition, in the background of pre-existing Attention Deficit Disorder and Substance Use Disorder.
…
It is my opinion that Mr Theacos is suffering from Major Depression, Attention Deficit Disorder, and Substance Use Disorder (in remission?) (DSM 5 Diagnostic Criteria).
His prognosis is guarded, as his condition has become chronic.[71]
[71] Exhibit A3 at 5-6.
Dr Teoh provided his report of 1 February 2018 after having considered a report by Dr Synnott of 27 July 2017, to which I shall refer later in these reasons. Dr Teoh maintained his opinion that Mr Theacos was suffering from Major Depression, complicated by a history of Attention Deficit Disorder and Substance Use Disorder in the background of work-related stress.[72]
[72] Exhibit A4.
In his report of 18 June 2018, Dr Teoh considered Mr Theacos’ statement dated 16 February 2018[73] together with the oral evidence Mr Theacos gave in these proceedings.
[73] Exhibit A1.
In the opinion of Dr Teoh, Mr Theacos’ history was not consistent with a diagnosis of Substance Use Disorder prior to 2011. Dr Teoh reported, however, that Mr Theacos’ “failure to fully disclose the nature and extent of his illicit drug abuse has not altered my opinion in my [previous] report”.[74]
[74] Exhibit A5.
When he gave evidence, Dr Teoh said that he could not recall discussing with Mr Theacos, when he first treated him in April 2012, a previous drug rehabilitation program he had attended in October 2011. Dr Teoh agreed with the proposition put by Counsel for Comcare, that this was an important piece of history to be aware of, “because that might indicate … that despite the intervention of other professionals, that [Mr Theacos] continues to revert to drugs”.[75] Dr Teoh agreed also the fact that the hospitalisation was for polysubstance abuse, including cocaine, was an important consideration.
[75] Transcript, 11 December 2018, at 50.
Dr Teoh also said that when he examined Mr Theacos on 27 October 2015 for the purpose of preparing his report of 28 October 2015, Mr Theacos did not tell him that:
·he had checked himself out of hospital after two days in April 2013,
·he had discharged himself from hospital in January 2014;
·he had been an inpatient in June-July 2014; and
·there had been attempts to arrange for his treatment as an inpatient in September and October 2014.[76]
[76] Transcript, 11 December 2018, at 59.

During cross-examination, Counsel for Comcare referred Dr Teoh to Dr Blackwell’s note of a consultation with Mr Theacos on 25 March 2013 in which she noted he was “much more well-kempt, alert, coherent and pleasant …”.[77] Dr Teoh agreed this tended to suggest “the root cause of his problems are the drugs”.[78]
[77] Exhibit R1 at 233.
[78] Transcript, 11 December 2018, at 63.
At page 64 of the transcript, Counsel referred Dr Teoh to his opinion, expressed in his report of 28 October 2015, that “there were no other overt external factors contributing to [Mr Theacos’] psychiatric condition …”.[79] The following exchange then took place:
You’d like to know, wouldn’t you, that he had been suffering an addiction with Ice? --- Yes.
You’d want to know that he’d been suffering an addiction with amphetamines generally? --- Yes.
You’d want to know about his admissions to those various institutions that we earlier discussed? --- Yes.
You’d want to know how he presents after he goes off the drugs and, by comparison, how he presents when on the drugs or within a couple of days? --- Yes. Yes.
Because those things tell you about what’s productive of his presentation, correct? --- Yes.
[79] Exhibit A6 at 19.
Counsel then put to Dr Teoh that part of Dr Blackwell’s 1 May 2013 note in which she referred to Mr Theacos’ abstention from benzodiazepines for three weeks.[80] Dr Teoh agreed that the picture being described by Dr Blackwell was a positive response to the removal of benzodiazepines from Mr Theacos’ life. The below exchange followed:
That would suggest that the productive element in his life with respect to his depressive disorder, whether it started or whether it’s become, it’s the drugs in his life, or the misuse of the drugs in his life? --- Yes. I think the misuse of the drugs in his life contributed significantly, yes, to his behaviour and his mental state, yes.[81]
[80] Exhibit R1 at 240.
[81] Transcript, 11 December 2018, at 67.
Dr Teoh also agreed that in the absence of drug use, Mr Theacos “otherwise is capable and presents well”.[82]
[82] Transcript, 11 December 2018, at 68.
Dr Teoh said that “a lot of relapses in people with substance abuse disorder are related to some kind of stressors. Either from the past, present or future worry”.[83] He agreed this is typical addictive behaviour and that the harassment Mr Theacos experienced in the workplace might not have been the main “but it could have been one of the stressors that have made him use the drugs”.[84] Another stressor was the fear of returning to work.[85]
[83] Transcript, 11 December 2018, at 68.
[84] Transcript, 11 December 2018, at 69.
[85] Transcript, 11 December 2018, at 70.
Dr Teoh is of the opinion that Mr Theacos’ presentation of appearing to function well when not using drugs, but missing appointments, having his mood affected and treating people poorly when he is using, “is consistent with a substance use disorder with relapsing courses”.[86]
[86] Transcript, 11 December 2018, at 73.
Dr Teoh agreed that the information put to him by Counsel for Comcare at the hearing was inconsistent with that which Mr Theacos presented to him at consultation.[87] He agreed that his opinion, based on Mr Theacos having abstained from using illicit drugs for two years prior to December 2016 (when Dr Teoh last assessed Mr Theacos), was “undermined".[88]
[87] Transcript, 11 December 2018, at 74.
[88] Transcript, 11 December 2018, at 77.
Dr Teoh summarised his opinion at the time of his giving evidence in December 2018:
… based on information I’ve now received, I think the severity and the significance of the substance abuse disorder over the years are very significant and have contributed to his mental state, but I still believe that the work-related issue is not the cause of his problems but had aggravated the cause of his substance abuse problems. Like I said earlier, people with substance abuse disorders are triggered when they relapse by some kind of stressors in their life: relationship problems, financial problems. Any kind of stressors are more likely to cause a relapse, and in this case I think the work-related issue was a significant stressor in his life and could have contributed to his relapse and aggravated his long history of substance use disorder.
…
… I think at some stage, either around the time where there were work-related stress and abuse, and maybe for several periods after that, he was significantly stressed by those issues, but after that I think the substance use disorder takes its own course.
Yes? --- And becomes the predominant problem.[89]
[89] Transcript, 11 December 2018, at 78.
When asked by Counsel for Comcare whether he disagreed with the opinion of Dr Haydon in March 2016, that Mr Theacos’ “previous work place environment is not likely an ongoing factor. Other factors affecting his mood during this time include drug use, marital issues, and financial stressors”,[90] Dr Teoh replied:
Yes, I actually, yes, agree with that.[91]
[90] Exhibit A6 at 32.
[91] Transcript, 11 December 2018, at 78.
Dr Teoh said that when he took a history from Mr Theacos, “[Mr Theacos] did put some emphasis on this idea that this work-related issue had caused him so much stress that he had relapsed with his substance abuse”.[92]
Report of Mr Haralambous, Clinical & Forensic Psychologist, 5 October 2016[93]
[92] Transcript, 11 December 2018, at 54-55.
[93] Exhibit R5 at 46
Mr Theacos was assessed by Mr Haralambous on 1 August 2016 at the request of the solicitors for Comcare. For the purposes of his report, Mr Haralambous administered various tests and considered a number of reports provided to him.
Mr Haralambous reported, in part:
On the basis of the wide range of information that is currently available before me, it is my opinion that Mr Theacos has a chronic Substance Use Disorder that has included the use of cannabis, cocaine, amphetamines, and methamphetamines, as well as abuse of prescribed medications, which is associated with paranoia, asocial behaviour, impaired concentration, lethargy, and likely effects on mood, and which has its basis, in the present case, in pre-existing characterological vulnerabilities that are likely to have been evident since childhood. This Substance Use Disorder appears to have been aggravated by the financial stressors and less structured lifestyle while Mr Theacos has been effectively unemployed. However, as discussed in more detail above, neither Mr Theacos’ substance abuse disorder nor any other form of diagnosable psychological pathology in the present case appears to have been caused by the circumstances of Mr Theacos’ employment with Australian Rail Track Corporation, it is unlikely that there is persistent aggravation from circumstances of employment from which Mr Theacos has been effectively removed for over 5 years to date, and the findings on objective evaluation suggest to a reasonable degree of certainty that Mr Theacos is currently exaggerating and/or embellishing the negative psychological effects of the circumstances from which his claim arises.[94]
Further, in Mr Haralambous’ opinion, aggravation of any pre-existing condition suffered by Mr Theacos was not likely to have persisted beyond six months following removal of the circumstances from which his claim the subject of these proceedings arose.[95]
[94] Exhibit R5 at 85.
[95] Exhibit R5 at 86.
Evidence of Dr Synnott, Consultant Psychiatrist
Dr Synnott examined Mr Theacos on 15 May 2017 at the request of the solicitors for Comcare. He provided reports dated 22 May 2017,[96] 27 July 2017[97] and 27 June 2018,[98] and gave evidence at the hearing.
[96] Exhibit R2.
[97] Exhibit R3.
[98] Exhibit R4.
Dr Synnott diagnosed Mr Theacos as suffering a chronic Major Depressive Disorder. On the information available to him at the time of the examination, Dr Synnott was of the opinion that the disorder was significantly contributed to by events that occurred at Mr Theacos’ workplace. Dr Synnott noted that Mr Theacos denied any other issues in his life that could have significantly contributed to his psychological problems.[99]
[99] Exhibit R2 at 8-9.
On 27 July 2017, Dr Synnott provided a supplementary report after considering further material provided to him, including reports by Dr Teoh, Dr Hinton, Dr Blackwell, Dr Vickery and Dr Newnham. Dr Synnott reported that given the inconsistencies between the history given by Mr Theacos and the additional information supplied, he was unable to confidently reach any conclusions as to the condition or conditions suffered by Mr Theacos, nor as to the likely causes of such.[100]
[100] Exhibit R2 at 3.
On 20 June 2018, the solicitors for Comcare wrote to Dr Synnott enclosing a copy of the transcript of the evidence given in these proceedings and summarising the evidence as to Mr Theacos’ drug use and treatment.[101] I am satisfied that the summary provided accurately reflected the state of the evidence at that time.
[101] Exhibit R5 at 35.
Having considered the further information, Dr Synnott reported on 27 June 2018, in part:
At the time of my assessment of Mr Theacos, he was probably experiencing sufficient psychological symptoms to meet the diagnostic criteria of (i) major depressive disorder and (ii) substance abuse (possibly – illegal drugs [amphetamine, ice, cannabis or cocaine] and/or prescribed medication [Seroquel and Alprazolam]).
…
Prior to commencing employment, the history suggests – a significant psychological vulnerability, learning difficulties/limited intellectual resources, ADHD and substance abuse. In my opinion, the combination of these factors – with varying degrees of significance, changing/fluctuating over time and with circumstances – left him at significant risk (predisposition) to experiencing psychological symptoms/difficulties.
…
In my opinion, any current psychiatric condition has no significant connection to his previous employment with ARTC.
…
In my opinion, he does not have – and never has had – a psychiatric condition related to employment at ARTC; at most, he experienced some temporary distress – that is not the same as a psychiatric condition. Any current psychological difficulties have no significant connection to his previous employment with ARTC.[102]
[102] Exhibit R4 at 2, 4, 5.
F. REASONING
Issue 1: Has Mr Theacos suffered Major Depression at any time or times since 7 October 2015 and, if so, when?
On the basis of the evidence of Dr Teoh and Dr Synnott, I am satisfied that at all times since 7 October 2015 Mr Theacos has suffered Major Depression.
Dr Teoh had the benefit of having treated Mr Theacos at an early stage, as well as examining him for the purpose of providing reports in these proceedings. He impressed me as an expert witness who expressed his opinions in a very measured way and who was prepared to reconsider his views when additional information was presented to him. He acknowledged the complexity of Mr Theacos' condition, taking into consideration his major depression, substance abuse disorder and history of attention deficit disorder.
When Dr Teoh examined Mr Theacos in December 2016 he was of the opinion that Mr Theacos’ major depression had become chronic and his prognosis was guarded.
I take into account also Dr Synnott’s opinion that Mr Theacos met the diagnostic criteria for chronic major depressive disorder when he examined him in May 2017. However, I note that when supplied with further information Dr Synnott was unable to say with any confidence whether psychiatric symptoms or conditions were present.
Issue 2: On the balance of probabilities, did Mr Theacos' employment by the ARTC cease to contribute to a “significant degree” to his suffering Major Depression at any time or times since 7 October 2015?
Whilst neither party bears an onus of proof, there is an evidentiary burden on Comcare which must be discharged if the decision under review is to be affirmed.
In Comcare v Power,[103] Justice Katzmann said of the nature of review by the Tribunal of decisions whether or not to terminate existing compensation entitlements:
63   Here, as Comcare acknowledged in argument, the decision the Tribunal was reviewing was whether or not to terminate Ms Power’s compensation entitlements arising from the compensable injury in the light of changed circumstances. It was not reviewing a decision based on fresh evidence as to whether compensation should ever have been awarded. In a case such as this, as Woodward J explained in [McDonald v Director-General of Social Security (1984) 1 FCR 354] at 359, having considered all the available evidence, if the Tribunal was left in a state of indecision, it should have been resolved in the claimant’s favour.
…
67   In [Telstra Corporation Ltd v Arden (1994) 20 AAR 285] Burchett J considered that what was said in McDonald was consistent with his own statement in Reitano v Commonwealth of Australia [1985] FCA 657 that, where the question was whether an employee who had previously been found to be entitled to compensation was no longer eligible, “the burden of persuasion be borne by the arguments against the existing entitlement of the applicant [worker]”.
…
70   … I accept that (sic) is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made.
[103] (2015) 238 FCR 187 at 198-200 ([63], [67], [70]); [2015] FCA 1502.
Counsel for Mr Theacos argued that, when considered as a whole, the evidence established:
othe applicant was the subject of bullying, harassment, ostracisation and racial vilification for an extended period during the course of his employment with the ARTC;
ofollowing a complaint to management in 2009, whilst the racial vilification may have toned down to a degree, other forms of bullying and harassment continued;
othe applicant, as result of those workplace incidents, suffered a psychological injury and was forced to cease employment;
oprior to ceasing his employment with the ARTC, the applicant had dabbled very occasionally in recreational drugs;
oin order to deal with his emotional distress caused by the bullying and harassment, the applicant started abusing illicit substances;
oat all times since ceasing his employment with the ARTC, the applicant has been incapacitated for all forms of employment;
othe applicant has not taken any illicit substances since at least February 2016;
othe applicant currently suffers from a major depression and substance use disorder in remission;
othe workplace racial vilification and harassment were significant contributing factors to his current condition.[104]
[104] Applicant's Outline Submissions in Reply, 15 May 2019, at [42].
I have accepted Mr Theacos' evidence in regard to his experience in his work environment prior to March 2011. I am satisfied that he was treated very badly by some of his co-workers. I am satisfied further that this caused him to suffer Major Depression, being the injury for which Comcare initially accepted liability and for which he was paid compensation for loss of earnings and medical expenses until October 2015.
It was further submitted on behalf of Mr Theacos:
There is then a clear and consistent complaint from the applicant to his various treatment providers of ongoing psychological issues, with the initial trigger being the workplace incidents. The applicant readily concedes that he turned to illicit drugs following ceasing work. Whilst he may not have disclosed the full extent of his drug use to various practitioners at times, he certainly did not hide the fact that he was taking illicit substances.[105]
[105] Applicant’s Outline Submissions, 27 March 2019, at [146].
I am not satisfied that Mr Theacos was a reliable historian when it came to the extent of his use of illicit drugs.
While Mr Theacos claimed that he only used illicit drugs on rare occasions prior to his ceasing work in March 2011, he admitted that during 2010 he was abusing drugs (including ice and marijuana) for two or three months at a time. I also take into account the evidence that he obtained drugs from two suppliers prior to his ceasing work and that he had known one of those suppliers for a very long time. In addition, one of the two was known to him only as a drug supplier.
Ms Richards-Horder was Mr Theacos' treating psychologist in March 2013. She was of the opinion that he suffered both Major Depressive Disorder and Substance Use Disorder and regarded the latter as the more significant at that time. She reported that Mr Theacos was not always open with practitioners as to his drug use.
On 18 June 2018, Dr Teoh reported that Mr Theacos had started using cannabis in his early twenties, and that at the time of his admission to South Pacific Private Hospital in April 2012 he had a history of depression and substance abuse.[106]
[106] Exhibit A5 at 1-2.
I also take into account that Mr Theacos was prepared to use drugs prescribed for others on more than one occasion for the purpose of remaining awake at work.
I have considered carefully the evidence of Mr Theacos' former partner, Ms Milsteed, who said that he was not regularly using drugs before 2011. However, despite her claim that she would have known if Mr Theacos was using drugs, I am satisfied on the evidence that there were times when he was able to hide his drug use from her, such as his use of ice and marijuana in 2010.
For the reasons already stated, I accept the evidence of Dr Teoh that when he treated Mr Theacos in April 2012 (on admission to South Pacific Private Hospital), Mr Theacos had a history of depression and substance abuse. Based on his evidence, I am satisfied that at that time Mr Theacos was suffering Major Depression as a result of workplace stress which had aggravated his pre-existing drug-abuse condition. As the treating doctor, Dr Teoh was well placed to make this assessment.
I turn now to the question whether Mr Theacos' employment made a significant contribution to his Major Depression at any time since 7 October 2015. I do so on the basis that he had a substance abuse disorder which was aggravated by the treatment he had received in the workplace.
Taking into account the evidence of the medical professionals to which I have referred, I am satisfied that Mr Theacos' employment by the ARTC has not made a significant contribution to his Major Depression at any time since 7 October 2015.
I found Dr Teoh’s reasoning as to the likely progress of Mr Theacos' psychiatric condition more persuasive than that put forward by Dr Synnott. Dr Teoh explained that the stress of Mr Theacos' employment was a contributing factor to his depression in the background of his pre-existing Attention Deficit Disorder and Substance Abuse Disorder.
After he became aware of further information as to Mr Theacos' clinical history, Dr Synnott formed the opinion that at no time did Mr Theacos' psychiatric condition have a significant connection to his employment. This was contrary to the opinions of Dr Vickery, Dr Haydon, Dr De Saxe, Dr Dowda and Dr Zsadanyi.
Dr Teoh initially formed the view that there were no factors other than Mr Theacos' employment contributing to his depression. However, after receiving further information, Dr Teoh was of the opinion that the misuse of drugs was contributing significantly to Mr Theacos' mental state and that at some stage took “its own course … and [became] the predominant problem”.[107]
[107] Transcript, 11 December 2018, at 78.
Dr Teoh’s views were supported by Dr Vickery in April 2015, Dr Haydon in March 2016 and Mr Haralambous in August 2016.
During re-examination, Counsel for Mr Theacos put to Dr Teoh the proposition that Mr Theacos had not used ice until after he ceased work and that his cannabis use prior to his finishing work was when he was in his twenties. Dr Teoh considered that this was quite a different history to that put by Counsel for Comcare and in those circumstances his opinion was that the Substance Use Disorder was not the main problem.[108]
[108] Transcript, 11 December 2018, at 81-82.

Although Dr Teoh said that he did not regard Mr Theacos' Substance Use Disorder as important a contributor as he had previously thought, this was based on the assumption that the history put to him by Counsel for Mr Theacos was correct. On the basis of the evidence to which I have referred, I am satisfied that Mr Theacos was using ice, cannabis and other drugs prior to the cessation of his employment.
Taking into account all of the evidence, I am satisfied that Mr Theacos' employment by the ARTC did not significantly contribute to the condition from which he suffered at any time after 7 October 2015.
G. CONCLUSION
The decision made by the delegate of the Respondent on 10 February 2016, affirming the determination made 7 October 2015, will be affirmed.

I certify that the preceding 142 (one hundred and forty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

............................[sgd]............................................
Associate
Dated: 6 December 2019

Dates of hearing: 19, 20 and 21 February 2018
10 and 11 December 2018
17 May 2019

Counsel for the Applicant: Mr G Smith

Solicitors for the Applicant: Trisley Lawyers

Counsel for the Respondent: Mr M Gollan

Solicitors for the Respondent: Lehmann Snell Lawyers

[2019] AATA 5248

6 December 2019

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Statutory Construction

Dates of hearing:	19, 20 and 21 February 2018 10 and 11 December 2018 17 May 2019
Counsel for the Applicant:	Mr G Smith
Solicitors for the Applicant:	Trisley Lawyers
Counsel for the Respondent:	Mr M Gollan
Solicitors for the Respondent:	Lehmann Snell Lawyers