TMPR and Comcare (Compensation) - [2019] AATA 2451

TMPR and Comcare (Compensation) [2019] AATA 2451 (8 August 2019)
Division:GENERAL DIVISION
File Number(s): 2017/3479
Re:TMPR
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:8 August 2019
Place:Canberra

The Tribunal sets aside the reviewable decision dated 18 May 2017.
The matter is remitted to the Respondent to quantify the Applicant’s entitlements to compensation, medical treatment expense and incapacity payments for the period 21 March 2017 to the present date in accordance with and in light of these reasons for decision.
The Tribunal orders the Respondent to pay the costs of the proceedings incurred by the Applicant pursuant to section 67(9) of the Safety, Rehabilitation and Compensation Act 1988.
........................................................................
Senior Member Linda Kirk
Catchwords
WORKERS’ COMPENSATION – psychological injury - whether the Applicant continues to suffer the effects of an accepted condition – whether the accepted condition continues to be contributed to in a material degree by the work-related event – whether liability exists to pay compensation for medical expenses and incapacity for work having regard to the statutory test relevant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 - decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Attorney-General’s Department v K[2010] NSWWCCPD 76
Comcare v Canute (2005) 148 FCR 232
Comcare v Power [2015] FCA 1502
Comcare v Sahu-Kahn (2007)156 FCR 536
Dean v Australian Postal Corporation [2010] FCA 680
Dunstan v Comcare [2011] FCAFC 108
Edwards v Secretary, Department of Education and Communities[2016] NSWWCCPD 45
HNGN and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 4096
McDonald v Director-General of Social Security (1984) 1 FCR 354
Peipman and Comcare [2019] AATA 545
Perich and Secretary, Department of Social Services [2018] AATA 963
Prain v Comcare [2017] FCAFC 143
Prowse and Comcare (Compensation) [2019] AATA 411
State Transit Authority of New South Wales v Fritzi Chemler[2007] NSWCA 249
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Wiegand v Comcare Australia [2002] FCA 1464
Winchester and Comcare [2018] AATA 2146
REASONS FOR DECISION
Senior Member Linda Kirk
8 August 2019

TMPR (‘the Applicant’) was born in 1967. He commenced work with the Department of Veteran Affairs (‘the Agency’) in November 2002.
The Applicant lodged a claim for workers’ compensation for “anxiety and depression” dated 7 February 2005.[1] The Applicant claimed to have suffered injury as a result of an excessive workload and a breakdown in his relationship with his supervisor, leading to intimidating and harassing behaviour by the supervisor toward him.
[1] T5.
On 29 June 2005, Comcare (‘the Respondent’) accepted liability for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act') for 'depressive disorder' with a deemed date of injury of 28 July 2004 (‘the accepted condition’).[2]
[2] T11.
On 16 December 2015, the Respondent issued a Notice of Intention to determine no present entitlement under s 16 of the SRC Act for the Applicant's accepted condition based on Dr Michael Hong’s report dated 12 October 2015.[3] By email dated 18 September 2015, the Applicant sought review of the Respondent's notice.[4]
[3] T117.
[4] T122.
On 11 March 2016, Comcare determined that it remained liable under sections 16 and 19 of the SRC Act.[5]
[5] T127.
On 1 February 2017, Comcare notified the Applicant of its intention to determine no present entitlement to compensation under ss 16 and 19 of the SRC Act and invited the Applicant to provide information for Comcare’s consideration.[6]
[6] T134.
By email dated 7 February 2017, the Applicant requested additional time to respond and challenged the qualifications of Dr Hong, upon whose opinion the decision to review the Applicant’s entitlement to compensation was based.
In an email dated 1 March 2017,[7] the Applicant argued that Dr Hong’s opinion should not be accepted as the doctor had failed to identify that the increase in the Applicant’s symptoms in 2016 was attributable to a response to medication, not to a constitutional condition. The Applicant primarily relied on the findings of his treating doctors, who had provided reports in support of his claim.[8]
[7] T139.
[8] T139.
On 21 March 2017, the Respondent determined that the Applicant had no entitlement to compensation under ss 16 and 19 of the SRC Act.[9] The delegate relied upon the opinion of Dr Hong that the Applicant’s condition was constitutional. On 19 April 2017, the Applicant requested reconsideration of the determination.[10]
[9] T140.
[10] T141.
In the Reviewable Decision dated 18 May 2017, the Respondent affirmed the determination of 21 March 2017, declining liability to pay compensation under ss 16 and 19 of the SRC Act in respect of the previously accepted “depressive disorder” deemed to have been suffered on 28 July 2004.[11]
[11] T143.
On 15 June 2017, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the Reviewable Decision.[12]
[12] T2.
On 16 March 2018 the Applicant submitted a claim for Permanent Impairment and Non-economic loss for his compensable condition under ss 24 and 27 of the SRC Act.[13] In April 2018 the Applicant was medically retired after being assessed by Dr Catherine Oelrichs as unable to work, and she supported an application for invalidity retirement.[14]
[13] T128.
[14] Exhibit A1, [43].
The review application was heard by the Tribunal at a hearing in Canberra on 8, 9 and 10 April 2019. The following witnesses gave oral evidence at the hearing:
·the Applicant;
·Dr Michael Hong, Consultant Psychiatrist;
·Dr Christopher Cocks, Forensic Psychiatrist;
·Dr Janelle Hamilton, General Practitioner;
·Ms Yvonne Fisher, Clinical Psychologist;
·Dr Bruce Lean, Consultant Psychiatrist;
·Dr William Knox, Consultant Psychiatrist
The following documents were before the Tribunal:
·Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) dated 3 July 2018;
·Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC) dated 17 July 2018;
·Statement of the Applicant dated 16 October 2018 (Exhibit A1);
·Correspondence between the parties dated 4 April 2019, note for file claim number 926938/1 dated 17 October 2018 and corrections to file claim number A2 926938/1 dated 17 October 2018 (Exhibit A2);
·Applicant’s Chronology and Symptom History, undated (Exhibit A3);
·Medical report of Dr Catherine Oelrichs dated 8 January 2018 (Exhibit A4);
·Document titled ‘Panel Assessment – Invalidity Retirement’ dated 6 March 2018 (Exhbit A5);
·Medical report of Dr William Knox dated 9 April 2018 and briefing letter dated 23 March 2018 (Exhibit A6);
·Medical report of Ms Yvonne Fisher dated 5 March 2019 and briefing letter dated 26 February 2019 (Exhibit A7);
·Medical report of Dr Bruce Lean dated 7 March 2019 and briefing letter dated 26 February 2019 (Exhibit A8);
·Medical report of Dr Zoltan Zsadanyi dated 6 November 2017 (Exhibit A9);
·Statement of Mr Paul Keogh dated 11 March 2019 (Exhibit A10);
·American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (American Psychiatric Publishing, 5^th Edition, 2013), 663-666 (DSM5) (Exhibit A11);
·Documents extracted and compiled from summons material and Exhibit R1 including medical reports of Associate Professor Jeffrey Looi dated 12 August 2007, 11 August 2015, 6 February 2016 and 30 May 2017 (Exhibit A12);
·Tender bundle of summonsed documents (Exhibit R1);
·Medical report of Dr Christopher Cocks dated 6 December 2017 and briefing letter dated 20 November 2017 (Exhibit R2);
·Medical report of Dr Michael Hong dated 2 April 2019 and briefing letters dated 28 March 2019 and 19 September 2018 (Exhibit R3); and
·Section 37 documents (T-documents) (Exhibit R4).
LEGISLATIVE FRAMEWORK
SRC Act
15.Sections 14 and 16 of the SRC Act provide for the payment of compensation:
14 Compensation for injuries
(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.
…
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
Section 19 of the SRC Act relevantly provides:
This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies
‘Injury’ is defined in s 5A of the SRC Act:
(1)…
(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.
At the claimed date of injury (28 July 2004), s4(1) of the SRC Act defined ‘disease’ to mean:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s entitlement by the Commonwealth.
An ‘ailment’ is defined in s 4 of the Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES FOR DETERMINATION
The issues for determination are whether, as at 21 March 2017 to the present date:
1)the Applicant continued to suffer from the accepted condition; and if so,
2)whether that condition continues to be contributed to in a material degree by the work-related event in July 2004; and if so
3)whether liability exists to pay compensation for medical expenses and incapacity for work having regard to the statutory test relevant to sections 16 and 19 of the SRC Act.
APPLICANT’S EVIDENCE
Early years and schooling
The Applicant was born in Canberra and is the eldest of three boys. He attended Canberra Boy’s Grammar School from Year 8 in 1981 until 1985 when he completed Year 12.[15] He performed well academically, played sports and was heavily involved in the school’s musical activities, including as Head Chorister in the Chapel Choir, Student Organist and pianist for the senior school assembly.[16] He has fond memories of his time at the School. He remains in contact with school friends and still visits the School now and then.[17]
[15] Exhibit A1, [4].
[16] Exhibit A1, [5].
[17] Exhibit A1, [9].
In his Statement dated 18 October 2018, the Applicant stated that he was subjected to homophobic slurs from other school students when he was in years 9 and 10. These taunts did not exceed the occasional verbal comment, and he was never physically threatened or attacked. He did not seek counselling, medical support or have significant time out of school because of these taunts.[18] The taunting from other students ceased when he was in year 11.[19]
[18] Exhibit A1, [6].
[19] Exhibit A1, [7].
During cross-examination, the Applicant was asked about a ‘Letter to my 8 year old self’[20] that he wrote during treatment with Dr Victoria Carr, psychologist, dated 23 July 2013.[21] In this letter he stated he first was teased at the end of primary school when he was called a ‘pansy’. He also wrote that he was involved in a physical fight at high school with another student by whom he had been ‘teased mercilessly’. The Applicant conceded that the period over which he was teased and bullied at school was longer than he described in his Statement, and that it did include physical harm.
[20] Exhibit R1, 56-57.
[21] Exhibit R1, 56.
In his Statement, the Applicant stated that during the summer break between 1983 and 1984, he had a sexual experience with a school friend. When he returned to school in 1984 he sought support from and had regular sessions with the school counsellor until the middle of the year. In the second half of 1984 he had a few ‘check in’ sessions with the counsellor. His attendance at school and studies were not affected by this experience, and he did not seek medical advice or take medication.[22]
[22] Exhibit A1, [8].
In his Statement and his oral evidence, the Applicant said that he ‘came out’ to his mother in about 1986 when he was still living at home and after finishing school. At first she was not happy about his sexuality, but it was ‘not too long’ until she came to accept it and support him.[23]
[23] Exhibit A1, [10].
During cross-examination, the Applicant was asked about clinical notes of Dr Carr that record that he did not come out to his mother, but instead she discovered his sexuality in 1986 when she found a gay magazine under his bed.[24] The notes also record that in 1991 the Applicant asked a colleague at Lifeline to conduct a mediation between him and his mother. The Applicant agreed that he was ‘found out’ by his mother and his parents took some time to accept his sexuality but they came to do so.
[24] Exhibit R1, 54.
Tertiary education and early career
After completing year 12, the Applicant worked full-time at the Australian National University ('ANU') in a clerical position from approximately 1986 to 1988.[25] In 1989 he commenced a Bachelor of Arts at ANU whilst continuing to work part-time at the ANU Library.[26] He completed his degree majoring in psychology and sociology in 1992.[27] In 1994 he completed a Graduate Diploma in Applied Psychology (Counselling) at the University of Canberra.[28]
[25] Exhibit A1, [11].
[26] Exhibit A1, [11].
[27] Exhibit A1, [11].
[28] Exhibit A1, [11].
From approximately October 1996 to October 1998 the Applicant was employed as a clinical psychologist at the ACT Division of General Practice.[29] From November 1997 to April 1999 he was employed as an Education Manager at the AIDS Action Council.[30]
[29] Exhibit A1, [12].
[30] Exhibit A1, [13].
During 1998, the Applicant was responsible for the management of a non-performing staff member at the AIDS Action Council. The process was protracted and politically-sensitive. The staff member was given a ‘3 strikes’ warning, but he resigned just prior to the notice of termination being formally issued.[31]
[31] Exhibit A1, [14].
From approximately November 1998 to February 1999 the Applicant was employed on a casual basis by Relationships Australia as a counsellor.[32] In April 1999 he was appointed as a full-time permanent ASO6 in the ACT Department of Health in the Mental Health Policy Unit.[33] He was promoted to an EL1 later that year or early in 2000. He worked in the Disability Policy Unit and the Health Outcomes Policy Unit until he left ACT Health in August 2002 to begin a placement with the Commonwealth Department of Health. He left the Commonwealth Department of Health to take up a position at the Agency.[34]
[32] Exhibit A1, [16]; Applicant’s SFIC, [13].
[33] Exhibit A1, [17].
[34] Exhibit A1, [18].
Earlier period of depression
In his Statement, the Applicant said that in 1998 he experienced ‘some difficulties with sleep and fatigue’. He attended his general practitioner Dr Valerie Hill who prescribed a course of Endep for approximately 8 weeks.[35] He understood that Endep was prescribed because of its sedative effect. The medication was effective, and he did not require any further treatment. During this period, he did not take any time off from work.[36]
[35] Exhibit A1, [15].
[36] Exhibit A1, [16].
In cross-examination, the Applicant denied that he had experienced a prior period of depression. He was asked about the statement he made on the workers’ compensation claim form dated 7 February 2005,[37] in which he wrote ‘mid 1999 short term reactive depression’. He said this was a ‘mistake’ and was likely made because at the time he was ‘extremely ill’ and ‘unmedicated and untreated’ when he completed the form. One of the symptoms of depression is ‘trouble with memory’.
[37] T5, 10.
The Applicant was questioned about a Commonwealth Department of Health pre-employment questionnaire dated 26 July 1999.[38] He said that he did not recall the form but he agreed that he did complete and sign it. Question 14 of the form asks whether he had experienced ‘depression or difficulty sleeping’ to which he answered ‘yes’.[39] The handwritten notes by Dr Federoff record that the Applicant had ‘insomnia + depression’.[40]The Applicant said that he only had experienced difficulty sleeping at this time.
[38] Exhibit R1, 15-18.
[39] Exhibit R1, 17.
[40] Exhibit R1, 19.
The Applicant was questioned about Medicare Australia records which indicate he was given a prescription by Dr Hill for the anti-depressant medication Sertraline (28 tablets) in 2001, which included five repeats.[41] He told the Tribunal that this must be a mistake as he did not take Sertraline, and that it must have been a script for Seratide for his asthma.
[41] Exhibit R1, 24.
The Applicant was asked about an email dated 1 March 2017 in which he wrote that he had a ‘short period of reactive depression’ in 1998.[42] He told the Tribunal that a psychologist cannot diagnose themselves, he does not know what ‘reactive depression’ is, and he does not believe it is in the DSM.
[42] T139, 653.
During cross-examination, the Applicant was asked about the accounts he gave to a number of doctors about experiencing a previous bout of ‘reactive depression’. Dr Christopher Cocks recorded in his report dated 6 December 2017 that the Applicant told him he experienced a ‘reactive depression’ in 1999 and was prescribed Endep.[43] The Applicant told the Tribunal that he did not use the phrase ‘reactive depression’ but instead said he had ‘trouble with sleeping’. Dr Michael Hong recorded in his report dated 12 October 2015 that the Applicant’s first episode of depression was in 1999.[44] The Applicant said he did not say this to Dr Hong. In his report dated 12 August 2008, Associate Professor Jeffrey Looi recorded that the Applicant suffered ‘anxiety symptoms’ and ‘reactive depression’ in 1999.[45] The Applicant denied saying this to Associate Professor Looi.
[43] Exhibit R2, 4.
[44] T120, 561.
[45] Exhibit R1, 49.
Employment at the Agency
On 11 November 2002 the Applicant commenced employment with the Agency as National Manager of the Vietnam Veterans ‘Sons and Daughters’ Project on a fixed term contract until 30 July 2004. This project was a program regarding suicide prevention and mental health promotion for the children of Vietnam veterans. The role involved managing several national mental health promotion and suicide prevention projects (website, book, Agent Orange video, group programs, newsletters, evaluation consultancy and strategy) in collaboration with and under the direction of the Vietnam Veterans Counselling Service ('VVCS') Brisbane Director and Project Officer.[46] The project was one of significant complexity and involved communications with and travel to various project offices in each state and territory.
[46] Exhibit A1, [19]; Applicant’s SFIC, [15].

By early 2004, the Applicant had been promoted to a full-time EL1 position as Assistant Director, Mental Health Policy Section of the Younger Veterans' Branch. He also continued on the Sons and Daughters Project, which was due to be completed on 30 July 2004.[47] At this time he experienced disruption to his sleep and would wake with blood on his pillowcase from scratching his head at night. He attempted to make an appointment with his GP but she had retired.[48]
[47] Exhibit A1, [20].
[48] Exhibit A1, [20].
On 2 April 2004 the Applicant had submitted to him an article from the VVCS Brisbane Director for inclusion on the Agency website. The Applicant disagreed with the inclusion of this article as there were several unresolved issues with the website. However the VVCS Brisbane Director continued to send him harassing emails about the article and website. He reported this matter to his employer.[49] On 21 April 2004 the VVCS Brisbane Director and Project Officer withdrew from the Sons and Daughters Project, with the Applicant expected to take up their workload in addition to his normal duties.[50]
[49] Exhibit A1, [22].
[50] T8 and T57; Applicant’s SFIC, [17].
The Applicant’s workload continued to increase and the Applicant approached Senior Management (Section and Branch Heads) and told them it was too much, too complex and complicated and politically sensitive. He was not given any support or additional resources and told he had to handle the work himself.[51]
[51] Exhibit A1, [23].
During this period the Applicant stopped socialising and engaging in recreational activities and was exhausted in the evenings and on weekends.[52] He booked leave in July 2004 and hoped his symptoms would resolve, but they did not. When he returned to work on 28 July 2004 the workload was at the same level and he was expected to continue to manage it himself.[53]
[52] Exhibit A1, [24].
[53] Exhibit A1, [25].
First compensation claim – February 2005
On 30 July 2004 the Applicant attended a general practitioner, Dr Lyn Thew. He reported to her his difficulties with workplace stress and ‘cried uncontrollably’.[54] Dr Thew referred him for stress management and counselling and prescribed anti-depressant medication. The Applicant was on leave until 11 August 2004.[55]
[54] Exhibit A1, [26].
[55] T4; Applicant’s SFIC, [19]; Exhibit A1, [26].
The Applicant returned to work on reduced hours/duties until November 2004 when he resumed full-time duties.[56]
[56] T8; Applicant’s SFIC, [20]; Exhibit A1, [27];
In January 2005 the Applicant was seconded to the Defence Links Branch in a role regarding a Feasibility Study for the children of Vietnam veterans.[57]
[57] T32; Applicant’s SFIC, [21].
In early 2005 the Applicant had a ‘visual disturbance’ while walking to work. He returned to Dr Thew and she advised him to submit a workers’ compensation claim and stay on medication. [58]
[58] Exhibit A1, [28].
On 7 February 2005 the Applicant submitted a workers’ compensation claim for ‘anxiety and depression’ caused by ‘unmanageable workload & responsibility, and intimidation/harassment from VVCS Brisbane Director’.[59]
[59] T5.
On 30 March 2005, Dr Thew provided a report to the Respondent diagnosing the Applicant with 'major depression/anxiety' which in her opinion had arisen from his employment. She considered he had suffered a significant relapse after moving to his new role in January 2005.[60]
[60] T6; Applicant’s SFIC, [23].
On 4 April 2005 the Applicant returned to his substantive position with Mental Health Policy.[61]
[61] Applicant’s SFIC, [24].
In a report to the Respondent dated 26 May 2005, the Agency confirmed that the workplace events that the Applicant had described in a statement were accurate, that the VVCS Queensland Director had been dismissive of issues raised by the Applicant, that his behaviour to the Applicant had been unhelpful and antagonistic, and that he had arbitrarily offloaded work of the website to the Applicant.[62]
[62] T10; Applicant’s SFIC, [25].
On 29 June 2005 the Respondent accepted liability for 'depressive disorder' arising out the Applicant's employment with the Agency with a date of injury of 28 July 2004.[63]
[63] T11; Applicant’s SFIC, [26].
Return to work and relapse of condition
On 22 August 2005 the Applicant returned to full-time hours. On 31 October 2005 his rehabilitation program was closed.[64]
[64] T16; Applicant’s SFIC, [27].
In approximately November 2005, the Applicant was certified unfit for work subsequent to his withdrawing from anti-depressant medication causing an increase of his psychological symptoms. A new rehabilitation program was opened.[65] This second rehabilitation program was closed on 30 June 2006.[66]
[65] T19; Applicant’s SFIC, [28].
[66] T27; Applicant’s SFIC, [29].
By 20 July 2006 the Applicant had returned to pre-injury hours of work,[67] however he remained under the care of his general practitioner, Dr Thew and treating psychologist, Ms Sue Langford. He told the Tribunal that at the time he believed that he had ‘recovered’ but in hindsight he now thinks he had not.
[67] T27.
In September 2006, the Applicant suffered a relapse of his psychiatric symptoms and reduced his working hours.[68] This was a consequence of interpersonal issues and alleged harassment by his supervisor, Ms Helen Devlin, and difficulties with the subject matter of his work at that time.[69] The Applicant took time off work before he was again placed on a graduated return to work program.
[68] T29 and T32; Applicant’s SFIC, [30].
[69] T33; Applicant’s SFIC, [30]; Exhibit A1, [30].
The Applicant left his employment at the Agency in May 2007.
On 26 June 2007, the Applicant submitted an incident report form and statement regarding alleged bullying, harassment and interpersonal issues with Ms Helen Devlin and Ms Joanne Krueger.[70]
[70] T33 and T44; Applicant’s SFIC, [31].
In July 2007 the Applicant commenced a work trial at the Mental Health Council on a part-time basis.[71]
[71] T40 and T41; Applicant’s SFIC, [32].
Second compensation claim – August 2007
On 6 August 2007, the Applicant submitted a workers' compensation claim for ‘anxiety and depression’ arising from his interactions with Ms Devlin on 25 May 2007.[72] The Applicant’s hours gradually reduced from 30 hours per week to nine hours per week.[73]
[72] T46; Applicant’s SFIC, [34].
[73] Respondent’s SFIC, [10].
In a rehabilitation program progress report dated 6 September 2007, Ms Julie Thompson, rehabilitation consultant, noted the Applicant's increase in symptoms of anxiety and depression, his reduced sense of confidence, his increasingly becoming withdrawn and recent reduction of work hours.[74]
[74] T49; Applicant’s SFIC, [35].
On 7 September 2007, the Applicant provided a statement regarding his issues with Ms Devlin and psychological sequelae.[75]
[75] T50.
On 18 September 2007 the Applicant commenced a work trial with the National Library on a part-time basis, working 20 hours per week.[76]
[76] T52; Respondent’s SFIC, [10].
Medical assessments in relation to accepted condition
On 3 August 2007, Dr Elaine McLaren, general practitioner, referred the Applicant to Dr Bruce Lean, psychiatrist, for treatment.[77] She referred to his suffering depression and anxiety subsequent to his experiences at the Agency since July 2004.
[77] T45.
The Applicant first consulted Dr Lean in August 2007 and has continued to see him since this time. In a report to Dr McLaren dated 8 August 2007, Dr Lean referred to the Applicant's difficulties with depression since 2004 and recommended an increase to his medications.[78] He noted, from the history provided by Dr McLaren, the Applicant appeared to have “been battling away with recurrent depression since 2004”. Dr Lean observed in relation to the Applicant:
Currently his workplace is not as hostile or as difficult for him and I have stated to [the Applicant] that the right dose of effective treatment coupled with the ongoing care of his psychologist who can now start to work effectively with him should alleviate these symptoms but he will need to continue on medication for two years. Interestingly while his perfectionism and high personal standards probably have contributed, both positively and negatively, to this situation he also gives a story of some modelling from his now very unwell father who found working in the public service when [the Applicant] was growing up quite anxiety provoking. I can only speculate that they both have similar temperaments.
[78] T47; Applicant’s SFIC, [33].
In a report to the Respondent dated 19 November 2007, Dr McLaren referred to her treatment of the Applicant, and noted that the Applicant 'suffers from depression with anxiety symptoms. He does not have an underlying pre-existing condition. His condition is entirely related to his employment'[79] precipitated by an initial episode in 2004, the details of which she was not at the time aware, and which had been exacerbated from about May 2007.
[79] Summons documents — Garema Place Surgery.
In a report dated 22 November 2007, Dr Ian Low, Occupational Physician, provided a history of the Applicant's workplace issues, and considered him as suffering from a Major Depressive Disorder.[80] He observed that the Applicant’s ‘perfectionistic traits will have contributed to his perception of the workload and his sensitivity in interactions with other people will have contributed to his emotional decompensation’.
[80] T57.
In a report to the Respondent dated 27 December 2007, Dr Graham George, psychiatrist, provided a diagnosis of 'major depression with anxious mood' and expressed a view that ‘I do not necessarily think that his current condition is due to a pre-existing condition but may be related to a depressive disorder that may not have been totally resolved by mid-2006'.[81] Dr George noted the history of depression in 2004, and observed that it was possible that symptoms from that injury had not fully resolved by the time the Applicant experienced a re-emergence of symptoms in 2007, so that his condition represented a continuation of the earlier 2004 injury, but with an aggravation by a new precipitant in the form of the stance taken by his director in 2007.
[81] T59.
Denial of second compensation claim
In Employer Investigation Reports both dated 21 February 2008 the Applicant's complaints regarding Ms Devlin and Ms Krueger were found to be unsubstantiated as there was no evidence that they had breached the APS Code of Conduct.[82]
[82] T65 and T66.
On 1 March 2008 the Respondent denied the Applicant's second compensation claim for 'major depressive disorder, single episode'.[83] The delegate found that the Applicant had suffered a psychological condition which was significantly contributed to by his employment, however found that the claim fell within the exclusionary provisions of the SRC Act for reason that the Applicant's condition had arisen in part from a meeting with his supervisor on 24 May 2007, which was characterised by the delegate as a reasonable administrative action (informal counselling action) and thus the claim was denied.
[83] T67.
On 25 March 2008, the Applicant sought reconsideration of the 1 March 2008 determination.[84] He provided further details in an email dated 27 March 2008.[85]
[84] T69.
[85] T71.
On 31 March 2008, the Applicant sought a review of the investigation and findings of his allegations of misconduct regarding Ms Devlin and Ms Krueger.[86]
[86] T72.
On 22 May 2008, Dr Low provided a report to the Agency recommending that the Applicant continue his reduced hours of work at the National Library.[87] He recommended that the Applicant look to increase his hours over the following months, with a plan to return to full-time duties.
[87] T74.
On 10 June 2008 the Respondent issued a Reviewable Decision affirming the reasoning and effect of the 1 March 2008 determination regarding his second compensation claim.[88]
[88] T75.
In a referral to Associate Professor Looi dated 13 June 2008, Dr Felicity Donaghy noted the Applicant's recurrent depressive symptoms related to the events at the Agency.[89]
[89] Summons documents — Lyneham Professional Centre.
On 18 June 2008, following publication of the Reviewable Decision, the Applicant sought six weeks leave to recuperate due to reportedly experiencing increasing tiredness. This leave was supported by Dr Low.[90] Arrangements were made for the Applicant to return to work at the National Library performing work in the Music Branch at the APS4 – APS6 level following this six week absence from work.
[90] T76.
In a letter to Dr Donaghy dated 12 August 2008, Associate Professor Looi referred to the Applicant’s present psychiatric state, and noted that his history is consistent with the development of generalised anxiety in the context of workplace related stress, which when prolonged had led to a depressive episode.[91]
[91] Summons documents — Lyneham Professional Centre.
On 13 August 2008 the Applicant applied to the Tribunal seeking further review of the Respondent's 10 June 2008 reviewable decision.[92] The Applicant withdrew his application for review on 11 December 2009.[93]
[92] T80.
[93] ST2, 12.
Third compensation claim – November 2008
On 14 November 2008, the Applicant submitted a further claim for workers' compensation in respect of anxiety and depressive disorders regarding a case meeting with Ms Devlin, Ms Michelle Petroni and Ms Julie Thompson in February or March 2007.[94]
[94] T82.
On 21 November 2008, the Applicant completed a claim form for permanent impairment and non-economic loss arising out of his accepted condition.[95]
[95] T83.
On 24 February 2009, the Respondent denied liability under s14 of the SRC Act for ‘aggravation of depressive disorder’.[96]
[96] ST1.
A case closure report dated 12 March 2009 noted the Applicant's ongoing difficulties with depression and anxiety.[97]
[97] T91.
In a report to the Agency dated 13 May 2009 following an assessment of the Applicant, Ms Yvonne Skinner provided a diagnosis of 'dysthymia’ (chronic low-grade depression), and considered that he was not fit for employment in his previous occupation and that it was unrealistic for him to return to his pre-injury hours and duties.[98] She noted that the Applicant stated he was at times harassed by other students when at school and was at the time of the examination “dealing with his early childhood experiences with his present psychologist, Sue”.[99] He reported to her having experienced “exhaustion” in his employment prior to joining the Commonwealth Public Service in March 1997 and to have been “troubled by dealing with … cases; concerned about protecting victims of violence and abuse” when working for Relationships Australia at about this time.
[98] T92.
[99] T92.
The Applicant told Dr Skinner that he suffered depression in 1999, which he thought was a short-lived ‘reactive’ episode suffered as a result of the stress of having to dismiss an AIDS Council of Australia employee under his supervision. She also recorded that the Applicant’s father had a history of depression and problems with alcohol in later life.
Dr Skinner diagnosed the Applicant as suffering “dysthymia” or “persistent depressive disorder”.[100] She considered this to be “a chronic low grade depression” that was likely to persist. In her view, it was not realistic that the Applicant return to pre-injury employment and recommended re-training for work outside the public service. She was not optimistic that continuing the regime of medication and treatment undertaken by the Applicant during the five years prior to the assessment would achieve a durable return to work or remission of symptoms.
[100] T92, 421.
In a report to the Agency dated 19 May 2009 following an assessment of the Applicant, Dr Virginia Pascall also diagnosed the Applicant to suffer “dysthymia”. In her opinion, the Applicant’s perception as to the severity of his condition was inadvertently being reinforced through his pursuit of treatment, his attempts to better understand his condition through personal research, and the compensation process. Dr Pascall noted:
[The Applicant] certainly does have anxiety and depression, but it is more in the nature of personality characteristics that fluctuate and determine how he responds in stressful situations, than it is a single psychological condition.[101]
I also believe, as does Dr Skinner, that the personality trait of being dysthymic will continue through [the Applicant’s] life and that the issue is how well he learns to cope with the condition in order not to only function in life, but to gain a sense of life achievement.[102]
[101] T93, 445.
[102] T93, 446.
In a report to the Australian Government Solicitor dated 29 July 2009 following an assessment of the Applicant, Dr Robert Gertler, psychiatrist provided a diagnosis of 'chronic adjustment disorder with depressed mood'.[103] He accepted that this condition “developed on the basis of experiences in the workplace”. He was satisfied that the condition complained of at the time of the assessment was the same condition experienced by the Applicant in 2004, although observed that it had followed a fluctuating course.
[103] T95.
Subsequent study and work
The Applicant’s work trial at the National Library concluded in December 2008. In March 2009 the Applicant commenced a work trial at the Centre for Mental Health Research as a Project Officer within the Consumer Research Unit at the ANU.[104] This coincided with him commencing a PhD following a successful application by him for the grant of a scholarship to study at the ANU.[105] By May 2009, the Applicant had withdrawn from the course, apparently as a result of his continuing anxiety and depressive symptoms. He also reported difficulty continuing with the work trial at the ANU due to increased levels of anxiety and physical illness.[106]
[104] Respondent’s SFIC, [25].
[105] T88; Exhibit A1, [34].
[106] T91.
In January 2010, the Respondent confirmed that it would not fund the Applicant under the SRC Act to undertake tertiary study.[107] Although the Applicant subsequently challenged this decision,[108] he had by this time decided that he was no longer psychologically fit to undertake study at the PhD level.[109]
[107] T99.
[108] T101 and T102.
[109] T100.
In February 2010, the Applicant commenced paid work as a tutor at the University of Canberra,[110] working approximately 20 hours per week, involving both face-to-face teaching, class preparation, marking assignments and administrative duties.[111] In mid-2010, the Applicant had additionally taken on some lecturing duties. He continued this work throughout 2011, and increased his hours to 30 hours per week, and then to full-time hours in 2012.[112]
[110] T106.
[111] T105
[112] T106.
The Applicant said that he responded well to University teaching as he could go in and teach for two hours and then go home. In a Rehabilitation Case Closure report dated 24 March 2010, it was recorded that the Applicant had started going to the gym, playing squash and attending choir.[113] He agreed that by mid-2010 he was ‘stable and happy’ and that the stressors in his life at the time (2010 to 2015) were either situational at the University, the Comcare process, or his personal relationships. He was doing well because he had taken the advice of Dr Lean to take medication (Cymbalta) in January 2010 and it was working well for him. However, he did continue to have occasional dreams about his interactions with Ms Devlin. He had been diagnosed with Generalised Anxiety at the time and experienced anxiety when driving and parking.
[113] T105, 507.
In October/November 2015, while working at the University of Canberra, the Applicant experienced an episode in the workplace when he felt he was disrespected by a colleague who used strong language in an email to him.[114] Following this, he made a complaint to the Dean about inappropriate conduct.[115]
[114] Exhibit R1, 60-61; Respondent’s SFIC, [34]; Exhibit A1, [38]-[39].
[115] Exhibit R1, 63.
In his oral evidence, the Applicant agreed that he saw Dr Lean on 10 November 2015 who recorded that ‘his depressive symptoms had returned due to a negative communication with his academic supervisor’.[116] He told the Tribunal that his symptoms had ‘increased’ rather than ‘returned’. In a report dated 1 December 2015, Associate Professor Looi wrote that the Applicant had experienced ‘two episodes of obsessional thoughts which were associated with considerable anxiety’ in the context of taking his father to New Zealand and stress in the workplace. The Applicant agreed these were stressors and his medication was changed.
[116] Exhibit R1, 67.

The Applicant agreed he saw Dr Janelle Hamilton, general practitioner, on 21 December 2015 and told her that he was going to cease teaching in the Faculty of Arts.[117] By February 2016 he had moved to the Faculty of Business within the University of Canberra.[118]
[117] Exhibit R1, 97.
[118] Exhibit A1, [39].
Dr Lean recorded a deterioration in the Applicant’s symptoms in April 2016.[119] The Cymbalta was no longer managing his anxiety symptoms. His medication was changed to Zyban.[120]
[119] Applicant’s SFIC, [79]; Exhibit A1, [40].
[120] Exhibit R1, 69.
In the second week of the second semester in approximately September 2016, the Applicant had a ‘break’ whilst teaching a class. He had had problems sleeping, and during this class he covered the white-board with notes for the entire semester, in small writing. The students were confused and he recalls looking at the board and not knowing why he had done it. He could not continue the class and excused himself. He withdrew from all teaching by the end of the week and has not worked since.[121] In his Statement he said that he ‘cannot recall any particular triggering event, either at work or in [his] personal life, which caused this increase in [his] anxiety at that time.’[122]The Applicant told the Tribunal that it was a response to changes in his medication regime.[123] The Applicant said that in late 2016 he was prescribed Lexapro, but this was too sedating so he returned to Dr Lean who prescribed Cymbalta and Zyban.
[121] Exhibit A1, [41].
[122] Exhibit A1, [42].
[123] Exhibit R1, 654.
In his report dated 6 December 2017, Dr Cocks recorded that the Applicant told him that Comcare had ceased liability in March 2017. The Applicant agreed that he told Dr Cocks that he attributed his anxiety to the ‘medicolegal assessment process and the protracted nature of the claim’ and that his ‘mental health had deteriorated after his compensation benefits were ceased’.[124]
[124] Exhibit R2, 3.
Current condition and symptoms
In his statement dated 16 October 2018, the Applicant described his health since the date of the accepted condition:[125]
Since the 2004 events at DVA I have suffered recurring symptoms of depression and anxiety - tiredness, low energy, little pleasure in things, worrying, sweating from anxiety, reduced social activities. These wax and wane in intensity.
…
I have been on Cymbalta 60mg and Bupropion 150mg twice daily for approximately a year to the present day with alprazolam used as needed. The Cymbalta manages the anxiety and the Bupropion the depression with the alprazolam used to treat acute episodes of anxiety as needed.
I have been largely restricted to my home and familiar environments. I wake up tired and try to have breakfast regularly between 8-8.30am. I go to bed between 7-8pm. I have low mood and low energy every day. I go through periods where I will have disrupted sleep for up to a week. Every month or so I spend the day in bed with lethargy only eating and eventually showering.
I spend my time largely reading, watching television (quiz and children's shows) and listening to the radio. I try to walk to the shops once a day. My arms have been in pain since March 2017 and I have no longer been able to knit which had been very therapeutic in 2015-2016.
I regularly sweat when getting ready to leave the house. My psychologist encourages me to have at least one outing per day so I often have lunch with long term friends. I get anxious driving and going to the supermarkets or when I am out of the house for more than 3 hours.
EXPERT MEDICAL EVIDENCE
Respondent’s Experts
[125] Exhibit A1, [44], [48]-[51].
Dr Michael Hong, Consultant Psychiatrist
The Applicant was assessed by Dr Hong at the request of the Agency and provided a report dated 13 March 2014. Dr Hong noted a history of childhood bullying, low self-esteem and a family history of depression. He made an initial diagnosis of ‘chronic anxiety and depression’ that the Applicant had been suffering since 2004. Dr Hong however considered a diagnosis of ‘generalised anxiety disorder and chronic adjustment disorder’ or ‘dysthymia’ to be equally valid. Although suffering a chronic condition, Dr Hong noted fluctuation of the Applicant’s symptoms over time, which he attributed to the Applicant’s personality. Noting that treatment had not resulted in full recovery, Dr Hong considered the Applicant’s prognosis to be poor, although recommended that the Applicant would benefit from continuing employment.[126] Dr Hong conceded that the Applicant would never be fit to return to work with the Agency, as he had apparently developed a phobia related to Agency buildings.
[126] T108.
In a supplementary report to the Agency dated 2 September 2014, Dr Hong affirmed the opinion of his earlier report and was of the view that the Applicant could not return to work with the Agency.[127]
[127] T109.
The Applicant was referred by the Respondent to Dr Hong, who provided a further report dated 12 October 2015.[128] The Applicant told Dr Hong that he was managing his work at the University of Canberra, however said there had been an episode in which he became distressed because of remarks made by his supervisor, and following a complaint to the Department Head, the Applicant was not required to have further interaction with that supervisor. The Applicant reported continuing anxiety and depressed mood, and described himself as ‘worse overall’.
[128] T120.
Dr Hong reported the Applicant told him that when he was bullied at school he had been referred to a counsellor and received counselling “regarding a specific personal issue at the time”. Dr Hong noted that the Applicant had suffered depression in 1999 when he was prescribed anti-depressant medication. He reported that he had previously diagnosed the Applicant to have suffered a generalised anxiety disorder that was chronic and had fluctuated over time “in response to [the Applicant’s] personality functioning and that there could be a genetic predisposition to mental illness.”
Dr Hong confirmed a diagnosis of “generalised anxiety disorder with depressive symptoms (alternatively capable of being described as “dysthymia with anxiety symptoms”)”. Given the period of time since the events in 2004, Dr Hong considered it “difficult to find a connection between [the Applicant’s] current mental state and his workplace [in 2004]”. Dr Hong concluded that the Applicant condition was “best conceptualised as a constitutional disorder”, noting that “generalised anxiety disorder is typically lifelong and waxes and wanes across a person’s life, and typically a person is constitutionally pre-disposed to anxiety and depressive symptoms.” Dr Hong did not anticipate that the Applicant would “gain substantial improvement over time”. As he considered the Applicant’s condition was constitutional, Dr Hong anticipated that the Applicant would continue to require treatment for at least a further two years, together with medication for the rest of his life. Dr Hong also observed that, given the Applicant’s “chronic anxieties and depressive symptoms, low self-esteem, and social disability, he is unable to perform the substantive position for his usual occupation.”
Dr Hong reassessed the Applicant on 20 December 2016 and provided a report dated 4 January 2017, in which he detailed a thorough review of medical reports prepared by various practitioners.[129] Dr Hong reaffirmed his opinion expressed in his 12 October 2015 report that the Applicant's condition was constitutional and no longer related to his employment with the Agency. He considered that he was suffering a 10% Whole Person Impairment with reference to the Comcare Guide as a result of his psychiatric condition.
[129] T132.
Dr Hong concluded:
The history I have obtained from my assessment and from the reports available, was that [the Applicant] had suffered long-term depression/anxiety symptoms, probably dating back to his early school age. His symptoms have waxed and waned over time and more recently anxiety has been the most prominent feature of his overall condition, and anxiety is the main impediment to him returning to work and participate in general life functioning. I also noted personality characteristics that appear to interfere with a number of his life functions over time.
…
I maintain my original opinion and I consider his condition to be a constitutional disorder.
…
I note that [the Applicant’s] condition has taken on an independent trajectory, in particular he had a significant aggravation recently which rendered him totally incapacitated for employment, which occurred without a workplace related trigger. In my opinion, his psychiatric condition and trajectory can be explained as a constitutional disorder and cannot be explained by his employment.
In a report dated 2 April 2019,[130] Dr Hong confirmed the opinion he expressed in his January 2017 report:
In my opinion, [the Applicant] suffered from a pre-existing and lifelong psychiatric condition, with onset at school age, and there is likely genetic predisposition to his condition. A single diagnosis is not likely to fully capture its essence. I initially advised an adjustment disorder but subsequently, I considered a generalised anxiety disorder with depressive symptoms to be appropriate, and I advised [the Applicant’s] personality is the maintaining factor of his condition. The alternative DSM-IV diagnosis of dysthymia, which is now called persistent depressive disorder in DSM-5 would also be a valid diagnosis. It is a personality-based condition. Ms Victoria Carr provided a diagnosis of personality disorder as a treating psychologist, and this would also be appropriate.
[130] Exhibit R3, 1.
He stated that he ‘could not find a direct link between [the Applicant’s] employment and his current psychological state.’[131] In his view, the Agency employment ‘contributed to a period of exacerbation which has now passed.’ He found no reference to ongoing symptoms or treatment in the treating practitioner’s notes relating to his Agency employment. He found it ‘difficult to determine precisely when the contribution ceased.’ However, the effects of the work-related incident would be expected to ‘cease within around six months of the triggering event and being removed from the event.’[132]
[131] Exhibit R3, 2.
[132] Exhibit R3, 5.
In his oral evidence at the hearing, Dr Hong confirmed that he had reviewed the clinical notes from the Interchange Medical Practice. He explained that contemporaneous evidence is important in determining what are the factors affecting a person at a point in time. He could not see any reference to any Agency work-related factors in these notes.
In his view, the failure by a practitioner to take a developmental history limits their ability to identify a pre-existing condition in a patient. He did take such a history as recorded in his reports dated March 2014 and October 2015, both of which note that the Applicant told him that he suffered depression in 1999.
In cross-examination, Dr Hong agreed that in October 2015 it was his assessment that the Applicant had not recovered from the 2004 injury. He is not sure that this remains accurate as he was at the time relying on the Applicant’s self-reporting.
He accepted that the Applicant has had ongoing treatment since 2004 and that he continues to receive treatment. He told the Tribunal that the duration of the treatment required will depend on the accepted diagnosis of the condition. For Personality Disorder, long term medication and treatment is reasonable.
Dr Hong was asked about his use of the term ‘constitutional disorder’ and he said this refers to a ‘lifelong’ disorder. He accepted that neither of these conditions appear in DSM5. His overall diagnosis of the Applicant’s condition is a type of Personality Disorder. In his opinion, the most accurate diagnosis is Borderline Personality Disorder.
Dr Christopher Cocks, Forensic Psychiatrist
The Applicant was assessed at the Respondent’s request by Dr Christopher Cocks on 23 November 2017 who provided a report dated 6 December 2017.[133] At the time of the examination, the Applicant reported suffering significant anxiety which he “attributed to the medico-legal assessment process and the protracted nature of the claim” and that “his mental health has deteriorated after his compensation benefits were ceased”. The Applicant advised that he was “struggling more with anxiety as opposed to depression”.
[133] Exhibit R2.
Dr Cocks obtained a history that the Applicant was the “victim of relentless bullying from Year 10 through until his final school year” which “primarily involved derogatory homosexual taunts”. This caused the Applicant “significant distress” resulting in him receiving mental health support in his adolescent years. The Applicant told Dr Cocks that there was no family history of mental illness. Dr Cocks referred to a number of documents authored by the Applicant and reports prepared by treating psychologists.
Dr Cocks reported:
(a)The Applicant reported significant anxiety with regard to the assessment and significant anxiety symptoms day-to-day with regards to activities of daily living;
(b)He considered the Applicant as suffering from a Generalised Anxiety Disorder, with Dr Lean's diagnosis of Major Depressive Disorder being an equally plausible diagnosis;
(c)The Applicant’s depression had partially remitted secondary to his response to treatment;
(d)He considered the Applicant faced significant adversity during his childhood and adolescent years, thus creating a vulnerability for future mental illness;
(e)The Applicant's personality vulnerabilities have contributed to the treatment resistance and protracted nature of his mental condition as opposed to the events at the Agency in 2004; and
(f)He did not consider the Applicant suffers from a condition that continues to be significantly contributed to by his employment with the Agency.[134]
[134] Exhibit R2, 11-12.
Dr Cocks detailed his views in relation to these matters as follows:
In my opinion, [the Applicant] has a number of pre-existing vulnerabilities that predisposed him to the development of mental illness., specifically a generalised anxiety disorder. In my opinion, these vulnerabilities were present prior to his work with the Department of Veteran Affairs. In my opinion it is these vulnerabilities that contribute to [the Applicant’s] current generalised anxiety disorder as opposed to events that occurred through his work with the Department of Veteran Affairs in 2004.
…
In my opinion [the Applicant’s] personal vulnerabilities have a genesis in [the Applicant’s] childhood and adolescent experiences. In my opinion it is these vulnerabilities that are contributing to his treatment resistance and the protracted nature of his mental illness as opposed to work related stress in 2004.[135]
[135] Exhibit R2, 11.
In relation to whether the work incident continues to contribute to the Applicant’s condition, Dr Cocks opined.
In my opinion, [the Applicant’s] generalised anxiety disorder can no longer be attributed to his employment with the Department of Veteran Affairs.
…
In my opinion [the Applicant] exhibited evidence of underlying pathology that pre-dated his work with the Department of Veteran Affairs. In my opinion this pathology was made temporarily worse through his work with The Department of Veteran Affairs. In my opinion [the Applicant’s] work with the Department of Veteran Affairs can no longer be identified as causative to his ongoing pathology.[136]
[136] Exhibit R2, 12.
In his oral evidence at the hearing, Dr Cocks was asked what is the key difference between an Independent Medical Examination (IME) and a treating practitioner perspective when preparing a report with respect to an applicant. He said that a treating psychiatrist must establish a ‘therapeutic alliance’ with the patient who needs to feel validated, empathised with and supported. This role makes it difficult to establish causation. An IME does not need to establish a therapeutic alliance with the patient and has access to a much broader range of documentation, which enables them to address issues of causation much more clearly.
Dr Cocks was asked about the importance of a patient’s personal developmental history in forming an independent opinion about their psychiatric condition. He said it is a ‘core component’ of the psychiatric examination. It is important to get a history of the patient’s early childhood and adolescent experiences as these have a ‘crucial bearing’ on how they function as an adult, and without this it is not possible to get a full and comprehensive sense of why they are presenting as they do.
He told the Tribunal that the Applicant told him that he had a depressive illness in 1999. He did not mention to him a prescription of Sertraline in September 2001. Dr Cocks was asked the clinical purpose of this medication and he said that it is prescribed for anxiety or depression. The prescribing of five repeats indicates long-term treatment was considered necessary by the prescribing doctor.
Dr Cocks confirmed that he had reviewed the reports of Dr Knox, Dr Hong, Dr Lean and Dr Skinner, an update of the Applicant’s statement and a statement of a close friend. He cannot recall seeing Dr Hill’s clinical notes. Not seeing these has not precluded him from making an assessment of the Applicant’s condition. He agreed he was given ‘excerpts’ of records of the General Practices, Ms Fisher, Associate Professor Looi, and Dr Carr. He understood that the thousands of pages provided to him were complete records. His opinion remains the same as it is based on the information provided to him.
Dr Cocks said that if he had reviewed the Applicant more than once it would not have assisted him in providing and substantiating his opinion of his condition. He accepted that it may have assisted in clarifying aspects of his history and obtaining a cross-sectional assessment of his functioning. But in addressing the issues he was asked to consider he does not think his opinion would have changed. There was no new information to change his view.
Dr Cocks agreed that vulnerabilities are not a psychological condition although these affect how a person responds to stressors. The severity of the injury may be more significant than for another person without these vulnerabilities. They may also influence how long the person will require treatment and their response to that treatment. Taking into account the Applicant’s vulnerabilities, Dr Cocks accepted that these are relevant factors in his history and the treatment he requires.
Dr Cocks told the Tribunal that the prescription of Endep in 1999 (a third line tricyclic anti-depressant) for a period of eight weeks is a significant event as many people who suffer from depression are not prescribed an anti-depressant. Most patients receive psychological therapy and are only prescribed an anti-depressant if they do not respond to this. It is only for moderate or more severe depression that an anti-depressant is prescribed. He accepted that the fact that the Applicant did not have any time off work during this period was a relevant factor in determining the impact of the depression on the Applicant, and also that there was no formal diagnosis of depression by a clinician at this time.
Dr Cocks accepted that the Applicant suffered a psychological injury in 2004 and he had time off work, and that he received continuity of treatment for this injury from this point onwards. He further accepted that the treatment the Applicant received was reasonable and appropriate, and that he had varying degrees of capacity to work since this time. He is aware that the Applicant was invalidity retired in April 2018, and he received Dr Oelrichs’ report but not the panel report in relation to this assessment.
He did not accept that there is a connection between the injury sustained in 2004 and the Applicant’s ability to perform work presently. In his view, the workplace incident no longer contributes to the condition. In forming this opinion, he took into account his own assessment of the Applicant and the extensive documentation.
Applicant’s Experts
Dr Janelle Hamilton, General Practitioner

Dr Hamilton became the Applicant’s general practitioner in 2008. In a report to the Respondent dated 27 April 2012, Dr Hamilton referred to the Applicant's treatment and progression, and was of the opinion that he continued to suffer from anxiety, major depression and an adjustment disorder related to his employment. Dr Hamilton diagnosed the Applicant to be suffering “anxiety, treated major depression and an adjustment disorder”.[137]
[137] T106.
In a report to the Respondent dated 24 August 2015, Dr Hamilton reaffirmed the opinion in her 27 April 2012 report, and noted that '[The Applicant] has suffered from depression and anxiety for over 10 years. This is an ongoing, long-term condition which is unlikely to change significantly in the near future'.[138] She confirmed her diagnosis of “anxiety, depression and a chronic adjustment disorder”, which she accepted had “occurred after a period of workplace harassment in 2004”.[139] Dr Hamilton noted that the Applicant had been working successfully as a tutor for the previous four years and recommended that the Applicant not be required to return to work with the Agency or any other public sector role.
[138] T114.
[139] T114.
On 12 February 2016,[140] Dr Hamilton commented on Dr Hong’s opinion and disputed that there was “evidence of a constitutional vulnerability causing workplace difficulties prior to the episode of overwork at the DVA in 2004”. Dr Hamilton observed that prior to 2004, the Applicant had worked in a number of stressful positions with no obvious difficulties. Dr Hamilton therefore “strongly support[ed] [the Applicant’s] claim that his current symptoms are as a result of workplace issues at the Dept of Veteran Affairs in 2004, and not due to a constitutional vulnerability”.
[140] T124.
In a report to the Respondent dated 26 February 2017,[141] Dr Hamilton opined that the recent fluctuation of the Applicant’s symptoms in 2016 was a result of a medication change and not due to any constitutional disorder, and that he continues to suffer from depression and anxiety resulting from his workplace stress in 2004.
[141] T138.
In her oral evidence, Dr Hamilton said that she sees the Applicant about once every two to three months. She confirmed that he has had significant depression and anxiety since she started treating him in 2008. She relies on Dr Lean’s and Associate Professor Looi’s diagnoses of the Applicant’s condition.
She confirmed that she disagrees with the views of Dr Hong and Dr Cocks. Her observations are that the Applicant has not been able to return to the same work level as that prior to the 2004 workplace incident. He could work as a University lecturer because the tasks involved he could manage alongside his condition. The Applicant had ongoing stressors including the compensation claim, and changes to his medication. In her opinion, the workplace incident in 2004 and the difficulty with Ms Devlin in 2006, precipitated the condition. In her view, the 2004 workplace incident continues to be a materially contributing factor to the Applicant’s current medical condition.
Ms Yvonne Fisher, Clinical Psychologist
In a report to the Respondent dated 15 February 2016,[142] Ms Fisher reported that she had been treating the Applicant on a weekly basis since February 2014, involving some 64 sessions. She considered the Applicant to continue to experience a range of symptoms of depression and anxiety. From the history provided by the Applicant, Ms Fisher accepted that the Applicant developed clinical symptoms in 2004. She diagnosed a “generalised anxiety disorder” and “persistent depressive disorder (dysthymia)” … “as a result of workplace events with the Department”.
[142] T125.
In a report to the Respondent dated 21 February 2017,[143] Ms Fisher opined:
(a)The Applicant had experienced a mild depression in 1998 which had resolved;
(b)The Applicant met the diagnostic criteria for Generalised Anxiety Disorder and Persistent Depressive Disorder;
(c)These conditions were the result of the workplace events;
(d)She disagreed with the opinion of Dr Hong in his 4 January 2017 report on the basis that the Applicant had suffered no mental health disorder prior to the workplace events other than a mild depression in 1998 and that he had completed school, university and work with no impairment in functioning prior to the workplace events; and
(e)The Applicant continued to suffer the effects of his compensable condition and requires ongoing treatment.
[143] T137.
In a report dated 5 March 2019 prepared at the request of the Applicant’s solicitors,[144] Ms Fisher stated that she disagrees with Dr Hong’s diagnosis of a ‘constitutional disorder’ as this condition is not recognised in the DSM5. She noted that Dr Cocks found the Applicant has pre-existing ‘personality vulnerabilities’ that contributed to him experiencing symptoms of depression and anxiety in 2004. In her view, the Applicant’s personality is not the cause of the symptoms he developed in 2004. These developed in response to the workplace stress he experienced.
[144] Exhibit A7.
In her oral evidence at the hearing, Ms Fisher said that she has been seeing the Applicant on a regular basis since 2014 ranging from weekly to monthly sessions. She last saw him on 2 April 2019. He has a mental health plan from his GP and he is able to attend up to 10 sessions per year subsidised by Medicare. In her opinion, the Applicant would benefit from more frequent visits as it would make his symptoms more stable.
The Applicant reported to her some mild depression he experienced in 1998 which had resolved with no ongoing impairment. She took a developmental history i.e. family and social functioning at school. He said he experienced teasing in the early years of high school which resolved, and the later years at school were more positive. He told her that he has quite a positive relationship with his parents, other than the difficult time when he came out which was no more difficult than for anyone else.
Ms Fisher was asked about her experience, which she said is primarily as a treating practitioner. She did not see the Applicant until ten years after the workplace event. Her opinion is based on his self-report and also any psychological testing and her observations of his behaviour.
Ms Fisher said she understands from the Applicant that his injury was caused by workplace stress in 2004 and later difficulties with a workplace supervisor (Ms Devlin). In relation to the current contributing factors, she has reports on file which she has reviewed, for example those of Dr Skinner and other treating psychiatrists. She has not however reviewed the GP clinical notes from the period. She considers there is enough evidence to support her opinion.
She told the Tribunal that her focus has been on the Applicant’s current symptoms. She is aware of non-work stressors that the Applicant has experienced, for example the death of his father in 2018. He also had some difficulty managing his tutoring demands at the University of Canberra. He had a significant exacerbation of his symptoms which led to him leaving the University.
Ms Fisher stated that in her opinion the Applicant’s condition meets the DSM criteria for Generalised Anxiety Disorder / Persistent Depressive Disorder. In her view, this condition developed as a consequence of workplace events in 2004. He has continued to suffer from this condition since this time. The condition is long-term and chronic and waxes and wanes over time. She has seen the reports of Dr Hong (4 January 2017 and 2 April 2019) and Dr Cocks (6 December 2017) but her opinion remains the same. In her opinion the 2004 workplace incident continues to contribute to a material degree to the Applicant’s condition.
Dr Bruce Lean, Consultant Psychiatrist
In a report to Dr Hamilton dated 18 January 2010, Dr Lean provided a diagnosis of Major Depressive Disorder. He noted that 'He was concerned about comments made on [the Applicant’s] personality structure. Historically, [the Applicant] pre-morbidly functioned well and overcame many difficulties especially those around his family's reaction to his sexuality. He does have some Ananchastic traits and problem of recent some Avoidant traits but they appear to be more related to his current mental state'.[145] Dr Lean prescribed Cymbalta for the Applicant.[146]
[145] Summons documents — Dr Lean.
[146] Exhibit A1, [37].
In a report to the Respondent dated 21 December 2015,[147] Dr Lean noted:
(a)The Applicant had some obsessional traits however there was no evidence that these had impaired his functioning prior to the workplace events at the Agency;
(b)He considered the Applicant to have a Major Depressive Disorder and that the Generalised Anxiety Disorder is subsumed under that diagnosis;
(c)He agreed with the 2007 opinion of Dr Graeme George regarding the aetiology of the Applicant's injury; and
(d)He was of the view that the Respondent should rescind the notice to determine no present entitlement.
[147] T123.
In a report to the Respondent dated 12 February 2017,[148] Dr Lean noted:
(a)He has treated the Applicant since 2007;
(b)He has treated the Applicant for 'double' depression — Major Depressive Disorder emergent from a Dysthymic State;
(c)He disagrees with Dr Hong that the Applicant's condition is 'constitutional';
(d)That the onset and significant cause of the Applicant’s condition relates to the workplace injury; and
(e)That he considered Dr Hong's report diagnostically inconsistent with the Applicant's history.
[148] T136.
In an undated report to the Respondent,[149] Dr Lean stated:
[149] T130.
(a)From April 2016 to February 2017 there had been fluctuations in the Applicant's symptoms in the context of adjustments to his medication and stressors in his work at the University of Canberra;
(b)He maintains his diagnoses of Major Depressive Disorder and comorbid Generalised Anxiety Disorder;
(c)He reject's Dr Hong's view that the Applicant's condition is a 'constitutional disorder';
(d)He rejects Dr Hong's claim that the Applicant had suffered long-term depression/anxiety symptoms dating back to his school age, noting that the Applicant had been well prior to his workplace experiences; and
(e)He considered the Applicant's ongoing condition is related to the workplace injury sustained in July 2004.
In his report dated 7 March 2019,[150] Dr Lean confirmed his view that the Applicant ‘continues to suffer a psychological injury related to his employment with DVA’ and he ‘continues to require treatment for his psychiatric/psychological injury’.
[150] Exhibit A8.
In his evidence at the Tribunal hearing, Dr Lean told the Tribunal that in his opinion a treating psychiatrist has a longitudinal view of the patient and can reflect more adequately on the antecedence of the condition, what was presenting at the time, and the response to treatment.
Dr Lean confirmed that the Applicant came to him in 2010 with adjustment disorder and anxious and depressed mood. His diagnosis of the Applicant’s condition is Major Depressive Disorder. Generalised Anxiety Disorder is also a reasonable diagnosis. He believes that the 2004 workplace incident was a pivotal event which continues to affect the Applicant and he has required continuous medication since this time. He does not agree with the diagnosis of Dr Hong and Dr Cocks. Some phrases used by Dr Hong do not appear in the DSM. The terms ‘constitutional condition’ and ‘constitutional disorder’ are not recognised in DSM-4 or DSM-5.
In cross-examination, Dr Lean agreed that he did not have access to the clinical notes from the Interchange General Practice, and he did not take a developmental history of the Applicant. His report was an assessment of the Applicant’s current condition. He did not consider any mental health condition the Applicant may have had prior to 2002, however he is aware that his GP treated him with anti-depressants in the late 1990s and he felt well after this treatment. He knows that he was functioning well as an EL1 before 2002. After leaving the Agency the Applicant worked at the University of Canberra. He felt comfortable in this environment but he did not aspire to join the academic ladder. He has never returned to the level he was at when he was working as an EL1 at the Agency.
Dr Lean was asked whether there were other stressors in the Applicant’s life and he said that they were some, but these were no more than the everyday life stressors. He was referred to his report dated 10 November 2015[151] in which he reported a return of the Applicant’s depressive symptoms following a negative communication with his academic supervisor. He said that this was a similar situation to the original event and this commonly can cause a relapse as the patient is reminded of the precipitating incident.
[151] Exhibit R1, 67.
Dr Lean was advised of the three stressors the Applicant identified as causing him distress from 2010 to 2015 and was asked what these say about the contributing factors to his condition at this time. He said that he never performed at the same level as when he was with the Agency. As soon as a stressor presented itself in the University context his condition deteriorated.
In Dr Lean’s view, ‘the workplace trauma has been pervasive … since he first presented.’ It was the ‘pivotal event’ that precipitated his major depression and his subsequent course both clinically and in life. The Applicant’s psychological condition continues to be materially contributed to by the workplace incident.
Dr William Knox, Consultant Psychiatrist
In a report to the Applicant's solicitors dated 9 April 2018,[152] following an assessment of the Applicant, Dr William Knox opined:
(a)The Applicant reported chronic distress and disability of a fluctuating degree, never being free of lassitude, poor confidence, reduced pleasure in virtually all activities, low motivation, intolerance of noise and busyness in the environment, fearfulness, reduced libido and tearfulness, amongst other symptoms;
(b)He provided diagnoses of Major Depressive Disorder and Generalised Anxiety Disorder, both in partial remission due to medication;
(c)He considered that the workplace events were strongly instrumental in the development of the Applicant's psychiatric injury;
(d)The Applicant's psychiatric injury continues to be significantly contributed to by the Applicant's employment at the Agency;
(e)The Applicant is not fit for employment at the time of assessment;
(f)The Applicant continues to require psychiatric treatment; and
(g)The Applicant's condition is permanent.
[152] Exhibit A6.
During cross-examination, Dr Knox was asked whether he received and had reviewed the medical records of the Interchange General Practice.[153] He said he had not. Nor had he reviewed the Medicare records and prescription history.
[153] Exhibit R1.
Dr Knox told the Tribunal that he did not consider the earlier developmental history of the Applicant other than his working history and his extra-curricular activities. He was not provided with any history of prior psychiatric illness for the Applicant nor did he ask the Applicant about his mental health condition prior to 2002. However, he is aware from reading the reports of Dr Hong and the treating psychologist Ms Fisher that the Applicant experienced bullying at an early age.
Dr Knox confirmed that he understood his task not to be to revisit whether the workplace incident was a contributing factor to the Applicant’s condition.[154] His opinion relates to the Applicant’s condition at the date of the report.
[154] Exhibit A6, 9 [3].
In Dr Knox’s opinion, during the period 2007 to 2017 the Applicant was mentally unwell most of the time. There is nothing to suggest he had improved, warranting reappraisal of his condition. There has been no major change, if anything there has been a deterioration. The Applicant has ongoing symptoms and he benefits from ongoing treatment. In his view, while there are some likely pre-existing constitutional / genetic factors at play in the Applicant’s case, they are not particularly significant. The Applicant was functioning well for many years, and it was not until the occurrence of the 2004 workplace incident that he became permanently unwell.
Dr Zoltan Zsadanyi, Psychiatrist
The Applicant was assessed by Dr Zoltan Zsadanyi at the request of the Applicant’s solicitors and provided a report dated 4 October 2017. He noted that approximately 12 months prior to the examination, the Applicant had stopped working after suffering increased severity of anxiety symptoms resulting in the Applicant have to walk out of a tutorial he was presenting. He reported:
(a)The Applicant reported anxiety, tension in his head at neck, continued withdrawal from social and recreational pursuits and difficulties with stress and conflict;
(b)He considered the Applicant to suffer from a ‘major depressive disorder with obsessional and perfectionistic traits’;
(c)The Applicant sustained a psychiatric injury in the course of his employment with Agency;
(d)His present capacity for employment is low, with poor prospects for improvement;
(e)He continues to require treatment for his condition; and
(f)He considered the Applicant's condition stable and permanent to the extent that a 10% Whole Person Impairment as per the Comcare guide would be justified.
Dr Zsadanyi noted that revisiting the Comcare claim was “part of the reason for why [the Applicant] has decompensated again”. He stated:
Without much doubt, I affirm [the Applicant] continues to be affected by the events from the past (which the doctor did not specifically identify) because they have been brought back to his conscious awareness by Comcare’s need for reviewing.
Sadly, this whole process of reviewable decision and declining of liability and entitlement for his condition has had a hugely destabilising effect of [the Applicant] and it will probably be a long time before he can consider any form of employment ever again.
Dr Zsadanyi was not available to give evidence or be cross-examined at the hearing.
SUBMISSIONS
Applicant
The Applicant and the Tribunal are entitled to rely on the "presumption of causation" arising from the original accepted injury and the continuity of the same symptoms since that time.[155]
[155] Applicant’s SFIC, [104].
The test of whether medical treatment under s 16(1) of the Act is "in relation to" an injury is a broad one. The Applicant contends that he continues to require medical treatment "in relation to" his Major Depressive Disorder because he continues to suffer the effects his injury.[156]
[156] Applicant’s SFIC, [106].
The Applicant relies on the reports of Dr Zsadanyi and Dr Knox, as well as his treating practitioners, Dr Lean, Dr Hamilton and Ms Fisher, who all consider that he continues to suffer from a psychiatric injury which is significantly contributed to by his employment with the Agency.[157]
[157] Applicant’s SFIC, [106].
The available evidence, particularly which of the Applicant's treating psychiatrist Dr Lean and treating psychologist Ms Fisher, supports a finding that the Applicant has suffered a psychological condition materially contributed to by his former employment with the Agency, with a date of injury of 28 July 2004.[158]
[158] Applicant’s SFIC, [107].
The Respondent, in making its original determination and reviewable decision relies exclusively on the opinion of Dr Hong whose opinion goes against the weight of medical evidence from 2004 to present, and in particular the opinions of Dr George, Dr Lean, Associate Professor Looi, Dr Hamilton and Ms Fisher.[159]
[159] Applicant’s SFIC, [108].
The Respondent relies on the opinion of Dr Cocks who extended and elaborated on the opinions of Dr Hong, and earlier Dr Skinner and Dr Pascal who have taken the view that the Applicant has suffered episodes in his childhood, and suggestions of a family history, which have contributed to a personality style and vulnerability which have pre-disposed him to psychological injury, and his current condition is related to these factors and not the events at the Agency.[160]
[160] Applicant’s SFIC, [109].

The evidence before the Tribunal on the issue of causation is divided between the Applicant’s treating practitioners and Dr Knox who claim that there remains a material contribution from the 2004 workplace incident and the Applicant’s ongoing and current condition, and the Respondent’s IMEs who claim that the causal connection no longer exists.
The Respondent argues that greater weight should be placed on the opinions of the IMEs in relation to the issue of causation. It points to the evidence of Dr Cocks who told the Tribunal that a treating psychiatrist must establish a ‘therapeutic alliance’ with the patient who needs to feel validated, empathised with and supported which makes it difficult to establish causation. By contrast, an IME does not need to establish a therapeutic alliance with the patient and has access to a much broader range of documentation which enables them to address issues of causation much more clearly.
The Tribunal has recently considered the issue of the weight to be attached to the opinions of treating practitioners and those of IMEs in compensation and other proceedings.
Opinions of Treating Practitioners and Independent Medical Examiners
The respective value of the reports of treating practitioners and IMEs were discussed in the decision of Perich and Secretary, Department of Social Services [2018] AATA 963 (‘Perich’) by Deputy President Boyle and Senior Member Evans who observed at [37]:
In their book Expert Evidence: Law, Practice, Procedure and Advocacy (Thomson Reuters Lawbook Co, 2013) at page 283-284, Professor Ian Freckelton QC and Hugh Selby [Freckelton and Selby] discuss the advantages and disadvantages of evidence from ‘treating health practitioners’ and ‘assessors who do not treat the patient’. With respect to treating health practitioners, they state (at 283):
There are many circumstances in which a report is commissioned from a treating health practitioner. There is a fallacy that such a report is not an ‘expert report’. In fact, such reports are expert reports – their authors possess specialised knowledge based upon their training, study or experience (see, eg, r 44.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic)). Moreover, the facts and opinions in such reports are often particularly valuable for litigation because the treater is likely to have a longitudinal perspective in relation to the patient’s condition – for instance, detailed knowledge of the patient that spans the pre- and post-injury periods and which is uncontaminated by, or much less contaminated by, the litigation process (see Rimmer (1989, p23)). An issue for such report writers is the expectation of the courts that as soon as an expert provides a report for use by the courts, the author has a primary responsibility to the court and not to be an advocate for their patient (Medical Practitioner’s Board of Victoria (2006)). This transmogrification of role is not always as well appreciated as it needs to be by treating medical practitioners but can be addressed, at least to some extent, by provision by commissioning solicitors of the relevant code of ethics or practice guidelines for expert report writers.
Deputy President Boyle and Senior Member Evans further observed in Perich at [44]:
Freckelton and Selby also discuss the implications of a medical report written by an ‘assessor’. They state (at page 283-284):
Many reports are commissioned from assessors who do not treat the patient but are asked as part of the forensic process to provide an independent assessment of the patient. These are often called ‘third party reports’. The advantage of such reports is that they are generally commissioned from practitioners who are familiar with the needs and expectations of the litigation process. In addition, they are unaffected by contaminants such as therapeutic bias or treatment advocacy. However, their limitation is that they are commissioned for forensic purposes and, often, comparatively little time is spent by the assessor with the patient, meaning that the assessment is either somewhat superficial or heavily dependent upon patient self-report.
In HNGN and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 4096 (‘HNGN’), Senior Member Evans summarised this guidance in relation to the respective value of the reports of treating practitioners and IMEs at [90]-[91]:
In summary, the treating practitioner has the benefit of a longitudinal perspective, and will often have built up a relationship of trust with a patient over a period of many months or even years. This is advantageous because the patient may be more honest and forthright due to this relationship of trust, however as indicated by Freckelton and Selby, there is a risk of therapeutic bias and the acceptance by the treating practitioner of the self-reported symptoms of the patient.
An independent medical examiner, on the other hand, will reach a diagnosis based on a review of a patient’s medical records, and may only see the patient for an examination on one or two occasions before compiling a report detailing their diagnosis. They will consequently not have the benefit of a longitudinal perspective which will mean that their diagnosis cannot be revised over time. However, the independent medical examiner will have the benefit of reviewing the substantive medical records of the patient which may include the opinions of numerous treating practitioners over time. Additionally, as they do not have an ongoing relationship with the patient, the independent medical examiner may form a more objective view than the treating practitioner. They may be more inclined to question the self-reported symptoms of the patient, but as indicated by Freckelton and Selby, there is a corresponding risk that the independent medical examiner may accept the self-reported symptoms of the patient.
Having regard to the guidance provided in these decisions, the Tribunal finds that the Applicant’s treating practitioners (Dr Hamilton, Ms Fisher and Dr Lean) have the benefit of a longitudinal perspective of the Applicant’s condition, and they have built up a relationship of trust with him over a long period of time. Whereas there is a risk of ‘therapeutic bias’ by reason of their acceptance of the Applicant’s self-reported symptoms and their primary focus on his treatment, they have all had the opportunity to observe the Applicant and assess the long-term and ongoing impact of the 2004 incident on his psychological health. They all conclude that this incident was, in the words of Dr Lean, a ‘pivotal or ‘pervasive’ event which continues to affect the Applicant and for which he continues to require treatment.
The IMEs (Dr Knox, Dr Hong and Dr Cocks) had the benefit of reviewing the medical records of the Applicant which include the opinions of numerous practitioners. Of the IMEs, Dr Knox opined in his April 2018 report that the workplace incident continued to be significantly contributed to by the Applicant’s employment at the Agency. In his opinion, whereas there were other factors which ‘have indeed been operative … they do not cancel out the import of the original workplace factors; neither on account of the passage of time, or the alleged primacy of ‘constitutionality’ or ‘vulnerabililties’.[180] However, in his oral evidence he conceded that he did not consider his task as assessing ongoing causation.
[180] Exhibit A6, 9.
Dr Cocks and Dr Hong both are of the view that the 2004 workplace incident is no longer causative factor to the Applicant’s ongoing condition. Both reviewed the clinical notes of the Interchange General Practice from 2010 to 2017 and found that there was no reference to the 2004 incident. Dr Knox did not have the benefit of a review of these notes.
However, significantly Dr Cocks accepted that the Applicant’s ‘vulnerabilities’ are such that the workplace incident may have resulted in a more significant injury than for another person without these vulnerabilities. They may also influence how long the person will require treatment and their response to that treatment.
The Applicant submits that the Applicant’s vulnerabilities meant that the impact of the 2004 workplace incident was more severe and long-lasting for him, and that his ‘eggshell psyche’ is a factor relevant to ongoing causation.
‘Eggshell psyche’
In State Transit Authority of New South Wales v Fritzi Chemler[2007] NSWCA 249, (‘Chemler’), an appeal from the decision of an Acting Deputy President of the NSW Workers Compensation Commission, considering points of law under various sections of the Workers Compensation Act 1987, Spigelman CJ stated at [40]:
In this area of law, as in negligence, the talem qualem principle is applicable i.e. employers take their employees as they find them. With respect to psychological injury there is an “eggshell psyche” principle which, like the equivalent “eggshell skull” principle, is a rule of compensation not of liability. The element of foreseeability required by the law of negligence is not the basis of the “eggshell skull” principle and it can be applied by way of analogy to claims for compensation under the 1987 Act. (See Morgan v Tame [2000] NSWCA 121;(2000) 49 NSWLR 21 esp at [23]-[29] and cases quoted therein. See also Tame v New South Wales[2002] HCA 35;(2002) 211 CLR 317 esp at [318] and Nominal Defendant v Gardikiotis [1996] HCA 53; (1995) 186 CLR 49 at 68.)
In Edwards v Secretary, Department of Education and Communities[2016] NSWWCCPD 45, Deputy President Snell cited with approval a passage from the decision of Roche DP in Attorney-General’s Department v K[2010] NSWWCCPD 76 at [52] in which the Deputy President summarised the authorities dealing with the proof of psychological injury:
The following conclusions can be drawn from the above authorities:
(a)employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemlerat [40]);
(b)a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemlerat [54]);
(c)if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemlerat [69]);
(d)so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Leigh Sheridan v Q-Comp [2009] QIC 12; 191 QGIG 13]);
(e)there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)it is not necessary that the worker’s reaction to the events must have been “rational, reasonable and proportionate” before compensation can be recovered.
In Wiegand v Comcare Australia [2002] FCA 1464 (‘Wiegand’), Von Doussa J considered the relevance of a worker’s perception in the context of section 4 of the SRC Act. In that case, the worker made a claim for compensation for major depression that allegedly resulted from “[d]efamation and victimisation in 1990 … [o]ngoing discrimination etc …” in the course of his employment with the Australian Tax Office (ATO). The issue was whether the ailment, or an aggravation of it, “was contributed to in a material degree by the employee’s employment”. The Tribunal held, accepting expert evidence called by the ATO, that an incident or state of affairs to which the employee was exposed in employment would only constitute a contributing factor to an aggravation of an ailment if the incident or state of affairs was “objectively unreasonable – in other words, that it would justify in the mind of an employee of ordinary disposition and mental health the perception held by the employee making the claim” (at [29]). In overturning that finding, Von Doussa J said (at [31]):
In my opinion, it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.
In Prowse and Comcare (Compensation) [2019] AATA 411 (‘Prowse’) at [74], Member Hyman found that, although the causative test under the applicable legislation in Chemler is different from that in section 5B of the SRC Act, ‘the reasoning applies equally.’ Referring to Spiegelman CJ’s decision in Chemler, the Tribunal noted at [74], it ‘reinforces the conclusion that a heightened susceptibility of an employee to psychological injury does not allow an employer to escape liability.’ Referring to Dean v Australian Postal Corporation [2010] FCA 680, Member Hyman in Prowse at [76] observed that Perram J noted at [17] that the implication of the remarks of Von Doussa J in Wiegand,
is that a three part test is to be applied in such cases: whether the events or state of affairs occurred; whether the events or state of affairs caused the perception in the employee’s mind; and whether the perception contributed to a significant degree to the ailment.’
Having regard to these authorities, the Tribunal finds that the Applicant’s vulnerabilities or ‘eggshell psyche’ are relevant to a determination of whether the 2004 workplace incident continues to contribute to a material degree to his ongoing psychological condition. It is satisfied that whereas for many, if not most employees, the effects of the workplace incident would be expected to, in Dr Hong’s words, ‘cease within around six months of the triggering event and being removed from the event’, the Applicant’s vulnerabilities are such that the impact of the 2004 workplace incident has been much longer, and indeed is ongoing to the present day.
Contributing factors to the Applicant’s ongoing condition
The Respondent argues that at the cease effects date in March 2017 there were other factors which contributed to the Applicant’s condition. These include his work at the University of Canberra, the compensation process and his personal relationships.
The evidence before the Tribunal supports a finding that there are a number of factors that contribute to the Applicant’s ongoing condition. When he was examined by Dr Cocks in November 2017, the Applicant told him that he ‘attributed his anxiety to the medico-legal assessment process and the protracted nature of the claim’ and his psychological condition had ‘deteriorated after his compensation benefits were ceased.’ The effects of the claims process on the Applicant’s condition were also noted by Dr Hamilton. On the basis of this evidence, the Tribunal finds that the compensation claim process and the ceasing of his benefits are contributing factors to the Applicant’s ongoing condition.
The evidence also supports a finding that the Applicant’s employment at the University of Canberra from 2010 to 2016 made a contribution to his ongoing psychological condition. The email incident between him and his supervisor in October/November 2015 in particular was a stressor for the Applicant, which caused a deterioration in his condition and led Dr Lean to change his medication in 2016. The Tribunal therefore finds that the Applicant’s employment at the University of Canberra was a contributing factor to his ongoing condition.
The evidence before the Tribunal indicates that the Applicant had some pre-existing or underlying constitutional or genetic factors that contribute to his ongoing psychological condition. Whereas Dr Hong considers that the Applicant’s condition is primarily constitutional, the Applicant’s treating practitioners and Dr Knox consider that these factors are not particularly significant. The fact that the Applicant functioned well for many years in relatively senior roles with little time off work, including when he was prescribed a course of Endep in 1999, indicates that any underlying condition or vulnerability to depression the Applicant did not fully manifest until the occurrence of the 2004 workplace incident. The Tribunal finds that any predisposition of the Applicant to a depressive illness is not a significant contributing factor to his ongoing condition.
‘In a material degree’
For the Applicant to continue to be entitled to compensation under ss 16 and 19 of the SRC Act, he must continue to suffer from a psychological condition, and it must continue to be contributed to, in a material degree, by his employment by the Commonwealth.
In Comcare v Sahu-Kahn (2007) 156 FCR 536 Finn J provided guidance in ascertaining the meaning of “material degree”:
13. ... the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below whicha causal connection may be disregarded.

14. What is problematic is identifying where the threshold lies. Treloar’s case sets its own threshold of sorts for satisfying the 1971 Act’s ‘contributing factor’ requirement. It would, for example, exclude a de minimus contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar, at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as ‘material’: see eg Repatriation Commission v Bendy [1989] FCA 170; (1989) 10 AAR 323 at 325. The usage is not how the term ‘material’ in the phrase ‘in a material degree’ is used in the SRC Act. The legislative history of this definition makes this plain.

15. ... There are, in my view, obvious hazards in allowing finely tuned nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word ‘material’ in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions in the SRC Act were engaged. This said I consider that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –
4. In a material degree; substantially, considerably.’
An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie dictionary ‘namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’.

16. ... Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) ‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);
(iii) whether this will be so in a given case will be a matter of fact and degree.

In Power, Katzman J reviewed the legislative history of the causative threshold in the SRC Act. She noted that in Comcare v Canute (2005) 148 FCR 232 at 249 (‘Canute’), French and Stone JJ, after referring to the Minister’s second reading speech on the introduction of the Bill which became the SRC Act, stated:
the changes brought about by the enactment of the SRC Act were intended to require that the contribution be “more than a mere contributing factor” … Content must be given to the word “material” contained in the definition of “disease” in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded.
She further noted that in Dunstan v Comcare [2011] FCAFC 108; 125 ALD 362 at [39] Gray and Cowdroy JJ observed that “Canute must be regarded as authority for the proposition that the intention of Parliament was to impose a more stringent test of the causal relationship between employment and disease’.
Recently, in Peipman and Comcare [2019] AATA 545 (‘Peipman’), Deputy President Sosso noted at [186] that having regard to s 5B(3) of the current SRC Act, which defines “significant degree” as a “degree that is substantially more than material”, it follows that a “material degree” is substantially less than a “significant degree”. Whereas ‘what meets the threshold of a material degree is a matter of fact and degree, but it is clear that it is a more generous standard for an injured worker than that which applies following the 2007 amendments.’
The authorities establish that threshold evaluation of ‘in a material degree’ is substantially less than a ‘significant degree’. Four of the six medical experts are of the view that the 2004 workplace incident continues to contribute in a material degree to the Applicant’s ongoing condition. Having regard to the relevant authorities and the evidence before it, the Tribunal finds that the 2004 workplace incident meets the evaluative threshold of ‘in a material degree’ to satisfy the requirement of ongoing causation. The evaluative threshold in s4 of the SRC Act is substantially less than the ‘significant degree’ standard in the present provisions, and provides a more generous test for an injured worker.
Whereas there are a number of contributing factors to the Applicant’s ongoing condition as outlined above in paragraphs 225 to 228, the Tribunal finds that the 2004 workplace incident continues to contribute ‘in a material degree’ to the Applicant’s ongoing condition. To meet the evaluative threshold, the contribution of the 2004 workplace incident may be substantially less than a ‘significant degree’. On the basis of the evidence before it, the Tribunal is satisfied that workplace incident contributes to the Applicant’s ongoing condition to a degree required to meet the evaluative threshold of ‘in material degree’
The Tribunal finds that as at 21 March 2017 and to date, the Applicant:
(a)continues to suffer from the effects of his accepted condition;
(b)reasonably requires medical treatment in relation to the accepted condition;
(c)suffers an incapacity for work as a result of the accepted condition.[181]
[181] Applicant’s SFIC, [117]-[119].
DECISION
The decision under review is set aside, and the matter is remitted to the Respondent for calculation of the Applicant's post 21 March 2017 entitlement to compensation under ss 16 and 19 of the SRC Act.[182]
[182] Applicant’s SFIC, [115].
The Applicant's claims for medical treatment expenses and incapacity payments from 21 March 2017 in relation to the accepted condition are remitted to the Respondent for calculation under ss 16 and 19 of the SRC Act.[183]
[183] Applicant’s SFIC, [120].
The Respondent is to pay the Applicant's costs and disbursements of the proceedings pursuant to sub-section 67(9) of the SRC Act.[184]
[184] Applicant’s SFIC, [121].

I certify that the preceding 239 (two hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

………………………………………
Associate
Dated: 8 August 2019

Date(s) of hearing: 8 April 2019 – 10 April 2019

Applicant: In person

Counsel for the Applicant: Mr Karl Pattenden

Solicitor for the Applicant: Ms Jana Pennington, Maurice Blackburn Lawyers

Counsel for the Respondent:

Mr Matthew Hawker

Solicitors for the Respondent:

Mr Abe Ghaleb, Lehmann Snell Lawyers

Date(s) of hearing:	8 April 2019 – 10 April 2019
Applicant:	In person
Counsel for the Applicant:	Mr Karl Pattenden
Solicitor for the Applicant:	Ms Jana Pennington, Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr Matthew Hawker
Solicitors for the Respondent:	Mr Abe Ghaleb, Lehmann Snell Lawyers