TRKG and Comcare (Compensation)

[2021] AATA 1923

TRKG and Comcare (Compensation) [2021] AATA 1923 (25 June 2021)

Division:GENERAL DIVISION

File Number:          2018/6861

Re:TRKG

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:25 June 2021

Place:Brisbane

The Tribunal affirms the reviewable decision.

............[SGD].......................................................

Member D K Grigg

Catchwords

COMPENSATION — Commonwealth employees - whether applicant entitled to compensation – correct identification of the medical condition suffered by the applicant - whether applicant made a false and wilful representation – whether compensation excluded by the operation of section 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - decision under review affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147

Collector of Customs v Pozzolanic Enterprises [1993] FCA 456; (1993) 43 FCR 280

Comcare Australia v George Leslie Porter [1996] FCA 562

Commonwealth of Australia v Christoffelsz (1988) 18 FCR 415

Griffiths v Australian Postal Corporation [2018] FCA 520

Iannella v. French[1968] HCA 14; (1968) 119 C.L.R. 84

K&S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518

National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382

Contents

REASONS FOR DECISION

INTRODUCTION & CLAIMS HISTORY

Performance Management

Customer Incident

Compensation Claim

Compensation Claim Investigation

ISSUE FOR DETERMINATION

LEGISLATIVE REQUIREMENTS

Section 7(7) Exclusion from Compensation

When is section 7(7) triggered:

When is a representation made for purposes connected with a person’s employment?

What is a false and wilful representation?

What is meant by the phrase “that disease”?

DID TRKG SUFFER A DISEASE?

MEDICAL EVIDENCE

Medical Evidence prior to the Date of the Customer Incident (16 May 2018)

TABLE A - Medical Evidence (2013 to May 2018)

Medical Evidence of Independent Experts (May 2018 onwards)

Dr Luke Murphy, Psychiatrist

Dr Alistair Macleod, Consultant Psychiatrist

Dr Bradley Ng, Psychiatrist

does section 7(7) of the act apply?

Elements of Section 7(7)

“That disease”

Conclusion on representations

Were TRKG’s representation made wilfully and falsely?

Conclusion

DECISION

REASONS FOR DECISION

Member D K Grigg

25 June 2021

INTRODUCTION & CLAIMS HISTORY

1. The Applicant, (‘TRKG’), worked as a sessional interpreter for the Department of Human Services (“Centrelink”) between 2013 and 2016.[1] On 17 October 2016[2] TRKG became a Customer Service Officer at the APS 3 classification (“SO3”) at the Stones Corner Centrelink Customer Service Centre (“CSC”).[3]

   [1] Exhibit 6, Joint hearing bundle, A2, page 660, OnCall Letter of Reference dated 4 February 2020.

   [2] Exhibit 3, T Documents, T7A, page 81, Timeline of Events.

   [3] Exhibit 3, T Documents, T5, page 19, TRKG’s Workers’ Compensation Claim Form dated 20 June 2016.

2. An SO3 employee at Centrelink is expected to have knowledge of, among other things, “payments, programmes and services administered by the department”.[4]

   [4] Exhibit 3, T Documents, T7F, page 111, Job Statement for APS3 Service Officer

   Performance Management

3. On 22 January 2018, an informal Support Plan was initiated by the Applicant’s managers. The informal support plan set out areas of improvement for TRKG to work on, established weekly coaching sessions and set out plans for how to assist TRKG to improve her performance.[5]

   [5] Exhibit 3, T Documents, T20, page 350, Timeline of Events.

4. From the Applicant’s managers’ perspective, despite the informal support plan being in place, the Applicant’s work performance had not improved to the standard expected of an SO3. As a result, TRKG was placed on what is known as a “Back on Track” plan in April 2018.[6]

   [6] Ibid.

5. On 18 May 2018 TRKG had a Back on Track progress meeting with her manager to discuss her performance. TRKG has not returned to work since that meeting.[7]   

   [7] Ibid.

   Customer Incident

6. On 16 May 2018 a “very frustrated” customer attended the Stones Corner CSC. According to the CSC Manager, Ms Jane Newey, “the customer was making threats to pour petrol onto himself and light himself on fire…[a] Code grey was then called as the front doors were locked and all staff and customers inside the Access part of the service centre were directed to the Kitchen which is the code grey area…[once] the aggressor had left driving his car away…the Service centre remained closed waiting for the police. All Staff and customers [then] moved out of the code grey area and staff resumed serving the remaining customers…Police attend[ed] the site” (“Customer Incident”).[8]

   [8] Exhibit 3, T Documents, T7E, page 107, Statement of Jane Newey regarding CCTV Footage dated 8 June 2018.

   Compensation Claim

7. On 22 May 2018, TRKG applied for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for “Acute Post-Traumatic Stress Disorder” which she claims resulted from the Customer Incident. TRKG claimed that:[9]

   I was serving the customer where all of a sudden I heard another customer threaten that he will run his car into the office. The next thing I heard was "Code Grey" and that everyone should leave. I got so frightened that at first I did not know where I was and where to hide. Then for a few minutes I thought I was in Afghanistan and re-experienced the traumatic experience from my past. My heart was racing and I was breathing rapidly

   TRKG claimed that she first noticed these symptoms on 16 May 2018 at 3:00pm (“Compensation Claim”).[10]

   [9] Exhibit 3, T Documents, T3, page 26, TRKG’s Workers’ Compensation Claim Form dated 22 May 2018.

   [10] Exhibit 3, T Documents, T3, pages 26-33, TRKG’s Workers’ Compensation Claim Form dated 22 May 2018.

8. In the Compensation Claim form TRKG declared that she:

   (a)was claiming for a psychological injury; and

   (b)had not experienced a similar symptom, injury, or illness before.

   Compensation Claim Investigation

9. On 20 July 2018, following an investigation conducted by the Respondent’s insurer which involved TRKG being reviewed by Dr Bradley Ng, Consultant Psychiatrist, and obtaining relevant employer statements, a Senior Case Manager from Allianz Insurance recommended that TRKG be denied compensation under the Act, on the basis that the injury suffered by TRKG did not arise out of the Customer Incident but “most likely developed in the context of management action aimed at addressing identified performance concerns”. The Senior Case Manager also found that:

   (a)the performance management actions undertaken by TRKG’s supervisors were “reasonable administrative actions…undertaken reasonably and in respect of [TRKG]’s employment”;[11] and

   (b)the medical evidence supported a diagnosis of “major depressive disorder with anxiety”, not acute PTSD as claimed by TRKG in her Compensation Claim form.

   [11] Exhibit 3, T Documents, T16, pages 276-288, Recommendation by delegate including reasons dated 20 July 2018.

10. As a result of that recommendation, TRKG’s claim for compensation was denied by Comcare on 24 July 2018.[12]

    [12] Exhibit 3, T Documents, T17, pages 289-290, Determination by authorised delegate dated 24 July 2018.

11. On 21 August 2018 TRKG requested a reconsideration of the Delegate’s decision.[13]

    [13] Exhibit 3, T Documents, T19, pages 295, TRKG’s request for reconsideration dated 21 August 2018.

12. A further recommendation was made to affirm the delegate’s decision on 19 September 2018[14] and the decision to deny compensation was affirmed by the authorised delegate on 19 September 2018 (“Reviewable Decision”).[15]

    [14] Exhibit 3, T Documents, T21-T22, pages 420-435, Recommendation by delegate including reasons dated 19 September 2018.

    [15] Exhibit 3, T Documents, T23, pages 436-437, Determination by authorised delegate dated 19 September 2018.

13. TRKG then applied for a review of the Reviewable Decision by this Tribunal.[16]

    [16] Exhibit 3, T Documents, T1, pages 1-6, Application for Review of Decision dated 19 November 2018.

    ISSUE FOR DETERMINATION

14. The issues for determination are whether:

    (a)whether TRKG’s claimed condition cannot amount to an "injury" for the purposes of s 5A of the Act as a result of the operation of s 7(7) of the Act ?

    (b)whether TRKG suffers from an ailment, or an aggravation of an ailment as defined in s 4 of the Act?

    (c)if so, whether that ailment was significantly contributed to by TRKG's employment by Centrelink such that the definition of "disease" in s 5B of the Act is met?

    (d)if so, is TRKG’s "disease" not an "injury" under s 5A of the SRC Act due to the operation of the reasonable administrative action exclusionary provision?

15. It is not in dispute that TRKG was an “employee” of the Commonwealth.[17]

    [17] Exhibit 2, Respondents Submissions dated 11 February 2020, paragraph 16; section 5, Safety, Rehabilitation and Compensation Act 1988.

16. Comcare’s primary contention is that:[18]

    (a)TRKG suffered from a disease, namely “major depressive disorder with anxiety” (“MDD with anxiety”);[19] and

    (b)TRKG’s disease is excluded from being a compensable “injury” by the operation of section 7(7) of the Act because for purposes connected with her employment, TRKG made a false and wilful representation that she had not suffered from that disease previously.

    [18] Exhibit 2, Respondent’s Submissions dated 11 February 2020, pages 14 – 18, paragraphs 110 – 127.

    [19] Respondent’s Closing Submissions dated 2 June 2021, page 9, paragraph 33.

17. Alternatively, Comcare contends:

    (a)TRKG suffered from a psychological ailment which was significantly contributed to by her employment by virtue of her underperformance at work and the performance management process implemented to address the purported under performance;

    (b)The performance management process was as follows (“Performance Management Actions”):

    (i)it commenced in January 2018 by the institution of an “informal support plan”;

    (ii)in February 2018 at a mid-cycle review, TRKG was advised by her managers that she was not meeting performance expectations of her role;

    (iii)TRKG was advised by a supervisor in March 2018 that she would be placed on a “Back on Track” plan;

    (c)those Performance Management Actions:

    (i)were “reasonable administrative actions” constituting a reasonable appraisal of TRKG’s performance (see section 5A(2)(a)), and/or a reasonable counselling action (see section 5A(2)(b)) and/or a reasonable action taken in connection with the appraisal/counselling (see section 5A(2)(e));

    (ii)were taken in a reasonable manner in respect of her employment; and that

    therefore, the exclusionary provision in section 5A(1) of the Act applies.[20]

    [20]         Exhibit 2, Respondent’s Submissions dated 11 February 2020, paragraph 16.

18. If the exclusionary provision in section 5A(1) of the Act applies, TRKG’s ailment would not be an “injury”[21] for the purposes of the Act and she would not be entitled to compensation under section 14 of the Act.

    [21] Section 5B, Safety, Rehabilitation and Compensation Act 1988.

19. TRKG contends that:

    (a)she suffers from posttraumatic stress disorder (“PTSD”);

    (b)she does not suffer from MDD;

    (c)she has not previously suffered from the claimed condition;

    (d)she has not made a wilful and false representation for purposes connected with her employment;

    (e)she suffered the condition claimed as a result of the Customer Incident;

    (f)the Performance Management Actions were not reasonable administrative actions and were not undertaken reasonably; and

    (g)she is entitled to compensation under section 14 of the Act.

    LEGISLATIVE REQUIREMENTS

20. The right to compensation for an employee under the Act is conferred by section 14(1) which provides that 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.

    (Emphasis added)

21. Compensation is payable with respect to an “injury”. “Injury” is defined in section 5A of the Act to mean, so far as this case is concerned:

    “(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.

    (2)  For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

    (a)  a reasonable appraisal of the employee's performance;

    (b)  a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;

    (c)  a reasonable suspension action in respect of the employee's employment;

    (d)  a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;

    (e)  anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

    (f)  anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.”

    (Emphasis added)

22. A “disease” is defined in section 5B of the Act to mean, so far as this case is concerned:

    “(1)      …

    (a)  an ailment suffered by an employee; or

    (b)  an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.”

    (Emphasis added)

23. An “ailment” is defined in section 4 of the Act to mean:

    “… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

    (Emphasis added)

    Section 7(7) Exclusion from Compensation

24. Where an employee suffers from a “disease” section 7 of the Act sets out specific matters that apply. Relevant to this case is section 7(7) of the Act which, if applicable, would deny an applicant from receiving any compensation, even in circumstances where the employment significantly contributed to that injury. Section 7(7) of the Act provides:

    (7)  A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

    (Emphasis added)

    When is section 7(7) triggered:

25. The Federal Court outlined in K&S Freighters Pty Ltd v McQueen-Thomas[2018] FCA 1518 (“K&S Freighters”) that “Section 7(7) of the SRC Act is triggered in circumstances where the employee has made a wilful and false representation, and where that representation is made for purposes connected with his or her employment”.

    When is a representation made for purposes connected with a person’s employment?

26. In K&S Freighters the employee had a pre-existing shoulder injury. On appeal the employee argued that the Tribunal erred in law by incorrectly interpreting the phrase ‘purposes connected with’ in section 7(7) of the Act in finding that a representation made on a worker’s compensation claim form submitted to his employer was not a representation ‘for purposes connected with’ his employment. The claim lodged for compensation under the Act was for a shoulder injury. The employer denied compensation and contended that the employee was not entitled to compensation because of the operation of section 7(7) of the Act. In the compensation claim form the employee circled “no” in answer to the question whether he had ever experienced similar symptoms, injury or illness.

27. The Court referred (at [55]) to the decision in Commonwealth of Australia v Christoffelsz(1988) 18 FCR 415 (“Christoffelsz”) where Neaves J said (at 422):

    What the provision requires is that the wilful and false representation be made “for purposes connected with his [the employee’s] employment or proposed employment by the Commonwealth”. It is sufficient that the representation be made “at any time”. The words of the provision are ordinary English words and, prima facie, are to be given their ordinary meaning. So read, the meaning of the provision is clear and unambiguous.

28. The Court also referred (at [57]) to the Full Court in Collector of Customs v Pozzolanic Enterprises[1993] FCA 456; (1993) 43 FCR 280 (“Pozzolanic”). In that case the Court considered that the the phrase “connected with” employment, should be interpreted giving the words their ordinary meaning and that the ordinary meaning of the phrase to concern a relation between things, one of which is bound up with or involved in another.

29. Having considered Christoffelsz and Pozzolanic, the Court in K & S Freighters held (at [61]) that a compensation claim form was a form completed “for purposes connected with…employment”.

30. These decisions identify that a representation made in a compensation claim form, or to a doctor undertaking a pre-employment medical assessment, or to a doctor undertaking an assessment for the purpose of a compensation claim, are representations made for purposes connected with employment or proposed employment.[22]

    [22] See also Fiddian and Comcare [2019] AATA 10, YNCJ and Comcare [2019] AATA 4795 and Makin and Comcare [2010] AATA 432.

    What is a false and wilful representation?

31. In Comcare Australia v George Leslie Porter [1996] FCA 562 (“Porter”) the Court referred to the discussion of the meaning of “wilful” by Barwick CJ in Iannella v. French [1968] HCA 14; (1968) 119 C.L.R. 84. Barwick CJ said (at 94-95):

    In my opinion, 'wilful' connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known. The answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence. Further, the word intention itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something. Of course, in some statutory circumstances, the mere doing without consequence or without purpose is forbidden, in which event the conscious doing of the act may suffice to make its performance intentional and in these circumstances wilful.

32. The Court in Porter found that Barwick CJ’s discussion was equally applicable to section 7(7) of the Act and held that:[23]

    The subject matter of s.7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease - a subject notoriously liable to human misapprehension - the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.

    [23] (1996) 70 FCR 139 at 150; 23 AAR 171 at 182.

33. The Court in K & S Freighters noted that determining whether the statement made in a compensation form was false and wilful was referrable to the state of mind of the employee (at [61]).

1. Therefore, to find that a person has made a false and wilful representation requires a finding that the person believed the representation was untrue. In other words, the making of the false representation must have been purposeful.

   What is meant by the phrase “that disease”?

2. In Griffiths v Australian Postal Corporation [2018] FCA 520 (“Griffiths”) the Court held, relying on the ordinary meaning of the words and the decision of Perry J in National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382 (“Georgoulas”), that:

   [19]     …“that disease”, is a reference back to the opening words of that subsection, namely the “disease” which attracts the entitlement to compensation.

3. In Georgoulas the respondent made a claim for workers’ compensation for stress and anxiety related to work. In making her claim she said that she had not suffered a “previous similar symptom, injury or illness” when, in fact, she had experienced the symptoms of anxiety and depression some years before her claim, but those diseases were not diagnosed at that time. She suffered symptoms in the past consistent with those diseases. The applicant, her employer (‘NAB’), said that this was a “wilful and false representation” which disentitled her to workers’ compensation due to s 7(7). NAB argued that it was not relevant if there was no previous medical diagnosis provided she had previously suffered symptoms of anxiety that were outside the boundaries of normal mental functioning. Ms Georgoulas contended that, although she suffered from certain symptoms before she made her claim for compensation, there was a difference between those symptoms and the claimed condition.

4. Perry J concluded (at [74]) that the question as to whether Ms Georgoulas has previously suffered from “that disease” included whether she had previously suffered from “a disease that was substantially similar”.

   DID TRKG SUFFER A DISEASE?

5. At this stage, the Tribunal will put to one side the cause of TRKG’s medical conditions and focus instead on what her condition is. The reason for this is because the nature of the condition will determine whether it is potentially an injury or disease, whether section 7(7) of the Act has any application, and if it does, whether TRKG has suffered from “that disease” previously.

6. TRKG and Comcare disagree on the appropriate diagnosis of her condition and whether she had suffered that condition, or a substantially similar condition, prior to the Customer Incident or the Performance Management Actions.

7. Comcare accepts that TRKG suffers from a mental health condition but contends that the medical evidence supports a finding that the appropriate diagnosis is that TRKG suffers from MDD with anxiety. Comcare relies on the evidence of Dr Bradley Ng, Consultant Psychiatrist.[24]

   [24] Respondent’s Closing Submissions dated 2 June 2021, page 6, paragraphs 15 – 16.

8. TRKG contends that she suffers from PTSD and that she had never suffered from PTSD, anxiety, or depression prior to the Customer Incident.

   MEDICAL EVIDENCE

   Medical Evidence prior to the Date of the Customer Incident (16 May 2018)

9. Table A is a summary of the medical evidence concerning whether TRKG suffered from any mental health condition or symptoms prior to 16 May 2018.

   TABLE A - Medical Evidence (2013 to May 2018)

Date	Medical Practitioner	Specialty	Diagnosis/Comments (emphasis added)
27 March 2013[25]	Dr Carlos Chan	General Practitioner	‘shortness of breath in the office, taken to QE2 by ambulance, on 19/2/13’, ‘reason for contact: mental health consultation – 2713, anxiety/depression, … discuss anxiety attacks, lost her job as engineer [sic] 4 years ago, history consistent with anxiety attack, suggest to her google symptoms, etc’, ‘Counselling, K10 27/50, 25-29 mod’ advice anxiety, did not believe [sic] initially, lost job [sic], …the Applicant’s medical history as follows ‘active: 2013 anxiety/depression’.
19 July 2014[26]	Dr Carlos Chan	General Practitioner	Reason for contact: counselling anxiety
7 August 2014[27]	Dr Carlos Chan	General Practitioner	cannot sleep, anxious, keeps waking up’, ‘reason for contact: mental health consultation – 2713 stress’, ‘management: …said stressed out due to job issue, no engineering, got PHD locally QUT, counselling, K10 27 last year in March, K 10 21/50 now
28 February 2015[28]	Dr Carlos Chan	General Practitioner	“anxious”…”reason for contact: anxiety”
13 April 2015[29]	Dr Carlos Chan	General Practitioner	insomnia, waking up at 1:30am, anxious’, ‘reason for contact: mental health care plan – preparation’, ‘management: …discuss, wants to see psychologist for anxiety’. Applicant completed a K10 score of 27 out of 50. Mental health plan: “problem diagnosis: depression, anxiety Anxiety/depression since 27 March 2013
13 April 2015[30]	Dr Carlos Chan	General Practitioner	Dr Chan referred TKRG to Mr Gabriel Ruddy, psychologist, under a Mental Health Plan dated 13 April 2015. Told Mr Ruddy that TKRG was depressed, and that TKRG was experiencing insomnia and her affect was ‘concerned, worried, flat & remote’.
21 April 2015[31]	Mr Gabriel Ruddy	Psychologist	First appointment with TKRG “Impression :quite depressed”
10 May 2016[32]	Bilyana Safranko	Social Worker	[TKRG] works casually M-F 8.30-4.30pm at Centrelink as an interpreter as she needs to financially support herself and her two children, and as she is casual if she doesn't work she doesn’t' get paid and feels that she is constantly under financial stress. In addition to this she is finding it difficult emotionally to do the interpreting work as she is often hearing distressing stories from her clients and this is adding to her feelings of depression. … anxiety and stress around concerns for her children, employment and finances, lethargy, fatigue, anhedonia, low mood, low appetite, disturbed sleep.
17 May 2016	Jackie Bentley	Coordinator of Depression Program	17/05/16 - Interview with TKRG for cultural/social and mental health assessment and to determine if appropriate for the depression and self-management program [TKRG] denies any previous history of mental illness/problems with depression prior to 2009. Recently saw her Gp and got a referral to a Psychologist
21 May 2016[33]	Bilyana Safranko	Bicultural Mental Health	TKRG has strived with her studies in Afghanistan and in Australia and completed Phd in Structural Engineering at QUT and reports that once she lost her job and was made redundant in 2008 that her problems started. TKRG reports feeling low and depressed for the last two or three years
11 June 2016[34]	Dr Carlos Chan	General Practitioner	‘said still anxiety, still cannot find jobs, mum got Alzheimer’s, etc, seeing counsellor in Stores corner, seen her once already and again next Sat, free of charge’, ‘reason for contact: mental health care plan – review’, ‘management: counselling’, ‘review: MHP, said too busy to see Ruddy last year, here to get MC to say she has anxiety’.
11 June 2016[35]	Dr Carlos Chan	General Practitioner	Dr Chan provided two letters in support of the Applicant stating “suffering from anxiety [sic] last few years and seeing psychologist. She will need help to seek employment’
18 June 2016[36]	Bilyana Safranko	Mental Health	Depression and Chronic Disease Program (Session 2) She is very stressed… symptoms of anxiety and depression… discussed strategies to help her regulate her mood
30 July 2016[37]	Bilyana Safranko	Bicultural Mental Health	Depression and Chronic Disease Program (Session 3) Met with [TKRG] …[TKRG] also is struggling with her work. She is concerned about losing her job with the new accreditation requirements but cannot afford the time and money to sit for the testing in the languages that she interprets in. [TKRG] continues to look for work in her chosen field of engineering but feels she is not getting anywhere with this and it continues to add to her feelings of low self-worth and hopelessness. I did provide [TKRG] with details of Steve Gibbs who runs a recruitment agency that does employ engineers and encouraged her to contact him to discuss her options. We discussed the topics of Session three, in terms of Habits of Thinking and Self Talk, looking at how our negative thinking has an impact on us, understanding automatic thoughts and looking at the habits of thinking and how to change our automatic negative thoughts. [TKRG] enjoyed the opportunity to discuss, vent and share her concerns, her thoughts and feelings and finds it supportive and helpful to her. [TKRG] will attempt to implement the learning and focus on trying to improve her thoughts and self-talk in order to positive affect her emotions and behaviour. Plan – see her in 2 weeks on 13th August 2016 at 2.30pm at Mt Gravatt Plaza
8 September 2016[38]	Dr Sadia Kundi	Pre-employment medical examination for Respondent and medical information disclosure provided by TKRG. Dr Kundi recorded that TKRG reported that she is not suffering and has not previously suffered from a ‘nervous or mental condition (including anxiety, depression, severe or abnormal stress reactions)
14 September 2016[39]	Dr Carlos Chan	General Practitioner	‘return call to Jacqui Bently…psychologist’.
17 October 2016[40]	TKRG employed by Respondent
13 January 2017[41]	Ms Jackie Bentley	Coordinator of Depression program, Queensland Transcultural Mental Health Centre	Ms Bentley wrote to TKRG to say she had tried to contact several times to see if she would like an appointment “for the depression program”
23 February 2017[42]	Ms Jackie Bentley	Coordinator of Depression program, Queensland Transcultural Mental Health Centre	“Applicant had received three sessions of cognitive behavioural therapy (CBT) through depression and self-management program” from Ms Bilyana Safranko and that the Applicant had not attended CBT sessions since July 2016.
6 November 2017[43]	Jane Wilson	Psychologist	Client reported having difficulty coping…starting to feel overwhelmed and anxious…worked on strategies to help…effectively manage her anxiety
28 February 2018[44]	General Practitioner	A lot of stress at work.’…‘Last night couldn’t sleep.  Need medical certificate or something for sleep Counselling and medication provided
11 March 2018[45]	General Practitioner	“Present due to work-related stress.  Was picked on by new manager since January 2018.  Tearing plus.  Headache, insomnia, reduced appetite, cannot resign her job due to financial burdens.  Joined union yesterday.  Saw psychologist last week.  Living with two daughters.  Try to get help from union.  See psychologist next week”
22 March 2018	General Practitioner	attended and reported psychological symptoms associated with your work… Imp: Depression. Anxiety secondary to workplace stress
26 March 2018	General Practitioner	“lot of stress and anxiety”
27 March 2018[46]	Dr Jude Mendis	General Practitioner	Referral to Psychologist Impression/; Anxiety/depression probably secondary to work stress
23 April 2018	General practitioner	Having a lot of stress at work…Poor sleep and poor motivation.  Didn’t go to work today…Seeing a psychologist under GP Mental Health Care Plan…. Psychologist rang me.  Most likely patient suffering from adjustment disorder/anxiety/depression
26 April 2018[47]	Mr Olaf Handrick	Clinical Psychologist	is still under performance review for the next 10 weeks[48] Adjustment disorder with anxiety and depression. The aetiology of an adjustment disorder implies that events in her life have caused that condition. In sessions it became clear that she experienced the most recent events regarding her performance management issue as narcissistic insult, meaning that she requested help according to her self-report and ended up on close supervision.
30 April 2018[49]	General practitioner	Having counselling…change antidepression [sic] Asking for letter to say that she is suffering from anxiety/depression
11 May 2018[50]	General practitioner	Still referred to see a psychiatrist Dr Vinit Sawney
14 May 2018[51]	General practitioner	Still feeling stressed…has had to leave work today due to the fact that she is affected by her client who started crying which then made pt cry as well
17 May 2018[52]	Mr Olaf Handrick	Clinical Psychologist	Adjustment disorder with anxiety and depression. In sessions it became clear that she experienced the most recent events regarding her performance management issue as narcissistic insult, meaning that she requested help according to her self-report and ended up on close supervision...
Between 27 March 2018 and 14 June 2018[53]	Mr Olaf Handrick (saw TKRG on 6 occasions prior to 14 June 2018)	Clinical Psychologist	[TKRG] was exposed to a process of performance improvement measures at her workplace which was perceived by her as insulting, degrading and harassment. This triggered in her thoughts of anger, helplessness, despair, and psycho vegetative symptoms of an adjustment disorder such as sleep problems, an-hedonism and low motivation. In therapeutic terms she suffered a narcissistic insult and developed an adjustment disorder with depression and anxiety.

[25] Exhibit 6, Joint Hearing Book, R8,  Summonsed Medical Records, Wishart Medical Centre, page 120.

[26] Exhibit 6, Joint Hearing Book, R8, Summonsed Medical Records, Wishart Medical Centre, page 100.

[27] Exhibit 6, Joint Hearing Book, R8, Summonsed Medical Records, Wishart Medical Centre, pages 99. 130.

[28] Exhibit 6, Joint Hearing Book, R8, Summonsed Medical Records, Wishart Medical Centre, page 99.

[29] Exhibit 6, Joint Hearing Book, R8, Summonsed Medical Records, Wishart Medical Centre, pages 131, 138-139.

[30] Exhibit 6, Joint Hearing Book, R8, Summonsed Medical Records, Wishart Medical Centre, pages 99, 138.

[31] Exhibit 6, Joint Hearing Book, R15, Summonsed Medical Records, Mr Gabriel Ruddy, page 636

[32] Exhibit 6, Joint Hearing Book, R14, Summonsed Medical Records, Metro South Health Princess Alexandra Hospital, pages 553 – 554.

[33] Ibid, 546

[34] Exhibit 6, Joint Hearing Book, R8, Summonsed Medical Records, Wishart Medical Centre, pages 98 – 99.

[35] Exhibit 6, Joint Hearing Book, R8, Summonsed Medical Records, Wishart Medical Centre, pages 136 – 137.

[36] Exhibit 6, Joint Hearing Book, R14, Summonsed Medical Records, Metro South Health Princess Alexandra Hospital, page 545

[37] Ibid, 534.

[38] Exhibit 5, Supplementary T Documents dated 17 March 2020, ST1, Pre-employment Medical report by Dr Sadia Kundi, pages 1 - 14

[39] Exhibit 6, Joint Hearing Book, R8, Summonsed Medical Records, Wishart Medical Centre, page 98.

[40] Exhibit 3, T Documents, T7, Employer Statement dated 14 June 2018, page 76; T3, TKRG’s Workers’ Compensation Claim form dated 22 May 2018, page 32.

[41] Exhibit 6, Joint Hearing Book, R14, Summonsed Medical Reports, Metro South Health Princess Alexandra Hospital, page 526.

[42] Exhibit 6, Joint Hearing Book, R8,  Summonsed Medical Records, Wishart Medical Centre, page 133.

[43] Exhibit 6, Joint Hearing Book, R9, Summonsed Medical Records, Benestar, page 197.

[44] Exhibit 6, Joint Hearing Book, R12, Summonsed Medical Records, Primary Medical and Dental Browns Plains, page 286.

[45] Ibid, 285

[46] Exhibit 3, T Documents, T9, Referral to Psychologist by Dr Jude Mendis, pages 221 – 222.

[47] Ibid, 229

[48] Ibid, 232

[49] Exhibit 6, Joint Hearing Book, R12, Summonsed Medical Records, Primary Medical and Dental Browns Plains, page 283; Exhibit 3, T Documents, T7G, Medical Certificate from Dr Jude Mendis, page 113.

[50] Exhibit 6, Joint Hearing Book, R12, Summonsed Medical Records, Primary Medical and Dental Browns Plains, page 282.

[51]Ibid.

[52] Exhibit 3, T Documents, T9, Medical Report by Mr Olaf Handrick, page 228.

[53] Ibid, 227.

(emphasis added)

1. TRKG was cross-examined about these medical records. TRKG queried why we needed to go back through old medical records.[54]

   [54] Transcript dated 23 February 2021, page 42

2. In relation to the clinical note of 27 March 2013 TRKG initially agreed her history was consistent with anxiety attack and that Dr Chan suggested some management and discussed advice for how to manage her anxiety. She then said “I don’t believe that I did have any anxiety.  The anxiety kind of - what is required to go and see somebody to get treatment for it, you know?”[55] TRKG then denied that Dr Chan told her she had been diagnosed with anxiety attacks.[56] TRKG also denied having had an anxiety attack at all and said the symptoms she had experience resulting in her being taken to hospital were due to her having anaemia.[57] This evidence is  unconvincing. The record clearly states that TRKG had a history consistent with anxiety attacks. There is no mention by her treating general practitioner that the cause of her anxiety symptoms is, or even could be, related to her anaemia.

   [55] Ibid, 43.

   [56] Ibid, 43.

   [57] Ibid, 43 – 45, 48.

3. During cross-examination TRKG expressly denied having “any anxiety or depression before”. TRKG said she had seen Dr Chan because she wanted to see a psychologist so they could help her find a job.[58] The Tribunal finds this evidence implausible. Psychologists are not career counsellors. The Tribunal considers that TRKG wanted to disguise the real reason for wanting to see a psychologist, that reason being because she was very anxious. TRKG said “I had gone to the psychologist, yes.  But that doesn’t mean that I have an anxiety or depression at that time.”[59]

   [58] Ibid, 45.

   [59] Ibid, 46

4. TRKG told the Tribunal she did not remember reporting anxiety symptoms to Dr Chan in August 2014.[60]

   [60] Ibid, 47

5. TRKG did accept that she talked to Dr Chan in February 2015 about anxiety but said this did not mean she had “anxiety”.[61] As the cross-examination of TRKG continued regarding Dr Chan’s clinical records, TRKG suddenly said “I’m not really happy with Dr Chan.  I have never [identified] with him.  Dr Chan has written stuff.  I had no idea about it.  He never told me that you have this problem or that problem.  Otherwise I would have done something about it.  I would have been getting treatment for it.”[62] This was an attempt by TRKG to diminish the weight that should be given to Dr Chan’s records. TRKG’s repeated denial of having anxiety symptoms and having treatment for same is contrary to the medical evidence. It is clear from Dr Chan’s records in April 2015 that he referred TRKG to a psychologist for treatment.

   [61] Ibid, 48

   [62] Ibid, 48

6. In response to the medical notes of 13 April 2015 TRKG again sought to distinguish everyday worries from being clinically anxious. She said “I made it so many times clear.  My business with Dr Chan was not that I was seeing him for the disease that I had and that was calling depression or anxiety.  I never had this problem.  Word ‘anxiety’, if I have used, you know - if I couldn’t sleep for example, it doesn’t mean that I had anxiety.  It was my iron.”[63] As previously stated the Tribunal is not satisfied that iron deficiency was the cause of TRKG’s symptoms. If it were, there would have been no need for Dr Chan to refer TRKG to a psychologist. TRKG said Dr Chan never told her she had depression and anxiety.[64] “I never had anxiety.  I never had depression before”. If this was the case, there would be no need for a mental health plan and a psychologist referral. It is apparent from the 13 April 2015 record that TRKG knew she was suffering from anxiety and needed professional assistance and care. The Mental Health Plan required TRKG’s signature giving permission for her conditions to be discussed with psychologist Mr Ruddy.[65] TRKG signed the mental health plan which provided that she needed counselling and psychological therapy for “depression and anxiety”[66] When questioned about this TRKG said, “if you’re trying to prove that I have anxiety, I’m not agreeing with you…I don’t have the problem”. [67] Again, TRKG was seeking to distance herself from the medical records. At this point on the hearing TRKG tried to avoid answering any further questions about the medical records and said:

   “we don’t need to go through this.  These documents - if you want to prove that I had anxiety or depression - I’m not agreeing with it because this is not the truth.  The truth is that I did not have anxiety and depression before”.[68]

   [63] Ibid, 49

   [64] Ibid, 52

   [65] Exhibit 6, Joint Hearing Book, R8, Summonsed Medical Records, Wishart Medical Centre, pages 131, 140.

   [66] Exhibit 6, Joint Hearing Book, R15, Summonsed Medical Reports, Mr Gabriel Ruddy, page 646.

   [67] Transcript dated 23 February 2021, page 49.

   [68] Ibid, 50

1. The Tribunal explained that the Respondent was entitled to put these records to her for comment and that the questions would proceed. TRKG said “Yes.  But this is taking my energy because I’m not agreeing with what you’re trying to prove”.[69]

   [69] Ibid, 51

2. TRKG’s first appointment with the psychologist Ruddy was on 21 April 2015. TRKG said she only talked about jobs with Mr Ruddy.[70] Even if that is the case that does not mean that TRKG was not anxious and depressed. Mr Ruddy’s impression was that TRKG was “quite depressed”. The lack of an appropriate or desired job may have been a cause of TRKG’s anxiety and depression. TRKG again tried to downplay her symptoms at this time by describing them as “only stress” and “stress that every human being is dealing with every day”.[71] The Tribunal does not accept this. The usual day to day stress does not lead to a person seeking medical attention and obtaining a referral for psychological counselling.

   [70] Ibid, 49

   [71] Ibid, 49

3. In relation to the record of 10 May 2016 TRKG said “If I say ‘depression’ it doesn’t mean that I had the depression problem… Maybe I used the wrong word then.  Maybe instead of being ‘upset’ I used ‘depressed’ maybe.  But it doesn’t mean that I had a depression”[72] TRKG said she did not remember the consultation with the clinical specialist at the Mental Health Clinic or saying those things and would not accept that the record was accurate.[73]

   [72] Ibid, 53

   [73] Ibid, 53

4. In relation to the record of 17 May 2016 TRKG said she only attended the Mental Health Clinic to get help finding a job.[74] Again, the Tribunal finds this implausible. It is specifically recorded that TRKG was being assessed for the depression program as part of which they had TRKG complete a questionnaire. TRKG denied knowing they were assessing her for this program.[75] TRKG was assessed as an appropriate candidate for the depression and self-management program.

   [74] Ibid, 55

   [75] Ibid, 56

5. On 21 May 2016 TRKG had her first session as a part of the depression and chronic disease program at the Mental Health Clinic.

6. In relation to the record of 11 June 2016, TRKG refused to accept she told Dr Chan she was still anxious and said “maybe [Dr Chan] …made it up”.[76] The Tribunal finds it extremely  unlikely that Dr Chan “made it up”. This is another example of TRKG failing to be forthcoming about her medical history in the face of the records and medical appointments she had and demonstrates the intention of TRKG to purposefully deny her previously existing conditions and symptoms.

   [76] Ibid, 56

7. TRKG said Dr Chan’s anxiety diagnosis was “just nonsense”.[77] TRKG then purported to downplay Dr Chan’s diagnosis again by saying he was “just a GP”.[78]

   [77] Ibid, 57

   [78] Ibid, 68

8. The 11 June 2016 record also records that the reason TRKG contacted Dr Chan was to obtain a mental health care plan.

9. On 18 June 2016 TRKG had her second session as a part of the depression and chronic disease program. TRKG again denied knowing she had depression. “No one told me, ‘[TRKG], you have depression.  You need to do something about this depression”[79]

   [79] Ibid, 59

10. On 30 July 2016 TRKG had her third session as a part of the depression and chronic disease program. This note clearly indicates that TRKG was being treated in July 2016 for mental health condition.

11. In relation to the record of 11 March 2018 TRKG accepted she attended on her general practitioner and reported psychological symptoms associated with her work.[80]

    [80] Ibid, 71

12. In relation to the record of 22 March 2018 TRKG said “No idea what they have diagnosed themselves.  I don’t know about that.  But the thing is like I was – yes, having stress.  I was actually frustrated.  I was experiencing that.”[81]

    [81] Ibid, 71

13. In relation to the record of 26 March 2018 TRKG denied she had lots of stress and anxiety and again said her iron level was low. Counsel put to TRKG how would we know her iron level was low to which TRKG responded “Because I am here.  I am telling you that’s my body.  That’s my truth.  That’s what I know”.[82]

    [82] Ibid, 72

14. On 27 March 2018 TRKG signed the Mental Health Plan agreeing that she had understood the recommendation to be referred to a psychologist. It was put to TRKG that she obviously knew Dr Mendes had diagnosed her with anxiety/depression secondary to work-related stress and that she agreed to the treatment that he was recommending. TRKG said “Mm”.[83]

    [83] Ibid, 73

15. Later in the hearing TRKG admitted that she was aware from her conversations with the psychologist in 2018 that he was of the view that she was experiencing adjustment disorder or anxiety or depression.[84]          

    [84] Ibid, 73

16. In the summonsed clinical records obtained from Dr Chan, Dr Chan records that TRKG has a past medical history of anxiety and depression in 2013.[85]

    [85] Exhibit 6, Joint Hearing Book, R8, Summonsed Medical Records, Wishart Medical Centre, page 98.

17. The medical records between March 2013 and May 2018 indicate:

    (a)a repeated history of TRKG reporting anxiety, stress, and depressive symptoms to her treating doctors;

    (b)a referral to a psychologist, Mr Ruddy in April 2015 at TRKG’s request for anxiety and depression;

    (c)three sessions with Mr Ruddy in 2015;

    (d)attendance at a Mental Health Clinic in 2016 where TRKG was assessed as meeting the eligibility criteria to be enrolled in a depression program;

    (e)three attendances at the Mental Health Clinic in 2016 for treatment for depression and anxiety;

    (f)TRKG reporting to the Mental Health Clinic that she had felt “low and depressed” since 2013 which accords with Dr Chan’s records;[86]

    (g)reporting depression and anxiety symptomatology, and receiving treatment for same, prior to her employment with Centrelink;

    (h)attending a psychologist for treatment of anxiety in early 2018 prior to the Customer Incident;

    (i)being referred to another psychologist in March 2018 for anxiety and depression;

    (j)her general practitioner diagnosing her with “adjustment disorder/anxiety/depression” on 23 April 2018;

    (k)a psychologist diagnosing her with “adjustment disorder with anxiety and depression” on 26 April 2018; and

    (l)being treated by a psychologist in April and May 2018 prior to the Customer Incident.

    [86] Ibid.

    Medical Evidence of Treating Doctors (May 2018 onwards)

    Dr Geoffrey Seet (General Practitioner)

18. Dr Seet was TRKG’s general practitioner in 2018. Dr Seet did not give evidence at the hearing, but the Tribunal has copies of his medical reports and some clinical notes obtained through a summons process.

19. On 11 May 2018 Dr Seet referred TRKG to Dr Sawhney for management of anxiety and depression and reported that TRKG “felt slighted” by having to do a work performance management program.[87] The Tribunal notes that this is prior to the Customer Incident.

    [87] Exhibit 6, Joint Hearing Book, R10, Summonsed Medical Records, Dr Vinit Sawhney, page 219

20. He assessed her on 21 May 2018 and reported a diagnosis of PTSD.[88] He reported that TRKG was in an anxious state and stressed following the Customer Incident.

    [88] Exhibit 3, T Documents, T4, Medical Certificate by Dr Geoffrey Seet, page 34 – 35.

21. On 30 June 2018 Dr Seet reported a diagnosis of PTSD and MDD.[89] Dr Seet wrote that TRKG had had depressive symptoms for six months (since January 2018).

    [89] Exhibit 3, T Documents, T12, Medical Report by Dr Vinit Sawhney dated 30 June 2018, page 246.

22. On 14 January 2019 and 11 April 2019, Dr Seet reported for a period up to 14 July 2019, inclusive that TRKG was unable to work due to a diagnosis of “anxiety – depression plus PTSD”.[90]

    Dr Vinit Sawhney (Psychiatrist)

    [90] Exhibit 5, Supplementary T Documents dated 17 March 2020, ST3, Medical Certificate from Dr Geoffrey Seet, page 17.

23. Dr Sawhney became TRKG’s treating psychiatrist on 19 May 2018 following the Customer Incident.

24. On 21 May 2018 Dr Sawney reported that:[91]

    [TRKG] suffers from a Major Depressive episode which has been triggered and maintained by work related stressors. There was a recent traumatic incident in her office where she has been working, which further triggered and impacted her mental health status. This event re-traumatised her and she has since found it challenging to go back to her workplace. Workplace stressors include interpersonal issues with the management due to being placed on the performance management pln. The long commute and ongoing road development to work has also been significantly impacting [TRKG's] mental health”.

    [91] Exhibit 3, T Documents, T7J, Referral letter by Dr Vinit Sawhney, page 117.

25. In an undated letter Dr Sawney reported:[92]

    (a)it appears that the stress-anxiety symptoms of her illness started in November 2017, triggered by new work-related stressors.

    (b)During May 2018, while undergoing a lengthy and stressful performance management process at work, [TRKG’s] health deteriorated

    (c)On the 16th May, while attending at her usual workplace, [TRKG] witnessed a significant incident marked by severe aggression and threats from a customer in the waiting area, in close proximity to where she was working. This distressing experience.has, in my opinion , re-triggered some past trauma that she had endured in Afghanistan, and initiated her experiencing symptoms suggestive of Post-Traumatic Stress Disorder.

    (d)Apparently, in the two days following this traumatic incident, she spoke to her counsellor through the Employer Assistance Program (EAP). When she was assessed by the EAP counsellor after the incident, she reported that the aggressive experience had worsened her anxiety, causing nightmares and flash-backs, and increased her worries.

    (e)According to reports, on the morning of 18th of May, the EAP counsellor informed [TRKG]'s manager about her reported fragile mental state, and particularly, her fear of not coping with the managers' meeting regarding her performance review set for that afternoon. Unfortunately, despite being told of [TRKG’s] fragile psychological presentation, the managers decided to conduct their review with her on 18th May. The review apparently threatened [TRKG’s] future financial security, leading her to experience severe psychological distress on the day, exacerbating her already diagnosed conditions, requiring further health interventions. I feel it was neither prudent nor reasonable for managers to conduct an assessment of [TRKG] for her performance management on the 18th of May, completely ignoring the information from the psychologist regarding her fragile mental state. Management were informed that [TRKG] was unwell, and they knew her symptoms were heightened by the traumatic incident occurring at her workplace two days before. In my opinion, I believe there is a strong probability that the performance review undertaken on 18th May had a significant detrimental effect on [TRKG’s] mental health.

    (emphasis added)

    [92] Exhibit 4, Further Supplementary T Documents dated 23 December 2019, FST8, Letter for Applicant by Dr Vinit Sawhney, page 14.

26. On Dr Sawney reported, on or around 8 April 2021:[93]

    I assessed [TRKG] in May (19/05/18 & 30/05/2018) and in June (2/6/2018 & 9/6/2018) as presenting with depressive symptoms in context of stressful issues related to work.

    …

    On the 30.6.2018, I revised my opinion and added a diagnosis of post-traumatic stress disorder (PTSD) to my previous diagnosis of major depressive disorder, assessed two weeks earlier. I noted that there had been two significant events during May 2018 that impacted on her and led to a rapid decompensation in cognitive functioning and mental resilience. The events described by [TRKG] were (1) she was present at work during an act of customer aggression in her office on the 16th May which caused her to panic and led her to experience acute distress and severe anxiety, with symptoms of hyperarousal, nightmares, hypervigilance, and avoidance during the days and weeks that followed, and (2) an action of performance review undertaken by her manager and team leader on the 18^th May which caused her to experience a dissociative episode where she thought she was going to be taken away by police, reminiscent of her employment experience in Afghanistan. [TRKG] has had prolonged anxiety and worry about job security since new managers and team leaders put her on extended performance management plans from January to May 2018. Having treated [TRKG] since June 2018, I can confirm that she is undertaking regular treatment with medication and reviews for post-traumatic stress disorder (PTSD). She continues to present with symptoms of intrusive memories, flashbacks, and avoidance related to her employment at Stones Corner.

    I confirm that she has a current diagnosis of PTSD and presents with comorbidities such as depression, anxiety, somatic symptoms, and disturbed self-regulation abilities. I am hopeful of a positive resolution of her compensation claim so that she can afford to access further treatment through clinical psychology as well as psychiatric intervention

    (emphasis added)

    [93] Exhibit 15, Statement of Dr Vinit Sawhney filed 1 June 2021.

27. Dr Sawney’s clinical notes were summonsed by the Respondent. Those clinical notes indicate that:

    (a)2 June 2018 - Dr Sawhney did not believe that TRKG had “full-blown diagnosis for posttraumatic stress disorder”. Dr Sawney’s impression was “major depressive disorder”.[94]

    (b)9 June 2018 - Dr Sawhney did not believe that TRKG had “full-blown diagnosis for posttraumatic stress disorder”. Dr Sawney’s impression was “major depressive disorder”.[95] Dr Sawhney records for the first time in his notes that TRKG’s “depressive symptoms” are ”present on background of being traumatised by difficult experiences…in Afghanistan”. There is no mention in this clinical record of TRKG suffering from PTSD symptoms.

    (c)30 June 2018 – Dr Sawhney is aware that TRKG has now applied for Workcover compensation. He records the following:[96]

    In the last few weeks after she was involved in altercation with one of the person visiting the service enter on 16th May 2018 she has also started experiencing symptoms suggestive of PTSD including hyperarousal, nightmares and increased anxiety

    (d)Dr Sawhney’s impression is now Major Depressive Disorder and PTSD

    (e)4 August 2018 – Dr Sawhney records that TRKG is “stressed as her claim for workcover was rejected” [97]

    (f)18 August 2018 – Dr Sawhney recorded in a medical certificate that TRKG had been treated in the past with psychotherapy[98]

    [94] Exhibit 6, Joint Hearing Book, R10, Summonsed Medical Records, Dr Vinit Sawhney, pages 213, 235.  

    [95] Exhibit 6, Joint Hearing Book, R10, Summonsed Medical Records, Dr Vinit Sawhney, page 214

    [96] Ibid, 215, 237

    [97] Ibid, 215, 239.

    [98] Ibid, 231.

28. Prior to the hearing Dr Sawhney provided several (undated) written letters. In those letters Dr Sawhney reports that:[99]

    (a)it appears that the stress-anxiety symptoms of her illness started in November 2017, triggered by new work-related stressors.

    (b)On the 16th May, while attending at her usual workplace, TRKG witnessed a significant incident marked by severe aggression and threats from a customer in the waiting area, in close proximity to where she was working. This distressing experience has, in my opinion, re-triggered some past trauma that she had endured in Afghanistan, and initiated her experiencing symptoms suggestive of Post-Traumatic Stress Disorder

    (c)the managers decided to conduct their review with her on 18th May. The review apparently threatened TRKG’s future financial security, leading her to experience severe psychological distress on the day, exacerbating her already diagnosed conditions,  requiring further health intervention

    [99] Exhibit 6, Joint Hearing Book, A1, Report of Dr Vinit Sawhney filed 22 October 2019, page 647.

29. Dr Sawhney gave evidence by telephone at the hearing.

30. Dr Sawhney’s evidence was as follows:

    (a)  He is TRKG’s treating psychiatrist

    (b)  He last saw TRKG in the middle of May 2021. He has seen her four times in the last 6 months

    (c)   He agreed clinical records are important and it is important to keep accurate notes

    (d)  He is not a workplace health assessor

    (e)  Agreed that when assessing a patient, the following three things are important:

    i.The patient’s report

    ii.Any documentary material which can cast light on what the patient has reported

    iii.The mental state examination

    (f)    If he did not have all relevant information, it could affect the accuracy of his diagnosis

    (g)  He had not been provided with a copy of the CCTV footage of the Customer Incident

    (h)  Regarding his report of 21 May 2018

    i.He assessed TRKG on 19 May 2018

    ii.No specific mention in the report of the Customer Incident of 16 May 2018. Dr Sawhney said he knew about the traumatic incident, but you cannot diagnose someone with PTSD unless they have been experiencing relevant symptoms for at least one month.

    iii.Dr Sawhney could not remember when TRKG first mentioned the Customer Incident. He thinks she probably told him on the first occasion, but he does not know because she has a long-standing complex history of issues.

    iv.Dr Sawhney agreed the Customer Incident would have been relevant but could not answer why he had not included it in his notes other than that not having enough time.

    v.There is also no mention of TRKG’s meeting with her superiors on 18 May 2018

    vi.The first reference to the Customer Incident is not until June 2018.

    (i)    Regarding his Undated report

    i.He thinks TRKG requested this report

    ii.TRKG told him “she wanted a letter to say her PTSD was related to that incident [i.e. the Customer Incident] and that she was further re-traumatised by the contact on 16 and 18^th of May. She wanted to make a timeline of that event and wanted to go and say that her management did not take proper steps to help her when she was quite distressed and distraught by the incident that happened on 16 May”

    iii.TRKG told him she had been suffering from stress and anxiety symptoms since November 2017.

    iv.Dr Sawhney said he uses and follows the DSM V in is practice. He acknowledged that he had not listed every symptom of PTSD in his notes or reports and said that he had not captured all the criteria from DSM V.

    v.When asked why he did not include all relevant criteria? He said, “it’s a letter I’m writing on a patients’ request…it’s not a medico-legal letter…I don’t write everything”. It is unusual not to include in a report the basis for a diagnosis when the purpose of the report was to demonstrate that TRKG had PTSD resulting from the workplace.

    vi.In this report Dr Sawhney diagnosed PTSD, anxiety and MDD. The Tribunal cannot determine from this report which symptoms justify which diagnosis. The DMS V includes 8 criteria for a diagnosis of PTSD. 8 criteria have not been mentioned in this report, so it is of limited value to the Tribunal. Dr Sawhney said there was a background of anxiety and depression.

    (j)    Regarding report prepared for hearing on 1 June 2021

    i.Dr Sawhney reported that TRKG had symptoms of hypervigilance and avoidance but there is no reference to these symptoms in the clinical notes.

    ii.Dr Sawhney told the Tribunal he consulted with TRKG before finalising this report as he wanted to get the timeline of events right

    (k)   Regarding his clinical notes of 2 June 2018

    i.There is nothing in the note referring to the Customer Incident. Dr Sawhney accepted that he would have recorded it if TRKG had mentioned it to him. At this point Dr Sawhney considered TRKG had MDD.

    (l)    Regarding his clinical notes of 9 June 2018

    i.There is nothing in the note referring to the Customer Incident. At this point Dr Sawhney considered TRKG had MDD. Dr Sawhney agreed that the best evidence is what is recorded in his notes. Dr Sawhney describes the symptoms on the context of MDD.

    (m)Regarding his clinical notes of 30 June 2018

    i.TRKG met criteria for PTSD at that point in time yet only three symptoms are listed.

    ii.When asked what TRKG’s involvement in the Customer Incident he was unable to say. He thought she was a bystander and observed the incident. That is what TRKG told him.

    iii.Dr Sawhney has never witnessed the CCTV footage and has not been provided with the statements of other employees who were present during the Customer Incident. Dr Sawhney said he just went by what TRKG told him because he was not writing a medico legal report, he was not trying to determine whether TRKG was telling the truth or not

    iv.Dr Sawhney has not been given any clinical notes of any other treatment provider of TRKG. It is fair to conclude that Dr Sawhney has not been provided with a complete picture.

    v.Dr Sawhney has not produced a medico-legal report for this matter. Dr Sawhney also did not provide his handwritten clinical notes.

    (n)  Regarding his clinical notes of 4 August 2018 and 18 August 2018

    i.Dr Sawhney refers to the same symptoms as his previous notes

    (o)  Regarding his clinical notes of October 2018

    i.Dr Sawhney acknowledged that he had made no reference to PTSD symptoms only depressive symptoms

    (p)  Dr Sawhney acknowledged that although he referred to TRKG having flashbacks is some of his reports, there was no reference to flashbacks in any of his clinical notes. Dr Sawhney said he does not document everything.

    (q)  Dr Sawhney agreed during cross-examination that given that his reports and notes lacked sufficient detail and did not provide a medico-legal report setting out full explanations and justifications for his diagnosis, they were of limited value to the Tribunal. Despite this acknowledgement, Dr Sawhney said, unprovoked, that in his opinion, the treating psychiatrist’s opinion should be given more weight than an independent assessor.

    (r)   Dr Sawhney said it is very common for people with PTSD to have MDD.

    Mr Olaf Handrick, Clinical Psychologist

1. Mr Handrick saw TRKG on 6 occasions prior to 14 June 2018.

2. On 26 April 2018 Mr Handrick recorded in his progress notes that TRKG was under performance review at work.[100] Mr Handrick wrote a letter on the same day reporting a diagnosis of “adjustment disorder with anxiety and depression”. Mr Handrick also recorded that TRKG had suffered from a “narcissistic insult” as a result of her performance review.[101]

   [100] Exhibit 6, Joint Hearing Book, R11, Summonsed Medical Records, Mr Olaf Handrick, page 250

   [101] Ibid, 259

3. On 14 June 2018 Mr Handrick reported on TRKG’s condition following the Customer Incident:[102]

   In an already fragile state she witnessed an altercation in her office with an angry client and dissociated and developed symptoms of PTSD.

   [102] Exhibit 3, T Documents, T9, Returning Referral by Mr Olaf Handrick, page 227.

4. Mr Handrick’s clinical notes of 17 May 2018 state that TRKG “has had a dissociative episode yesterday after a violent incident”.[103]  Mr Handrick wrote a letter “to whom it may concern” on the same day reported a diagnosis of “adjustment disorder with anxiety and depression”. Mr Handrick again recorded that TRKG had suffered from a narcissistic insult as a result of her performance review.[104]

   [103] Exhibit 3, T Documents, T9, Returning Referral by Mr Olaf Handrick, page 231; Exhibit 6, Joint Hearing Book, R11, Summonsed Medical Records, Mr Olaf Handrick, page 251.

   [104] Exhibit 6, Joint Hearing Book, R11, Summonsed Medical Records, Mr Olaf Handrick, page 258.

5. Mr Handrick’s clinical notes of 31 May 2018 record:[105]

   the day after the incident she was highly arroused and anxious and unable to process the feedbacks dissociated completely during the meeting had to cover her ears because she could not process the perceived negative feedback has been exposed to numereus [sic] traumatic incidents working as interpretator [sic] for OHS in woodridge

   [105] Exhibit 3, T Documents, T9, Clinical Notes of Mr Olaf Handrick, page 231; Exhibit 6, Joint hearing Book, R11, Summonsed Medical Records, Mr Olaf Handrick, page 252.

6. Mr Handrick’s clinical notes of 7 June 2018 record:[106]

   Reviewed the incident report, causing retraumatisation

   [106] Exhibit 6, Joint Hearing Book, R11, Summonsed Medical Records, Dr Olaf Handrick, page. 253

7. Mr Handrick’s clinical notes of 19 July 2018 record:[107]

   Reviewed reports of IME [independent medical examiner], became quite angry about the report and her treatment through her employer

   [107] Ibid, 256

8. On 14 June 2018 Mr Handrick reported to Dr Jude Mendes, TRKG’s general practitioner, that as a result of the performance improvement measures implemented at work TRKG had:[108]

   In therapeutic terms…suffered a narcissistic insult and developed an adjustment disorder with depression and anxiety. In an already fragile state she witnessed an altercation in her office with an angry client and dissosociated [sic] and developed symptoms of PTSD.

   [108] Ibid, 257

9. Mr Handrick was not called to give evidence at the hearing.

   Medical Evidence of Independent Experts (May 2018 onwards)

   Dr Luke Murphy, Psychiatrist

10. As a result of TRKG’s current compensation claim, Comcare requested that TRKG be assessed by Dr Murphy, Consultant Psychiatrist, on 15 June 2018 to determine whether TRKG had any capacity for work. Dr Murphy reported on 5 July 2018 that:[109]

    [TRKG] was never diagnosed or treated for psychiatric disorder prior to 2018 (in fact, she suffered PTSD since being followed by Afghanistan Police in the early 1990's, but it was not detected, and [TRKG] is not aware of her pre-existing condition

    …

    [TRKG] suffers from posttraumatic stress disorder acquired during the political unrest in Afghanistan in the early 1990s. As often happens in posttraumatic stress disorder, she coped well at the time, and her symptoms have been sub-clinical until they were exacerbated by:

    ·     A customer threatening to set himself on fire, 16 May 2018.

    ·     Her (misperception) of similarities between the performance improvement plan and being followed by police after she was dismissed from her job as an engineer in Afghanistan.

    [109] Exhibit 3, T Documents, T13, Report of Dr Luke Murphy dated 5 July 2018, pages 253 – 254.  

11. Dr Murphy was not called to give evidence at the hearing.

    Dr Alistair Macleod, Consultant Psychiatrist

12. As a result of TRKG’s current compensation claim, Comcare requested that TRKG be assessed by Dr Macleod, Consultant Psychiatrist, on 28 February 2019. Dr Macleod reported on 5 March 2019 that:[110]

    [TRKG] presents currently with symptoms suggestive of a severe melancholic major depression with mood-congruent psychotic features. This is very much more severe than an adjustment disorder, and it is quite probable that it predated the specific events in mid-2018 which precipitated her subsequent leave from work.

    I note Dr Luke Murphy's diagnosis of posttraumatic stress disorder - I accept this; however I cannot comment further for [TRKG] declined to reveal her past traumatic experiences

    [110] Exhibit 5, Supplementary T Documents dated 17 March 2020, ST5, Report by Dr Alistair Macleod, page 127.

13. Dr Macleod was not called to give evidence at the hearing.

    Dr Bradley Ng, Psychiatrist

14. Dr Ng is a Consultant Psychiatrist with a special expertise in depression and anxiety and PTSD.[111] Dr Ng saw TRKG for an independent medical examination on 25 June 2018.

    [111] Exhibit 5, Supplementary T Documents dated 17 March 2020, ST9, Supplementary Report by Dr Bradley Ng, page 49

15. On 29 June 2018[112] Dr Ng reported that:[113]

    (a)TRKG said she started seeing an EAP in December 2017 or January 2018

    (b)[TRKG] denied any psychiatric history whatsoever before 2017. She had never seen a psychiatrist or psychologist and there had been no inpatient admissions

    (c)In terms of long-term stressors there are two conflicting narratives. [TRKG] gives a narrative of struggling at work and not being given enough training and support. She outlines many examples. Conversely her manager and team leaders outline in their statements that she has been provided with adequate training and support and  [TRKG] is an underperforming employee. This would seem to be quite incongruous for a person who has completed a PhD. Certainly, any new system or process would require a learning curve but I would anticipate that someone of [TRKG’s] intellectual capacity would be able to adapt and grasp systems and processes quite quickly. Nevertheless, her immediate supervisors perceive her as underperformer and hence the performance management plan. Not surprisingly [TRKG] became distressed about this and was already seeing a psychologist prior to the events of 16 May 2018

    (d)[TRKG] believes that she was directly involved and affected by the incident while other reports suggest that she was not affected by it at all. More importantly CCTV footage highlights [TRKG] as being geographically distant from the event and not reacting in the immediate aftermath

    (e)underperformance and the performance management plan are the stressors for her depressive and anxiety symptoms. Indeed, were it not for the incident on 16 May 2018 she probably would have ceased work anyway due to symptoms of depression and anxiety. [TRKG] may choose to attribute substantial amount of her psychopathology for 16 May 2018 but the objective evidence will suggest that it did not have an impact on her given, that she was not in close proximity to the event.

    (f)[TRKG] attributed a lot of the psychopathology to that incident while objectively she had a very minimal to non-existent role in that incident.

    (g)Dr Ng’s diagnosis was “major depressive episode with anxiety”.

    [112] Exhibit 3, T Documents T11; Report of Dr Bradley Ng, page 236.

    [113] Ibid, 238, 240 – 242.

16. In May 2019 Dr Ng provided a supplementary report having been provided with additional medical reports and summonsed clinical records.[114] Having considered the additional material (identified in the report), Dr Ng opined:[115]

    (a)clinical records of Benestar (EAP provider) indicated that TRKG first contacted the EAP service on 25 October 2017 which “would suggest that clinically significant symptoms were present by 25 October 2017”

    (b)the medical record of the Primary Medical and Dental Centre indicate that the first mental health symptoms recorded were on 18 February 2018 and it was It was noted that TRKG was eligible for a mental health care plan.

    (c)It was still his opinion that TRKG suffered from major depressive episode with anxiety and that the evidence did not support a PTSD diagnosis

    (d)“there is no evidence of posttraumatic stress disorder based on not only her reported history and symptomatology but other documentation including statements and documentation concerning CCTV footage” [CCTV footage of the Customer Incident]

    (e)The diagnosis of PTSD made by Dr Sawney “was based solely on [TRKG’s] reported symptomatology”

    (f)The earliest that [TRKG] developed clinically significant symptoms was October 2017. She may have had significant symptoms stopping short of a major depressive episode or might have already had enough symptoms to qualify for a major depressive episode. Certainly by February or March 2018 when [TRKG] saw her general practitioner or psychologist there would have been a definite psychiatric disorder. This would have been an adjustment disorder. In my opinion there is very little difference between adjustment disorder and major depressive episode except in symptomatology count. At the latest, there was a clinically significant diagnosable psychiatric disorder by February/March 2018

    (g)[TRKG’s] condition from 16 May onwards was a continuation of a pre-existing condition that was already in existence by February or March 2018 at the latest

    [114] Exhibit 5, Supplementary T Documents dated 17 March 2020, ST9, Supplementary Report of Dr Bradley Ng, pages 43 – 49.

    [115] Exhibit 6, Joint Hearing Book, R3, Report of Dr Bradley Ng, pages 8 – 10.

17. At the hearing Dr Ng gave evidence via telephone. His evidence was as follows:

    (a)In forming his opinion, he had considered all the available medical records;

    (b)After reviewing the medical records TRKG’s denial that she had previously suffered from any psychiatric condition was incorrect and it raises a significant question about her reliability

    (c)He reviewed the CCTV footage, and it did not appear to be an incident that could be described as a criterion A event (a requirement of a PTSD diagnosis)

    (d)He was not satisfied that TRKG had PTSD because there was no apparent criterion A event, and her symptoms were indicative of anxiety and depression;

    (e)Assessing TRKG over a longer period would not change his mind because he has reviewed all the material since the alleged onset of her PTSD, further assessments would not “firm up” the diagnosis;

    (f)Dr Ng accepted that symptoms of anxiety and depression can fall short of a psychiatric disorder;

    (g)He used the standard DSM V in making his diagnosis.

    (h)He referred to witness statements of other employees present at the SCS during the Customer Service Incident and involved in the performance management of TRKG.

    (i)Dr Ng reviewed the reports of Dr Handrick and Dr Seet of 22 May 2018

    (j)The symptoms of PTSD often overlap with other disorders such as depression and anxiety; difficult to arrive at a diagnosis of PTSD without a criterion A event;

    (k)Dr Ng acknowledged there had been reported PTSD symptoms, but he could not confirm TRKG had PTSD based on the evidence available.

    Consideration - Diagnosis

18. The medical practitioners differ in part in their diagnosis of TRKG’s condition. Dr Ng denies any evidence to support a diagnosis of PTSD, although he accepts there are some PTSD symptomatology following the Customer Incident. Dr Sawhney confirmed that his additional diagnosis of PTSD in June 2018 is still correct.

19. For the reasons which follow the Tribunal prefers Dr Ng’s opinion that the most appropriate diagnosis of TRKG’s condition is major depression disorder with anxiety.

20. Dr Ng’s diagnosis was consistent throughout his reporting, and he did not waiver from this diagnosis during the giving of evidence at the hearing.

21. Dr Ng was an independent medical expert not TRKG’s treating doctor. Unlike Dr Sawhney, Dr Ng had no prior, and would have no future, relationship with TRKG following his diagnosis.

22. Dr Sawhney was TRKG’s treating psychiatrist and had a doctor patient relationship with her which continues to this day – in this respect Dr Sawhney was not “independent”.

23. Dr Sawhney admitted during cross-examination that his diagnosis was made solely on what TRKG told him. By contrast Dr Ng’s diagnosis was made based on a review of all the available records including TRKG’s past medical history, his own clinical assessment of TRKG and his review of the CCTV footage of the Customer Incident. Dr Sawhney had not seen the CCTV footage and relied solely on what TRKG told him during their consultation.

24. During cross-examination Dr Sawhney said he reported what TRKG told him.

25. Dr Ng explained that many of the same symptoms of MDD and PTSD overlap. This was not disputed by Dr Sawhney.

26. The Tribunal has watched the CCTV footage and there is no indication that TRKG heard or witnessed the frustrated customer such that the Customer Incident could be described as a Criterion A event. There is no evidence in the footage of TRKG becoming alarmed, stressed, or frightened. TRKG elected not to give evidence concerning what can be seen in the CCTV footage.

27. Dr Ng’s diagnosis is consistent with TRKG’s treating psychologist Mr Handrick who also opined that TRKG had anxiety and depression. Although he noticed some symptoms of PTSD, he does not make a PTSD diagnosis.

28. Dr Ng’s diagnosis is also consistent with Dr Macleod who opined that TRKG had anxiety and depression. Although Dr Macleod acknowledged Dr Murphy’s opinion regarding PTSD, he was unable to confirm it.

29. MDD and anxiety was also Dr Sawhney’s initial and consistent diagnosis.

30. Dr Sawhney lists some criteria for PTSD, namely hyperarousal, nightmares, hypervigilance and avoidance during the days and weeks that followed, yet it is not clear from Dr Sawhney’s clinical notes what the basis of these findings were, they were not referred to in his notes. After the passage of time Dr Sawhney could not recall. Unfortunately, Dr Sawhney’s clinical notes are extremely limited and largely repetitive across each consultation such that it is not clear if the clinical note is an accurate record of each consultation. At the hearing Dr Sawhney said he did not have time to write everything down for each patient. The Tribunal empathises with Dr Sawhney that a busy consultant psychiatrist has limited time to keep detailed notes, but this does not make the job of the Tribunal easier. In fact, it leaves the Tribunal in a position where Dr Sawhney’s opinion cannot be given significant weight. Dr Sawhney agreed that his reports have limited weight given the lack of detail, but he maintained his opinion. It is also unclear, and Dr Sawhney could not recall, what the date of some of his undated reports were which may or not be relevant to the reporting and development of TRKG’s condition.

31. The Tribunal agrees with the Respondent’s contention that is cannot be satisfied that TRKG has PTSD because:

    (a)other than Dr Sawhney, only Dr Murphy diagnosed PTSD;

    (b)Dr Murphy’s diagnosis stems from a conclusion that she suffered from PTSD in the 1990s following experience TRKG reported having while in Afghanistan. TRKG strenuously denies ever having had PTSD before. It must be therefore that she does not rely on Dr Murphy’s opinion or at the least disagrees with it. The Tribunal notes that Dr Murphy indicated that TRKG may not have known she had PTSD.

    (c)The Tribunal gives less weight to Dr Murphy’s opinion because:

    (i)Dr Murphy’s purpose in assessing TRKG was primarily directed to an assessment of whether she had any capacity to work, and not whether she had a compensable condition;

    (ii)as with Dr Sawhney, Dr Murphy has not seen the CCTV footage and therefore his opinion is, in part, solely reliant on TRKG’s version of the events surrounding the Customer Incident;

    (iii)Dr Murphy relies on a finding of past-trauma and exacerbation of PTSD – a finding which no other medical practitioner has arrived at, and a finding which TRKG disputes. She does not accept that she suffered from a pre-existing ailment; and

    (iv)unlike Dr Ng, Dr Murphy was not supplied with, and did not review, all the medical records and clinical notes that were available to Dr Ng, and therefore he has not been provided with a complete picture of TRKG’s medical history.

32. Based on Dr Ng’s assessment, this Tribunal finds that TRKG suffered from a mental ailment, an ailment, as defined by section 4 of the Act, namely MDD with anxiety. It is not disputed that this was contributed to by her employment at the Department of Human Services. That is, TRKG suffered a disease as defined in section 5B of the Act.

33. The Tribunal finds that TRKG, therefore suffered from a disease as defined by section 5B of the Act.

34. The issue then becomes whether section 7(7) of the Act has any application.

    DOES SECTION 7(7) OF THE ACT APPLY?

35. Comcare contends that TRKG, for purposes connected with her employment, made a wilful and false representation that she did not previously suffer from a psychological ailment and, as a consequence, her claimed condition cannot amount to an "injury" for the purposes of s 5A of the Act.[116]

    [116] Respondent’s Closing Submissions, page 3, paragraph 9(a.).

36. TRKG denies making any false or wilful representation.

    Elements of Section 7(7)

    “That disease”

37. In order to satisfy section 7(7) of the Act the Tribunal would need to find that TRKG had previously suffered from the same or substantially the same disease that is the subject of her claim.

38. Flick J in Griffiths explained that the “disease” referred to in the section is the “correct identification of the disease”.[117] This may not be the initial diagnosis and more importantly, the disease may not be the condition identified by the applicant in their compensation claim form.[118] In Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 the Court held (at [18]) that the disease identified in the claim form must be given a "broad, generous and practical interpretation".  

    [117] (2018) 158 ALD 298, at [34]

    [118] See Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147.

39. Here, the condition claimed by TRKG was in broad terms, a psychological injury. In her Compensation Claim form TRKG stated she was claiming for a psychological injury. The Tribunal has found the correct identification, or diagnosis, of the disease is MDD with anxiety.

    Had TRKG previously suffered from “that disease”?

40. ;

     
    As outlined above in paragraphs 96 – 113, the evidence (as set out in Table A above) demonstrates that TRKG has previously suffered from anxiety and depression.

41. At the hearing TRKG agreed that what is contained in the clinical records is the best evidence of what she told the doctor or treatment provider.[119]

    [119] Transcript dated 23 February 2021, page 41

42. The Tribunal finds that TRKG has previously suffered from substantially the same condition as the correctly identified condition.

    Did TRKG make a representation regarding whether she had previously suffered from that disease for purposes connected with her employment?

43. There are many decisions that make it clear that representations made in compensation claim forms and to medical practitioners who are assessing parties in terms of their capacity to work and compensation claims, are representations made for purposes connected with employment.[120]

    [120] See K & S Freighters Pty Ltd v McQueen-Thomas[2018] FCA 1518 at [61]; Kennedy and Comcare [2015] AATA 334; Porter

44. Comcare contends that TRKG made four representations regarding whether she had previously suffered from that disease for purposes connected with her employment (“the Representations”):

    (a)during her pre-employment medical assessment;

    (b)in her Compensation Claim form;

    (c)during an assessment with Dr Ng; and

    (d)during an assessment with Dr Murphy.

    Representation 1:      Pre-employment medical assessment (8 September 2016)

1. In the medical history form completed by TRKG for the purpose of her pre-employment medical assessment she ticked “No” to the question whether she suffers from and has ever suffered from a “Nervous or mental condition (including anxiety, depression, severe or abnormal stress reactions”.[121] This is not disputed.

   [121] Exhibit 5, Supplementary T Documents dated 17 March 2021, ST1, Pre-employment medical report by Dr Sadia Kundi, page 3.

2. In that same form TRKG certified that to the best of her knowledge the answers given are correct and that she understood the medical assessment was “for purposes relating to [her] employment or potential employment”.

3. The Tribunal finds that this was a representation made by TRKG regarding whether she had previously suffered from a mental condition for purposes connected with her employment.

   Representation 2:      Compensation Claim Form (22 May 2018)

4. In the Compensation Claim form completed by TRKG she stated that she she had not suffered a similar symptom, injury or illness to the condition claimed.[122] This is not disputed.[123]

   [122] Exhibit 3, T Documents, T3, TRKG’s Workers’ Compensation Claim dated 22 May 2018, page 29.

   [123] Transcript dated 23 February 2021, page 77

5. The Tribunal finds that this was a representation made by TRKG regarding whether she had previously suffered from a mental condition for purposes connected with her employment.

   Representation 3:      Assessment with Dr Ng (25 June 2018)

6. Dr Ng reported that during his assessment of TRKG to determine whether TRKG suffered from a compensable injury, TRKG “'denied any psychiatric history whatsoever before 2017”.[124] TRKG said Dr Ng meant “he was asking me was whatever I’m experiencing now, the experience from the incident.  I have not experienced something like that before.  That’s what I was meaning”.[125] The issue being addressed by Ng was “any psychiatric history” not whether she felt the same now as previously.

   [124] Exhibit 3, T Documents, T11, Report of Dr Bradley Ng, page 240

   [125] Transcript dated 11 March 2021, page 105.

7. The Tribunal finds that this was a representation made by TRKG regarding whether she had previously suffered from a mental condition for purposes connected with her employment.

   Representation 4:      Assessment with Dr Murphy (15 June 2018)

8. Dr Murphy reported that during his assessment of TRKG to determine whether TRKG had a capacity to work, TRKG told him she “'was never diagnosed or treated for psychiatric disorder prior to 2018”.[126] TRKG said “Yes. I don’t remember”.[127] TRKG then said she meant she had not experienced anything like she had after the Customer Incident. The Tribunal does not accept this evidence. The question asked by Dr Murphy was regarding any past psychiatric disorder. The question was not “have you experienced anything like this before?”. 

   [126] Exhibit 3, T Documents, T13, Report of Dr Luke Murphy, page 253

   [127] Transcript dated 23 February 2021, page 81

9. The Tribunal finds that this was a representation made by TRKG regarding whether she had previously suffered from a mental condition for purposes connected with her employment.

   Conclusion on representations

10. TRKG made the Representations denying any prior medical conditions and symptomatology. They were clearly representations made for purposes connected with her proposed employment and employment as follows:

    (a)in the course of seeking to obtain employment (pre-employment medical assessment); and

    (b)in the course of her employment (compensation claim and independent medical assessments).

    Were the Representations made wilfully and falsely?

11. Given the medical evidence before the Tribunal demonstrates that TRKG suffered from anxiety and depression prior to TRKG making the Representations, those Representations were false. The issue is whether those Representations were made wilfully.

12. On 6 March 2020 TRKG provided written submissions to the Tribunal. TRKG disputes any suggestion that she falsely responded to questions during her pre-employment medical assessment on 8 September 2016. TRKG submits that she had no diagnosis or history of psychiatric or clinical treatment prior to 2018.[128]

    [128] Exhibit 6, Joint Hearing Book, A2, Applicant’s Submissions dated 6 March 2020, pages 648, paragraphs 2 – 2.2.

13. In relation to TRKG’s submission that she was iron deficient and that sometimes this can present as anxiety and depression,[129] there is no corroborating medical evidence from anyone who assessed TRKG or from an independent medical expert to support this contention in the context of TRKG’s circumstances.

    [129] Ibid, 653

14. In relation to TRKG’s submission that she was not suffering from clinical anxiety but “normal anxiety”,[130] the Tribunal is unconvinced. TRKG felt the anxiety symptoms she was experiencing warranted mentioning to her general practitioner and warranted a referral to a mental health clinic. This has the appearance of someone who has more than the usual  everyday worries and concerns in the normal vicissitudes of life. Further TRKG signed off on mental health plans which clearly indicated a diagnosis of anxiety and depression, Mr Ruddy also noted on a first assessment that TRKG was “quite depressed”.

    [130] Ibid, 655

15. At the hearing TRKG denied knowing she had had anxiety and depression.[131] TRKG denied making the Representations in order to increase her chances of obtaining the job.

    [131] Transcript dated 23 February 2021, page 68

16. TRKG’s anxiety and depression symptoms and treatment occurred from at least 2015 to the dates the representations were made. There is no basis to contend that TRKG did not remember she had suffered from these conditions due to the passage of time.

17. The medical evidence that TRKG was suffering from anxiety and depression and obtaining treatment for it prior to her employment with Centrelink is considerable. It is implausible given the number of occasions TRKG complained to her doctor of her anxiety and depressive symptoms and the number of psychologist and counsellors she attended that she was not aware she was being treated for anxiety and depression. The Tribunal finds that TRKG’s attempt to disguise her symptoms as the same anxiety everybody feels and to disguise the treatment as career counselling as a deliberate and wilful attempt to represent that she had not previously suffered from anxiety and depression. TRKG would have been fully aware at the time she made the Representations that they were false, and they could only have been made to ensure she obtained employment and compensation. This is supported by the fact that Dr Sawhney told the Tribunal that TRKG told him she had been suffering from stress and anxiety symptoms since November 2017.

18. TRKG seeks to rely on an argument that PTSD is different from anxiety and depression and therefore she did not make a wilfully false declaration. Yet, the evidence indicates that she has experienced highly anxious symptoms before she signed the Compensation Claim Form. That was acknowledged by TRKG during cross-examination.[132] Both Drs Ng and Sawhney agree that there is a significant overlap of symptoms between MDD and PTSD. TRKG said she was “very sick” at the time she completed the form.[133] In other words TRKG accepts that the information she gave on the form was not entirely accurate.

    [132] Ibid, 77-78

    [133] Ibid, 80

19. Overall, TRKG was an unreliable witness. Despite the evidence in front of her she refused to acknowledge it. She attempted on numerous occasions to avoid having to answer any questions regarding her medical history, despite knowing it was relevant to one of the issues the Tribunal had to determine. Further, TRKG’s reporting of her past medical history has been inconsistent: She told the Tribunal she had never experienced any past history of anxiety and depression. She told Dr Ng that she has no past treatment for a psychological condition before November 2017. She told Dr Murphy that she had had no past treatment for a psychological condition prior to 2018. All of these representations were incorrect.

20. In addition to the above, there is also evidence that TRKG attempted to suppress some medical records. Hospital records from the Mental Health Service record that on 29 January 2020 TRKG telephoned the MHS and spoke to Andres Otero-Forero, Psychologist. The note kept my Mr Otero-Forero records the following:[134]

    (a)[TRKG] called requesting a letter about her involvement with our service in 2016.

    (b)[TRKG] stated that she needs this letter in a case against Centrelink where Centrelink's lawyer is saying that [TRKG’s] mental health problems started in 2016.

    (c)[TRKG] stated that she saw Bilyana Safranko, a clinician of Transcultural at the time, for work related issues and not because she was suffering a mental illness. [TRKG] stated that at the time she contacted Transcultural because she thought we could helped her find a job in Engineering.

    (d)I said to [TRKG] that I needed to check with the Information Access Unit as we usually can't provide this type of information.

    (e)[TRKG] agreed for me to contact her later.

    (f)When discussing some options, specifically her GP requesting such information, [TRKG] asked me not to send any information to her GP (this is due to the stigma she carries about mental illness. As voiced in previous encounters, [TRKG] worries that others know she has a mental illness).

    [134] Exhibit 6, Joint Hearing Book, R14, Summonsed Medical Reports, Metro South Health Princess Alexandra Hospital, page 454  

21. There is no doubt from this record and from TRKG’s evidence at the hearing that she recalls and remembers attending the mental health service clinic in 2016. TRKG remembers making the telephone call to Mr Otero-Forero and told the Tribunal the note taken by Mr Otero-Forero is consistent with her recollection of the conversation.[135]

    [135] Transcript dated 23 February 2021, page 107

22. On 16 April 2019 Mr Forero reported that:[136]

    (a)TRKG self-referred to the Queensland Transcultural Mental Health Service Centre in May 2016 with symptoms consistent with depression;

    (b)TRKG attended three sessions; and

    (c)TRKG reported no psychiatric history prior to 2016.

    [136] Exhibit 6, Joint Hearing Book, R14, Summonsed Medical Reports, Metro South Health Princess Alexandra Hospital, page 504

23. The mental health records also record on 16 December 2019 that TRKG reported that she had no prior psychiatric history before 2016 and noted that she had self-referred to the Mental Health Clinic presenting in May 2016 with symptoms consistent with depression.[137] It also records TRKG reported on 3 May 2016 that she had been referred to a psychologist.[138]

    [137] Ibid, 456

    [138] Ibid, 457

24. TRKG admitted that she made the telephone call to the Mental Health Clinic after becoming aware that Comcare were alleging that she had made a false and wilful representation. TRKG says she called Mr Otero-Forero and Dr Chan wanting to get a “document from him to show that I was not doing there for the mental issues.”[139] The Tribunal notes that no such document was forthcoming, and the clear reading of the clinical records point to an opposite finding to that which TRKG was attempting to get agreement on by the Tribunal.

    [139] Transcript dated 11 March 2021, page 107

25. The following exchange occurred between Counsel for Comcare and TRKG:[140]

    Ms Slack: One of the reasons why you didn’t want that information sent to your GP is because you knew that Comcare had been summonsing your treatment providers?

    [TRKG]: No.  No, I didn’t know that.  I didn’t even know anything about- I don’t know much about law or summoning or stuff like that.  I just simply said it to him because Dr Chan was a little bit, you know, like, rude to me, and I said, “Don’t send any information to my GP,” which I was referring to Dr Chan.

    Ms Slack:  Because he was rude to you?

    [TRKG]: Yes, he was rude to me.

    Ms Slack: Really, [TRKG], what you were seeking to do was avoid Comcare becoming aware of the treatment that you had received in 2016?

    [TRKG]: What treatment?  I did not receive any treatment.  What treatment are we talking about?

    [140] Transcript dated 11 March 2021, pages 107-108

26. TRKG’s evidence was unimpressive. It is unlikely that Dr Chan being rude to her, if that is true, was the reason she did not want anything sent to him. Further, TRKG denied knowledge of receiving the treatment she received in 2016 despite several hours of questioning on this issue the day before.

    CONCLUSION

27. The Tribunal finds, on the basis of the relevant evidence above, that TRKG made wilful and false representations that she had not previously suffered from the correctly identified disease. She did this for purposes connected with her employment and proposed employment.

28. For the reasons above, TRKG’s Injury should be excluded from being treated as a compensable injury by virtue of section 7(7) of the Act.

29. The decision under review should be affirmed.

30. As a result of the Tribunal’s findings, it is not necessary to consider whether TRKG’s condition was significantly contributed to by her employment or whether it was the result of reasonable administrative action undertaken in a reasonable manner.

    DECISION

31. The reviewable decision dated 19 September 2018 is affirmed.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..............[SGD]......................................................

Associate

Dated: 25 June 2021

Date(s) of hearing:	23-24 February 2021, 11 March 2021, 1-2 June 2021
Representative of Applicant:	Ms L Rimland
Applicant:	In person
Counsel for the Respondent:	Ms Kate Slack
Solicitor for the Respondent:	Mr Andrew Vas, Comcare