Walker and Comcare (Compensation) - [2022] AATA 984

Walker and Comcare (Compensation) [2022] AATA 984 (29 April 2022)
Division:GENERAL DIVISION
File Number: 2020/2186
Re:Silvia Walker

APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:29 April 2022
Place:Brisbane

The decision under review is set aside, and in its place, it is determined that:
(a)Comcare is liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the Applicant’s mental condition suffered on 16 September 2019; and
(b)the costs of, and incidental to, the application are payable to the Applicant, pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), as agreed or taxed.

...............[SGD].........................................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION — Commonwealth employees — whether Applicant suffered from a condition outside the boundaries of normal mental functioning — whether it is necessary to put a label on the ailment — weight to be placed on Applicant’s evidence — whether the Applicant suffers from biological depression — psychiatric history of family members — importance of Applicant’s physical health issues to claimed condition — conflicting expert opinion — claimed ailment contributed to, to a significant degree, by her employment — decision set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
CASES
Australian Postal Corporation v Lucas (1991) 33 FCR 101
Bryant v Military Rehabilitation and Compensation Commission (2008) 173 FCR 184
Comcare v Mooi (1996) 69 FCR 439; 42 ALD 495
Commonwealth v Smith (1989) 18 ALD 224
D’Amico and Comcare [2018] AATA 54
Federal Broom Co. Pty. Ltd. v Semlitch (1964) 110 CLR 626
Hennessey-Milne and Comcare [2018] AATA 4453
HNGN and Military Rehabilitation and Compensation Commission (2018) 162 ALD 606
Lees v Comcare [1999] FCA 753; 56 ALD 84
Lim v Comcare [2016] FCA 709
Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; 150 ALD 392
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Prain v Comcare (2017) 256 FCR 65
Readv Military Rehabilitation and Compensation Commission [2018] FCA 848, 158 ALD 537
Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120
Weatherburn and Comcare [2019] AATA 4196
Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795
REASONS FOR DECISION
Deputy President J Sosso
29 April 2022
INTRODUCTION

Ms Silvia Walker (the Applicant) has applied to the Administrative Appeals Tribunal (the Tribunal) for review of a decision dated 7 February 2020 (Exhibit 14 T16 pp. 159 – 161) which affirmed a determination dated 13 December 2019 (Exhibit 14 T11 pp. 137 – 146) that denied liability to pay compensation to her under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for Major Depressive Disorder, or aggravation thereof.
The Applicant, at the time of the Hearing, was 64 years of age. She completed High School in New South Wales in 1973 when she was 15 years of age. In the following years, she held a number of different jobs including work in hospitality, factories, cleaning, and offices, before studying Business Administration at TAFE. During this time, the Applicant got married and had four children – Exhibit 6 p. 1 paras 2 – 8.
When aged 17, after the death of her first daughter’s father, the Applicant was prescribed anti-depressant medication which she ceased taking after one month on her own volition – Exhibit 6 p. 2 para 12, Transcript (Tr.) 15.12.2021 p. 16.
At the age of 21, when threatened with a miscarriage, the Applicant was prescribed Valium which she took for approximately two weeks. Again, the Applicant ceased taking this medication on her own volition – Exhibit 6 p. 2 para 12, Tr. 15.12.2021 p. 16.
In the late 1990’s, when experiencing marital problems, the Applicant was prescribed anti-depressant medication, which she ceased taking on her own volition after one to two weeks – Exhibit 6 p. 2 para 12, Tr. 15.12.2021 p. 17.
In 2003, the Applicant had a motor vehicle accident and sustained a whiplash injury. Her General Practitioner (GP) prescribed muscle relaxants and anti-depressants. Although the Applicant filled both scripts, she did not take the anti-depressant medication – Exhibit 6 p. 2 para 12.
On 6 January 1999, the Applicant started employment with Centrelink, now known as Services Australia, on a temporary contract. She was appointed to work on a full-time basis on 1 November 1999. At the time of the workplace incident discussed below, she was employed as a APS4 Service Officer on a full-time basis at Gladstone Centrelink – Exhibit 15 ST01 p. 179, Exhibit 6 p. 2 para 9, Exhibit 1 p. 1 para 4.
The Applicant’s primary duties primarily involved front of house customer service – Exhibit 1 p. 1 para 4.
In her Statement of 31 August 2021, the Applicant described her work duties as follows – Exhibit 6 p. 2 para 10:
“My primary duties included, but were not limited to, assisting customers facing significant disadvantage or multiple barriers; collaborating with other staff and connecting with relevant government or community services on behalf of customers; providing customer service support at the initial point of contact, including meeting, greeting and streaming customers to the appropriate service channel, completing simple enquiries, identifying and prioritising customers who are potentially vulnerable, in distress or who have accessibility issues, and escalating potential issues to leadership groups; providing on the job support and training to other service officers; providing advice and guidance to other service officers; assisting customers in accessing, navigating or interpreting services; resolving routine and non-routine customer enquiries; resolving routine and non-routine customer complaints; determining and facilitating payments to customers, and payments made by customers; and advising customers on legislation, policy, procedures, payments and services administered by the department.”
On 16 September 2019, at approximately 10:00am, an incident occurred at the Gladstone Centrelink Service Centre. At the time, the Applicant was performing a first contact role at the check-in point. This was the front counter for Centrelink recipients – Exhibit 1 p. 1 para 5, Exhibit 6 p. 3 para 14.
A male customer, who was already angry, approached the Applicant’s counter complaining about Centrelink processes. The Applicant asked the customer for his reference number so she could access his records, and she was provided by the customer with the requisite information – Exhibit 1 p. 2 para 6, Exhibit 6 p. 3 para 14.
The customer told the Applicant that all he needed to do was to lodge some documentation, as Centrelink believed he was lying about his money. According to the Applicant, the customer kept telling her that he did not think he should have to prove or supply anything. The Applicant believed that the customer was angry, irritated and condescending – Exhibit 1 p. 2 para 7, Exhibit 6 p. 3 para 14.
On accessing the customer’s records, the Applicant explained that she would place him on the virtual queue to see the Client Services Officer (CSO) so his documents could be processed and his payments reinstated, as she could see from his file that the only reason that his payments had been suspended was because of his failure to supply documents – Exhibit 1 p. 2 para 8, Exhibit 6 p. 3 para 14.
While the Applicant was reviewing the file, the customer became more impatient and aggressive and said, “I have a life and I am not going to wait”, or words to that effect. He then pointed at someone and said, “just give the documents to the person over there”. The Applicant could not determine which person the customer was pointing to, and so, she asked him if it was the person at the front desk or the person behind – Exhibit 1 p. 2 paras 9 –10, Exhibit 6 p. 3 para 14.
Instead of answering the Applicant’s question, the customer raised his voice and accused her of being rude before, again, pointing in the same direction. When the Applicant again asked who the customer was pointing to, he refused to answer the question and became aggressive, raising his voice and said several times that she was rude and very uneducated and only educated people should be employed by Centrelink. The Applicant claimed that the customer was very loud, derogatory and swore at her – Exhibit 1 p. 2 para 10, Exhibit 6 p. 3 para 15.
The Applicant claimed that she was intimidated, humiliated and distressed. The Applicant tried to maintain her professionalism but by this point, she was shaking and trying very hard not to cry. Her throat was closing up, making speech difficult – Exhibit 1 p. 2 para 11, Exhibit 6 p. 3 para 15.
The Applicant asked the customer if he wanted any of his documents photocopied, and he replied that he did, but again raised his voice and said that he was not going to wait, that he had a life, and asked what part of that the Applicant did not understand. The customer again yelled at her saying that she must be very uneducated. The Applicant told the customer that she would get the CSO to photocopy and post the original documents back to him – Exhibit 1 p. 2 para 12, Exhibit 6 p. 3 para 15.
The customer then demanded to speak to the Manager, Ms Pauline Belford. The Applicant sent Ms Belford an instant message advising of the client’s demand. Ms Belford, for reasons which were not explained, was unavailable and instead, the Applicant’s Team Leader, Jenna, came to take the customer aside and to take note of his complaint. Jenna only moved the customer to the next desk which was close to the Applicant. The Applicant then repeated his complaints – Exhibit 1 p. 3 paras 13 – 14, Exhibit 6 pp. 3 – 4 para 16.
Ms Belford sent the Applicant a message asking if she was alright. The Applicant replied that she wasn’t alright and was shaken, or words to that effect. Ms Belford organised for another staff member to replace the Applicant, but she first had to serve one more customer. The new customer said to the Applicant that the previous customer was a very rude man and that she didn’t deserve to be spoken to like that. The Applicant stated that she was even more humiliated knowing that other customers in the queue and waiting room heard what had been said – Exhibit 1 p. 3 paras 16 – 18, Exhibit 6 p. 4 para 17.
The Applicant’s replacement arrived, and she went to the tearoom for a short break to compose herself. She claimed she was extremely upset, shaken and visibly distraught. While in the tearoom she could not stop crying and shaking. The Applicant claimed that although she had served customers who had exhibited poor behaviour before, “but nothing like this” – Exhibit 1 p. 3 paras 19 – 20, Exhibit 6 p. 4 paras 17 – 18.
The Applicant stated that some co-workers came into the tearoom for their break and were concerned and supportive, saying that they had never seen her in such a state. The Manager came out and spoke to the Applicant for an hour, but, as she was no better, the Manager helped her complete a customer aggression incident report. As the Applicant claims she was in no fit state to complete the report, the Manager typed it out. The Applicant then went home and did not return to work – Exhibit 1 p. 3 para 21, Exhibit 6 p. 4 para 18.
It is not contested that the incident on 16 September 2019 occurred, or that the Applicant was verbally attacked by an irate customer. The legal representatives of Comcare have helpfully conceded that they are in general agreement with the facts describing the incident as set out in paragraphs 4 – 10 and 12 – 17 of the Applicant’s Statement of Facts, Issues and Contentions, which is marked as Exhibit 1 – Exhibit 2 p. 2 para 4.
On 19 September 2019, the Applicant attended her GP, Dr Dushyant Chauhan, who reported that she had a “Nasty customer on Monday at Centrelink and she was stressed and sent home by her Boss.” The Applicant also informed Dr Chauhan that she has a “psychologist session on [M]onday organised by her work – does not think she needs any meds. ‘cannot let a person put me on meds’” – Exhibit 14 T3 p. 11.
In a file note of 24 September 2019, Dr Chauhan noted that the Applicant had seen Nicola, a Psychologist at Benestar, and had been diagnosed with “accumulative stress with stress overload” and had been told to take a further week off work. Dr Chauhan also noted that the Applicant had stopped taking Crestor, and that she had told him she had read about its side effects and “is not too keen to take any extra meds – I have explained the risks to her again” – Exhibit 14 T3 p. 11.
By 1 October 2019, it would appear that the Applicant’s medical state had deteriorated further. Dr Chauhan noted – Exhibit 14 T3 p. 12:
“1. Still having anxiety going to work – is unable to go to work due to the work induced anxiety.
Emotional in GP today as she is almost afraid to go back to work.”
In a Workers’ compensation medical certificate dated 15 October 2019, Dr Chauhan diagnosed the Applicant as suffering from “Customer induced stress disorder (Adjustment disorder)” – Exhibit 14 T6.6 p. 88.
On 16 October 2019, the Applicant lodged a claim for “Customer Induced Stress Disorder (Adjustment Disorder)” – Exhibit 14 T4 pp. 61 – 66.
The Applicant was referred to Dr Prabal Kar, Consultant Psychiatrist, for examination and assessment. Dr Kar examined the Applicant on 18 November 2019 and provided a written report of the same date. While the contents of Dr Kar’s report are discussed in more detail below, the main conclusions were as follows – Exhibit 14 T8 p. 119:
“While the customer’s behaviour was rude and upsetting, it was not the cause of her symptoms. Her symptoms were caused by her Major Depressive Disorder, a severe psychiatric condition, which is caused by a biochemical balance of the brain and manifested itself in a number of symptoms. Ms Walker reports more than the minimum symptoms for the diagnosis of Major Depressive Disorder. She meets the DSM-IV criteria for a severe episode of Major Depressive Disorder. Her condition was not triggered by the incident.
…
The incident that Ms Walker reports did not play a role in causing her Major Depressive Disorder. The incident exposed the fact that she was already in a episode of Major Depressive Disorder. It was a functional impact of her Major Depressive Disorder that she was unable to cope with an incident at work that she would normally have coped with before. She was unable to cope, was distraught and crying continuously.”
As noted above, the Applicant’s claim for liability to pay compensation was denied on 13 December 2019 by the authorised delegate of the Chief Executive Office (CEO) of Comcare – Exhibit 14 T11 p. 145. The delegate accepted the recommendation of the Senior Case Manager – Exhibit 14 T11 pp. 131 – 136, 145. The Senior Case Manager, in her report of 10 December 2019, referred to the medical evidence provided by Dr Chauhan and Dr Kar, and quoted extensively from Dr Kar’s report of 18 November 2019. The Senior Case Manager concluded as follows – Exhibit 14 T11 p. 144:
“I note that Consultant Psychiatrist, Professor Prabal Kar formulated his view with regard to all evidence, not only the matters discussed at the assessment, but also taking into account the information contained in medical records and reports, I am therefore inclined to accept his opinion.
Taking into account the factors above, I am unable to make a finding that Ms Walkers’ employment was the significant contributor to her claimed condition. The evidence overwhelmingly shows that her condition developed in the context of a relevant pre-existing history and genetic vulnerability. Whilst the condition may have impacted her in the workplace, there is no evidence to suggest that her workplace made a significant contribution to her condition, rather the evidence indicates that her reaction to the customer incident was a direct consequence of her suffering from a psychological condition rather than being the cause of her condition.
In summary, in relation to this current claim, based on the specialist evidence, I am satisfied that Ms Walker suffers from an ailment namely, ‘Major Depressive Disorder’ as defined in the SRC Act, however, taking into account the factors above, on the balance of probabilities, I am not satisfied that Ms Walker’ [sic] claimed condition was contributed to, to a significant degree by her employment with the Department of Human Services.”
On 9 January 2020, the Applicant requested a reconsideration of this determination – Exhibit 14 T13 pp. 149 – 152.
In support of the reconsideration request, the Applicant provided a report of Dr Asad Malik, Consultant Psychiatrist, dated 18 December 2019 – Exhibit 14 T12 pp. 147 – 148. Dr Malik examined the Applicant on the day of his report and he also examined her shortly after the incident. After setting out the Applicant’s symptoms, Dr Malik diagnosed the Applicant as suffering from post-traumatic stress disorder (PTSD). Dr Malik opined that, following the workplace incident, “she has had symptoms consistent with PTSD” – Exhibit 14 T12 p. 147.
On 7 February 2020, the authorised delegate of the CEO of Comcare affirmed the determination, and in doing so, adopted the reasons of the Senior Case Manager who assessed the evidence and prepared a report of the same date – Exhibit 14 T16 pp. 163 – 171.
The Senior Case Manager provided the following reasons – Exhibit 14 T16 pp. 169 – 170:
“Mrs Walker submitted a report from Consultant Psychiatrist, Dr Mallk [sic] dated 18 December 2019 that notes that Mrs Walker had to stop working after an incident at work where one of the clients was very rude and loud to her and that since then she has had symptoms consistent with PTSD. Dr Mallk [sic] also reported that Mrs Walker did not have any previous history of mental illness and that she denied having anyone in her family having these problems.
To this end, I note that in his report dated 18 November 2019, Consultant Psychiatrist, Dr Kar had a different opinion in relation to Mrs Walker’s diagnosis and previous history of mental illness. I further note that previous medical history was described by the agency as ‘In Ms Walkers pre-employment medical completed by Dr Woodward on the 23 November 1999 recorded that Ms Walker suffered from depression two years prior with medication prescribed. Ms Walker did however indicate, ‘She later advised by her GP that he felt the depression was wrongly diagnosed’. The pre-employment medical can be located at Attachment J. The department notes that on 8 February 2011, a Manager contacted HR support to discuss concerns reported to them by Ms Walker in relation to a volatile family situation. Ms Walker reported that she was taking antidepressants at this time’.
Dr Kar reported that Mrs Walker has an ongoing severe episode of Major Depressive Disorder and that in his opinion the episode’s onset had commenced before she left work.
Mrs Walker does not have post-traumatic stress disorder as diagnosed by her psychiatrist as the incidents described did not meet DSM-IV Criterion A for the diagnosis of PTSD which requires ‘The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others’.
Dr Kar reported that Mrs Walker said she did not believe that she had depression in the past; he explained that it is common among those who have serious mental illnesses to not recognise they have it and that it is understandable that she attributes how she feels to external factors, however, her subjective attribution does not establish causation. While she clearly has a clinically severe Major Depressive disorder it is not evident that she believes she has anything other than a severe reaction to the Customer’s bad behaviour
…
Dr Kar reported that Mrs Walker’s Major Depressive Disorder is of spontaneous onset, reiterated that she had significant genetic risk factors, she had a significant past psychiatric history based on the information available and reiterates that even without her family genetic risk or without a past psychiatric history, Mrs Walker’s diagnosis would remain unchanged, because Major Depressive Disorder can occur in the normal population.
Dr Kar reported that Mrs Walker’s employment has not contributed in any significant degree to her current episode of Major Depressive Disorder.
I have reviewed the medical information on file and note that Dr Kar’s opinion is based upon his medical assessment of Mrs Walker’s clinical presentation; he has had regard to all information on file and demonstrated an understanding of relevant medical literature as referenced above.
Whilst, I have given consideration to Mrs Walker’s request for reconsideration, I am not persuaded with the content of the evidence submitted to alter the original determination which formed the denial of liability.”
LEGAL PRINCIPLES

Section 14 “is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned.” – Lees v Comcare [1999] FCA 753; 56 ALD 84 (Lees) at [27]. It creates a liability for Comcare to pay compensation for injuries suffered by employees resulting in death, incapacity for work or impairment. As the Full Court in Lees highlighted, liability is qualified in two ways:
1)liability is subject to the other provisions in Part II of the Act; and
2)the liability is “in accordance with” the Act, namely “to pay compensation for which the statute provides, as required by the Act (see, for example, s17(3)(4) and s(5), s19, s20, s24 and s25)” – Lees at [27].
In order for liability to be accepted pursuant to s 14, the following findings are required:
1)appropriate notice of injury has been given;
2)a claim for compensation, in accordance with the Act, has been made;
3)the claimant was an employee at the relevant time;
4)the employee suffered an injury; and
5)the injury resulted in death, incapacity for work or impairment – see Lees at [35].
The term “injury” is defined by s 5A to mean:
“(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.”
It will be seen that the definition of “injury” comprises two main subsets, namely “disease” and “injury (other than a disease)”, each of which, comprises separate but related bases of liability. The third basis of liability is an aggravation of a physical or mental injury (other than a disease).
As the High Court explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at 482, the first task of the tribunal of fact is to determine if the employee is suffering a disease. However, it is important to note, that “disease” and “injury (other than a disease)” are not mutually exclusive categories – Prain v Comcare (2017) 256 FCR 65 at [72] (Prain). Kenny, Tracey and Bromberg JJ in Prain made the following observation (at [74]):
“…We do not think that it was impermissible for the Tribunal to note that the authorities ‘tended to place mental illness in the statutory category of disease’. We would not read the Tribunal's statements in [20] of its reasons as requiring the conclusion that mental illness must be categorised as a disease and, for that reason, could not also be classed as an ‘injury (other than a disease)’. Once again the Tribunal's reasons assumed, correctly, that whether or not a mental illness is to be categorised as a ‘disease’ or, alternatively, an ‘injury (other than a disease)’ will depend on the nature and incidents of the psychological change.”
The term “disease” is defined by s 5B to mean:
“(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.”
The term “ailment” is defined by s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“Aggravation” includes acceleration or recurrence – s 4(1). Reference can also be made to the following observations of Windeyer J in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593:
“‘Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Broom Co. Pty. Ltd. v Semlitch…”
The Act also contains a deeming provision for a disease or the aggravation of a disease. Subsection 7(4) provides that an employee shall be taken to have sustained an injury, being a disease or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease first resulted in incapacity for work, or impairment of the employee.
It is also important to note that the test of employment contribution for a disease (or aggravation thereof) is dependent on timing of the onset of the compensable “injury”. The Act was amended in 2007, replacing the “material degree” test with the “significant degree” test – Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth).
In this matter, the relevant period of the Applicant’s employment was after the 2007 amendments. The Tribunal has, therefore, proceeded on the basis that the significant contribution test applies in this matter.
Subsection 5B(2) provides that, in determining whether an ailment or aggravation meets the significant contribution standard, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment; and
(e)any other matters affecting the employee’s health.
This list is not exhaustive and s 5B(2) explicitly provides that it “does not limit the matters that may be taken into account.”
It is also the case that, when considering liability to pay compensation, an employer and its insurer is required to take an employee as it finds him or her. As von Doussa J observed in Commonwealth v Smith (1989) 18 ALD 224 at 226:
“Incapacity due to disabling psychological symptoms precipitated by minor physical injury to a person already suffering a neurotic temperament is a well-recognised and unfortunately common phenomenon. If the precipitating injury occurs in compensable circumstances, the incapacity caused by the psychological symptoms is compensable even though the physical effects of the injury may resolve quickly. In such a case the injury is an element which only completes the tale of circumstances which constitutes the cause of the incapacity in the non-legal sense, but in the legal sense it is itself the cause of the incapacity which ‘results’ from it: see Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120 at 130. The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his predispositions and susceptibilities, whatever they may be: see Mason JA, as he then was in Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29 at 44 whose judgment was upheld by the High Court: (1973) 47 ALJR 236…”
THE HEARING
A Hearing was convened in Brisbane on 15 – 16 December 2021.
The Applicant was represented by Mr P Nolan of Counsel and Comcare by Ms A Tarrago of Counsel.
The Applicant testified and was cross-examined on 15 December 2021.
Dr Duke gave evidence on 15 December 2021 via Microsoft Teams and, on 16 December 2021, Dr Malik, Associate Professor Varma and Dr Kar also gave evidence via Microsoft Teams. All of the medical witnesses were cross-examined. Dr Kar gave his evidence from the United Kingdom where he was then residing.
COMCARE’S CONCESSIONS
In the Submissions of the Respondent (SR) dated 31 January 2021, and prepared by Ms Tarrago for Comcare, a number of concessions were made. The Tribunal is grateful for Ms Tarrago’s submissions as they have helped to narrow the issues in contention. Comcare concedes:
1)the Applicant was, at all relevant times, an “employee” for the purposes of the Act – SR p. 3 para 11;
2)the Applicant was an employee of the Commonwealth – SR p. 3 para 12;
3)Major Depressive Disorder, PTSD and Adjustment Disorder with anxious mood are all ailments within the meaning of s 4(1) of the Act – SR p. 3 para 13;
4)the Applicant previously suffered from a Major Depressive Disorder and, therefore, suffered from an ailment for the purposes of s 5B(1) of the Act – SR p. 4 para 14;
5)an incident occurred in the Applicant’s workplace on 16 September 2019, and does not dispute the Applicant’s evidence that a customer raised his voice at her, was aggressive and called her rude and uneducated – SR p. 4 para 15;
6)there is strictly no need for the Tribunal to consider whether the Applicant’s perception of the incident is reasonable, in considering whether it was a significant contributing factor to her ailment or an aggravation of her ailment: Wiegand v Comcare [2002] FCA 1464 at [31] – SR p. 4 para 15;
7)the Act does not require a diagnosis, so long as the Applicant suffers from a condition outside the boundaries of normal mental functioning and behaviour: Comcare v Mooi (1996) 69 FCR 439 – SR p. 4 para 16; and
8)the Act does not require a diagnosis made in accordance with diagnostic tools such as the Diagnostic and Statistical Manual of Mental Disorders, 5^th Edition (DSM-V) – SR p. 4 para 17.
MEDICAL EVIDENCE
Introduction
The Tribunal has been presented with written opinions and testimonies from four psychiatrists: Dr Malik, Associate Professor Sashjit Varma, Dr Benjamin Duke and Dr Kar.
The Tribunal will consider the reports of each of the Doctors below.
Dr Malik
As previously noted, in his report of 18 December 2019, Dr Malik diagnosed the Applicant as suffering from PTSD. In making this diagnosis, Dr Malik made the following observations – Exhibit 14 T12 p. 147:
“She has four children and one of her sons lives with her as he has ASD/ADHD. She did not have any previous history of mental illness and denied anyone in her family having these problems.”
Dr Malik stated that the Applicant reported as having the following ongoing symptoms – Exhibit 14 T12 p. 147:
·ongoing upsetting memories and flashbacks of the incident;
·feeling physically and psychologically distressed when something reminds her of the incident;
·trouble remembering important parts of the incident;
·ongoing blame she could have handled things differently;
·persistent low mood and emotional when remembering the incident;
·comprehension and retention of information remains poor;
·feels cut off from others;
·unable to socialise as result of anxiety when leaving home, where she feels safe;
·has trouble feeling positive emotions;
·has trouble concentrating, but slowing getting better;
·ongoing feeling of tiredness and exhaustion;
·always feeling on guard with hypervigilance; and
·startled easily with loud noises etc.
Dr Malik noted that the Applicant denied having any sleep problems, bad dreams, reckless or self-destructive behaviours or any suicidal ideas – Exhibit 14 T12 p. 147.
Dr Malik opined that the symptoms reported by the Applicant were consistent with a diagnosis of PTSD from the work incident – Exhibit 14 T12 p. 147.
Dr Kar – Report of 18 November 2019
As previously noted, Dr Kar examined and assessed the Applicant on 18 November 2019 and prepared a lengthy report of the same date – Exhibit 14 T8 pp. 112 – 126.
Dr Kar noted that the Applicant told him that “this was not the worst badly behaved person she had seen in her life” – Exhibit 14 T8 p. 114. In addition, Dr Kar recorded the Applicant informing him that, in her 20 years at work, this was the first time that a person’s bad behaviour had caused her to take so much time off work – Exhibit 14 T8 p. 114.
After the incident, the Applicant informed Dr Kar, she became extremely emotional, and was crying non-stop for the first two weeks and then losing control of her bowels. Further, she could not go near her workplace, and became emotional if she saw or went near places that reminded her of her workplace – Exhibit 14 T8 p. 114.
The Applicant also told Dr Kar that her sleep became worse, and she was tired in the daytime. She found it hard to function and became forgetful. Her enjoyment of reading faded as she had to read “the same sections over and over again.” The Applicant told Dr Kar she felt frustrated, and she had started to “zone out” when driving or watching movies – Exhibit 14 T8 p. 115.
While the Applicant stated that her “work is my life” and had work friends, she stopped going out and avoided Centrelink customers. The Applicant reported being greatly withdrawn and losing interest in “things she normally would find interesting” – Exhibit 14 T8 p. 115.
With respect to her past psychiatric history, the Applicant informed Dr Kar that she had been given antidepressants 25 years ago, as well as other occasions since then. She told Dr Kar that she did not believe she had depression – Exhibit 14 T8 p. 115.
The Applicant also informed Dr Kar that she had a brother who had died at the age of 61 of unknown causes, but who had been a heroin user. She denied any other family psychiatric history – Exhibit 14 T8 p. 116.
Dr Kar opined that the Applicant had “an ongoing severe episode of Major Depressive Disorder.” In his opinion, the episode commenced “near the time she left work”. Further, he opined that before 1999, the Applicant had been diagnosed with anxiety and depression and she did not have PTSD, as the incidents she described did not meet DSM-IV Criterion A – Exhibit 14 T8 p. 117.
After noting that the Applicant had not been given a full dose of antidepressants for a sufficient duration, Dr Kar opined – Exhibit 14 T8 p. 118:
“Ms Walker, due to her past history, had a risk for developing Major Depressive Disorder. Also, because of psychiatric issues or substance issues in two first degree relatives, her brother and her son, she was at greater than normal genetic risk of psychiatric disorder including Major Depressive Disorder.”
At the time of the incident, Dr Kar opined that the Applicant had a psychiatric condition, and this condition was not caused by the behaviour of the customer. While the Applicant believed she had not experienced depression in the past, in Dr Kar’s opinion, this misconception is common amongst persons who have serious mental illnesses but do not recognise that they suffer from it – Exhibit 14 T8 p. 118.
Dr Kar opined that the Applicant has a genetic risk factor for Major Depressive Disorder. He referred to her brother having a problem with opioids and her son having psychiatric and alcohol issues and then stated – Exhibit 14 T8 p. 118:
“She has two affected first degree relatives. It means Ms Walker has significant genetic risk for psychiatric disorder. In addition, Ms Walker herself had pre-existing risk as she had a past history of a depressive illness. Based on her personal history and her family history, she was at significant risk of a psychiatric condition, mainly a Major Depressive Disorder.”
Dr Kar referred to the incident and noted that the Applicant was an experienced worker who had often dealt with badly behaved people. She had never previously taken time off work as a result of this bad behaviour. He also noted that although the customer was angry, he made no threats of violence, he did not assault her, and Police were not called. At the time, the Applicant was reported as saying that she was shocked that the customer had upset her so much, as she had dealt with more challenging customers in the past. Dr Kar then opined – Exhibit 14 T8 p. 119:
“The reason for Ms Walker’s decompensation is because she was suffering from a Major Depressive Disorder at the time of the incident. The incident did not cause her Major Depressive Disorder. It did not cause her to cry uncontrollably.
While the customer’s behaviour was rude and upsetting, it was not the cause of her symptoms. Her symptoms were caused by her Major Depressive Disorder, a severe psychiatric condition, which is caused by a biochemical balance of the brain and manifested itself in a number of symptoms. Ms Walker reports more than the minimum symptoms for the diagnosis of Major Depressive Disorder. She meets the DSM-IV criteria for a severe episode of Major Depressive Disorder. Her condition was not triggered by the incident.
…
The incident that Ms Walker reports did not play a role in causing her Major Depressive Disorder. The incident exposed the fact that she was already in an episode of Major Depressive Disorder. It was a functional impact of her Major Depressive Disorder that she was unable to cope with an incident at work that she would normally have coped with before. She was unable to cope, was distraught and crying continuously.”
Further, Dr Kar disagreed with the Applicant’s psychologist who diagnosed her as suffering from PTSD. Rather, he opined, that Major Depressive Disorder is a recurrent condition and, as she had suffered from it in the past, “her risk of recurrence of depressive episodes would be significantly increased compared to the population of people who have not had a past depressive episode” – Exhibit 14 T8 p. 120.
Subsequently, Dr Kar expanded on why he believed a diagnosis of PTSD was incorrect – Exhibit 14 T8 p. 122:
“Major Depressive Disorder does not require precipitating events or incidents. Ms Walker reports that the behaviour of the customer in September 2019 upset her greatly and caused her current mental state. Her treating psychologist has diagnosed her with post-traumatic stress disorder. Ms Walker did not have any incident that met criterion A for the diagnosis of PTSD. Ms Walker herself reports that the customer had not assaulted her. There is no report that the customer had threatened her with violence. No one was physically injured. The police were not involved in this matter because it was not considered a police matter.
The incident does not meet the features for the diagnosis of PTSD. Clinical Guideline 26 by NICE, UK National Institute for Clinical Excellence writes – ‘Post-traumatic stress disorder (PTSD) develops following a stressful event or situation of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone’. Ms Walker has not experienced such an incident. She herself said she had coped with worse behaviour.
The National Institute of Mental Health, U.S. Department of Health and Human Services, National Institutes of Health, writes on (PTSD) Post-Traumatic Stress Disorder – ‘When in danger, it’s natural to feel afraid’. ‘But in PTSD, this reaction is changed or damaged. People who have PTSD may feel stressed or frightened even when they’re no longer in danger.’ Ms Walker does not experience the fear or danger as found in PTSD as described here.”
[Bold in the original]
Dr Kar referred to the DSM-IV criteria (symptoms) for Major Depressive Disorder – Exhibit 14 T8 p. 121:
1)depressed mood;
2)loss of interest or pleasure;
3)significant change in appetite or weight;
4)insomnia or hypersomnia;
5)psychomotor agitation or retardation;
6)fatigue or loss of energy;
7)feelings of worthlessness or excessive guilt;
8)impaired thinking or concentration; indecisiveness; and
9)suicidal thoughts/thoughts of death.
For a diagnosis of Major Depressive Disorder, the first two symptoms must be present, with a total of at least five symptoms present on most days for the past two weeks or more. Dr Kar was of the opinion that the Applicant met these criteria – Exhibit 14 T8 p. 121.

In response to a Question on whether the Applicant’s employment contributed to, to a significant degree, the causation of her diagnosis, Dr Kar responded by opining that the Applicant’s Major Depressive Disorder was of spontaneous onset. Dr Kar went on to note that he worked with information suggesting that the Applicant had experienced past mental health issues diagnosed as depression. Dr Kar then opined – Exhibit 14 T8 pp. 122 – 123:
“Even without her family genetic risk or without a past psychiatric history, Ms Walker’s diagnosis would remain unchanged, because Major Depressive Disorder can occur in the normal population…
The experience that she had with the customer after which she broke down and cried, was a manifestation of her Major Depressive Disorder…
…
Her condition is spontaneous and not contributed to by anything other than her vulnerability to develop a depressive episode. Her employment has not contributed in any significant degree to her current episode of Major Depressive Disorder.”
Dr Kar also opined that the Applicant’s prognosis was good, and she should be able to return to work within three months. He noted that a Major Depressive Disorder episode will resolve or improve significantly in three months, but some episodes can last longer. In Dr Kar’s opinion, Major Depressive Disorder is often an episodic condition, and people suffering from this condition return to normal function between episodes. Appropriate treatment is necessary, otherwise harmful consequences can occur and distress can be prolonged – Exhibit 14 T8 p. 125.
When questioned on a possible return to work full-time, Dr Kar opined – Exhibit 14 T8 p. 125:
“Ms Walker should be able to attempt a return to work after six to eight weeks of intensive antidepressant medication while under the care of a psychiatrist. It will take her longer to gradually ease back into normal fulltime hours. I expect Ms Walker to return to work within about 12 weeks to normal hours, if she is appropriately treated.”
Dr Kar also prepared a supplementary report dated 22 April 2021 – Exhibit 8. This report was prepared in response to the report of Dr Duke of 10 December 2020. Dr Duke’s report, as well as Dr Kar’s supplementary report, will be discussed below.
Associate Professor Varma
Professor Varma examined and assessed the Applicant on 4 March 2020 via video conferencing. Subsequently, Professor Varma prepared a detailed report dated 20 March 2020 – Exhibit 16 ST20.1 pp. 260 – 268.
In the part of the report headed “PAST HISTORY”, Professor Varma set out the information provided by the Applicant – Exhibit 16 ST20.1 p. 262:
“Over the years she developed depression and was given antidepressant for various reasons. One stage her boyfriend passed away and she was grieving. She required help. Then later on her marriage broke down and she was given some medication. She queried the medication and did not take it because she was grieving from the marriage breakup but also looking after four children. She sorted it out herself.”
The Applicant also informed Professor Varma that her “brother is a drug addict and her youngest son suffers from ADHD” – Exhibit 16 ST20.1 p. 262.
In the part headed “SUMMARY”, Professor Varma opined as follows – Exhibit 16 ST20.1 p. 264:
“In summary, Ms Walker worked as an APS4 face to face customer service officer in Gladstone CentreLink office, where she was verbally attacked by a customer, who called her rude and uneducated, because he did not want to wait there. She was given support by the team at that time but she went home and has not returned to work since then. She is seeing a psychiatrist Dr Asad Malik and psychologist on a three to four weekly basis. She was not on any medication.
In the last six months or so she has gradually shown improvement where she is starting to go out and is trying to desensitise herself. Her psychiatrist had diagnosed her to be suffering from PTSD. However, an IME psychiatrist Dr Kar did not agree with the diagnosis of PTSD. Overall, she is feeling better and hopes that one day she can return to work.”
Professor Varma answered a series of questions that were asked of him by Services Australia.
In response to a Question asking what his diagnosis of the Applicant’s condition was, Professor Varma provided this response – Exhibit 16 ST20.1 p. 265:
“According to DSM-5 diagnostic criteria, I believe that the information provided to me, history and mental state examination, she suffers from PTSD, secondary to a verbal assault at work.”
In response to a Question asking whether he would recommend assessment by another specialist, Professor Varma stated – Exhibit 16 ST20.1 p. 265:
“I do not recommend assessment by another specialist. I truly believe that she suffers from PTSD, which was the same diagnosis as her psychiatrist.”
Professor Varma was optimistic about the prospects of the Applicant’s injury or illness resolving. He noted that the Applicant was showing gradual improvement and he opined that she would recover fully, but it might take another three or six months – Exhibit 16 ST20.1 p. 265.
Whilst Professor Varma opined that the Applicant was improving, he was of the opinion that she was not medically fit to return to her full-time position and was not even fit to return with a graduated return to work – Exhibit 16 ST20.1 p. 266.
Professor Varma noted that the Applicant wanted to return to work, but not to face to face customer service – Exhibit 16 ST20.1 p. 266. He opined that he did not see any barriers to a return to work in three to six months, but it would have to be partial to start with and gradually increased to full-time – Exhibit 16 ST20.1 p. 267.
In response to Questions relating to partial, total and permanent invalidity, Professor Varma opined that the Applicant was not totally and permanently incapacitated, as she was improving and her prognosis was good. Moreover, he opined that it was highly unlikely that the Applicant would become totally and permanently incapacitated – Exhibit 16 ST20.1 p. 267.
The Applicant was again referred to Professor Varma for a fitness for duty assessment on 27 October 2020. Professor Varma prepared a detailed report dated 11 November 2020 – Exhibit 16 ST25 pp. 281 – 289.
In the part of the report headed “PROGRESS SINCE LAST SEEN”, Professor Varma made the following observations – Exhibit 16 ST25 pp. 283 – 284:
“Her concentration is a little better. She can breathe and watch a movie on television. Recently she even went out for dinner with one of her co-workers. She is also going out for a water painting class. She continues to live with her son. She does not do house chores as well as she would like to. Some days she can be still in bed or watching Facebook. She and her son do their own cooking. She said that her psychiatrist as well as her psychologist have helped her desensitise and asked her to say hello to people instead of hiding from them and tell them she is on long service leave…
…
She does not know when she will return to work. She said she is 63 years of age and would not know whether she could do a job elsewhere. She still wants to go back to her current work but it is a scary thought for her. Since she has been away from work she had heard a lot of incidents in the office. One day she was driving past and she saw police and ambulance parked and it gave her a fright. She said she still cannot deal with the customers. She still has flashbacks of the assault. She remembers and visualises it. She still sees the man who was on the left side of her face.
She feels bad and upset that she is not working. She has poor sleep but her nightmares have improved in the last six months…
…
She said overall she is better than she was in March 2020, but still ‘not there’. She said that the office has not offered her anything new. She continues to have low self-esteem and confidence and said she is unable to deal with the customers.”
Professor Varma noted that, at the time of the examination, the Applicant felt helpless and worthless, continued to have flashbacks where she visualised the face of the customer who had verbally abused her and felt scared in social situations. However, Professor Varma opined that the Applicant was not as depressed or anxious as in the earlier appointment, and had no thoughts of death or suicide – Exhibit 16 ST25 p. 284.
Professor Varma provided the following diagnosis of the Applicant’s medical condition – Exhibit 16 ST25 p. 285:
“According to DSM 5 diagnostic criteria, Ms Walker suffers from post-traumatic stress disorder, secondary to work-related assault, which is in mild remission with treatment. She was better than when I saw her in March 2020.”
In response to a Question asking whether his diagnosis was different to that of Dr Kar, and, if so, the facts or factors that have led to a different conclusion, Professor Varma provided the following response – Exhibit 16 ST25 p. 286:
“My diagnosis is clearly different from Dr Kar’s report, dated 18 November 2019 where he diagnosed her to be suffering from major depressive disorder. I believe it is post-traumatic stress disorder because even now she is anxious, depressed, has flashbacks, sees the face of the aggressor even now after many months, she has nightmares and relives the experience with flashbacks.
I also do not agree with Dr Kar’s report under item 4 where he mentioned the main contributing factors are unrelated to employment. I disagree with his assumption that there is a genetic risk and past history of psychiatric illness. The past history which Ms Walker mentioned was a long time ago when she was on antidepressants due to her boyfriend passing away. Later her marriage broke down but that was a long time ago and she was not taking antidepressants. Even now she is only taking sertraline given to her by her psychiatrist.
My opinion is different from Dr Kar’s report where he mentioned there was no incident reported by Ms Walker that explained the diagnosis of post-traumatic stress disorder. It is very clear there was the incident mentioned where the ‘customer was aggressive, shouting and yelling’ at her which is a clear incident due to which post-traumatic stress disorder occurred. She still has flashbacks, sees the person’s face after so long. It seems like Dr Kar may have completely discounted that episode and the diagnosis of post-traumatic stress disorder.
In his report on 18 November 2018, Dr Kar was of the opinion that Ms Walker should be able to return to work within three months, which would be by January/February 2020. Obviously it was not the case. I reviewed her in March 2020 and now in November 2020, I do not believe she is fit to return to work.”
Professor Varma opined that the Applicant had shown improvement since March 2020 and was, at the time of this report, in “partial remission” – Exhibit 16 ST25 p. 286. However, Professor Varma was of the opinion that the Applicant had not reached maximum medical improvement, and recommended a further review in six or nine months – Exhibit 16 ST25 p. 287.
Professor Varma also opined that the Applicant was not fit to return to full-time or part-time work. While the Applicant “has shown some improvement she continued to have low self-esteem and self-confidence” – Exhibit 16 ST25 p. 287.
Finally, Professor Varma opined that, although it was difficult to predict when the Applicant could resume her work duties, with “the progress she has made in the last six months I would say in the next four to six months’ time” – Exhibit 16 ST25 p. 288.
Dr Duke
Dr Duke, Consultant Psychiatrist, examined the Applicant on 2 December 2020 and provided a detailed report dated 10 December 2020 – Exhibit 4 pp. 22 – 37.
At the time of the Applicant’s assessment by Dr Duke, her then mental health symptoms were reported as follows – Exhibit 4 p. 27:
“Ms Walker reports ongoing daily flashbacks of her interaction with the client. She reports improving concentration. She reports poor sleep with initial and middle insomnia. She reports feeling stressed. She is avoidant of reminders of the interaction with the client and of the workplace. She reports being sad and angry. She denies being teary or depressed. She reports being able to enjoy a range of activities, both by herself and with her son.
Ms Walker reports becoming increasingly confident in public over time. She reports she had become isolative, but is now able to get out of the house by herself. She reports she is anxious about her ability to do her job and lacks self-confidence in her ability to manage interactions with clients in the Centrelink office. She reports good self-esteem. She is anxious about reminders of the workplace. She reports good appetite. She has deliberately lost some weight recently due to increasing activity levels. She is eating regularly. She reports variable levels of motivation. She reports low levels of energy. She denies self-harming or suicidal ideation.”
When examined by Dr Duke, the Applicant was being seen by Dr Nick Calcagnini (Psychologist) on a monthly basis, and Dr Malik every four to six weeks – Exhibit 4 p. 28.
The Applicant was then prescribed the antidepressant medication Sertraline 50 mg per day – Exhibit 4 p. 28.
After outlining the Applicant’s life history, Dr Duke made the following observations – Exhibit 4 p. 31:
“Although I agree that technically Ms Walker does not meet the full criteria for PTSD as I do not believe that the negative interaction with the client would meet the Trauma Criterion A of the PTSD diagnosis, she does describe symptoms that fulfill all the other requirements. As such I think that although I have labelled her as having an adjustment disorder with anxious mood, to all intents and purposes her condition can best be conceptualised as PTSD and treatment should be targeted towards this.
Although there is a history of recurrent periods of depressive symptoms, these appear to primarily have arisen in the context of significant life stressors. There is no indication that Ms Walker has a recurrent major depressive disorder with endogenous features. There is no evidence in the general practitioner records in the lead up to the incident of September 2019 that she was suffering from depressive symptoms or that there were significant stressors in her life. The description of symptoms since the accident do not fit with a major depressive picture, and I do not believe that at any stage has she presented with a major depression disorder.
Ms Walker’s adjustment disorder (or PTSD if one is willing to forgo the need for a life threatening event as the cause of her symptoms) appears to have arisen directly as a result of the negative interaction she had with the client within the workplace.”
Accordingly, Dr Duke diagnosed the Applicant as suffering from an Adjustment Disorder with anxious mood – Exhibit 4 p. 31. Further, Dr Duke opined that the only factor that contributed to, or aggravated, this condition was the negative interaction with the customer within the workplace. Dr Duke opined that the “symptoms that she describes are consistent with her condition having been caused by the nature of this interaction” – Exhibit 4 p. 32.
Dr Duke specifically rejected a diagnosis of major depressive disorder, and opined – Exhibit 4 pp. 34 – 35:
“I do not believe that Ms Walker was suffering from a major depressive disorder at the time of the interaction with the customer. I am unable to find any evidence in the supplied material to support the conclusion that Ms Walker was suffering depression at that stage.
…
No. Ms Walker does not present with symptoms consistent with a recurrence of a major depressive disorder.
She presents with a wide range of post traumatic style anxiety based symptoms that are unrelated to the previous episodes of poor mental health. These anxiety symptoms would not have developed in the absence of the negative interaction within the workplace.”
In response to a Question about the medical treatment the Applicant requires, Dr Duke opined that she should continue to see a Psychologist, ideally one trained in the provision of Eye Movement Desensitisation and Processing (EMDR) – Exhibit 4 p. 32. Moreover, Dr Duke was not convinced that the Applicant’s antidepressant medication (Sertraline) was effective – Exhibit 4 p. 33:
“Ms Walker’s current level of antidepressant use is unlikely to provide any significant benefit. If she is unwilling or unable to try or tolerate higher doses of her current antidepressant Sertraline, then I would suggest that fluvoxamine or paroxetine be tried, given that these tend to be more effective for patients presenting with prominent anxiety symptoms...”
Dr Duke was optimistic about the prospects of the Applicant returning to work. He opined that her incapacity was temporary and “with continued and more assertive and appropriate treatment she will be able to return to her usual work role” – Exhibit 4 p. 33.
Dr Kar – Supplementary Report 22 April 2021
Dr Kar was asked to provide a supplementary report and was referred to the reports of Dr Malik, Professor Varma and Dr Duke set out above. Dr Kar’s supplementary report is 36 pages in length – Exhibit 8 pp. 76 - 111.
First, Dr Kar referred to the DSM-V diagnostic criteria for Major Depressive Disorder and noted whether the Applicant met the criteria – Exhibit 8 pp. 78 – 79:
1)depressed mood most of the day, nearly every day. Dr Kar opined that the Applicant met this criterion as she cried most days and was depressed at the interview;
2)markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day. Dr Kar opined that the Applicant met this criterion;
3)significant weight loss when not dieting or weight gain. Dr Kar observed that the Applicant did not meet this criterion;
4)insomnia or hypersomnia nearly every day. The Applicant informed Dr Kar that her sleep was worse than before, and he opined that she met this criterion;
5)psychomotor agitation or retardation nearly every day. Dr Kar opined that the Applicant did not meet this criterion;
6)fatigue or loss of energy nearly every day. Dr Kar opined that the Applicant met this criterion;
7)feelings of worthlessness or excessive or inappropriate guilt. Dr Kar opined that the Applicant did not meet this criterion;
8)diminished ability to think or concentrate, or indecisiveness, nearly every day. Dr Kar opined that the Applicant met this criterion; and
9)recurrent thoughts of death, recurrent suicidal ideation etc. Dr Kar opined that the Applicant did not meet this criterion.
In summary, in Dr Kar’s opinion, the Applicant met five of the nine criteria, and did not meet four.
Dr Kar disagreed with the diagnoses of the other clinicians, and made the following observations – Exhibit 8 pp. 85 – 89:
·the other clinicians did not correctly apply the DSM-V psychiatric criteria for clinical diagnosis. The DSM-V does not allow the flexible use of its criteria, and in this matter, the Applicant did not meet Criterion A for PTSD, and, accordingly, PTSD cannot be diagnosed;
·the other clinicians have not considered the role of inconsistent reporting in the compensation setting. Dr Kar opined that the Applicant is “an unreliable historian” and that unreliability is important in the compensation setting;
·the Applicant has not demonstrated the motivation to attempt to return to work or seek alternative work while still claiming high motivation for work. The other clinicians have not considered the role that motivation may be playing;
·while an independent psychiatrist is required to be independent and objective, Dr Duke and Professor Varma have accepted, on trust, the history given by the Applicant, similar to the role of a treating Psychiatrist. Both, in Dr Kar’s opinion, have relied on subjective rather than objective information, and then incorrectly applied DSM-V criteria;
·the history given by the Applicant to Dr Kar soon after the incident was consistent with a Major Depressive Disorder episode;
·when Dr Kar examined the Applicant, she did not meet the criteria for PTSD, and while she did meet some of the criteria for an Adjustment Disorder, she also met the criteria for a Major Depressive Disorder episode;
·a persons symptoms can change over time, and they can have a different mental disorder at a later time. At the time Dr Kar examined and assessed the Applicant, he opined that Major Depressive Disorder was the correct diagnosis;
·the Applicant has psychiatric risk factors for depressive illness due to her past psychiatric history, her family history, and her genetic risks;
·Dr Duke diagnosed the Applicant with chronic Adjustment Disorder, and agreed that she did not meet Criterion A for PTSD;
·Adjustment Disorders do not continue beyond six months after the stressor, or its effects, ceased. The stressor in the Applicant’s case were the words used by the customer on 16 September 2019. Dr Duke provided no reason for chronicity;
·the effects of an Adjustment Disorder cannot be claimed as the maintaining factor for the same Adjustment Disorder. An Adjustment Disorder cannot maintain itself to become chronic;
·the Applicant had an abnormal and excessive emotional response to the comments made by the customer. This suggests, in Dr Kar’s opinion, vulnerabilities in her personality. She had a past history of significant depressive and anxiety issues;
·in Dr Kar’s opinion, the Applicant has anger and stress over her unresolved litigation compensation issues, has demonstrated a poor motivation for work and her maladaptive attitude is perpetuating her claim;
·Dr Kar also opined that the Applicant’s personality, attitude and motivation are playing a role in maintaining her disability, along with incorrect diagnosis and incorrect management. Her treatment, in his opinion, has been based on an incorrect diagnosis of PTSD and she has not participated in occupational rehabilitation. Her treaters have not succeeded in improving her function; and
·in Dr Kar’s opinion, Professor Varma and Dr Duke have relied upon the Applicant’s words and her subjective symptoms to diagnose her with PTSD and an Adjustment Disorder, even though she does not meet the diagnostic criteria. These incorrect diagnoses have not helped her, as she continues to claim symptoms, disability and avoidance of work.

Later in his report, Dr Kar addressed, at considerable length, his disagreement with Dr Duke’s diagnosis of an Adjustment Disorder. The following quote sums up the difference between Dr Kar and Dr Duke’s diagnosis’ – Exhibit 8 p. 91:
“Dr Duke appears not to recognise that if the criteria for a Major Depressive Disorder or any other psychiatric condition is met then an Adjustment Disorder cannot be diagnosed. The category of Adjustment Disorder was created for including conditions that did not fit any other known psychiatric diagnosis. Adjustment Disorder is not a specific disease or condition. It has no defining symptoms or defined causative stressor. Any stressor can cause an Adjustment Disorder. Thus it requires the exclusion of other psychiatric conditions with the same symptoms. This is also included specifically and explicitly in the DSM-V classification as provided above.
The DSM-V writes that Adjustment Disorder resolve within 6 months of the stressor. When Dr Duke saw her, it was more than a year after the incident. Adjustment Disorders cause significant distress and/or impairment. The distress and impairment of an Adjustment Disorder cannot be used to explain a chronic Adjustment Disorder. If so used it means the effects of an Adjustment Disorder is itself the cause of the chronicity of the Adjustment Disorder. This would obviously mean that the six month[s] prescribed for the diagnosis by the DSM-V is meaningless.”
[Emphasis in the original]
Despite rejecting the diagnosis of an Adjustment Disorder, Dr Kar subsequently made these observations – Exhibit 8 p. 94:
“I am not in agreement with Dr Duke that Ms Walker is suffering from an Adjustment Disorder with Anxious Mood. When I saw her, she was acutely distressed and an Adjustment Disorder with depressed mood was a reasonable consideration. However, Adjustment Disorders require the exclusion of other psychiatric conditions.
Adjustment Disorders do not persist more than 6 months from the time the stressor ended. In this case, the stressor is described as clear and discrete, which is the incident Ms Walker had with the customer. I would have made the diagnosis of an Adjustment Disorder with Depressed Mood at the time I saw her, but I could not as she met the DSM-V criteria for a Major Depressive Disorder…”
The only other matter which requires noting, at this stage, is Dr Kar’s new diagnosis that the Applicant suffers from abnormalities of her personality – Exhibit 8 p. 95 – 96:
In making this new diagnosis, Dr Kar observed – Exhibit 8 pp. 95 – 96:
“I note from review of the file that Dr Malik, her treating psychiatrist, in his report of 6 November 2019 wrote that she had some bad experiences growing up in Wollongong and her father had never appreciated her. Dr Malik wrote, ‘I can see how this may have been related to her current experience when this man at Centrelink made remarks that could have brought back the trauma she had in her early life.’ This should be contrasted with Dr Duke’s statement ‘She reports no difficulties growing up.’
It would also appear that Ms Walker is an unreliable historian. It is written that she had 4 children and one of her sons lived with her as he had ASD and ADHD. Ms Walker had denied any previous history of mental illness and denied anyone in her family having these problems. The relevance of this is that there is denial of Ms Walker’s own past psychiatric history and denial of her genetic risk factors as close biological relatives have a powerful genetic influence depending on the closeness of their genetic relationship. Parents, biological siblings and biological children are called first-degree relatives. Uncles, grandparents and cousins are second-degree relatives.
From review of her file Ms Walker has four first-degree relatives who have demonstrated behavioural and psychological issues. These include her father, her biological brother and her biological son, and from the history it also appears her own biological daughter.”
CONSIDERATION
Introduction
It is common ground that that the evidence presented to the Tribunal does not support the proposition that the Applicant suffers, or suffered, from an injury other than a disease (s 5A(1)(b)), or an aggravation of an injury other than a disease (s 5A(1)(c)).
The initial question before the Tribunal is whether the Applicant suffers, or suffered from, a “disease”, namely, an ailment, or an aggravation of such an ailment – s 5B(1).
If such an ailment, or an aggravation of such an ailment, is found to exist, the next question is whether that was contributed to, to a significant degree, by the Applicant’s employment.
It is Comcare’s submission that the ailment the Applicant suffers from is a Major Depressive Disorder, that this ailment was a pre-existing condition, and that the Applicant’s employment did not contribute, to a significant degree, either to the onset, or aggravation of, that condition. Rather, the Applicant’s employment was merely the setting in which the symptoms of her pre-existing condition became apparent. Finally, Comcare submits that there is no evidence before the Tribunal that supports the proposition that this pre-existing condition was made worse by the interaction with the customer on 16 September 2019 – SR p. 5 paras 20 – 22.
The Applicant’s submission is that it is not necessary to put a “label” on her medical condition, but to accept that she suffered from an ailment recognised by s 5B(1). Further, the Applicant submits that the evidence supports the proposition that the ailment she suffers from was contributed to, to a significant degree, by her employment – Applicant’s Closing Submissions (ACS) (dated 1 February 2022) p. 3 – 4 paras 12 – 17.
The Tribunal has been presented with differing medical opinions and diagnoses from four experienced psychiatrists.
Dr Malik, the Applicant’s treating psychiatrist, and Professor Varma, both diagnosed the Applicant as suffering from PTSD.
Dr Duke diagnosed the Applicant as suffering from an Adjustment Disorder with Anxious Mood, but only did so because the Applicant did not experience a Category A stressor under DSM-V.
Dr Kar, conversely, rejected the diagnoses of PTSD and an Adjustment Disorder, and diagnosed the Applicant as suffering from Major Depressive Disorder.
As previously noted, Comcare quite properly has conceded that the Act does not require a precise mental health diagnosis, as long as the decision-maker can be satisfied that the claimant was, or is, suffering from a condition outside the boundaries of normal mental functioning.
However, Comcare contends that, in this matter, the particular diagnosis is an important consideration in determining whether the Applicant’s employment was a contributing factor to the ailment she suffers from – SR p. 4 para 16. Some care, therefore, needs to be taken when considering the medical evidence when addressing the first question before the Tribunal, namely, whether the Applicant suffers from an ailment, or the aggravation of an ailment.
There is a preliminary issue which needs to be addressed, and that is, the weight that can be placed both on the Applicant’s evidence to the Tribunal, but also the extent of her truthfulness when she was examined and assessed by the four psychiatrists whose reports are before the Tribunal.
Dr Kar, in his supplementary report, in response to a Question about the Applicant’s current prognosis, made the following observations – Exhibit 8 p. 98:
“I believe currently Ms Walker’s poor motivation is the reason for her claim disability. She is claiming a compensable psychiatric condition. Initially, she had a Major Depressive Disorder which appears to have resolved. Ms Walker has been diagnosed with PTSD based on her subjective symptom reporting. In my opinion, as Ms Walker is unmotivated for work, she is exaggerating her symptoms to maintain disability. In the compensation setting, such behaviour raises questions of her motivation. In my opinion, her behaviour appears motivated by her external material incentives such as compensation. I am unable to rule out malingering. Malingering is a decision for the Court.”
The Tribunal casts no aspersions on Dr Kar’s views of the Applicant. He, like I, have observed her, and have had the benefit of reading other learned medical specialists’ diagnoses. In addition, the Tribunal, had the benefit of observing the Applicant under very close and forensic cross-examination by Ms Tarrago of Counsel.
I listened to the Applicant give testimony under cross-examination. She answered the questions posed in an unadorned manner and was precise, without undue emotion and did not prevaricate. She was obviously nervous and anxious, but her answers were what would be expected of a person giving ordinary testimony. In short, I formed the view that her answers were honest and what would be expected of a person in her circumstances.
The Tribunal is not in a position to give a definitive answer as to whether the Applicant is a malingerer and a liar. These are matters that are not able to be definitely answered. However, based on the evidence presented, and having closely observed the Applicant give evidence, I formed the view that the Applicant gave honest answers to the Questions posed. In short, the Tribunal formed a positive view as to her credibility.
At the conclusion of the cross-examination of Professor Varma, the following exchange occurred Tr. 16.12.2021 p. 86:
“DEPUTY PRESIDENT: Can I ask a question of you, Doctor?---Yes.
You are experienced in the field of psychiatry and as you know, psychiatry is an [in]exact science, but generally, when you're dealing with persons, you form a view of their… truthfulness?---Yes.
And sometimes in psychology, with biometric and other measuring tools, there's a tool which measures malingering?---Yes.
Did you form the view that the – in your opinion and this is not conclusive obviously – that the applicant is a malingerer?---No, I did not, sir. In all the time I've seen her and with my hindsight of my 39 years, in six months' time 40 years in psychiatry, I didn't feel that she was [a] malingerer.
Did you form the view that she was genuine?---Yes.
In the answers she gave you?---Yes, yes.”
The Tribunal agrees with the conclusions on the genuineness of the Applicant reached by Professor Varma.
Comcare submits that the Applicant was an unreliable witness who could not recall many of her interactions with treating clinicians and did not give them key information, particularly, her full psychiatric history, as well as her family’s mental health history – SR p. 5 para 24.
This interpretation of the Applicant’s testimony and her interaction with treating medical professionals is open, if one proceeds on the basis that the Applicant was economical with the truth and consciously withheld key information for her own advantage. As noted above, the Tribunal formed a different view of the Applicant and her testimony. The Tribunal found the Applicant a nervous witness who was very anxious, but did not find her to be unreliable.
The Tribunal proceeds on the basis that the Applicant is a witness of credit and gave, during her testimony, to the best of her ability, honest answers to the questions posed. In reaching this conclusion, the Tribunal recognises that the Applicant has mental health issues, and these issues have coloured some of the ways she has responded. This is accepted as part of the complex nature of dealing with evidence and testimony from persons who suffer from psychological ailments.
Nature of the Applicant’s ailment
As noted above, there is a difference of opinion between the medical experts as to the label to be placed on the Applicant’s mental health condition. However, there is a broad consensus amongst all of the medical experts that the Applicant suffers from mental health issues.
Under cross-examination by Mr Nolan, Dr Kar testified as follows – Tr. 16.12.2021 p. 97:
“Yes, thank you, doctor. And you would accept that as at the time you examined Ms Walker in November 2018 [sic], she had a condition, however diagnosed, that was outside the bounds of normal mental functioning, would you accept that?---Yes, she had a mental illness, yes.”
Dr Kar opined that the Applicant was already suffering from a depressive disorder before the incident of 16 September 2019. He opined that it had an insidious onset which was difficult to pinpoint, but had probably started in the weeks prior to the incident. According to Dr Kar, the Applicant was already in a depressed state and her abnormal response was a by-product of her depression – SR p. 6 para 31.
Comcare submits that the Applicant’s psychological condition predates the 16 September 2019 incident, and the day after the incident, her distress from her Major Depressive Disorder became apparent – SR p. 7 paras 32 – 33.
The legal representatives for the Applicant submit that it is unnecessary for the Tribunal to resolve the debate as to the specific diagnosis of the Applicant’s mental health condition. A precise medical label or diagnosis is not required to establish an ailment and the DMS-V criteria, which has no legislative sanction, should not been seen at the touchstone for whether a claimant is suffering from a mental ailment. All that is required is for the Applicant to have a condition that is outside the boundaries of normal mental functioning – ACS p. 4 para 16.
The Tribunal accepts the correctness of the submissions of the legal representatives of the Applicant. In Hennessey-Milne and Comcare [2018] AATA 4453, I made the following observations:
“[186] One of the features of workers’ compensation claims involving mental ailments is the multitude of ‘labels’ that are ascribed to those ailments by various medical professionals. A condition having a range of symptoms may be ascribed more than one label by different medical experts, and it can be case that the same set of symptoms may be ascribed a different label by experts in different fields of medical science.
[187] The manner in which PTSD has been dealt with by both physiatrists and the legal profession over the past fifty years illustrates the fluidity of this area of medicine and law.
[188] It is the case that mental illness presents unique problems and that a ‘correct’ diagnosis at one point of time may change either through the development and transformation of the condition or by the evolution and refinement of medical knowledge and research.
[189] In an area of litigation where the tribunal of fact is often presented with a multitude of conflicting clinical diagnoses it is unfortunately easy to fall into the trap of focusing on the labels ascribed and not on the threshold question of whether the employee has suffered an ‘injury’ as defined in the Act. In this matter the threshold question is whether the Applicant suffered an injury (as defined), or an aggravation thereof, as a result of his employment at the Gold Creek School — see Lim v Comcare [2016] FCA 709 at [45] per Flick J.
[190] Where the tribunal of fact determines that there is a compensable ‘injury’, there is no requirement that a definitive label or diagnosis be ascribed to that injury. In Australian Postal Corporation v Lucas (1991) 33 FCR 101, Burchett J made the following observations (at 108):
…given that an incapacitating condition is satisfactorily shown, the mere fact that the diagnosis of its medical nature may not be able to be made precisely, though obviously a factor which might militate against a finding of a causal link with employment, will not necessarily present an insuperable obstacle to such a finding. It must depend on the evidence.”
[Emphasis in the original]
The key issue for a decision-maker, when dealing with a claim for psychological ailment, is to determine whether the claimant has a condition that falls outside the boundaries of normal mental functioning and behaviour. The medical label that is placed on such a condition is a secondary consideration, and not determinative of liability. Reference can be made to the following observations of Drummond J in Comcare v Mooi (1996) 69 FCR 439 at 443 – 444:
“There may be difficulties in a particular case in determining whether a bodily condition, ie, one not involving any effect on a person's mental faculties, amounts to a disease; it can also be difficult to determine whether a worker is suffering from a disease in the sense of a mental ailment. Medical opinion changes too: regularly encountered signs may eventually come to be acknowledged as comprising a disease or as symptomatic of an underlying disease when previously, medical opinion rejected that notion. But these considerations, in my opinion, provide no ground for disregarding the meaning given by the various definition provisions to the term ‘injury’ for the purpose of s 14(1) of the Act.
The definition provisions, which bring within the concept of ‘injury’ mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee’s mental condition is within the concept of an ‘injury’ within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe...But in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s 14(1).”
It is not contested that DSM-V and its predecessor editions, have been accorded, over time, in Australia and throughout the western world, great weight. As a diagnostic tool, DSM-V is of immense assistance to a tribunal of fact. However, as Logan J explicitly pointed out in Readv Military Rehabilitation and Compensation Commission [2018] FCA 848, 158 ALD 537, DSM-V has no legislative sanction as the touchstone for whether a compensation claimant is suffering from a mental ailment – at [19]. In short, if a tribunal of fact were to determine a matter solely by reference to whether the terms of the relevant part of DSM-V were met, then the Tribunal would be in error. Accordingly, an employee’s claim is not to be rejected merely because the employee’s symptomatology does not meet the exact requirements of DSM-V.
The Tribunal is reasonably satisfied that, when the Applicant was examined and assessed by the four psychiatrists, she was suffering from a mental ailment. It is not necessary for the Tribunal to make a definitive finding as to the label that should be placed on that ailment; however, the preponderance of psychiatric evidence supports the Application’s submission that it is a mental condition that presents with PTSD symptoms –ACS p. 4 para 17.

Turning next to the Applicant’s daughter, Dr Kar testified that he formed the view she had psychiatric issues because she had assaulted the Applicant. The following testimony was given by Dr Kar – Tr.1612.2021 p. 102:
“Okay. And you've got the issues with the biological son. But you've also mentioned the fourth one. The daughter?---Yes.
So are you able to identify where you found the daughter having psychological issues?---Well, I am aware the daughter assaulted the mother. Now – and the description of the assault, it sounded like a serious assault, you know, the doctor who recorded it felt like it was a matter that should go to the police. Now, I believe that this is not normal behaviour. It just shows a severe abnormality of behaviour. And that is the extent of the behaviour that I have. And it shows a risk factor that there are anger issues in the daughter. And suggest some abnormality of personality or behaviour. So that's a risk factor.
Okay. So you've drawn the conclusion that the daughter has behavioural and psychological issues based on this entry on 21 December 2004, was assaulted by daughter last night and has been advised to record injuries by the police?---The doctor did at least, at that time, have a significant behavioural problem. It is not – I would not (indistinct) normal behaviour, so it shows some issue with the daughter's personality. Because no normal daughter would, Your Honour, assault their mother to that extent that it may become a police matter. Their mother would go to the doctor to report it. It just shows a severe abnormality of behaviour. And whether the daughter has such behaviour as a – on a more serious – the daughter is – yes, I was not there to assess the daughter. I was there to understand risk factors. And there is the daughter's behaviour suggests behavioural issues, personality issues and is a risk factor. But diagnosis of (indistinct) disorder does not defend whether or not if she had given all of her family members were healthy and normal, that is not the basis for my diagnosis. My opinion on her is based on my assessment of her and the symptom that she has reported. So the family members, whether or not they have – because I was not assessing them, it was not my job to find out lots about them. I was looking for risk factors.”
For a psychiatrist to make a diagnosis of mental illness, one would expect that there would a substantial history of behaviour that would support such a serious diagnosis. Yet, in the case of the Applicant’s father, brother and daughter, Dr Kar has made a diagnosis on an almost non-existent case history.
Dr Kar testified that “it sounded like a serous assault” and this was “not normal behaviour”. After noting that the daughter had “anger issues”, Dr Kar said it suggested “abnormality of personality or behaviour.”
The Tribunal was somewhat surprised by Dr Kar’s diagnosis. It was based on little evidence, and was predicated on hearsay and supposition. Having never interviewed the Applicant’s daughter, or been given any of her life history, let alone her medical history, for Dr Kar to opine that she had psychological issues, is not convincing.
It is not necessary to explore at length the medical history of the Applicant’s son, except to note that the Tribunal agrees with Mr Nolan that there is no evidence that he suffers from a depressive history – ACS pp. 6 – 7 para 31.
To sum up, the evidence before the Tribunal does not disclose that the Applicant’s father, brother, son or daughter have a history of depressive illness.
The evidence does not support the proposition that the Applicant’s father, brother or daughter suffered, or suffer, from psychological disorders.
The evidence, therefore, does not support Dr Kar’s observations that the Applicant’s family has a significant psychiatric history.
Fourth, it is not contested that neither party led evidence as to activities of the Applicant that were not related to her employment –SR p. 9 para 47.
Fifth, the Tribunal has to consider any other matters that affect the Applicant’s health.
Ms Tarrago set out, at length, a list of chronic and longstanding medical issues that afflicted the Applicant prior to 16 September 2019 – SR pp. 9 – 10 para 47.1. Amongst those medical issues, was a diagnosis of Hashimoto’s Hypothyroidism on 22 November 2017 – RS p. 9 para 47.1.1. In addition, prior to the 16 September 2019 incident, the Applicant was on a waitlist for a laparoscopic toupet fundoplication, which she underwent at Rockhampton Base Hospital in December 2019 – SR p. 10 paras 47.1.13 – 47.1.15.
The Tribunal accepts the accuracy of the list of medical conditions outlined by Ms Tarrago that the Applicant suffered from during the particular time period.
When Dr Duke was cross-examined by Ms Tarrago, she outlined the Applicant’s medical history, including the incidents involving her son and daughter. Ms Tarrago also questioned Dr Duke about the possible impact of impending surgery may have had on the Applicant’s mental state. The following exchange occurred – Tr. 15.12.2021 pp. 38 – 40:
“And Dr Duke, do you recall if Mrs Walker disclosed that she had impending surgery that she had been put on a wait list for?---She reported that she had lumbar spine disc issues with associated neuropathic symptoms. But she did not mention that she was on a waiting list for surgery which I would assume would be for that, given her - - -
So you’re not aware that she was on a waiting list for elected procedure for severe GORD or hiatus hernia?---Not for GORD, no.
And what do you understand of those conditions, Dr Duke?---Well gastroesophageal reflux disease, or GORD, is a condition where the (indistinct) the upper end of the stomach are insufficient and the contents of the stomach, particularly the acidic contents of the stomach, come up from the stomach into the oesophagus, causing pain symptoms and an often unpleasant taste in the mouth. And so, surgery for that can include treatment to try to reinforce the (indistinct) to prevent that from happening.
And what about hiatus hernia?---So hiatus hernia is where part of the stomach has gone through the diaphragm which defines the boarder [sic] between the abdominal cavity and the chest cavity, and it also acts to assist as to prevent contents of the stomach from going back up into the oesophagus. In a hiatus hernia, part of the stomach has gone through the gap in the diaphragm where the oesophagus goes through and so that then sits within the thoracic cavity, rather than the abdominal cavity. And that makes it more likely that reflux of the (indistinct) contents into the oesophagus will happen. Surgery for hiatus hernia is aimed at repairing that fault and moving the stomach back from the thoracic cavity into the abdominal cavity.
So Dr Duke, I put it to you that Mrs Walker had undertaken that elective procedure and was discharged on 5 December 2019 and the procedure was a laparoscopic (indistinct) for those two conditions. So do – is it your view that that’s an invasive procedure?---Not if it was done laparoscopically. Well invasive in that they stick tubes and probes into your abdominal cavity but it’s less invasive than if it was an open procedure. A laparoscopic procedure would tend to have three or four small incisions in the wall of the abdominal cavity. Whereas, if it was an open procedure, there would be a sizeable scar. Laparoscopic surgery tends to have a less prolonged recovery time and it’s associated with less complications.
Is it the case that you would require anaesthesia to perform that surgery?---Yes, well to receive that surgery, hopefully the person performing the surgery doesn’t have anaesthesia.
Is it possible that this procedure, and the lead up to it, could’ve been a stressor for Mrs Walker at the relevant time, being 16 September 2019?---The fact that she was potentially – having surgery several months later could have been a stressor, yes.
But you weren’t provided with that information were you, Dr Duke?---That she had the surgery?
Or that she was suffering from those conditions?---Gastroesophageal reflux? No, she did not mention it when I asked her about her medical conditions, I presume because the surgery was successful, and she didn’t have ongoing issues.
Well the surgery occurred on 5 December so it was relatively after 16 September?---Yes.
So the alleged - - - ?---I saw her - - -
Occurred on 16 September, do you accept that this was something that could’ve been a stressor at that point in time, having the surgery listed?---Yes, I would accept that having pending surgery could be a stressor for somebody.
Thank you. And you haven’t had the benefit of considering that factor in forming a diagnosis?---I was not aware that she had surgery and I was not aware that she was having planned surgery in September 2019, so no, that information did not get incorporated into my assessment of her diagnosis.
Okay. And does that information, and all of the information that we’ve gone through that you said you hadn’t had the benefit of considering, does that change your diagnosis?---I think – the information that you’ve given me about the additional episodes where she’s had contact with general practitioners, with mental health distress, really reinforces my assessment of her past psychiatric history of having repeated episodes of reactive depression. None of those episodes would appear to be reflective of an episode of what would be considered to be endogenous or biological depression. So it doesn’t change that. None of the information you’ve provided to me suggests that she was experiencing active depressive symptoms prior to September 2019. And in terms of her presentation when I saw her, she wasn’t describing active depressive symptoms at that stage, but she was describing a range of anxiety and post-traumatic symptoms. So possible stress of having the laparoscopic (indistinct) several months down the track, I would accept that that could have been a stressor but I don’t think that, in and of itself, would be enough to justify changing my diagnosis, or my opinion, that she didn’t have major depression active at the time of the workplace incident.”
Ms Tarrago also went through the Applicant’s prior medical history with Professor Varma. Again, Ms Tarrago outlined the fact that the Applicant was waitlisted for surgery when the incident occurred. The following exchange occurred – Tr. 16.12.2021 p. 80:
“She’d previously been treated with anti-depressants. Shortly prior to the 16 September 2019, she suffered health issues and was waitlisted for elective surgery. She reported also in her evidence yesterday that she had been able to deescalate badly behaved customers at work and had built resilience over the years.
So in that setting, is it the case that external factors to her employment, could have significantly contributed to her claimed condition?...In some cases, yes, but in spite of those things, she was still able to work normally and there was no complain as far as her work performance…so she was coping with that…
But in your evidence, Doctor, you said you didn’t ask those questions of Mrs Walker, with respect to her at least her gourd and hiatus hernia?---Yes, yes. So yes. So I said that, but I’m saying that even if it was there, she was still coping well at work and was able to, yes, do her job without any problem, mistakes or complaints.”
Both Dr Duke and Professor Varma discounted the Applicant’s physical health issues as constituting contributing factors to her reaction to the work incident of 16 September 2019.
Dr Kar quite correctly pointed out in his reports and evidence that medical chronic diseases and life-threatening diseases are environmental influences in the development of mood disorders such as depression – SR p. 11 para 49.
The issue before the Tribunal, though, is whether, in the case of the Applicant, her overall medical condition prior to, and at the time of, the 16 September 2019 incident, played a part in her subsequent psychiatric condition. Clearly, Dr Kar believed that the Applicant was already suffering from depression prior to the incident, and that her general health condition was influencing her extant mood disorder.
Conversely, both Dr Duke and Professor Varma discounted this diagnosis. Both Dr Duke and Professor Varma pointed out that, ostensibly at least, the Applicant was coping well at work up until the incident. Neither Doctor diagnosed the Applicant as suffering from chronic constitutional depression that had developed prior to the incident. Dr Duke did not discount that the Applicant may have suffered from reactive depression following the incident. However, whatever the psychiatric label was placed on the ailment that afflicted the Applicant, both Dr Duke and Professor Varma were adamant that there was no evidence that supported the proposition that the Applicant was suffering from a mental ailment immediately prior to the September 2019 incident, and that the sole stressor that resulted in her suffering from a mental ailment (whatever the label can be put on it) was the September 2019 work incident.
Dr Kar conceded during cross-examination that, despite his diagnosis of the Applicant suffering from depression prior to the September 2019 incident, there is no evidence that the Applicant was exhibiting any symptoms of depression prior to the incident – Tr. 16.12.2021 p. 99:
“Yes, thanks. Just under the heading question four, what is the approximate date of onset?---Yes.
And you’ve said there, it’s of insidious onset, it can be difficult to pinpoint the onset and then the second paragraph you said, the initial symptoms of depression can be subtle and not overt and may not be evident to the person themselves. I would assume that the onset of Ms Walker’s depression would’ve been in the previous weeks before she decompensated at work following an insignificant event, do you see that?---Yes.
You accept that there’s no reported or documented evidence anywhere of those symptoms of depression that you were referring to at that time?---Until then, yes, the first presentation was her distress.
Okay. And in fact, there’s no evidence at all of symptoms?---Well - - -
In the weeks leading up to the event?---I don’t have the evidence, the absence of evidence is – does not mean that evidence was actually – that illness was absent. And as I’ve described elsewhere, if a person is (indistinct) to have hypertension at a doctor, or (indistinct) chronic condition like diabetes, they may – that doesn’t mean that the day they – they were well and they were suddenly (indistinct) a condition and obviously, that condition has happened over a period of time.
I understand your opinion about that, doctor, I am just asking you that there isn’t any evidence?---Yes, there is no evidence, yes.
Okay?---I mean, there may not because a person who generally - - -
I am just asking if – yes, all I am asking you is that you're confirming that there isn't any documented evidence, that's all I am asking?---I don't have any evidence of it, of course, yes.”
The Tribunal finds that the conclusions reached by Dr Duke and Professor Varma are preferable to the diagnosis of Dr Kar as they align more sensibly with the evidence presented to the Tribunal.
Turning now, to other issues that arise in the course of the evidence presented and the submissions made by Mr Nolan and Ms Tarrago.
First, Mr Nolan submits that the sheer weight of three expert opinions favouring a finding of significant contribution, against the outlier opinion of Dr Kar, should count heavily in favour of a finding that a significant contribution exists – ACS p. 5 para 24.
Conversely, Ms Tarrago submits that weight of evidence is not a matter to be determined by the number of experts, but on the credibility of those experts and the evidence they provide. In that regard, Ms Tarrago submitted that the Tribunal should prefer the evidence of Dr Kar as his opinion was based on accepted diagnostic tools and academic literature. Further, Dr Kar examined and assessed the Applicant two months after the September 2019 incident, and, as such, his first report is the most contemporaneous expert opinion before the Tribunal. Finally, Dr Kar was provided with a more complete psychiatric and family history than the other medical experts –RSR p. 2 para 4.
The Tribunal agrees with Ms Tarrago that, when reaching a finding on preferable medical expert diagnoses and opinions, the key issue is not the number of medical experts supporting a particular proposition, but which medical expert opinion(s) aligns more closely with the evidence presented. The fact that one medical expert is an outlier is not determinative of the matter. It may be the case, and sometimes is, that a medical expert who opines a diagnosis at odds with the bulk of other medical experts will be preferred. It may be that, as Ms Tarrago highlights, the medical report of the outlier expert is more detailed, is based on the all the facts, aligns with diagnostic tools and academic literature and, finally, comports with the evidence, both oral and written, presented to the Tribunal.
In this matter, it appears to the Tribunal that Dr Kar was overly protective of his diagnoses and appeared to take personal slight when a different opinion was opined. It was apparent to the Tribunal that Dr Kar adopted an absolutist approach when giving his opinions. He not only strenuously disagreed with the opinions of his professional colleagues but argued that only his diagnoses were open. For example, in his supplementary report, Dr Kar made these observations about the opinion of Dr Duke – Exhibit 8 pp. 86 – 87:
“Major Depressive Disorders can resolve within a few months. A person who is currently experiencing an episode or was experiencing a Major Depressive Disorder episode like Ms Walker did at the time I saw her, may not have had a Major Depressive Disorder several months later.
I would question how Dr Duke could disagree with the diagnosis I made based on the history provided to me by Ms Walker at the time I saw her. Does this mean Dr Duke rejects the history Ms Walker gave me, or are they claiming that Ms Walker is an unreliable historian?
If it is accepted what Ms Walker told me when I saw her is reliable, I would like to know how another diagnosis other than Major Depressive Disorder could be made at the time I saw her.”
[Emphasis in the original]
Next, Mr Nolan submitted that Dr Malik and Professor Varma had the benefit of consulting the Applicant on multiple occasions, whereas Dr Kar had only examined the Applicant once. Further, the repeated examinations of Dr Malik as the treating practitioner, has the benefit of a longitudinal perspective, and has built up a relationship of trust with the Applicant, meaning she is likely to be more forthright and honest due to that trust – ACS p. 5 paras 25 – 26.
In support of these propositions, Mr Nolan quoted HNGN and Military Rehabilitation and Compensation Commission (2018) 162 ALD 606 at [90]. However, when reading this decision not only is para 90 of relevance, but so too is para 91, both of which, are set out below:
“[90]In summary, the treating practitioner has the benefit of a longitudinal perspective, and will often have built up a relationship of trust with a patient over a period of many months or even years. This is advantageous because the patient may be more honest and forthright due to this relationship of trust, however as indicated by Freckelton and Selby, there is a risk of therapeutic bias and the acceptance by the treating practitioner of the self-reported symptoms of the patient.
[91] An independent medical examiner, on the other hand, will reach a diagnosis based on a review of a patient’s medical records, and may only see the patient for an examination on one or two occasions before compiling a report detailing their diagnosis. They will consequently not have the benefit of a longitudinal perspective which will mean that their diagnosis cannot be revised over time. However, the independent medical examiner will have the benefit of reviewing the substantive medical records of the patient which may include the opinions of numerous treating practitioners over time. Additionally, as they do not have an ongoing relationship with the patient, the independent medical examiner may form a more objective view than the treating practitioner. They may be more inclined to question the self-reported symptoms of the patient, but as indicated by Freckelton and Selby, there is a corresponding risk that the independent medical examiner may accept the self-reported symptoms of the patient.”

Some care must be exercised when considering the evidence of a treating doctor, especially when that doctor has developed close bonds with their patient. In D’Amico and Comcare [2018] AATA 54, the following observations were made (at [53]):
“Further, some caution is required when receiving evidence from a GP who has been treating a person for many years. It is often the case that in such circumstances the bonds of familiarity and friendship subconsciously erode the professional impartiality born of a less familiar and lengthy relationship. It is often the case that a treating doctor falls into error by becoming more of an advocate than a dispassionate professional. This, it should be added, is not a criticism, but simply a reflection of the vicissitudes of human empathy.”
The Tribunal is not convinced that a treating medical practitioner is always in a better position than an independent clinician when opining a diagnosis. Certainly, having a longer time to treat a patient can result in a medical expert being able to give a more considered diagnosis, and where a fuller picture of a patient can be obtained. However, alternatively, the bonds of familiarity and, sometimes, friendship that develop can colour and erode the objectivity of a treating clinician.
In this matter, however, the Tribunal formed a positive view of the evidence of Dr Malik. His testimony was measured and objective, and had the benefit of a longitudinal perspective.
The testimony of Dr Duke, Dr Malik and Professor Varma was broadly consistent. As Mr Nolan submitted, all three doctors were cross-examined about the Applicant’s psychiatric conditions, family history, physical health and work history. It was the case that some of the Applicant’s history was not known to the Doctors’ prior to their cross-examination. Ms Tarrago went through the Applicant’s history in great detail with each of the Doctors. Ms Tarrago engaged in a very competent and forensic cross-examination, and if any of the Applicant’s history would have changed their diagnoses or opinions, then the cross-examination provided that opportunity. As Mr Nolan submitted, however, all three psychiatrists confirmed their opinions that the work incident significantly contributed to the claimed ailment – ACS p. 7 para 28.
Next, it is not contested that an employer takes an employee as they find him or her. The law in this regard has been set out above. The fact that the Applicant’s reaction to the September 2019 incident may have been extreme, is not determinative of the issue. It is only necessary to quote the following observations of von Doussa J in Wiegand v Comcare [2002] FCA 1464 at [31]:
“In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.”
The Tribunal agrees that the evidence establishes that the Applicant adversely reacted to the incident of 16 September 2019, that this created a perception in her mind (irrespective of whether it would be reasonable or unreasonable in the thinking of others) and the perception contributed in a significant degree to her suffering her mental ailment.
The Tribunal, therefore, finds that the Applicant’s claimed ailment was contributed to, to a significant degree, by her employment.
DECISION
The decision under review is set aside, and in its place, it is determined that:
(a)Comcare is liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the Applicant’s mental condition suffered on 16 September 2019; and
(b)the costs of, and incidental to, the application are payable to the Applicant, pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), as agreed or taxed.

I certify that the preceding 204 (two-hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

...........[SGD]............................................................
Associate
Dated: 29/04/2022

Date of hearing: 15 and 16 December 2021

Applicant:
Via Microsoft Teams

Date final submission received:
14 February 2022

Counsel for the Applicant:
Mr Phil Nolan

Counsel for the Respondent:
Ms Avelina Tarrago

Solicitors for the Applicant:
Mr Joel Tucker
Slater and Gordon Lawyers

Solicitors for the Respondent: Ms Emma Hunt
Australian Government Solicitor

Date of hearing:	15 and 16 December 2021
Applicant:	Via Microsoft Teams
Date final submission received:	14 February 2022
Counsel for the Applicant:	Mr Phil Nolan
Counsel for the Respondent:	Ms Avelina Tarrago
Solicitors for the Applicant:	Mr Joel Tucker Slater and Gordon Lawyers
Solicitors for the Respondent:	Ms Emma Hunt Australian Government Solicitor