Weatherburn and Comcare (Compensation) - [2019] AATA 4196

Weatherburn and Comcare (Compensation) [2019] AATA 4196 (14 October 2019)
Division:GENERAL DIVISION
File Number(s): 2017/3172; 2017/5860
Re:Jennifer Weatherburn
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Date:14 October 2019
Place:Canberra

The Tribunal sets aside the reviewable decisions dated 20 April 2017 and 4 September 2017 and finds in substitution that Miss Weatherburn is entitled to compensation under ss 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988 for persistent depressive disorder.
............................................................
Deputy President Gary Humphries AO
Catchwords
COMPENSATION – major depressive disorder – whether the applicant’s major depressive disorder remains contributed to, to a significant degree, by her former employment – multiple possible causes of applicant’s condition – whether Comcare has discharged the evidentiary burden required by Comcare v Power [2015] FCA 1502 – decisions under review set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Boyd v Australian Industry Development Corporation [1990] FCA 525
Comcare v Power [2015] FCA 1502
Plumb and Comcare [2004] AATA 999
Prain v Comcare [2017] FCAFC 143
REASONS FOR DECISION
Deputy President Gary Humphries AO
14 October 2019
BACKGROUND

Jennifer Weatherburn had been a public servant for many years when, in August 2012, she suffered a psychological injury while working at the (then) Department of Immigration and Citizenship. Her injury related to what she described as bullying and to an increasingly heavy workload in a small section tasked with producing information for new immigrants. She ceased working at that time, and was medically retired a year later. On 9 January 2013 Comcare accepted liability for a condition of Major Depressive Disorder, recurrent episode under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
Before the Tribunal in these proceedings were two reviewable decisions made by Comcare. They were:
(a)
a reviewable decision dated 20 April 2017, which affirmed an initial determination

dated 22 February 2017, in which Comcare decided that as of 22 February 2017 Miss Weatherburn had no present entitlement to compensation under ss 16 and 20 of the Act because she no longer suffered the effects of her accepted condition, and
(b)a reviewable decision dated 4 September 2017 by which Comcare made a determination of own motion deciding that Miss Weatherburn had no entitlement to compensation under s 20 of the Act for the period 21 February 2017 to 20 April 2017 because she not suffered the effects of the compensable condition during that period.
The second of these reviewable decisions appears to be substantially redundant, since it simply replicates the effect of the first reviewable decision.
The delegate making the reviewable decision of 20 April 2017 referred to Miss Weatherburn suffering from an underlying life-long psychiatric condition diagnosed as depressive disorder,[1] and that her present symptoms were due to that condition and not to the flare-up caused by workplace circumstances in 2012.
[1] The use of italicised text in this decision generally indicates direct quotation.
Miss Weatherburn has made applications to the Tribunal for merits review of the two reviewable decisions made by Comcare. She contends that she continues to suffer from the compensable condition, and is entitled to ongoing compensation under the Act.
LEGISLATION
An employee’s entitlement to compensation for injury is anchored in s 14 of the Act:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The term injury is defined in s 5A to include a disease suffered by an employee. Disease is defined in s 5B as follows:
(1) In this Act:
"disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
ISSUES BEFORE THE TRIBUNAL
It was common ground between the parties that Miss Weatherburn suffers from a psychological condition. Although there was some variation in the medical opinion as to how precisely it should be diagnosed, that opinion coalesces around the broad description of depression. The parties further agreed that, subject to the provisions of s 5B, this condition constitutes a disease for the purposes of the Act.
It was uncontentious that Miss Weatherburn has suffered a long-term depressive condition. She suffered a work-caused aggravation of that condition in August 2012, a fact acknowledged by Comcare’s acceptance of liability for that aggravation in January 2013. The issue before the Tribunal in these proceedings is therefore a relatively simple one: pursuant to s 5B, has Miss Weatherburn’s psychological condition been contributed to, to a significant degree, by her previous employment? The relevant dates at which this question is to be considered is 21/22 February 2017, the dates referred to in the reviewable decisions as the dates on which Comcare’s liability ceased. However, as the discussion below will indicate, the question is no easier to answer today that it was in February 2017.
THE EVIDENCE
The factual account which follows is collated from a combination of facts agreed between the parties, tendered documents and evidence taken at the hearing.
Miss Weatherburn is 63 years old. She has never married. She said she had worked all her adult life until her injury in 2012; she had gained a lot of satisfaction from working.
She told the Tribunal that she first began to experience depression while working as a nurse in 1974. However, she first consulted a psychiatrist (Dr Tony Lee) in 1990. Dr Lee diagnosed melancholic depressive symptoms. She was treated with Anafranil from 1990, and later with Fluoxetine. She has taken various antidepressants continuously since the early 2000’s. Her condition fluctuated over that time, sometimes as a result of incidents such as her mother’s cancer and the death of a close friend.
Miss Weatherburn consulted Dr William Knox, consultant psychiatrist, in around 2001. This related to her discovering that her mother was suffering from cancer. In a letter dated 19 February 2001, Dr Knox stated that she was seen for her Dysthymia Disorder and had a number of personality traits. He considered she was unassertive and easily felt underappreciated. However, he wrote that it was apparent she was feeling better, partly on account of good news about her mother’s illness. She does not feel it necessary to see me further.
She saw a psychologist, Mr Tony Corless, in 2002. He administered a Self-report Inventory of Depressive Symptoms questionnaire and noted that she scored in the severely depressed range, putting her in the major depressive episode range. In a letter to her then GP, Dr Yeung, dated 20 June 2002, Mr Corless reported that Ms Weatherburn believed that her depression symptoms had been more severe in the past, particularly when she had first become depressed around 12 years ago. She agreed to a course of cognitive-behavioural therapy for her depressed mood. In cross-examination she agreed that chronic tiredness was one of the features identified by Mr Corless.
Dr Patrick Cullen, psychiatrist, wrote a letter to Dr Yeung dated 4 July 2002.

He reported that Miss Weatherburn had problems from an early age: overly sensitive, fearful, dependent on family, with low self-esteem and a habit in childhood of pulling out hair from her head and eating it. Her history suggests lifelong neurosis and a vulnerability to develop episodes of depression, probably with much reactivity, which will be a persistent trait.
Miss Weatherburn joined the public service in 1984, and was employed with the (then) Department of Immigration and Citizenship (the Department, which term includes the various titles by which it has been known) from 24 March 2004. In 2005 she joined the Department’s Settlement Planning and Information Section, an area that prepared information for new immigrants to Australia.
She told the Tribunal her role in the Settlement Planning and Information Section was to participate as a member of a team responsible for developing a booklet entitled Beginning a Life in Australia, an essentially online resource for new arrivals. Though described as a booklet, it in fact had 17 chapters with many references to services in each state and territory which required constant updating. However, over time the team of four members gradually diminished to just one member: Miss Weatherburn. Her workload augmented and she felt increasingly stressed. She worked long hours and often took work home in order to meet deadlines. She said at times she felt nauseous when contemplating the challenge represented by her job.
A key role for her was proofreading documents for publication. In an incident in 2005, she sought to proof read a particular document but was told not to do so. When this document returned from the printer it was discovered that the wrong departmental logo had been used, and her supervisor blamed her for the mistake, shouting at her at the top of her voice within earshot of many other departmental employees. She was shaking and tearful following the incident.
Miss Weatherburn’s sister was diagnosed with schizophrenia in about 2008, a matter which distressed her. In October 2008 Miss Weatherburn was promoted to the APS6 level.
The Department provided a Work Report dated 30 November 2012. The author was Ms Victoria Richardson, Miss Weatherburn’s supervisor. In it she says:
The ongoing responsibility Jenny brought with her when she came to the IPS Section was the management of the “Beginning a Life in Australia” book and translations contract and the associate DIAC Form 994i…[sic]
… Jenny has made use of the open-door policy on many occasions to discuss her frustrations with the relentless work of updating the “Beginning a Life in Australia” products with me…
My records indicate that “in the last 6 months” the only significant change to management in this team was a change in her supervisor…
I can only reflect that her EL1 “in the last 6 months” may have been experiencing difficulties in managing her own workload and may not have been relaying communication and messages accurately to Jenny, thus contributing to Jenny’s feelings of distress…
I have generally been aware of Jenny’s medical conditions… I encouraged her EL1 supervisor to ensure that Jenny had the support of Workplace Health and Safety for her absences…It was also in consideration of Jenny’s medical situation that I allowed her to continue to work 10am – 6:00pm days…
These actions could reasonably indicate that I was concerned for Jenny as a team member and I was taking action through her immediate supervisor to ensure Jenny’s medical conditions were not aggravated by undue demands of the workplace….
In about April 2012 Miss Weatherburn discovered that there was to be a further reduction in the resources available to her to produce the booklet. She was upset by this discovery, and told the Tribunal she was concerned that she would not be able to maintain the quality of the product in the circumstances. She sought, but was refused, a higher duties allowance. At about that time she also discovered that the contract by which the booklet was translated into a variety of languages was not to be renewed. As the effective manager of that contract for the Department, she was upset that this decision had been made without consulting her.
On 27 August 2012 she was asked to proof read a document. She identified a significant mistake in the document, and told her director. Her director became upset, and in turn Miss Weatherburn was also distressed. She left work early. She told the Tribunal she felt suicidal, and couldn’t go back to work. When she rang work the next day to advise that she wouldn’t be in, her director asked her What’s the matter now? Miss Weatherburn felt that this question was inappropriate given her illness. In the period that followed she slept excessively. Feelings of humiliation and sadness that I felt around work continued thereafter. To stop the pain she contemplated suicide.
She attended her then GP, Dr Ravi Vallabhaneni, on 27 August 2012. Dr Vallabhaneni recorded:
feels depressed - been on medication for 15 yr-Prozac, pristiq for 18 months…

experiencing fluctuations form flat-anger and some times suicidal father worried.

Few stresses recntly- and work-- stressful work… doing 3 peoples work…

on and off upset. hip problem- chronic problem.. thinks the medications not working not wanting to take any ant poison.. suicidal thoughts but no plans..

…

Feels like she needs the help now to deal with her problem [errors in original].
The reason for the visit was recorded as Depression, melancholic.
On the same day (27 August 2012) Dr Vallabhaneni wrote to Emergency Calvary Hospital Mental Health Team, saying:
HSe presented to me today complaining of inability to manage her depression to a point that she has suicidal thoughts(t hinking of using something with Strychnine). Family is worried about her. [errors in original]
On 28 August 2012 an ACT Health assessment noted the following about Miss Weatherburn:
Previous Dx depression for approx 20 years. She describes herself as having depression all her life. She was on prozac for 15-20 years and 18 months ago was changed to pristiq 100mg. Today her Dr has increased the medication to 150mg…
Family Social History
Currently Jenny works in the Public service in communications. She has high responsibility and it is a stressful job. She assists in the development of books for Migrants and has to pro o f read them. She gains no recognition for her work. Mo died of ovarian cancer 9 years ago. Loves her father who is now 82 years. Has a sister Ruth who suffers from severe schizophrenia and 2 brothers who suffer from depression. [errors in original]
She attended Calvary Hospital and saw the mental health team there on 29 August 2012.
On 18 September 2012 Dr Vallabhaneni wrote to Dr Lev Fridgant, psychiatrist, and stated that:
… Patient has had suicidal intentions and had even presented to Calvary Hospital for the same before. She was on antidepressants before but pristiq [sic] was the only medication which stabilised her symptoms of depression… She is also unable to cope with the current work and is considering medical related retirement. I have increased her Pristiq to 150mg (from 100mg). She feels stable with this however she had similar response before and then she had recurrence of her symptoms which she is worried about even this time.
Dr Vallabhaneni reported to Comcare by letter on 21 November 2012. Referring to her psychological condition as at the date of injury, he observed:
…Going through the information in the past she did have tendency to fall into the state where she is now.
Dr Zoltan Zsadanyi, consultant psychiatrist, provided a report dated 15 October 2012 in respect of her fitness for duty. He recorded:
Ms Weatherburn said that it was not only work that was the catalyst for her current episode of depression and she informed me of her longstanding history of treatment for depression…
Ms Weatherburn said that work had been the catalyst for her recent history of severe depression. She gave me a lot of background information in relation to the difficulties she had been experiencing at work…
For approximately 6½ years she said she had been placed in a very difficult position. She was a project manager for a high profile $500,000 program meant to employ three people but she said she did most of the work by herself as other staff members had left or had not been replaced…
When I asked Ms Weatherburn how she had coped she started crying. She described herself as being a very hardworking and diligent individual but she said she would often go home and sleep for long periods of time and throughout her weekends.
She said in the last year she had three different EL1 managers. An EL1 position was removed due to restructuring. Ms Weatherburn said she asked to be moved to a different work area but was asked to stay on in her position. She said she had to continue working on her own, consultation with her EL2 had been removed from her and she said she has not been provided any clear directions.
Miss Weatherburn informed me that she kept on going “because of her clients”. She said she could not continue working by the middle of August 2012 from which time she has been off work. …
…she describes a long history of chronic depression for which she has continuously received maintenance treatment with antidepressant medication since 1990.
Dr Zsadanyi diagnosed Chronic Major Depressive Disorder current episode severe without psychotic symptoms. He considered that Miss Weatherburn was unfit for duty in any capacity and that she would likely meet the criteria for medical invalidity retirement.
Miss Weatherburn was treated by Dr Pam Connor, psychologist, in about 2008, and recommenced treatment by her from 21 September 2012. Her clinical notes, which were tendered, make references to unhappiness caused by Miss Weatherburn’s family relationships, as well as to issues at work. On 21 September 2012 the notes record Things at work are very toxic.
Dr Connor wrote a report dated 20 October 2012. She had seen Miss Weatherburn on five occasions between 15 April 2008 and 28 May 2009. In 2008 she was experiencing extreme symptoms of depression, and expressed a strong desire to end her life. At the time of terminating the sessions Miss Weatherburn reported that she was feeling more positive about life in general. Dr Connor noted in October 2012 that she appeared to have returned to the level of depression at which she initially presented in May 2008. She reported Miss Weatherburn presented in the Severe range for depression, with feelings of sadness and hopelessness and a desire to kill herself. She was extremely unhappy in her employment with staffing, lack of support and an inaccessible director. Miss Weatherburn told her that her ongoing employment situation had been a major contributing factor in the worsening of her depression.
In cross-examination, Miss Weatherburn conceded that she did not discuss many of her work-related concerns with Dr Connor, because she felt Dr Connor would be unable to influence outcomes in that area. She also agreed in cross-examination that she had told Dr Connor at that time that my biggest fear for the future is my dad dying.
On 25 October 2012 Miss Weatherburn made claim for a depression, melancholic injury. She provided a statement in support of her claim, where she indicated:
Over the last 6 years due to extreme workplace stress I have experienced mental exhaustion and my work life balance has been affected to a very high degree. …
I have had short-term assistance from a few kind people who have found time when possible to assist with the booklets…However all responsibility and most of the work has fallen to me…
At the time of the restructure [in 2009]… I too formally requested a move within the Division… My request was supported by my Supervisor. I was informed… that the First Assistant Secretary… wanted me to continue in my present role. I felt devastated, anxious, angry and overloaded…
I have found the lack of communication channels extremely difficult as there has been a lack of opportunity to meet and consult with management in regards to carrying out change management for the last 6 months. …I have felt myself becoming paralysed into inaction by the lack of consultation between myself and management. This has had a marked effect on my self-esteem and has made me again feel isolated…
My EL1, Julie Streatfield eventually found out and let me know I was to take on the roll [sic] of Divisional Web Coordinator with the section. This was not discussed with me prior to this decision being made by my Director.
The long-term lack of communication with my EL 2 regarding my previous duties and my place in the section moving forward has caused me to feel a great deal of anger and frustration.
…at Branch meetings the booklets were never mentioned as being part of the work carried out by the section. This made me feel angry and devalued.
I have experienced long-term personal stress and severe depression as a direct result of work place circumstances and duties I have been expected to carry out over the last 6 years. In spite of this I have been promoted from an APS3 to an APS5 and finally to an APS6 and received a certificate of commendation from the Division FAS.
Since completing the 2012 edition of the…booklets in late April 2012 I felt dissatisfaction has been directed towards me by my Director in regards to moving forward with the review of the booklets. I have however felt a degree of paralysis and have been unable to move forward with this task due to a lack of direction. I believe this is due to a lack of consultative support from my Director over time and a lack of direction. Because of this I have felt guilt and a sense of personal failure which has upset me greatly…
By the time I had returned from purchased leave and been back for a matter of days I found I was unable to work due to the return of panic attacks and other serious symptoms of extreme stress. While I was on sick leave I was offered a position in another section by my Director via my EL1. I felt unable to take up this offer.
I was referred by my GP to a Clinical Psychologist as part of a Mental Health Plan in 2008 and again in September 2012. …I have experienced severe psychological trauma as a result of my workplace…

Dr Jeffrey Bertucen, consultant psychiatrist, provided a report dated 12 December 2012. In it he noted that Miss Weatherburn:
…maintains that at the time of beginning work at the Department in early 2004 her psychological symptoms were in stable and satisfactory remission largely owing to the use of psychotropic drugs and regular review by her general practitioner…
Dr Bertucen recorded that she reported a regression attributable to two factors:
(1) the diagnosis of late onset schizophrenia in her younger sister and (2) excessive workload associated with the production of the booklet…
He also noted:
A departmental decision to review whether to extend the publication contract was taken without adequate consultation with her (in her opinion). Ms Weatherburn took this decision as a personal slight…
…I believe that Ms Weatherburn fundamentally has the psychological capacity to return to work at some stage in the future, albeit perhaps with a different employer or within a different section. My overall impression of the current withdrawal from work is that it has been precipitated by a sense of profound disappointment and resentment at having been marginalised and not consulted in the contract review process. Therefore in my opinion it is not a question of incapacity, rather profound disinclination to return to work under the current circumstances.
Dr Connor again reported on Miss Weatherburn on 16 December 2012. She diagnosed her current condition as Major Depressive Disorder. Dr Connor agreed with Miss Weatherburn’s own assessment that her depression was worse than it was in 2008. When asked to comment on the relative contribution of employment and non-employment factors to her current condition, Dr Connor commented:
It is difficult to determine the relative weight that should be placed on each of the contributing factors. My understanding in 2008 was that Ms Weatherburn’s depression was mostly related to family issues and concerns, as these dominated our session discussions. My most recent discussions with Ms Weatherburn would suggest that, in more recent times, work issues are a predominant source of stress and exhaustion and that these issues have exacerbated depressive symptoms already present.
Dr Vallabhaneni wrote a further letter dated 3 January 2013. He considered that Miss Weatherburn had not responded well to her medications and was still waiting for psychiatric review. He opined that she was likely to be on medication for a long period.
Psychiatrist Dr Lev Fridgant treated Miss Weatherburn at intervals from February 2013 until November 2013, and again in November 2014.
Based on Dr Zsadanyi’s opinion of October 2012, the decision was made that Miss Weatherburn should be retired from the public service on medical grounds. She received a termination letter on 20 August 2013. She told the Tribunal she was surprised to receive this news, but later in her evidence conceded she was in fact shocked by it. The termination on medical grounds became effective on 23 September 2013. However, she had not worked there since 27 August 2012.
Psychologist Ms Amanda Harris saw Miss Weatherburn for 19 sessions over a 12-month period from March 2013. Ms Harris diagnosed Major Depressive Disorder, moderate to severe, with symptoms of severe anxiety and posttraumatic symptoms in a report of April 2014. She opined that Miss Weatherburn’s
…mental health difficulties were triggered by ongoing stress and difficulties in the workplace which became overwhelming to the point that she was unable to cope.
Ms Harris treated her with cognitive behavioural therapy and interpersonal psychotherapy. At the end of the treatment, she was significantly improved. However, Miss Weatherburn gave evidence that in about April 2014 Ms Harris told her that she found the constant references to her former employment boring, and in consequence Miss Weatherburn decided to withdraw from her care.
In an undated letter to Comcare, Dr Waduwawatte Sumathipala, who by 2014 was treating Miss Weatherburn at Jamison Medical Clinic, agreed with Dr Shaikh’s view about the likely cessation of the contribution from employment to her mental health condition by September 2014 (see paragraph [64] below). However, in a further report to Comcare dated 25 September 2014 Dr Sumathipala listed a number of factors which are contributing to Ms Weatherburn’s condition. The first of these is Continuing distress regarding previous workplace incidents. He recommended the continuation of antidepressant medication and psychological counselling.
In a letter to Comcare dated 18 July 2014, Dr Sumathipala noted that Miss Weatherburn feels that her symptoms have improved considerably since she stopped working and she is better able to cope. Miss Weatherburn conceded in cross-examination that at one level that assessment was correct. Dr Sumathipala also noted that she was unable to visit the Belconnen Mall because it was close to where she used to work and that caused her anxiety. She told the Tribunal she now went there to shop, but only late at night when few people were around.
Ms Harris provided a report dated 15 August 2014. In it she stated:
Miss Weatherburn also presented with symptoms congruent with a traumatic response to ongoing stress, with persistent nightmares; ongoing rumination over events in the workplace and high levels of distress associated with this…
Miss Weatherburn’s presenting and ongoing difficulties are directly related to the stresses she encountered in the workplace…
On 4 May 2015, Ms Harris wrote to Comcare, indicating that she and Miss Weatherburn had jointly decided that treatment should cease for a period of time. However Ms Harris anticipated that treatment should resume in the future.
In about August 2015 Dr Promila Pratap, by now Miss Weatherburn’s GP, referred Miss Weatherburn to Dr May Matias, a psychiatrist. Dr Matias wrote to Dr Pratap on 3 February 2016, noting that Miss Weatherburn had provided a history of stress and burnout at the Department. She had got to the point that she was unable to go on as she felt that her situation in the workplace was beyond endurance due to the lack of support …
On 1 April 2016 Dr Pratap wrote to the Emergency Department at Calvary Hospital, seeking advice regarding a history of:
…plaitations and flutter over last 3-4 months
has been udnergoing family stress and laso h/o work-related stresses, whichwas well controlled with ehlp of medicaition and psychology counselling. [errors in original]
Miss Weatherburn presented at the emergency department that day complaining of palpitations.
Psychiatrist Dr Antonella Ventura examined Miss Weatherburn and provided a report dated 19 January 2017. She noted that Miss Weatherburn was a vague historian who struggled with recounting the chronology of the history, and noted that she had not seen a psychologist for over a year. She made these observations:
She was initially diagnosed and treated with a major depressive episode in 1990 and has suffered from the current episodes of major depressive disorder since. The last episode of the major depressive disorder may have been precipitated by her work with the Department of Immigration and Border Protection. That episode of major depressive disorder has now gone into remission. Her current psychiatric symptoms are consistent with the lifelong history of symptoms consistent with a psychiatric DSM-5 diagnosis of persistent depressive disorder (dysthymia). Taking into account the activities of daily living I’ve formed the view that she is fit for some part time work.
Dr Ventura considered that the aetiology of the current condition is constitutional and related to past difficulties with relationships and not a result of her employment... a position she reached On the balance of probabilities. The aggravation of the compensable condition had resolved and Miss Weatherburn no longer met the criteria for major depressive disorder. However, she did not consider that Miss Weatherburn was voluntarily exaggerating her symptoms.
In September 2018 Miss Weatherburn again contemplated suicide. At that time her father had suffered a series of strokes and been diagnosed with bladder cancer. Miss Weatherburn had wanted to see her brother more often, but he had refused. Both these factors were upsetting her. One day she took an overdose of Valium. She recalled being revived on her kitchen floor by ambulance officers and being taken to hospital. She was hospitalised for 3½ weeks at both Canberra and Calvary hospitals.
She told the tribunal she had rung her solicitor on the day she took the overdose to give instructions on things he should tell the Tribunal in these proceedings if she did not appear there herself. Under cross-examination she agreed that she told a psychologist at Calvary Hospital that her suicide attempt was precipitated by an upsetting phone call with brother with whom she has a complicated relationship.
She told the Tribunal she presently sees both a psychiatrist and a psychologist. She said I will never get over the treatment that I received from my supervisors while I was at Immigration. She dreams about her former work; she is consumed by thoughts of how it’s affected my life.
In cross-examination, Miss Weatherburn acknowledged that her mother and brothers had had depression and that her sister was schizophrenic.
EVIDENCE OF MEDICAL AND PSYCHOLOGICAL EXPERTS WHO TESTIFIED AT THE HEARING
Dr Promila Pratap, Miss Weatherburn’s GP, provided a report dated 23 February 2015. Dr Pratap observed that the chances of affects of her work related symptoms to completely resolve are very little [sic]. Dr Pratap provided a further report dated 24 October 2017. She diagnosed Chronic Major Depressive Disorder without psychotic symptoms together with Anxious/Avoidant traits, conditions she considered to be permanent. She noted a history of recurrent depressive episodes since her teenage years, as well as Miss Weatherburn’s view that work-related stress in 2012 when she was not involved in a contract review process triggered her depressive episodes. She also observed:
It is very difficult to explain ongoing contribution from work place injury. However her illness is such that it will be very difficult and almost impossible to be relieved of all of her symptoms ever.
Dr Pratap gave evidence at the hearing. With respect to her opinion about the cause of Miss Weatherburn’s illness in 2012, Dr Pratap said she believed work-related stress triggered her symptoms. She said that Miss Weatherburn continue to present at her surgery with those symptoms, as a baseline level all the time but with fluctuations in acuity. The need for treatment therefore continues, and she continues to be unfit for work.
Dr Pratap was asked in cross-examination about her referral of Miss Weatherburn to Dr Matias, a psychiatrist, in about August 2015. She agreed that Dr Matias would not be able to see Miss Weatherburn until early 2016 through lack of availability. Dr Pratap was asked whether she considered that Miss Weatherburn’s condition was sufficiently serious to warrant a more urgent consultation with a psychiatrist. She responded:
…she did have a dip in between…there was something dipping in between and then there was a suggestion that she needed to go urgently but we couldn’t get her in.
Dr Matias produced a report dated 14 November 2016. Dr Matias noted Miss Weatherburn’s account that her aggravation of Major Depressive Disorder was the result of perpetual lack of support, work overload and constant lack of resources/ personal. She considered that that work caused an aggravation of her underlying depressive condition. In her opinion Miss Weatherburn would need antidepressants indefinitely, for a condition which has now become chronic. She considered her unfit to engage in any type of work or rehabilitation program.
Dr Matias produced a further report dated 13 February 2017. In it she responded to Dr Ventura’s report of 19 January 2017. Dr Matias reaffirmed the opinions she expressed in her report of 14 November 2016, commenting that Ms Weatherburn has consistently indicated that the workplace has caused and continues to cause her ongoing low mood. She discerned no exaggeration of her symptoms and said that the history Miss Weatherburn provided indicated that there was no defined period that her condition was in remission.
Dr Matias reported again on Miss Weatherburn on 5 February 2018. She considered reports of Drs Knox and Lovell (discussed below). She agreed with their opinion that Miss Weatherburn was incapacitated for work, noting the three doctors’ divergence from the view of Dr Ventura that she was fit to return to work. She wrote that her compensable condition has not ceased to exist, and that it continues to be materially contributed to by her previous employment. She noted Miss Weatherburn’s account that She relives what happened [at] her work constantly. She referred to Miss Weatherburn’s account that she worked full-time until “I could not endure it any longer”. She concluded:
Despite the fact that she has not been at the Department for 5 years now, the effect of the employment which has resulted to the aggravation of her condition, continues, and there has been no remission which can fully delineate the cessation of the compensable condition.
Dr Matias gave evidence at the hearing. She was asked in cross-examination about her opinion that work continues to be contributor to Miss Weatherburn’s psychological condition. She said that, based on her own reports, Miss Weatherburn never got back to her previous pre-morbid state. Dr Matias conceded that this opinion was based on Miss Weatherburn’s own reporting, given that she had not examined her before the date of injury nor seen clinical reports from that period.
Dr Wasim Shaikh, psychiatrist, examined Miss Weatherburn on 28 May 2014. In his report stated 2 June 2014, he diagnosed her with Major Depressive Disorder, recurrent. He noted that:
There was obvious evidence of cognitive disturbances, with poor memory and concentration. Her speech was low, and she would often present with loss of train of thought. Her mood was low and she was frequently tearful. Her effect was generally blunted.
He noted that:
While she presents with some ruminative thoughts regarding her work experiences, the longer pre-existing history, the illness of her sister, and the death of the mother all cast doubt regarding workplace injury being a significant ongoing contributor.
Dr Shaikh said that:
Her history dates back at least to 1990, and perhaps much earlier. There is a contribution from a prejudicial childhood, family history, and most recent contributors have been a combination of perceived work stressors and a family illness.
He concluded that:
Ms Weatherburn continues to present with some ruminative thoughts regarding prior experiences. Whilst there continues to be minimal levels of contribution from work injury, I believe that this relationship will cease to exist by September 2014. Any subsequent symptoms are likely to be related to pre-existing condition.
Dr Shaikh gave evidence at the hearing concurrently with Dr Lovell and Dr Knox. All three doctors agreed that Miss Weatherburn had suffered an aggravation of depression in August 2012 which was significantly contributed to by her then employment. All three further agreed that she had been a truthful historian when interviewed.
Dr Shaikh affirmed his diagnosis of Major Depressive Disorder, recurrent, suggesting that the evidence indicated it continued to be apposite. He thought that the suicide attempt of September 2018 was illustrative of recurrent depression which settled pretty quickly.
At the time he examined her in May 2014 he considered that it was increasingly difficult to justify a relationship between the condition she exhibited and her employment. At the hearing, he did not consider that her previous employment made a significant contribution to her condition. He noted that in 2012 she had attributed 30% of her symptoms to her sister’s issues, 10% to grieving for her mother and the rest to work-related factors. In Dr Shaikh’s opinion, that latter component had decreased in significance for one or two years after 2012. The fact that she had not been exposed to the work environment in more than six years would have to make that element less than significant now.
Dr Shaikh pointed out that Miss Weatherburn had told her GP in September 2012 that she wanted to keep working until age 60, and that she was now 63. He used this to rebut Dr Knox’s suggestion (see below) that her loss of employment was part and parcel of the ongoing contribution made by work-related factors to her depression.
Dr Derek Lovell, consultant psychiatrist, provided a report on Miss Weatherburn dated 15 November 2017. He noted that she had not consulted a psychologist for around two years. He recorded that she had described childhood neurotic traits, dependent traits and first reported suicidal ideation in the teenage years. She suffered from a life long dysthymic disorder which fell short of a major depressive disorder.
Dr Lovell reported:
There is no diurnal mood variation, no middle or terminal insomnia and no significant difficulties with concentration or focus. She does avoid the Belconnen area and described some anxiety symptoms, particularly in crowds. She has returned to her earlier level of mood disturbance.
I am not of the view that the contribution from work continues. The recurrence of major depression which was caused has now reached a remission and she continues to describe some symptoms of dysthymia and a mixture of anger and anxiety. Her preoccupation with work has increased since the claim was denied…
It is likely the aggravation ceased around the time she ceased treatment with her psychologist Amanda Harris. She was described by the general practitioner at this time as being reasonably stable, sleeping pattern quite bad. There was infrequent contact with Dr Fridgant and treatment with Amanda Harris as she felt there was no benefit…
No aggravation has occurred currently. The underlying pathology has not worsened.
He considered that there was a 90% chance of recurrence of depression and she should stay on antidepressants indefinitely.
In his concurrent evidence, Dr Lovell confirmed his diagnosis of dysthymia, which he considered had existed since 1990 or earlier. She did not suffer a major depressive disorder, in his opinion, although there had been episodes of major depression. He identified an underlying sense of anger, linked to an unsupportive workplace.
Commenting on her suicide attempt in September 2018, he said that the Calvary Hospital clinical notes suggested that the attempt was related to estrangement from her brother and her father’s ill-health. At that stage the diagnosis would have been a recurrent depressive disorder but the same clinical notes suggested that her appropriate diagnosis at discharge was dysthymia. More generally, he thought that she would experience recurrent and self-limited, rather than ongoing, depression throughout her life. Her dysthymia was now almost part of the lady’s life in terms of personality style, a matter he linked to her not being married or having children.
In terms of the ongoing contribution to her present condition from employment, Dr Lovell considered that the initial spike from employment had settled and she got back to a baseline. Subsequent episodes of depression have been unrelated to employment. He said of her former employment: That stressor is ceased. He also told the Tribunal this:
I am not of the view that the current psychological condition bears any relationship to the earlier aggravation by work at present. There are multiple other factors, as I alluded to earlier in terms of the social circumstances: the ongoing anger that she holds towards work, the fact that people when they are unhappy often dwell on how they have been wronged or what has occurred that hasn’t been favourable in their lives, and I think this is pre-existing with the constitutional dysthymia which has been present for a lengthy period of time. The condition hasn’t progressed but it’s followed a natural course and there have been further episodes of depression unrelated to work which is now almost eight years ago, and I think that what we’re seeing, really, is the natural history of her major depression occurring in a very unhappy lady who meets the criteria for dysthymia.

Reflecting on Dr Knox’s observation that Miss Weatherburn’s condition had been exacerbated by the loss of employment (see below), he considered that it was unemployment…rather than employment factors, that was contributing to her present condition. Having no partner or children, work had been very important to her, and her search after meaning for her present unhappiness has led her to associate this with her loss of employment.
Dr Knox examined Miss Weatherburn on 7 September 2017 and provided a report to her solicitor the same day. In his opinion her mental health has been stable at a significantly clinical level of distress and disability now for the last two or three years. Despite her mood being modestly better than when she became ill in 2012, she continued to have a clinical level of Depression.
Dr Knox opined that her life was better away from the stressors of the workplace. He said she gave a convincing history of bullying and a heavy workload over many years in the Department. He commented:
She asserts that there was poor support from managers and that she was “isolated” in the workplace. Your client has ongoing unpleasant memories of that time and remains fearful of any return to work. These states of mind underpin her continuing Depression. While it is the case that she has likely had chronic Depression, not unreasonably labelled Persistent Depressive Disorder (Dysthymia), there had been significant aggravation of this underlying disorder, against the background of a strong family history of Depression, by the stressors in the workplace. [Dr Knox’s emphasis]
He disagreed with the opinion of Dr Ventura that Miss Weatherburn has reverted to her baseline state of low mood and is therefore fit to return to work. He considered that she would be volunteering to return to work were this the case. She remained fearful about returning to the bullying environment. He noted her reports of poor self-esteem, disturbed sleep and a strong sense of failure and shame/guilt. Her life was now very empty and unfulfilling.
Dr Knox diagnosed Double Depression, i.e. underlying Persistent Depressive Disorder (formerly called dysthymia) with an overlay of Major Depressive Disorder. Her condition was the result both of her underlying chronic mood disorder and the work-based aggravation. He considered that she is likely to continue at the present level of distress and impairment indefinitely.
Dr Knox provided a further report dated 12 December 2017. Here he commented on the report of Dr Lovell of 15 November 2017 and set out what he considered contradictions in that report. For example, he noted that Dr Lovell considered that she had returned to her pre-injury level of mood disturbance, yet was most likely incapacitated for work. Dr Knox noted that at her preinjury level Miss Weatherburn was fit for work. She is more unwell now, he said.
Dr Knox considered that she was at increased level of future worsening of her depressed mood, due to no longer having the satisfaction of work. She is now permanently apprehensive and mistrustful. He considered that Miss Weatherburn was unlikely to have bounced back to her “earlier level”. There continued to be aggravation of her condition, in his opinion. He said:
…what is very clear in this matter, I assert, is that your client remains more severely distressed and impaired on account of mood disorder than was the case prior to her work-place injuries.
In his concurrent evidence Dr Knox considered that the dysthymia was likely to continue, and perhaps even get a little worse. He acknowledged that there were family triggers for the suicide attempt in September 2018, but also considered that it was part of the ongoing condition. He agreed with Drs Shaikh and Lovell that the natural course of her condition was a significant factor, one that would probably get worse as she aged. He disagreed, however, with their assessment of the ongoing contribution from employment. Where employment had been a major part of [her] life’s identity its loss can have a significant effect. A person with decades-long dysthymia is going to be a more vulnerable person in the context of employment. A history such as she experienced sets in train a more chronic course that doesn’t go away. He added:
…a psychiatric, like a physical, injury can sometimes result in permanent poor health where the disability itself becomes a stressor. The person who is more unwell, dysthymic, having episodes of major depression and reflecting… has more time on their hands to worry about things… That person’s life has become degraded by losing their job … having lost that, I don’t think … that a person just walks away…
Psychologist Susan Pelengaris gave evidence at the hearing. A psychological report she authored dated 20 May 2019 was tendered. In it she said that Miss Weatherburn continued to suffer from what Dr Matias had diagnosed as Major Depressive Disorder and Anxiety (panic attacks). When asked if she still suffered from the workplace injury, she responded “Yes” in that she is in limbo in an unresolved situation and financially impinged. Ms Pelengaris noted in her evidence that Miss Weatherburn had experienced a re-aggravation of her condition as a result of Comcare terminating her eligibility for compensation in 2017.
CONSIDERATION
As already mentioned, the sole issue before the Tribunal is whether Miss Weatherburn’s former employment continues to make a contribution, to a significant degree, to her psychological condition. I find that that condition is best described as persistent depressive disorder (or dysthymia), that being the opinion of Drs Knox, Ventura and Lovell.
In answering that question, the Tribunal is assisted by a number of facts which are either common ground between the parties or are so apparent on the evidence as to be incontrovertible. Those facts are:
(a)Miss Weatherburn suffers a lifelong depressive condition;
(b)That condition has fluctuated in acuity throughout her life;
(c)Her employment at the Department aggravated that condition in the period leading up to August 2012, such that a compensable injury under the Act arose;
(d)She continues to suffer from a depressive condition;
(e)Stressors relating to her family have been factors impacting on her depressive condition both before and after August 2012;
(f)She believes that factors relating to her former employment continue to impact on her depressive condition, although her belief as to the effect of her former employment on her condition is not determinative of that relationship; and
(g)She was a witness of truth in these proceedings.
One further fact should be accepted, despite it not being uncontested. That fact is that she is not presently fit for employment. With the exception of Dr Ventura, that was the unanimous opinion of the expert witnesses.
By its nature, a question concerning the impact of certain factors on the course of a psychological condition is a matter lying substantially at the feet of medical experts. Clearly, there is no empirical test available to answer this question; rather, it will be one determined largely on the basis of applying professional experience and judgement to the available evidence. Such experience and judgement may, as the facts of this case illustrate, quite reasonably lead to strikingly-divergent conclusions as to the cause or causes of a condition, such is the subjectivity of the issue at hand.
Of course, the views of a person affected by such a condition will be a seminal area of focus of that professional experience and judgement. That person is uniquely placed to reflect on what has upset their mental well-being. As already noted, however, that person’s views are not necessarily determinative of what factors have caused or contributed to their condition. Whereas one would accord considerable weight in respect of causation to the evidence of a person who, say, has lost a leg in an accident, the same weight cannot as readily be accorded to the evidence of a person who has lost their psychological equilibrium, particularly where that loss has occurred over an extended period.
The tribunal is confronted in these proceedings with psychiatric opinion which is sharply divided. It falls into two “camps”, each of which has offered a rational and cogent argument to the Tribunal for preferring its approach. A careful weighing of those competing arguments is called for.
I say psychiatric opinion because, in the final evaluation, it does not appear that the opinion of either the psychologists or the general practitioners here contributes greatly to resolving the issue before the Tribunal. Ms Pelengaris agreed that Miss Weatherburn still suffers the effect of her workplace injury, but she also noted that Comcare’s decision to terminate her compensation had re-aggravated her condition.[2] Having only seen Miss Weatherburn for the first time after that decision was taken, it is unclear as to what extent Ms Pelengaris’ opinion is a reference to that factor rather than to the workplace events leading up to August 2012. An aggravation attributable to the course of litigation is not one caused by employment: see Plumb and Comcare [2004] AATA 999. The reports of other psychologists which were before the Tribunal were insufficiently contemporary to throw any light on the question of the present contribution from employment, in my opinion.
[2] This view garners some support from Dr Matias, who referred in her report of 5 February 2018 to the devastating news that common care benefits would cease from February 2017.
Similarly, the views of her treating GPs are largely unhelpful. The opinions of Drs Vallabhaneni and Sumathipala are too temporally distant to serve much purpose, and the opinion of Dr Pratap, while contemporary, is inconclusive on the question of workplace contribution. In her report of 24 October 2017 she wrote that It is very difficult to explain ongoing contribution from work place injury, and she was not asked in the witness box to return to or clarify her view on that question.
With respect to the psychiatric evidence, I have focused on the four experts who gave viva voce testimony, and of Dr Ventura. Other psychiatric evidence is, again, too old to assist, other than on the margins. All the doctors accepted that, in August 2012, Miss Weatherburn’s employment had significantly contributed to the aggravation of her underlying condition. Thereafter we find Drs Matias and Knox holding that work-related factors continue to play a significant part in the sustainment of her compensable condition. Each traces the factors leading to the original aggravation, and each considers that those factors continue to influence the course of the ailment. Dr Matias observes that Ms Weatherburn has consistently indicated that the workplace has caused and continues to cause her ongoing low mood, an assessment to which she gives some weight because she discerns no exaggeration or embellishment of symptoms. She records that She relives what happened [at] her work constantly, and that there has been no remission which can fully delineate the cessation of the compensable condition.
Dr Knox considers, in September 2017, that Miss Weatherburn has been stable at a significantly clinical level of distress and disability now for the last two or three years, notwithstanding a modest improvement since 2012. He dwells on the original contributing factors in the onset of her condition, and notes their significant ongoing status in her mind. He concludes that These states of mind underpin her continuing Depression. He emphasises that both the permanence of her observed levels of distress and impairment and an entrenched state of mind about her employment have set in train a more chronic course that doesn’t go away. He also emphasises that his assessment is that she is more psychiatrically impaired now than she was prior to the 2012 injury.
In the opposing camp are the opinions of Drs Shaikh and Lovell. Dr Shaikh, following his May 2014 examination, notes her low mood and ruminative thoughts about her work experiences, but also emphasises the contribution made by her long depressive history and various family-related stressors. He forecasts a cessation of the contribution from work injury by September 2014, a forecast which, in his live testimony, he believes was fulfilled. He considers that it is difficult to justify a relationship between her employment and her present level of psychiatric distress given the effluxion of six or seven years.
Dr Lovell emphasises the congenital and enduring nature of Miss Weatherburn’s dysthymia, noting that it was now almost part of the lady’s life in terms of personality style, a matter he links to her not being married or having children. He considers that the contribution from work had ceased as of about April 2014 when she discontinued consultations with Ms Harris, although he noted that Her preoccupation with work has increased since Comcare made its cease-effects decision in 2017. Like Dr Shaikh, he points to family-related issues as ongoing contributors to her poor mental health. He considers that she has returned to the baseline of psychiatric distress she experienced before the 2012 injury.
In her report of January 2017, Dr Ventura takes a similar position, maintaining that Miss Weatherburn’s condition at that time is constitutional and related to past difficulties with relationships and not a result of her employment. She considers that the aggravation from work – an episode of major depressive disorder – had gone into remission.
The perspective of each of these camps is, taken individually, coherent and plausible, and is congruent with substantial parts of the evidence produced during the hearing; if either perspective were the only evidence before the Tribunal, it would readily acceptable as a finding of fact. Nonetheless, in a comparative context I have some reservations about each of these perspectives.
Dr Knox’s opinion was not educated by a study of the reports of treating professionals prior to Miss Weatherburn’s 2012 injury. Dr Knox told the Tribunal that he took her pre-existing history of depression as a given, and focused on the course of the condition after August 2012. Counsel for Comcare pointed out that it would be difficult to properly assess the relative contribution of an underlying condition, as against extraneous factors such as employment, if the history of that underlying condition had not been fully understood. Although this submission falls short of invalidating Dr Knox’s opinion, it does carry some weight.
Dr Matias is Miss Weatherburn’s treating psychiatrist, and it may be observed that treating practitioners from time to time take on an advocacy role with respect to their patients, a mode into which, with respect, such clinicians could be said to fall fairly readily given that their treatment often entails building confidence and psychological resilience in their patients.
Turning to Comcare’s witnesses, it does seem to me that Dr Shaikh’s evidence does proceed to some extent on the basis of supposition and a priori reasoning. His view in June 2014 that the influence of work factors on Miss Weatherburn’s condition would dissipate within a few months appears to have been grounded on the premise that the influence of a particular stimulus to mental illness would most likely diminish with the passage of time. The Tribunal, familiar with enduring stimuli in conditions such as PTSD, would have been more comfortable had this premise been tested rather than presumed. Similarly, his comment that the influence of employment may have lessened because Miss Weatherburn told her GP in 2012 that she wanted to keep working until age 60, and she is now 63, appears to rest at least partly on supposition.
Dr Lovell told the tribunal that That stressor [i.e. the 2012 aggravation] is ceased, which the Tribunal took to mean that it had disappeared entirely, and not merely ceased to be significant. In similar terms, Dr Shaikh in June 2014 opined that, though the work injury continue to make minimal levels of contribution to her condition, that relationship will cease to exist by September 2014. Yet this approach on the part of both doctors appears to have been modified during the hearing. Dr Shaikh appeared to accept that there was in fact an ongoing impact from her former employment, but that this element was less than significant now. Dr Lovell, despite describing the work contribution as ceased, then referred to ongoing anger… towards work among multiple other factors which were agitating Miss Weatherburn’s depression. Apparently with reference to Miss Weatherburn, he observed that people when they are unhappy often dwell on how they have been wronged.
The references to ongoing anger towards work and her ruminating on how she had been wronged in the work context seems hard to reconcile with Dr Lovell’s view that these factors bear no relationship with her present condition. Alternatively, it may be that these comments refer to what Ms Pelengaris referred to as a re-aggravation of the condition caused by Comcare’s cease-effects decision (though this is doubtful given that Dr Lovell also described these issues as part of the natural history of major depression). Whichever is the case, the Tribunal is troubled by the contention that the issues associated with the 2012 injury have disappeared or are making a negligible contribution to her present register of mental ill-health.
Miss Weatherburn gave a strong impression in the witness box of being deeply affected by issues arising during or out of her employment with the Department. As a witness she returned, almost obsessively, to the way the Department had mismanaged the workload issues surrounding the booklet and the unfairness, as she perceived it, of its lack of attention to the consequences for her. She referred to her anger and frustration and to feeling angry and devalued. She told the tribunal I will never get over the treatment that I received from my supervisors while I was at Immigration, and about how she has dreams about her former work, and is consumed by thoughts of how it’s affected my life. By contrast, she made almost no reference to Comcare’s cease-effects decision.
As this testimony was given, Miss Weatherburn showed what appeared to the Tribunal to be visible signs of the impairment caused by her mental illness and to which all the experts have referred. Moreover, no contrivance or manipulation was discernible in this evidence; her evidence struck me as raw and visceral. Noting that those witnesses all accepted Miss Weatherburn as a witness of truth, the Tribunal regards her reflections on workplace experiences as an unembellished insight into the significance they presently assume in her mind.
How Miss Weatherburn’s present condition compares with her condition leading up to the 2012 injury is a potentially useful barometer of the ongoing effect of that injury. On this question, however, the evidence of the experts was diametrically opposed. Drs Lovell and Ventura considered that she had returned to a baseline of low mood which she experienced before the workplace injury. Dr Knox took the view that she is more unwell now than then, and Dr Matias opined that she never got back to her previous pre-morbid state. Dr Knox’s opinion, at least, is somewhat undermined by his not having examined her medical records for the period before the injury; however, Dr Knox made a pertinent observation – one echoed by Dr Matias – that in her pre-August 2012 condition Miss Weatherburn was able to work, whereas it is the general opinion of the experts (excepting Dr Ventura) she is now unfit for work.
Comcare advanced several arguments, which I will now consider, for the proposition that the 2012 aggravation had either resolved or had diminished to the point where it no longer made a significant contribution to what was obviously a subsisting depressive condition. First, it pointed to the many examples in her psychiatric history from 1974 onwards of episodes of acute depressive symptoms and to the frequent inculpating involvement of personal factors – particularly family conflict – in those episodes. The role of those personal factors in exacerbating her condition clearly continues, most recently with the 2018 suicide attempt in which a breakdown of her relationship with her brother evidently played a key role. Given this well-established and entrenched pattern of ill-health, it was, in effect, inevitable that serious episodes of mental illness would have occurred in the period since 2012, with or without the events of that year, Comcare contended.

The tenor of the medical evidence suggests that it is quite unlikely that Miss Weatherburn would have recovered from her depressive disorder if the 2012 aggravation had not occurred. In this context, it is tempting to view that aggravation as simply one of many periodic but short lived exacerbations, of the kind so often experienced before, of her underlying condition. Against this view, however, is the observation that she is now incapacitated for work, by virtue of her depression, when she was not so afflicted until August 2012. This fact tends to lend weight to Dr Knox’s assessment that she is sicker now than she was then. Of course there may be other explanations for this – say, the interplay of a chronic disease and the natural processes of ageing – but it is also plausible that it is the result of a profound deterioration in her work environment which left a lasting mark on her psychological well-being, an already fragile thing. The evidence is balanced too delicately, in my opinion, to resolve this question.
A second proposition advanced by Comcare was that the evidence suggests some abatement in her depressive condition in the period 2014-2017, which was said to be consistent with the view that the stimulus of the 2012 aggravation diminished or disappeared at that time, leaving only her underlying congenital condition. It pointed to the fact that Miss Weatherburn received no psychological treatment between April 2014 and February 2019. While this proposition is attractive, and would be consistent with the filed reports of Drs Shaikh and Ventura, there are other reasons to question it. In the first place, there are pointers to ongoing psychological distress in this period notwithstanding the lack of treatment by psychologists. Miss Weatherburn last saw Ms Harris in April 2014; in a report a few months later Ms Harris referred to:
…ongoing rumination over events in the workplace and high levels of distress associated with this…
Miss Weatherburn’s presenting and ongoing difficulties are directly related to the stresses she encountered in the workplace…[My emphasis]
Dr Shaikh considered that, as of May 2014, she remained afflicted by ruminative thoughts from work, though these were diminishing. In September 2014 Dr Sumathipala listed among factors which are contributing to Ms Weatherburn’s condition… Continuing distress regarding previous workplace incidents [my emphasis]. It seems she saw Dr Fridgant, the psychiatrist, again in November 2014. In about August 2015 Dr Pratap referred her to Dr Matias. When asked whether the referral was urgent, Dr Pratap told the Tribunal:
…she did have a dip in between…there was something dipping in between and then there was a suggestion that she needed to go urgently but we couldn’t get her in.
Miss Weatherburn began to see Dr Matias in early 2016. The latter reported in November that year that she suffered from a condition which has now become chronic. In April 2016 she attended Calvary Hospital, reporting palpitations, with the clinical record noting [history of] work-related stresses. The sum of this evidence, in my view, is that her condition remained active over this period, albeit probably at a lower level of acuity.
The other difficulty with the contention that her condition abated in this period is that it assumes that what abated was the compensable condition and not the underlying condition. With respect, the evidence does not allow such a distinction to be made.
A further argument advanced by Comcare is that what now significantly impacts on her psychological well-being is not the events leading up to August 2012 but rather factors related to her separation from employment at about that time. Two such factors were identified during the hearing: one was what might be loosely described as grief at the loss of her employment and the other distress at the news that her entitlement to compensation was being terminated. Miss Weatherburn’s evidence was that her identity as a member of the workforce was very important to her. Being given an invalidity retirement in 2013 and losing the opportunity for remuneration has, arguably, exacerbated her underlying predisposition for depression. Dr Lovell described this as unemployment…rather than employment factors at play. Similarly, both Ms Pelengaris and Dr Matias refer to Miss Weatherburn’s distress at the news that Comcare was discontinuing her access to compensation; Ms Pelengaris goes so far as to say that the news caused a re-aggravation of her condition.
Section 5B of the Act links the right to compensation to an employee suffering a disease that was contributed to… by… employment. The necessary contribution will be made when some feature of employment, or a sequela of employment, contributes significantly to the onset or aggravation of a disease. In Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 the Federal Court considered an appeal from a finding of the Tribunal that certain consequences, or sequelae, of a work-related aggravation of Ms Tzikas’ mental illness contributed to that illness. It based this decision on medical evidence that the sequelae of an injury could produce a reaction having the effect of contributing to an existing mental illness. In setting aside the Tribunal’s decision and remitting it, the Full Court (per Sweeney and Woodward JJ) said at 194:
…we believe the Tribunal led itself into error by adopting the word “sequelae”,
apparently used by one of the medical witnesses, without considering whether the factors listed were truly the results or consequences of the former aggravation and acceleration, which it must be remembered had resulted from noise and stress, rather than the manifestations or results of her underlying disease. The first three factors listed flow not from the respondent's employment with Telecom, but from her cessation of that work; they are not affected in any way by the nature of her former work, but arise simply from the fact of previous employment operating on a person of her temperament, background and family circumstances.
Commenting specifically on the Tribunal’s finding that resentment towards her former employer was a part of her illness, their Honours said at 195:
In our opinion, the resentment of a sick mind, directed towards former conditions of employment, if it aggravates or accelerates the disease, and thus contributes to
incapacity, is capable of leading to a finding under s 29(1) [of the Compensation (Commonwealth Government Employees) Act 1971, the provision corresponding with s 5B of the present Act] that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier.
In Boyd v Australian Industry Development Corporation [1990] FCA 525 the Full Federal Court observed at [9]:
Section 29 of the [Compensation (Commonwealth Government Employees) Act 1971] requires that the employment be "a contributing factor to the ... aggravation" of the disease. This criterion is not satisfied if the relevant cause of the aggravation is not the employment itself but its cessation, the state of unemployment.
On the basis of Boyd, Tzikas and Plumb, it is clear that, to the extent Miss Weatherburn’s depressive state is sustained by anger or resentment at the decisions made by Comcare, it is not contributed to by employment, and is not compensable. To the extent that the depressive state is the result of dissatisfaction at a loss of earnings, or the loss of the job satisfaction she previously achieved through employment, or general unhappiness with the state of her life post-retirement, it is similarly not compensable. But if that depressive state is the product of a sick mind, directed towards former conditions of employment, such that a causal relationship with the 2012 aggravation is found, then it is contributed to by employment and may be compensable, provided the contribution reaches the threshold required by s 5B of the Act.
The primary Tribunals in Tzikas and Boyd had the advantage of medical evidence on which they were reasonably able to make clear findings about causation. The Tribunal in the present proceedings does not have that advantage. The evidence here is conflicting on precisely what elements or issues have agitated Miss Weatherburn’s troubled mind. Dr Lovell laid blame at the feet of unemployment and her search after meaning for her present unhappiness. Dr Shaikh appeared to consider that family-related issues were the primary agitators of her condition. Dr Matias and Dr Knox attributed a much greater role to ruminations on her former employment, but even Dr Knox’s evidence could be interpreted as straddling both camps:
…a psychiatric, like a physical, injury can sometimes result in permanent poor health where the disability itself becomes a stressor. The person who is more unwell, dysthymic, having episodes of major depression and reflecting… has more time on their hands to worry about things… That person’s life has become degraded by losing their job … having lost that, I don’t think … that a person just walks away…
Of course, the present task of the Tribunal is not to identify the primary or major contributing factor to Miss Weatherburn’s mental illness as at the date of the reviewable decisions; rather it is to determine whether the 2012 work-related aggravation significantly contributed to the persistence of that illness. Factors such as family conflict or agitation at losing compensation might in fact predominate in her mind, but that fact is irrelevant if the contribution from work remains a relatively-smaller but still significant contributor to the illness.
In August 2014 the psychologist, Ms Harris, identified ongoing rumination over events in the workplace and high levels of distress associated with this. Notwithstanding the passage of time, it is difficult to embrace the view that this feature of Miss Weatherburn’s psychological make-up has shrivelled to the point of insignificance. I note, for example, that shortly before attempting suicide in September 2018 she rang her solicitor to leave instructions about matters relating to her former employment which she wanted to put before the Tribunal posthumously. Whereas the attempt may rightly be said to have been precipitated by a family-based conflict, it does seem as if, even then, the pressures she still felt in relation to work were not far from her mind.
The Tribunal was referred to the decision in Prain v Comcare [2017] FCAFC 143, where the Tribunal had concluded that a series of destabilising events following the compensable injury had the effect of pushing the employment factor further and further into the background (quoted at [87]), such that the compensable injury no longer made a significant contribution to Mrs Prain’s ongoing mental illness. The Tribunal in these proceedings considers that the evidence about the relative roles of compensable and non-compensable factors is in a much more ambivalent state than was the case in Prain.
CONCLUSION
As the foregoing discussion might convey, it has been difficult for the Tribunal to reach a state of clear satisfaction on the question before it: has Miss Weatherburn’s psychological condition been contributed to, to a significant degree, by her previous employment? Plausible and persuasive evidence was presented in the course of the hearing to answer that question both Yes and No.
In Comcare v Power [2015] FCA 1502 Katzmann J held as follows at [70]:
…I accept that [it] is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made. The statement the Tribunal made in the present case that Comcare did not discharge its onus should be taken to mean that the Tribunal was not persuaded that Ms Power was no longer suffering from the effects of the compensable injury.
Here, after considering all the evidence, I am unable to decide either way whether, on the balance of probabilities, Miss Weatherburn continues to suffer a psychological condition contributed to, to a significant degree, by her former employment with the Department. Accordingly, on the authority of Power, I set aside the reviewable decisions dated 20 April 2017 and 4 September 2017 and find in substitution that Miss Weatherburn is entitled to compensation under ss 16 and 20 of the Act for persistent depressive disorder.
Comcare is to pay Miss Weatherburn’s costs, as agreed or taxed, pursuant to s 67(8) of the Act.

I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.

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Associate
Dated: 14 October 2019

Date(s) of hearing: 5-7 August 2019

Counsel for Miss Weatherburn:     Mr G Stretton SC

Solicitors for Miss Weatherburn:     Prail Lawyers

Counsel for Comcare:  Mr B Dube

Solicitors for Comcare:                  Australian Government Solicitor