White and Australian Capital Territory (Compensation)

[2022] AATA 199

White and Australian Capital Territory (Compensation) [2022] AATA 199 (11 February 2022)

Division:GENERAL DIVISION

File Number(s):     2019/8371

Re:Warren White  

APPLICANT

Australian Capital TerritoryAnd  

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:11 February 2022

Place:Canberra

The decision under review is affirmed.

…………[sgd]…………

Mr S. Webb, Member

Catchwords

WORKERS COMPENSATION – accepted psychological injury – incapacity for work – medical treatment – determination of no present liability – nature of determination – requirement for a claim – liability to pay compensation distinguished from entitlement to be paid compensation – effects of accepted injury not persisting – over-reporting of symptoms – extent of subsequent incapacity for work not established as a result of injury – requirement for medical treatment in relation to injury not established – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 ss 25, 43, 42C

Safety, Rehabilitation and Compensation Act 1988 ss 4(9), 5A, 5B, 7, 8, 9, 14, 16, 19, 54, 62, 64, 72

Cases

Comcare v Lofts [2013] FCA 1197

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

McDonald v Director-General of Social Security [1984] FCA 57

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87

Woodhouse v Comcare [2021] FCAFC 95

REASONS FOR DECISION

Mr S. Webb, Member

11 February 2022

1. More than 10 years ago, Warren White sustained a psychological injury in employment by ActewAGL, formerly ACTEW (Employing Agency), a part of the Australian Capital Territory (ACT) government, for which Comcare (then responsible his claim) accepted liability. Mr White claimed and was paid compensation for incapacity for work and medical treatment expenses. In 2019, Employers Mutual Limited (EML), the compensation claims manager for the ACT, reviewed Mr White’s case and decided by primary determination and on reconsideration that, as of 13 November 2019, Mr White no longer suffered from the injury and the ACT had no present liability to pay compensation for the injury under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Mr White applied for review of this decision by the Tribunal.

   Facts

2. The following findings are made on the evidence, applying the reasonable satisfaction standard on the balance of probabilities.

3. In or about 1987, Mr White commenced employment with the Employing Agency as a labourer.

4. In 1991, in the course of his employment, he sustained a probable right rotator cuff shoulder injury.[1] This required surgical treatment and resulted in incapacity for work.[2] Mr White returned to work on light duties, reading meters and inspecting power poles. Subsequently, he was assigned duties as a vegetation inspector on a permanent, full-time basis.

   [1] Exhibit 2, Applicant’s Supplementary Bundle, A30.

   [2] Ibid, A22-A31.

5. I note in passing that, in 2011, Mr White was involved in a motor vehicle accident that affected his right shoulder. In the period to 2015, there was a deal of disputation over his entitlement to compensation for incapacity to work and medical treatment expenses in relation to the right shoulder injury.[3] For present purposes, it is not necessary to address the details of the disputation, rather it is sufficient to conclude that Mr White continued to experience right shoulder symptoms.

   [3] Exhibit 2, Applicant’s Supplementary Bundle, A33-A40.

6. On 7 December 2007, an issue arose in respect of Mr White’s involvement in the completion of a leave form for a work colleague, Mr Black, who left work early that day without approval of his supervisor. The matter was investigated and a report was produced, in which the following relevant conclusions were set out:

   Conclusion

   -    …

   -    Mr White is considered to have fraudulently completed an ActewAGL leave form which he confirmed he signed as Mr Black. Though he claims the form was not submitted formally, by completing this leave form and then signing it, shows intent to deceive, is considered fraudulent and breaches the code of conduct.

   -    …

   -    Both Mr Black and Mr White sought to deceive this investigation panel.

   Recommendations

   It is recommended that

   -    …

   -    Mr White is given a stage 3 final warning for fraudulently completing an ActewAGL document in the form of a leave form on behalf of another Colleague. He had received a stage 2 warning on the 12 June 2007 and this offence was within 6 months of him receiving such disciplinary action.[4]

   [4] ST24.4F, folios 265-266.

7. On 18 August 2010, Mr White’s solicitor, Mr Gabbedy of Pappas J Attorney, made a complaint of bullying and harassment:

   … in recent years Mr White has been called in for meetings with investigators in relation to allegations he has behaved inappropriately. These meetings have resulted in findings that there has been no inappropriate behaviour on his part.[5]

   [5] ST24.4H, folios 273-274.

8. On 27 August 2010, Mr White consulted his long-term treating general practitioner, Dr Curtotti. The doctor recorded the following in a clinical note of the consultation:

   Patient wishes to note that he has been to a solicitor re shoulder injury feels he is being harassed unfairly at work. States maily [sic] went as has had photos taken of him by supervisor to surveille [sic] his activities. He wishes to have a copy of the solicitor’s letters on file, 18/8/2010. Feels irritable and snappy about the situation. Feels like his employer is trying to get rid of him. Doesn’t want me to take any further action, denies feels suicidal, just wants me to note it.[6]

   [6] T6, folio 45.

9. On 26 November 2010, a female employee made a complaint of intimidation against Mr White, in consequence of which Mr White was stood down on 30 November 2010.[7] Mr White denies he acted inappropriately. The complaint was investigated and reported to be inconclusive.[8]

   [7] ST1, flio

   [8] ST2.

10. On 30 November 2010, Mr White consulted Dr Curtotti, who noted:

    …

    Accusation against him. Feels he is being unfairly victimised.

    Conflict with 2 managers.

    E.g. has had 10-15 accusations.

    Alleges has had a forgery done on a document.

    Alleges has had photos taken of him whilst he was working: “trying to prove he was in the wrong place and the wrong time”.

    Has been stood down from work today over “bullying and harassment at work and breaking confidentiality – states a woman spoke to him briefly and he advised her he didn’t want to talk any further. She has brought a claim of bullying against him. He has been given a letter stood down with full pay.

    Dx severe stress – patient almost crying in the consult – he requests sleeping tablets.[9]

    [9] T6, folio 44.

11. On 21 January 2011, Mr White consulted Dr Curtotti again. The doctor diagnosed major depressive disorder and noted:

    Symptoms: suffering for the last 2 years states (since 2007 was investigation relating to grivance [sic] over changed documents). Feeling sad and upset e3specially [sic] since he has been stood down at work over what he alleges are false allegations recently.[10]

    [10] T6, folio 43.

12. On 10 February 2011, Mr White lodged a compensation claim in respect of major depression he first noticed on 8/2010[11] and attributed to Work place harassment.[12]

    [11] T3, folio 15.

    [12] Ibid, folio 17.

13. On 3 May 2011, Comcare decided to refuse Mr White’s compensation claim.[13] This decision was affirmed on reconsideration.[14] Mr White applied to the Tribunal for review. The matter was settled by consent, whereby Comcare accepted liability for an injury in the form of Major Depressive Disorder, Single Episode, with the date of the injury being 30 November 2011.

    [13] T7.

    [14] T10.

14. Periodically thereafter, Mr White was off work and undergoing rehabilitation. Difficulties arose between Mr White and his rehabilitation providers. I note the extensive rehabilitation reports in evidence.[15] Efforts were made to return him to suitable employment. He undertook a number of work placements and workplace trials. These were not successful. On 30 July 2015, he ceased employment with ActewAGL.[16]

    [15] See ST4-ST17 and ST20-ST22, for example.

    [16] ST18.

15. From time to time, Comcare reviewed Mr White’s case. There are many medical reports in the voluminous documents provided to the Tribunal. These illuminate aspects of Mr White’s psychological state and his psychiatric condition over time. They also reveal a divergence of medical opinions about such matters.

16. On 12 April 2012, Dr Hong (consultant psychiatrist) reported:

    In my opinion Mr White has an Adjustment Disorder with Mixed Mood. The main cause is the chronic pattern of behaviour by his union delegates and managers, and the ongoing difficulty with Insight Rehabilitation.

    The prognosis is good – he can return to work now.

    …

    In my opinion Mr White is currently psychiatrically fit to participate in his pre-injury duties, in fact he told me that he would also like to return to work as a vegetation inspector. There has never been a problem with his work performance.

    However, the relationship with his union delegate/manager – RH – and the other managers appears to be irreparable. A return to work at ActewAGL is unworkable – he will develop further stress related symptoms.[17]

    [17] T12, folio 70.

17. Mr White asserts that he was unable to work in 2012.

18. On 29 January 2013, Dr Hundertmark (consultant psychiatrist) reported:

    Mr White currently suffers from no psychiatric disorder as such. He previously suffered from a Chronic Adjustment Disorder which has now settled.[18]

    [18] T16, folio 85.

19. On 24 April 2013, Dr Saboisky (consultant psychiatrist) reported:

    Mr White appears to have suffered from an adjustment disorder with mixed emotional features, of anger, depression, and anxiety.

    He reports that currently he does have some residual symptoms such as insomnia, anger, intense preoccupation about the way he has been treated, abdominal distress, and loss of interest.

    I am of the view that these symptoms are mild and not producing any major impairment at the moment.[19]

    In my view he is completely fit for work despite some residual mild symptoms. His employer needs to find him suitable alternative work.[20]

    [19] T19, folio 102.

    [20] Ibid, folio 103.

20. On 5 August 2013, Meg Hyam, Mr White’s then treating psychologist, reported:

    My working diagnosis for him is that is Adjustment Disorder, with mixed anxiety and depressive mood. In terms of his prognosis then, I would expect that once his work situation has been properly managed and he has settled back into a stable, appropriate, permanent, working routine, and the increased scrutiny Mr White feels he is under from his workplace has reduced, he will likely start to return to close to normal functioning and mood. Some of the symptoms he is currently experiencing appear to be directly related to the unpredictable and unsettling nature of the process of returning him to work.

    …

    The treatment plan initially was aimed at improving mood, reducing anxiety and supporting Mr White through this difficult period, using Cognitive Behaviour Therapy (CBT) and some elements of Acceptance and Commitment Therapy (ACT) along with supportive counselling.

    …

    As time has passed it has become apparent that what Mr White requires personally from the sessions has been more the supportive counselling element. He has often commented on how therapy has provided a space for him to talk openly with someone he trusts who is not part of the situation or his home life. [21]

    [21] T24, folio 117.

21. On 18 November 2013, Dr Shaik, a consultant psychiatrist undertook a rehabilitation assessment and reported:

    Mr White has received a previous diagnosis of Major Depressive Disorder. Although he does report ongoing presence of depressive symptoms, there is no significant indicator to suggest that he is experiencing his symptoms to a level of severity, as to affect his social and/or occupational functioning. Although there has been a contribution from workplace factors, there are significant secondary gains in presenting abnormal illness behaviour. Should a depressive disorder be present, it is of mild severity, and is generally stable.[22]

    [22] T28, folio 132.

22. On 13 January 2014, Dr Reutens (consultant psychiatrist) reported:

    Mr White suffers from an Adjustment Disorder with Depressed Mood. The Adjustment Disorder is a reaction to stressors – in this case Mr White’s report is that he had been treated unfairly by his employers. While I note the documentation provided, specifically the letter of Ms Hutchinson, dated 25 March 2011 which noted that the investigations showed that the bullying had not been substantiated and that the other allegations made by Mr White were not in accordance with his file notes, it appears that Mr White remains under the impression that he was treated unfairly. This stressor has resulted in the development of symptoms of depression and anxiety.

    I do not consider that the symptomatology has resolved.[23]

    Mr White would be capable of undertaking his pre-injury employment from a psychiatric point of view, however in a different place of employment or in circumstances where he would not come into contact with his former managers. He would be able to participate in alternate employment without restriction from a psychiatric point of view.[24]

    [23] T33, folio 153.

    [24] Ibid, folio 156.

23. On 18 February 2014, Dr Curtotti provided an extensive report to Comcare[25] in which he disagreed with Dr Reutens’ diagnosis and reasserted his diagnosis of Major depression Single episode.[26] It appears that, sometime earlier, the doctor referred Mr White to Dr Lean, a psychiatrist, for assessment and treatment.

    [25] T39.

    [26] T39, folio 171.

24. On 1 March 2014, Ms Hyam reported in terms that are substantially the same as her report on 5 August 2013.[27]

    [27] T41.

25. On 9 April 2014, Dr Lean reported to Dr Curtotti. It appears that Dr Lean obtained a history from Mr White of work-related difficulties stemming from an incident away from work (at a go-kart event) in which Mr White’s manager allegedly assaulted Mr White’s then 7 year-old son. It appears that Mr White believed this resulted in a workplace vendetta against him. The doctor reported:

    Principally his anxiety and depression historically began with workplace protocols and subsequently his Comcare claim.

    …

    Due to inactivity and constant stress, [Mr White’s] health has deteriorated and he has become irritable and stressed. He has a poor sleep pattern and has gained considerable weight – he was previously fit – a racing car driver.

    o    his mother may have the same, and he has had Major Depression.[28]

    [28] T43.

26. On 18 August 2014, Dr Curtotti reported:

    Mr White was certified as unfit for work 30/7/2014 due to an exacerbation of his depressed state…

    I consider that Mr White’s compensable condition date of injury 30 November 2010 is the primary contributing factor that Mr White is now totally incapacitated for any suitable duties.[29]

    Mr White has recently been diagnosed with mild obstructive sleep apnoea and periodic leg movements during sleep.[30]

    [29] T48, folio 228.

    [30] Ibid, folio 229; T49 refers.

27. On 7 April 2015, Dr Samuell, a clinical and forensic psychiatrist, reported:

    In my opinion, Mr White does not suffer from a current psychiatric disorder… In my opinion, Mr White’s current circumstances are better explained by social and personality factors rather than the presence of a mental illness.[31]

    … In my opinion, there are no medical restrictions to his employment…

    …

    Mr White says there is no work availability. There are no medical factors causing inability to work.[32]

    [31] T53, folio 265.

    [32] Ibid, folio 267.

28. On 20 April 2015, Dr Lean reported:

    I can only re-iterate that my working diagnosis is MDD and GAD and I believe Mr White is moderately to severely affected by these conditions – certainly functionally he is very affected compared with his premorbid state.[33]

    Mr White is unable to return to his pre injury employment or his previous place of work.

    Mr White is unable to participate in modified participation in his pre injury employment.[34]

    [33] T58, folio 280.

    [34] Ibid, folio 281.

29. Dr Lean reiterated these opinions in a report dated 13 May 2015.[35]

    [35] T59.

30. This notwithstanding, on 18 May 2015, Comcare determined that Mr White did not presently suffer the effects of [his] compensable condition, and he was not then entitled to compensation under s 16 or s 19 of the SRC Act.[36] Mr White requested reconsideration of this determination.

    [36] T60; T61 refers.

31. On 24 July 2015, Dr Reutens produced another report in which she stated:

    The diagnosis is Chronic Adjustment disorder with Mixed Anxiety and Depressed Mood. Mr White described low mood and little motivation. He said he was fearful and described experiencing headaches. While Mr White said that he had never had any problems with the actual duties, the main barrier to his return to his pre-injury position was his mindset, specifically his concern that ActewAGL was not a safe place for him to work, and therefore a return to his former employer is likely to be perceived as a stressor for the exacerbation of his psychiatric condition.[37]

    [37] T64, folio 298.

32. On 27 July 2015, Comcare decided to affirm its determination on 18 May 2015.[38] Mr White applied to the Tribunal for review of this decision.

    [38] T66.

33. On 29 July 2015, Ms Hyam completed a Psychology/Counselling Review Treatment Plan for Mr White, in which she indicated that the diagnostic criteria for an Adjustment Disorder with mixed and anxiety and depressed mood were met and she observed that:

    Progress has been limited due to the continuation of his work situation. Until [Mr White] is back in a suitable work role, symptoms are unlikely to resolve.[39]

    [39] T72, folio 342

34. On 5 July 2016, Dr Knox (consultant psychiatrist) reported:

    I diagnose Persistent Depressive Disorder (Dysthymia), but do not fundamentally differ with the other offered diagnosis of Adjustment Disorder. According to the past treating psychiatrist Dr Lean, at times Mr White has warranted diagnoses of Major Depressive Disorder and Generalised Anxiety Disorder. This has likely been the case.

    …

    At the current time I judge him as totally incapacitated for work. [40]

    [40] T67, folio 318.

35. On 15 March 2017, Dr Reid, a consultant neuropsychologist, produced 2 reports following his examination and assessment of Mr White on 28 February 2017.[41] The doctor reported:

    The SIMS and the validity scales from the PAI indicate mild yet significant symptom elaboration of psychological symptoms; however these are not of sufficient severity to render any further interpretation of his psychological symptom complaints unreliable. On detailed assessment of his current psychological complaints using the clinical scales from the personality assessment inventory revealed Mr White currently has symptoms consistent with a major depressive disorder that has evolved from an earlier presentation of symptoms of an adjustment disorder with mixed anxiety and depressed mood.[42]

    [41] T68 and T69.

    [42] Ibid, folio 328.

36. I note that Dr Reid took a history from Mr White and reported that “He currently sees Dr Lean, Consultant Psychiatrist on a regular basis”.[43] This is not consistent with a rehabilitation record on 24 June 2017 (see [37] below) in which it is recorded that Mr White stated he had not attended his psychiatrist or his psychologist for treatment for 2 years because he could not afford it.[44]

    [43] T68, folio 324.

    [44] T70, folio 334.

37. On 21 June 2017, the Tribunal issued a consent decision in which it was decided that from 18 May 2015 to the date of the Tribunal’s decision Mr White continued to suffer the effects of Major Depressive Disorder, Single Episode sustained on 30 November 2010.[45]

    [45] Exhibit 5, pages 77-78.

38. On 24 June 2017, Ms Heli Hine, an employee of Rehab Management (Aust) Pty Ltd, produced an Initial Psychological Rehabilitation Assessment (s36) Report in which she reported:

    Mr White stated that he continues to have negative thoughts regarding his former employer and as he has not received an apology, and he perceives he will not receive an apology from his former employer regarding the workplace allegations that damaged his reputation, he will never fully recover.

    …

    Mr White stated that he has not attended his psychiatrist or his psychologist for 2 years as he has not been able to afford treatment as his claim had been denied. Mr White stated that he was unable to gain employment due to his illness. He also stated that he had not been able to gain employment due to the lack of employment opportunities in the open market.

    Mr White reported that he did not consider his mental health to have improved during this two year period due to increased life stressors including financial and legal proceedings.[46]

    [46] T70, folio 334.

1. On or about 17 July 2017, Mr White commenced employment as a Delivery Driver/Sales Representative with ‘Honey People’.[47] An unsigned Letter of engagement under the letterhead of Honey Canberra was provided to the Tribunal.[48] This document does not refer to Mr White having an incapacity for work, or his duties being subject to any restrictions. It refers to Mr White being offered employment as a Delivery Driver/Sales representative commencing on 12 June 2017 at a rate of $20 per hour and states:

   3.1      Your initial working hours will be 15 per week (5 hours per day, 3 days a week just because we just started our business), plus any reasonable additional hours that are necessary to fulfil your duties or as otherwise required by the employer.

   [47] T70, folio 336.

   [48] Exhibit 5

2. On 23 October 2017, Dr Lean reviewed Mr White and reported that Mr White was “overwhelmed by the rehabilitation process in his Comcare situation” and “Partially this is related to his mental state – he remains very depressed”.[49]

   [49] T75, folio 350.

3. On 16 February 2018, Dr Curtotti reported that Mr White “continues to suffer from major depressive disorder single episode”[50] and that:

   [50] T82, folio 364.

   Currently there is less stress from the rehabilitation process as I have certified him unfit to participate due to the substantially negative effect the process was having on his mental state. However at the time he was required to participate there was a negative contribution to his condition including the insomnia, headaches and irritability.[51]

   (In a transcript of a consultation on 13 December 2017) Patient frustrated as he is working to medical certificate – 8 hours a week. Rehab provider is asking him to look for other jobs and is significantly stressed by this.

   he is happy to do his honey job.

   …

   Rehab duties 3-4 days, 1-2 hours

   Feels frustrated nothing there,

   Once a week he goes to McDonald’s for rehab conference, feels embarrassed due to not being able to use computer.

   Gets irritable in relation to the rehab duties

   Pam  (Mr White’s wife) reports she cannot communicate with him when he is doing rehab duties. He shuts down and very anxious. Rehab program affects his sleep, makes him more anxious, depressed.

   Pt looks forward to his honey job however.

   [51] T82, folio 365.

4. On 27 February 2018, Dr Curtotti certified that Mr White was fit for modified duties, as follows:

   Modified duty = semiskilled position e.g. sales, light semi skilled.

   He continue 3 days a week, non-consecutive days, 2-3 hours. Maximum 8 hours

   Shoulder restrictions as per existing Comcare certificates, regarding shoulder injury are to be observed. Unfit to work for ActewAGL.[52]

   [52] T83, folio 369.

5. There are a number of rehabilitation reports, including Monthly Progress Reports, in the documents.[53] On 26 June 2018, Ms Hine produced a report following a case conference with Dr Lean and Mr White, including the following:

   Dr Lean reviewed his notes and advised that he considered that Mr White may be able to consider a “bit more work” and that he could perceivably participate in job seeking.

   …

   Mr White made comments that he continued to have to manage the loss of his job, loss of superannuation and other benefits, and his capacity to trust the process of rehabilitation, or Comcare is limited. Dr Lean advised that due to prior process having caused him damage, his trust will remain limited.

   Dr Lean further advised that Mr White is attempting to manage his feelings in regards to the process he remains vigilant which causes him additional fatigue.

   Dr Lean advised that any further work options will need to be in a small workplace with limited layers of management, the workplace hours will need to be flexible, and duties in line with his physical restrictions. Dr Lean advised that additional work would need to be around his current work with the Honey People as this was a supportive work environment.

   Dr Lean advised that he considered psychological therapy with Ms Hyam providing supportive therapy, and no active therapy was [sic] Mr White required at this time. [54]

   [53] See T70, T773, T74, T78, T84, T85, T86, T87, T88 and T90 for example.

   [54] T86, folio 378.

6. On 6 September 2018, Ms Hyam completed a Psychology/Counselling Treatment Notification Review Plan in which she set out treatment strategies, including CBT, ACT, relaxation therapy and support counselling, and stated:

   Resolution of symptoms will depend largely on resolution of work issue (ie. psychological stressor).[55]

   [55] T89, folio 393.

7. On 25 February 2019, Dr Curtotti examined Mr White and certified he was fit to work 8 hours per week from 25 February 2019 to 27 May 2019. The doctor noted Mr White’s self-report of symptoms[56] and stated:

   [56] T93, folio 401.

   Comments on physical capacity:

   Impairment of right shoulder function due to unrelated compensable injury.

   Comments on mental capacity:

   Impairment of motivation, mood, sleep, concentration and decisiveness, control of irritability.

   Comments on other issues impacting recovery or return to work:

   Symptoms substantially worsen in relation to job seeking.

   …

   He continue 3 days a week, non consecutive days, 2-3 hours, maximum 8 hours.

   Shoulder restrictions as per existing Comcare certificates, regarding shoulder injury are to be observed. Unfit to work for ACTEWAGL.

   Unfit for job seeking.[57]

   [57] T93, folio 402.

8. On 25 May 2019, Dr Curtotti examined Mr White and issued a medical certificate in substantially the same terms as the certificate he issued on 25 February 2019.[58] Under this certificate, Mr White was fit to work 8 hours per week with the same restrictions as previously certified from 25 May 2019 to 25 November 2019. Once again, the doctor noted Mr White’s self-report of symptoms,[59] which are substantially the same as those he recorded on 25 February 2019.

   [58] T95

   [59] Ibid, folio 414.

9. On 25 May 2019, Dr Lean examined Mr White and reported to Dr Curtotti:

   [Mr White’s] work trajectory has been severely changed by his experience at ACTEWAGL but he has endeavoured to structure his life despite severe disappointment and ongoing triggers.

   I support the context of your work certificate …[60]

   [60] T97.

10. On 5 July 2019, the ACT decided to close Mr White’s rehabilitation program prior to completion on the basis of Dr Curtotti’s 25 May 2019 medical certificate. The delegate noted in the Rehabilitation Program Closure Record that Mr White was “partially incapacitated but unable to be placed in suitable employment”.[61]

    [61] T99, folio 423.

11. On 9 September 2019, Dr Ventura, a consultant psychiatrist, produced a report following her examination of Mr White on 5 September 2019. The doctor reported:

    In my opinion the employee’s symptoms may have been at a sufficient level to constitute a diagnosable mental disorder, namely Adjustment Disorder in 2012 when he was assessed by Dr Michael Hong.

    …

    In my view the condition has resolved and by considering the documents available to me, I am of the view that this occurred aroind [sic] 2013.

    …

    In my opinion the employee does not currently have a psychiatric condition. He currently continues to be embittered and psychologically distressed by workplace events of 2010, however his symptoms and impairment do not reach a threshold in my view for a psychiatric diagnosis.[62]

    In my view the employee is not currently able to undertake his pre-condition duties as this is likely to re-expose him to his old employer and cause a relapse in his previously diagnosed condition of Adjustment Disorder. He is however fit for alternative duties with a different employer. There are no specific restrictions from a psychiatric perspective.[63]

    [62] T101, folio 440.

    [63] T101, folio 442.

12. On 20 September 2019, EML gave Mr White notice that a review was being undertaken of his ongoing entitlement to compensation for medical treatment expenses and incapacity for work pursuant to his claim.[64]

    [64] T102.

13. On 6 November 2019, Dr Lean produced a report for the ACT in which he disagreed with Dr Ventura’s opinion about the existence of a psychiatric condition. Dr Lean reported that:

    I can only re-iterate that my working diagnosis is MDD and GAD and clinically Mr White is moderately to severely affected by these conditions – certainly functionally he is very impaired compared with his pre-morbid state.

    …

    In contradistinction to Dr Venture [sic], Mr White does have a psychiatric diagnosis caused by his workplace injuries and is motivated within the limited scope available to return to work.

    I agree Mr White is not able to undertake his pre-condition duties. He is able to seek work, with the above limitation in mind.

    He is fit to participate in a rehabilitation program, if active and helpful – not as before on the program.[65]

    My Prognosis for Mr White is that it is predicated on nhis [sic] ongoing condition and the process of his compensation – his well-being oscillates depending on the level of intrusion of the process – initially ACTEW, then Comcare, now EML. Importantly, he has not returned near to full recovery…[66]

    [65] T103, folio 449.

    [66] Ibid, folio 451

14. On 13 November 2019, EML decided the ACT had no present liability to pay compensation,[67] as follows:

    - As at 13 November 2019 you have ceased to suffer from the effects of the compensable injury and as such there is no present liability to pay medical treatment under s 16 and incapacity payments under s 19 of the SRC Act.

    - Your former employment with ACT Government no longer contributes to a significant degree to your condition as required under s 5B of the SRC Act and therefore as at 6 November 2019, you have no entitlement to compensation under the Act.

    -    As at 13 November 2019, you no longer have an incapacity for work as a result of your compensable injury.

    -    As at 13 November 2019, you no longer require medical treatment as a result of your compensable injury.[68]

    [67] T104.

    [68] T104, folio 456.

15. On 6 December 2019, in response to Mr White’s request for reconsideration, EML issued a reconsideration decision in which it was decided:[69]

    … the evidence does not support that you continue to suffer from the compensable condition, or that any condition continues to be significantly contributed to by your employment.

    Therefore, the determination dated 13 November 2019 has been affirmed. Subsequently compensation is not payable for medical expenses or incapacity payments under sections 16 and 19 of the SRC Act.[70]

    [69] T1.1.

    [70] Ibid, folio 8.

16. On 17 December 2019, Mr White applied to the Tribunal for review of this decision.

17. Subsequently, in the course of these proceedings, further medical reports were obtained by the parties, and additional medical certificates of Dr Curtotti were filed.

18. On 24 June 2020, Associate Professor Robertson, a consultant psychiatrist, produced a report following a telehealth consultation with Mr White on 23 June 2020. The doctor reported:

    Put simply, the epigenetic hypothesis applied here highlights that environmental stress emerging from the experience of bullying behaviour led to the unmasking of a latent genetic or constitutional diathesis that Mr White has to a depressive disorder that has persisted.

    There is also, in my view, an argument to be made for the presence of a “moral injury” contributing to the persistence of Mr White’s mood disturbance.

    …

    Undoubtedly, the nocebo effect of Mr White’s prolonged litigation, recurrent demands to justify his prolonged state of job detachment, psychological distress and treatment requirements have added to his already overburdened psyche and have had adverse effects on his mental health.

    …

    Mr White presents with a persistent depressive disorder, which likely deteriorates periodically into a more significant major depression…

    …

    There is no specific psychiatric or psychological treatment that would enable Mr White to improve significantly his mood state and transcend his difficulties…

    …

    Mr White is incapacitated for his employment with ActewAGL as a result of his persistent depressive disorder. He has a partial work incapacity for other forms of employment. [71]

    [71] Exhibit 5, pages 44-46.

19. On 30 October 2020, Dr Roldan, a clinical psychologist, produced a report following a consultation with Mr White on 9 October 2020. It appears that Dr Roldan applied a number of psychometric assessment instruments, including Depression Anxiety Stress Scales (DASS), Structured Inventory of Malingered Symptomatology (SIMS), Minnesota Multiphasic Personality Inventory – 2^nd Edition – Restructured Form (MMPI) and a Word Choice Test (WCT). He reported that results obtained using the MMPI and SIMS tests were strongly suggestive of the over-report of psychological symptoms and associated disability, and he observed that there are some considerable difficulties in arriving at a conclusive opinion with regards to diagnosis and residual or ongoing disability. [72] It was Dr Roldan’s opinion that previous assessments made on the basis of Mr White’s self-report of symptoms are of little assistance in arriving at a reliable diagnosis. He reported that Mr White gave a vague, inconsistent and incomplete history, and that many of the events and circumstances that have contributed to the claim appear to pre-date the claim by a number of years. For these reasons, he declined to comment further on the onset and course of symptoms, and Mr White’s diagnosis at the time of his assessment or previously.[73]

    [72] Exhibit 1, Report of Dr Roldan, 30 October 2020, page 41.

    [73] Ibid, pages 41-42.

20. On 20 November 2020, Dr Ventura produced a supplementary report for the ACT in which she responded to the reports of Dr Lean, Associate Professor Robertson and Dr Roldan. She reported that her opinion had not changed and:

    … Professor [sic] Roldan confirms through psychometric testing as well as clinical observation my hypothesis that Mr White was over-reporting his symptoms.

    …

    My opinion remains that it is unsafe to make a diagnosable psychiatric condition as a result of the work incidents described in 2010, as the history given by Mr White is unreliable and it is most likely untruthful.[74]

    [74] Exhibit 1, Report of Dr Ventura, 23 November 2020, page 4.

21. Mr White asserts that, on 5 April 2021, he commenced employment with Canberra Mobile Tyre Service as its sole employee and that, hitherto, when his son was operating that business, Mr White would occasionally accompany him just to keep him company.[75] The records of Mr White’s wages paid by Honey Canberra (apparently produced by his wife), reveal that he received wages up to 6 April 2021 and that he was paid Jobkeeper from 6 April 2020 to 6 April 2021.[76]

    [75] Exhibit 5, page 76.

    [76] Exhibit 5, pages 81-82.

22. On 29 April 2021, Associate Professor Robertson produced a further report in which he responded to the reports of Dr Roldan and the supplementary report of Dr Ventura and stated that his opinion had not changed.[77]

    [77] Exhibit 5, pages 51-55.

23. On 24 May 2021, Dr Ventura produced a further report in which she stated:

    Mr White did suffer from an ailment in about 2010. From the documentation available to me, it appears as if he suffered from an adjustment disorder with mixed mood.

    …

    … In my opinion, his adjustment disorder was caused by being stood down and escorted out of his employer’s premises in 2010. This followed an allegation of bullying and harassment against him.

    …

    In September 2019 I came to the conclusion that Mr White was not suffering from a psychiatric disorder at the time of my assessment. Therefore, it is highly unlikely that Mr White was incapacitated for employment as a result of a mental disorder in November 2019.

    It appears that there has been no change in his work capacity between November 2019 and April 2021; however, I am unable to fully answer this question without re-examining Mr White.[78]

    [78] Exhibit 1, Report of Dr Ventura, 24 May 2021, pages 2-3.

24. On 1 July 2021, Dr Roldan responded by email to a further brief from the ACT, attaching extensive documents and journal extracts, and expressed several criticisms of the reports of Associate Professor Robertson.[79]

    [79] Exhibit 1, email of Dr Roldan, 1 July 2021, pages 1-2.

25. On 25 August 2021, Associate Professor Robertson produced another report in which he stated:

    … it is more likely than not that Mr White has an ongoing mild depressive illness likely consistent with a persistent depressive disorder. There is no information to alter my original opinion that this depressive illness is attributable to the circumstances of his employment with ActewAgl.

    …

    There appears to be a work capacity of 23-30 hours per week in a flexible role with limited interpersonal demands. This is consistent with the work capacity of a patient with a chronic low-grade depressive illness.[80]

    [80] Exhibit 5, page 59.

    Issues

26. In consideration of the submissions of the parties and the decisions underlying the application for review, the ambit of the Tribunal’s jurisdiction is not at large. For the purposes of s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act), jurisdiction is conferred by s 64(1) of the SRC Act. The scope of the issues are to be determined in reference to the powers available to the Tribunal under s 43(1) of the AAT Act and the matters that were before, and were capable of being decided by, the reconsideration decision-maker under s 62 of the SRC Act and the primary decision-maker. A distinction is to be drawn between the liability of the ACT to pay compensation in respect of Mr White’s injury and his entitlement to payment under any particular head of compensation  from time to time.

27. It is very clear that the primary and reconsideration decision-makers determined the ACT’s present liability to pay compensation in respect of Mr White’s 2010 previously accepted injury as of 13 November 2019. Each decision proceeded on 3 limbs. Those same matters are before the Tribunal, as follows.

28. Firstly, the continuing existence of Mr White’s injury must be assessed. This involves determining whether the requisite nexus with employment persists and the injury continues to result in incapacity for work or impairment for the purposes of s 14 of the SRC Act.

29. Secondly, the ACT’s liability to pay compensation for incapacity for work must be determined. This involves a threshold question: whether Mr White is incapacitated for work as result of the injury, and if so, the amount of compensation that is payable to him in any particular week is to be calculated under Division 3, Part II of the SRC Act, applying the provisions of s 19 as required.

30. Thirdly, the ACT’s liability to pay compensation in respect of medical treatment expenses must be determined. This involves a threshold question: whether Mr White obtained medical treatment in relation to an injury, and if so, in respect of the particular treatment, whether doing so was reasonable in the circumstances and the amount of compensation that is payable under s 16 of the SRC Act.

31. There are 2 temporal elements to consider. As the decision under review involved a negative determination in respect of the contribution requirement,[81] namely that the essential causal preconditions to an entitlement to compensation under s 14 of the SRC Act were not made out as at 13 November 2019, the Tribunal must consider those matters at that time and presently.

    [81] Woodhouse v Comcare [2021] FCAFC 95, per Derrington J, with whom Collier and Rangiah JJ agreed at [76].

32. The second element arises, the causation requirement, [82] in reference to s 14 and particular claims under s 16 and s 19 (or other sections in Div.3, Part II that may apply in Mr White’s particular circumstances). Where this relates to incapacity for work, the assessment has a periodic character, it is to be undertaken week by week. Where the claim is in respect of medical treatment expenses, the assessment relates to the particular medical treatment that was obtained. I note that in some circumstances, a determination may be made to approve payment of medical treatment expenses where the particular treatment has not yet been obtained.

    [82] Ibid, at [76].

33. I do not accept the ACT’s submission that the Tribunal has jurisdiction to determine Mr White’s compensation entitlements, or lack thereof, under s 16 and s 19 of the SRC Act in the period from 25 May 2019 to 25 November 2019. The ACT’s argument proceeds on the basis that the medical certificate issued by Dr Curtotti on 25 May 2019 amounts to a claim for compensation under s 54 of the SRC Act in respect of compensation under s 16 and s 19, and that claim was the subject of the primary determination on 13 November 2019. On this point, the argument fails.

1. It may be accepted that Dr Curtotti’s medical certificate of 25 May 2019 might amount to a claim for payment of compensation under s 16 and s 19 of the SRC Act. The certificate was on an official form and it was provided to the ACT in the context of an injury for which liability under s 14 had previously been accepted. In this regard, it is to be noted that a claim for payment under s 16 or s 19 is in respect of an injury for which liability has been accepted under s 14,[83] and payment of compensation under the claim is authorised by determination, as defined in s 60. Furthermore, particularity is required as claims for payment under particular heads of compensation cannot be made at large and a decision-maker must be positively satisfied the claim is made out. So much is not controversial.

   [83] Comcare v Lofts [2013] FCA 1197 at [87] - [88].

2. The continuing existence of an injury is of central importance.

3. In circumstances where material is obtained that is not consistent with the continuance of an injury or a continuing liability to pay compensation in respect of an accepted injury, the ACT is at liberty to conduct a review in order to determine if the essential preconditions of threshold liability continue to be met. A review of that kind is not contingent upon determination of a specific claim under a particular head of compensation, although that may be the result.

4. Where a claim has been made and positively determined, and subsequently information comes to light that is not consistent with the claim, the determination may be reconsidered under s 62 or a contrary finding of fact may be made in a fresh determination.[84]

   [84] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87, per Conti J, with whom Heerey and Dowsett JJ agreed, at [57].

5. The determination on 13 November 2019 resulted from a review of Mr White’s ongoing entitlement to compensation for incapacity to work and medical treatment expenses of which he was notified on 20 September 2019. The review was commenced following the ACT receiving the report of Dr Ventura. Importantly, the review examined the preconditions for the continuation of liability as a threshold issue, namely whether Mr White continued to suffer the effects of the injury for which liability was accepted and whether the causal nexus with his former employment continued. Having decided those matters negatively, consequential determinations under s 16 and s 19 were then made to deny entitlement to compensation from a specific point in time. The review did not reconsider earlier determinations made consequent to Mr White’s claim, in the form of Dr Curtotti’s medical certificate on 25 May 2019, under which Mr White was paid compensation for medical treatment expenses and incapacity for work in the period from 25 May 2019 to 13 November 2019.

6. Viewed in this way, it can be seen that the decisions did not relate to a period from 25 May 2019, rather they were specifically directed to a point in time, denying entitlement as at 13 November 2019.

7. On review, the Tribunal must address the same questions that were before each decision-maker and make the correct or preferable decision on relevant materials placed before it, as if the original decision-maker were deciding the matter at the time that it is before the Tribunal.[85]

   [85] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, per Keifel CJ, Keane and Nettle JJ at [15], per Bell, Gageler, Gordon and Edelman JJ at [51].

   Injury

8. Mr White asserts that at all relevant times he continued to suffer the effects of the employment injury he sustained in 2010, and this is presently ongoing. In this assertion, he relies on medical materials in evidence, including the reports and opinions of Associate Professor Robertson, Dr Lean, Dr Knox, Dr Reid, Dr Saboisky (in part), Dr Hong, Dr Curtotti and Ms Hyam. It is Mr White’s submission that the reports and opinions of Dr Ventura, Dr Roldan, Dr Reutens, Dr Samuell and Dr Hundertmark are flawed and should not be preferred.

9. Mr White argues that the consent decision issued by the Tribunal on 21 June 2017 cannot be disturbed unless the Tribunal is positively satisfied of contrary facts. It is his submission that the effects of the injury he suffered in 2010 did not resolve at any time prior to 13 November 2019, and this is supported by the evidence of all his treating doctors and his treating psychologist. It is Mr White’s submission that unless the Tribunal is positively satisfied that the Mr White no longer suffered from the effects of his accepted injury as of 13 November 2019 and presently, then he is entitled to succeed, with the determination of compensation that is payable to him under s 16 or s 19 being a matter for the ACT to address on remittal.

10. Furthermore, Mr White argues that, to the extent rehabilitation processes may have contributed to the persistence of his psychiatric injury, these are within the frame of, and not alien to, his employment. Consequently, so the argument goes, where rehabilitation exacerbated or contributed to his psychological symptoms, this reinforces rather than intrudes upon the causal nexus between his psychological condition and his previous employment.

11. The ACT disagrees. In the ACT’s submission, the effects of Mr White’s injury resolved prior to 13 November 2019. The ACT relies on the evidence given by Dr Ventura and the reports of Dr Samuell, Dr Reutens and Dr Hundertmark, in particular. The ACT argues that even though Dr Saboisky considered that the effects of the injury may not have resolved entirely, it was his opinion that whatever effects may then have been persisting they were very mild and caused no impairment.

12. In the ACT’s submission, Mr White’s account of symptoms should not be relied upon, and any medical opinions that are based on such accounts should be discounted. The ACT asserts that Mr White has not been truthful in asserting the continuance of symptoms he attributes to his previous employment.

13. The injury issue is to be determined in consideration of s 5A, s 5B and s 14 of the SRC Act. It is these sections that set out the essential preconditions for the continuation of liability as a threshold issue. Where it is established by relevant probative materials that the causal nexus between Mr White’s previous employment and the ailment that was accepted as an injury in the form of a disease (the contribution requirement) was broken on or before 13 November 2019 the threshold for liability at that time is not surpassed.[86] Where this state of affairs remains unchanged from 13 November 2019 to the present, the ACT is not presently liable to pay compensation for the injury. Alternatively, should it be positively established by relevant probative evidence that the effects of the injury for which liability was accepted (the causation requirement) ceased on or before 13 November 2019 the threshold for liability as of that date is not met. Where this remains unchanged from then until now, the ACT has no present liability to pay compensation for the injury.

    [86] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, per Keifel CJ, Keane and Nettle JJ at [15], per Bell, Gageler, Gordon and Edelman JJ at, at [85].

14. With regard to Mr White’s submission about the need for positive findings, this can readily be accepted. Where the Tribunal is left in a state of uncertainty, having examined all of the evidence before it, such that it is not able to decide, on the balance of probabilities, the factual questions necessary to upset Mr White’s ongoing entitlement to compensation for his accepted injury, then it cannot be satisfied that Mr White’s entitlement to compensation has come to an end.[87]

    [87] McDonald v Director-General of Social Security [1984] FCA 57; 1 FCR 354.

15. On close consideration of all the materials, no such uncertainty arises in this case. I am reasonably satisfied that Mr White’s case is not made out.

16. There are three key reasons for this.

17. Firstly, and substantially, Mr White’s case turns on his own account of psychological symptoms he has suffered. There are serious questions about the reliability of those accounts and, consequently, there are grave doubts about the reliability of medical or therapeutic opinions that have relied upon those accounts and accepted them to be true. Where there are conflicts in the medical evidence, including in the opinions of Mr White’s treating doctors, this is a relevant factor when deciding issues of weight. For reasons that will appear, I am reasonably satisfied that the evidence of Associate Professor Robertson, Dr Lean, Dr Knox, Dr Curtotti, and Ms Hyam, is outweighed by the evidence of Dr Ventura, Dr Roldan, Dr Reutens, Dr Samuell and Dr Hundertmark.

18. Secondly, Mr White’s case turns on positive findings being made in respect of the continuing existence of an ailment outside the boundaries of normal functioning and behaviour to which his previous employment contributed to a significant degree. While there are grave doubts about the veracity of symptoms Mr White professes to suffer, there are real questions about the medical characterisation and contributory causes of any such symptoms. I am reasonably satisfied that if Mr White truly suffered from psychological symptoms as at 13 November 2019, those symptoms probably arise from a sense of thwarted entitlement and embitterment and, if his employment contributed at all, it was in the background and not to a significant degree.

19. Thirdly, for Mr White to succeed, positive findings are required in respect of the causal nexus between his accepted injury and the incapacity for work and medical treatment he claims. There are real conflicts in the evidence about the extent of Mr White’s incapacity for work, if any at all, as a result of his accepted injury and his need for medical treatment in relation to that injury. Where medical assessments have been made on the basis of Mr White’s own account, questions of reliability arise that bear on the weight that can be given. I am reasonably satisfied that as of 13 November 2019, Mr White’s accepted injury did not result in incapacity for work and it did not require medical treatment. The available evidence does not support any change to that assessment from 13 November 2019 to the present.

20. Commonly in a case of this kind, evidence given by a treating psychiatrist would be closely examined and tested. That is not possible here. Sadly, Dr Lean died before the case came to hearing. His evidence takes the form of brief reports. The opinions Dr Lean expressed in these reports must be evaluated without the benefit of further explication or testing in oral evidence. This is unfortunate as the reports contain little by way of medical reasoning or psychiatric rationale to assist a reader to fully comprehend the opinions given.

21. I am not persuaded that Dr Lean’s working diagnosis of Major Depressive Disorder and Generalised Anxiety Disorder can be accepted. The weight of the psychiatric evidence is that, as of November 2010, Mr White suffered from a reactive depression that aligns with either an Adjustment Disorder or a Major Depressive Episode.

22. On the report of Dr Hong, I am reasonably satisfied that a diagnosis of Adjustment Disorder best captures the nature of Mr White’s psychological distress in 2012.[88] I am also satisfied that the Adjustment Disorder was significantly contributed to by events, including a chronic pattern of behaviour by his union delegates and managers,[89] in Mr White’s employment prior to November 2010.

    [88] T12, folio 69.

    [89] Ibid, folio70.

23. Even though Comcare described the injury for which liability was accepted as Major Depressive Episode, Single, the ailment underlying Mr White’s injury is best characterised as an Adjustment Disorder.

24. Considering the reports of Dr Hong, Dr Hundertmark, Dr Saboisky, Dr Shaik and Ms Hyam, it is probable that effects of the Adjustment Disorder which Mr White suffered in 2010 diminished in the period to 2013. In April 2012, Dr Hong reported that Mr White was psychiatrically fit to return to his pre-injury duties, albeit not at ActewAGL. In January 2013, Dr Hundertmark reported that Mr White was not suffering from a psychiatric disorder at that time. In April 2013, Dr Saboisky’s report of Mr White describing some mild residual symptoms simply reflects the history he was given by Mr White. It was Dr Saboisky’s opinion that any such residual symptoms were not producing any significant impairment and Mr White was completely fit for work.[90] In August 2013, Ms Hyam reported that she expected Mr White to return to normal functioning once his employment situation was resolved and that her treatment of Mr White at that time was more focused on providing supportive counselling than active therapy. This is largely consistent with Dr Saboisky’s opinion and it points to the substantial resolution of Mr White’s psychiatric injury at that time. In November 2013, Dr Shaik reported that Mr White did not suffer from a psychiatric disorder and considered his complaint of symptoms to be aligned with abnormal illness behaviour.

    [90] T19, folio 103.

25. Dr Curtotti’s evidence is that Mr White suffered from Major Depression Single Episode or Major Depressive Disorder that was ongoing throughout this period in 2012 and 2013.[91] He acknowledges that his assessment is drawn from information provided by Mr White during consultations, without objective evidence.[92] So much can clearly be seen in Dr Curtotti’s clinical notes, particularly in his administration of a checklist re depression  which appears to involve Mr White answering questions, for example:

    depressed most of the day nearly every day yes

    Diminished interest or pleasure in all or most activities – yes

    Significant unintentional weight gain or loss due to depression – yes due to depression and reduced exercise

    Insomnia – yes

    Fatigue or loss of energy related to depression – yes

    Feelings of worthlessness or excessive guilt – yes planning not to mix with extended family at Christmas, does not like being asked question by them

    Diminished ability to think or concentrate, or indecisiveness – yes

    Recurrent thoughts of death – thoughts about death – would rather be dead – suicidal plans - no[93]

    [91] T39.

    [92] Ibid, folios 173 and 174.

    [93] T39, folio 172.

26. While I accept that Dr Curtotti relied upon what Mr White told him and made a clinical judgement, Dr Curtotti is not a psychiatrist. On questions of psychiatric diagnosis and the assessment of clinically significant symptoms of mental illness, including causal factors that have contributed to psychiatric symptoms, the evidence given by fully qualified psychiatrists carries more weight.

27. For this reason, the evidence of Dr Hong, Dr Hundertmark, Dr Saboisky and Dr Shaik in respect of Mr White’s mental illness in 2012 and 2013 carries more weight than that given by Dr Curtotti. Ms Hyam’s 5 August 2013 report that Mr White was more in need of supportive counselling than active treatment at that time is largely consistent with the weight of contemporaneous psychiatric evidence.

28. The reports of Dr Samuell (in April 2015) and Dr Ventura (in September 2019) suggest that Mr White was not experiencing effects of the injury or a psychiatric disorder at those times.

29. I am not persuaded, on the balance of probabilities, that the reports of Dr Reutens, Dr Lean, Dr Reid, Dr Knox, Associate Professor Robertson and Dr Curtotti, and the oral evidence given by Associate Professor Robertson and Dr Curtotti, lead to any different conclusion. Each of these doctors relied heavily, and expressly, on information provided by Mr White that may not be reliable. Furthermore, each doctor referred to Mr White’s negative reaction to rehabilitation and compensation processes. I have no doubt that Mr White feels embittered and aggrieved about circumstances in his previous employment. It is possible that he perceives he is the victim of a moral injury, as Associate Professor Robertson suggests. It does not follow, however, that Mr White’s sense of embitterment and grievance after 2013 (and in November 2019) amount to, or significantly contributed to, psychological symptoms of the mental illness he suffered in 2010, or that the causal nexus with his employment persisted, unbroken, as at 13 November 2019, many years after Dr Hundertmark, Dr Shaik and Dr Samuell reported that Mr White was not suffering from a psychiatric condition.

30. While, to some degree, the information about psychological symptoms Mr White provided to Associate Professor Robertson and Dr Ventura appears to be supported by documents and statements prepared by his wife, Pan White, and to a much lesser degree by the evidence of Mr Fuller, the surveillance material placed before the Tribunal and Mr White’s own evidence suggests that he was engaging in activities that are not consistent with the symptoms he was reporting.

31. Even though I accept that the surveillance material is of limited value and must be treated with caution as it provides a narrow snapshot of Mr White’s activities at particular times which may be misleading, it is nevertheless consistent with evidence that suggests Mr White engaged in activities out of his home, with other people, that do not sit easily with the symptoms he was reported to Dr Curtotti, Ms Hyam and Associate Professor Robertson. Mr White’s explanations of financial transactions that appear in bank records in evidence, reveals that, on many occasions, sometimes multiple times in a single day, he purchased tyres for friends during a period in which he denies working for the Canberra Mobile Tyre Service operated by his son and subsequently his wife. It also appears, by his own account when closely examined about such matters, that he assisted his son in that business, including posing for photos with clients and conducting mobile repairs. The frequency of such transactions and the nature of such activities paints a very different picture than the picture Mr White has given to Associate Professor Robertson, Dr Ventura and Dr Roldan, and it appears even Dr Curtotti and Ms Hyam.

32. I note that Mr White did not fully disclose matters of this kind in his evidence in chief. The statements he has provided to the Tribunal have something of a progressive quality. The same can be said about his oral evidence. I am not persuaded that Mr White’s lack of candour can be explained away by assertions about psychological symptoms and the persistent effects of mental illness, or the suggestion Mr White has a difficult personality style. The progressive modification of evidence and Mr White’s failure to disclose relevant matters fully and frankly smacks of convenience if not connivance to deceive.

33. These considerations align with Dr Shaik’s remarks in November 2013 about secondary gains and his assessment that Mr White was engaging in abnormal illness behaviour, Dr Reid’s report in 2017 of mild but significant symptom elaboration, and the recent opinions of Dr Roldan and Dr Ventura opinions in respect of Mr White over-reporting symptoms and not being entirely truthful.

34. On balance, I am reasonably satisfied that by January 2013 Mr White’s Adjustment Disorder injury resolved to the extent that it was not causing symptoms of any significance and it did not result in compensable incapacity for work or impairment. At that time Mr White was fully fit for his pre-injury duties, albeit with a different employer in a different workplace. Even if this amounted to an incapacity for work for the purposes of s 14 of the SRC Act, for reasons that will appear, no different result is obtained in these proceedings.

35. I am not persuaded that the injurious circumstances of his employment prior to November 2010 significantly contributed to any symptoms he may have experienced in 2014 or thereafter.

36. On the evidence of Dr Reutens, Dr Lean, Dr Reid, Dr Knox, Associate Professor Robertson, Dr Curtotti and Ms Hyam it is possible that rehabilitation and compensation processes may have contributed to symptoms Mr White allegedly suffered in and after 2014. If that is correct, and if one accepts that Mr White’s account of any such symptoms is accurate (and I make no such finding), it is conceivable that his psychiatric injury may have recurred, in the sense of an aggravation for the purposes of the SRC Act. Were that to be correct, two questions would arise: are rehabilitation and compensation processes within the meaning of employment for the purposes of Mr White’s claim; and was the essential nexus between Mr White’s mental illness and his employment persisting and unbroken?

1. Aside from other considerations, compensation processes are not within the meaning of Mr White’s employment for the purposes of his compensation claim. It is conceivable that the rehabilitation processes in which Mr White was compelled to participate consequent to his accepted injury may be within the terms of his employment, as he asserts. For reasons that follow, it is not necessary for me to decide this point.

2. As I have said, I am not persuaded that Mr White’s account of psychological symptoms after 2013 can be relied upon and, consequently, the evidence of doctors and therapists who have relied upon those accounts as true cannot also be treated as reliable. I accept the evidence of Dr Ventura and Dr Roldan that Mr White has over-reported symptoms and, in those circumstances, it is not possible to determine the extent of any real symptoms he may have suffered after 2013 or the causes of those symptoms. This is not a case in which the over-report of symptoms by an injured employee can be stepped around on the basis that some level of symptoms are reliably established, as Dr Reid contends. And it is not remedied by medical evidence that relied on his self-reporting of alleged symptoms. On the evidence I have examined, no such finding can reliably be made on the balance of probabilities.

3. Furthermore, on my assessment of the evidence, it is not established that any symptoms Mr White truly experienced after 2013 were attributable to an injury: the causal nexus with his employment was broken in 2013.

4. Even if it is accepted that subsequent rehabilitation and compensation processes significantly contributed to a recurrence of the ailment underlying his accepted injury, it is quite clear that causes of those kinds are outside the frame of the compensation claim he made on 10 February 2011.

5. Quite evidently, the rehabilitation processes occurred well after the factors in his employment that were significant contributors to the ailment that was accepted as an injury, and well after the deemed date of that injury. Mr White’s case was not run on the basis that rehabilitation processes amounted to a new cause of injury, on grounds of aggravation and recurrence for example. It is not asserted that he made a fresh claim for an injury of that kind, or that any such claim has been determined and reconsidered.

6. In these circumstances, for Mr White’s submissions about the role of rehabilitation in the course of his ailment and as a contributory cause of his accepted injury to succeed, it would need to be established that the injury and the causal nexus with his previous employment persisted after 2013. On my assessment of the evidence, that is not made out.

7. The evidence of Dr Reutens, Dr Lean, Dr Reid, Dr Knox, Associate Professor Robertson, Dr Curtotti and Ms Hyam suggests that Mr White’s sense of embitterment and grievance, even possibly a perception of moral injury, persisted after 2013 and these may have contributed to some degree to any real symptoms he subsequently suffered. In my assessment of their evidence, the greater, more proximate cause of any such symptoms appears to involve difficulties Mr White perceived in the rehabilitation processes he was compelled to participate in and in his dealings with Comcare and subsequently EML over disputation about his compensation claims and entitlements. In this context, Mr White’s persistent sense of embitterment and grievance and any lingering effects of his previously accepted injury were in the background after 2013. I am satisfied that these factors did not significantly contribute to any subsequent symptoms Mr White may truly have suffered after 2013: any contribution was not substantially more than material. The theories and opinions presented by Dr Lean, Dr Knox and Associate Professor Robertson in respect of Mr White’s possible predisposition or vulnerability to the triggering or persistence of reactive depression do not alter this finding.

8. It will be clear by now that these findings are not consistent with the agreement reached between Mr White and Comcare in previous proceedings before the Tribunal in which a consent decision was issued under s 42C of the AAT Act on 21 June 2017. That decision does not prevent me from making contrary findings on the basis of the present evidence. I am very mindful of the need for caution when proceeding in such a manner. It is never easy to make findings contrary to a previous Tribunal decision, even when that decision resulted from agreement rather than findings made consequent to a hearing, and one would hope that cases where such circumstances arise are rare. Nevertheless, I am satisfied that this is such a case.

   Incapacity for work and medical treatment

9. Mr White asserts that his accepted injury resulted in incapacity for work and it required medical treatment on and after 13 November 2019.

10. These propositions cannot be accepted, and they are not made out.

11. I have concluded that the effects of Mr White’s accepted injury resolved in or about 2013 and thereafter, if there were any lingering effects of the injury, these were in the background and the causal nexus with the employment was broken.

12. With regard to incapacity for work and having regard to s 4(9) of the SRC Act, on the evidence of Dr Hundertmark, Dr Saboisky and Dr Shaik, Mr White was fully fit for work in suitable employment in 2013, albeit in a different workplace. It can be accepted that this amounts to a partial incapacity for work as a result of his accepted injury, but only to the extent that he was not fit to return to his pre-injury place of employment.

13. Any additional incapacity for work Mr White may have experienced thereafter, as certified by Dr Curtotti for example, was not a result of his accepted injury, but was more likely related to Mr White’s reactions to and perceptions of the rehabilitation and compensation processes in which he engaged and his continuing sense of embitterment and grievance relating to his previous employment.

14. It is clear enough that efforts were made to place Mr White into suitable employment in different workplaces, but these were not successful until he commenced work at Honey Canberra. The failure and cessation of rehabilitation processes prior to 13 November 2019 does not mean that Mr White is entitled to payment of compensation for incapacity under s 19 or other applicable sections in Div.3, Part II of the SRC Act. This is principally because an injured employee’s entitlement to compensation for incapacity is to be worked out using the formulae set out in s 19 and, applying those formulae as of 13 November 2019, it is not established that Mr White’s entitlement is greater than zero. Under s 19(2), the amount of compensation in a week is calculated by subtracting the AE amount, the amount the person is able to earn in suitable employment or the amount the person actually earned in that week (whichever is the greater), from the person’s NWE amount, the person’s normal weekly earnings worked out under s 8 and s 9 of the SRC Act.

15. The evidence of Mr White’s actual earnings in suitable employment suggests that he was paid at a rate of $20 per hour by Honey Canberra. The amount he was able to earn in suitable employment is not determined on suitable employment he was able to obtain, rather the assessment proceeds on the basis of what he is deemed to be able to earn in suitable employment, subject to consideration of the factors set out in s 19(4). As Mr White was found to be fully fit for his pre-injury employment, albeit in a different workplace, in 2013, at that time it is probable that the amount he was able to earn in suitable employment was at least equal to the amount of his NWE. When viewed through the lens of his accepted injury, the present evidence does not suggest any different result would be obtained as of 13 November 2019 or presently.

16. With regard to medical treatment, on my assessment of the evidence of Dr Lean, Dr Knox, Dr Ventura, Associate Professor Robertson, Dr Curtotti and Ms Hyam, it is probable that the treatment Mr White obtained in 2019 and subsequently was in relation to his reactions to and perceptions of the rehabilitation and compensation processes in which he was previously engaged and his continuing sense of embitterment and grievance relating to his previous employment. I am reasonably satisfied that the medical treatments Mr White obtained as fo and after 13 November 2019 were not in relation to his accepted injury, which completely or very substantially resolved in 2013.

17. In conclusion, as at 13 November 2019:

    (a)Mr White did not suffer the effects of his accepted injury, and from then until now he has not suffered the effects of that injury; and

    (b)Mr White is not entitled to compensation under s 16 and s 19 (or any relevant section under Division 3 of Part II) of the SRC Act, and the present evidence does not establish this has changed from then until the present.

    Decision

18. The decision under review is affirmed.

I certify that the preceding 125 (one hundred and twenty five) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

...........................[sgd].............................................

Associate

Dated: 11 February 2022

126.    Date(s) of hearing: 

127.    17 - 19 November 2021

128.    Date final submissions received:

129.    3 December 2021

130.    Counsel for the Applicant:

131.    Solicitor for the Applicant:

132.    Mr L. Grey

133.    Mr N. Gabbedy, Gabbedy Milson Lee

134.    Counsel for the Respondent:

135.    Solicitor for the Respondent:

136.    Ms S. Wright

137.    Mr J. Watts, Australian Government Solicitor