Winchester and Comcare (Compensation)

Winchester and Comcare (Compensation) [2018] AATA 2146 (10 July 2018)
Division:GENERAL DIVISION
File Number: 2016/0821
Re:Andrew Winchester
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis

Date:10 July 2018
Place:Brisbane

The decision under review is affirmed.
…………………[sgd]………………………………….....
Senior Member Theodore Tavoularis
CATCHWORDS
COMPENSATION – permanent impairment – non-economic loss – where Applicant originally suffered a psychiatric injury in the early 1990s – whether Applicant continues to suffer from accepted psychiatric condition – whether Applicant now suffers from adjustment disorder – where Applicant has subsequently had a stroke, had cancer and had several children – whether other factors exist such that Applicant’s present injury can no longer be said to arise out of his employment – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal General Practice Direction
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 24, 27
CASES
Canute v Comcare [2006] HCA 47
Telstra v Hannaford [2006] 151 FCR 253
Prain v Comcare [2017] FCAFC 143
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Senior Member Theodore Tavoularis
10 July 2018
CONTENTS
Introduction
The issues before the Tribunal
Legislation
Factual summary
The Applicant’s Evidence in Chief
The Cross-Examination of the Applicant
The evidence of Huifen He (Christy) Winchester
The medical evidence
Historical medical evidence – a summary
Dr Axel Estensen – report dated 17 April 2015
Dr Derek Lovell – report dated 18 September 2015
Dr Axel Estensen – report dated 5 September 2016
Dr Derek Lovell – report dated 10 November 2016
Cross-examination of Dr Estensen
Cross-examination of Dr Lovell
Establishing the continuum of causative events
Summary of findings
Conclusion
Decision
INTRODUCTION

The Applicant, Andrew Winchester, has been receiving compensation from the Respondent, Comcare, for a number of conditions he acquired whilst working for ATSIC in the 1990s. The Respondent has accepted liability for this condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).[1] On 27 October 2015, the Respondent denied liability under ss 24 and 27 of the Act for to compensate the Applicant for his purported (1) permanent impairment; and (2) non-economic loss arising from his accepted condition.[2] The Respondent affirmed this determination in a reviewable decision dated 15 December 2015.[3] The Applicant now seeks review of that decision.
[1] Exhibit 4.
[2] Exhibit 9, T-Documents, T 28, page 167.
[3] Ibid, T 31, page 177.
The Applicant’s accepted conditions (“the accepted conditions”) comprise:
(a)major depressive disorder recurrent episode;
(b)migraine;
(c)insomnia; and
(d)aggravation of asthma.
THE ISSUES BEFORE THE TRIBUNAL
The parties are in substantial agreement as to the issues for determination. There is one difference between them which I will describe below. For the purposes of these Reasons, I consider the relevant issues to be:
(a)whether the Applicant continues to suffer from the accepted conditions, or instead whether he now suffers from a condition or conditions not materially contributed to by his work;
(b)if the answer to issue (a) is that the Applicant continues to suffer from the accepted conditions, the resulting issue is whether the accepted conditions continue to be materially contributed to by the Applicant’s former employment with the Aboriginal and Torres Strait Islander Commission (“ATSIC”) such that a resulting finding can be made that he continues to have a disease for the purposes of the Act;
(c)if the answer to issue (b) is in the affirmative, the issue then devolves to a determination of two additional things:
(i)whether that disease constitutes a permanent impairment with permanent manifestation (or a likelihood to continue indefinitely); and
(ii)whether such permanent impairment gives rise to demonstrable non-economic loss attributable to the accepted conditions such that the Applicant may be entitled to lump sum compensation under ss 24 and 27 of the Act;
(d)if there is a positive finding for the questions raised in (c) (i) and (ii) above, then the following issues arise for determination:
(i)what is the percentage degree of the Applicant’s whole person impairment?;[4]
(ii)what is the appropriate score attributable to the Applicant’s non-economic loss?;[5]
(iii)what is the quantum of compensation payable to the Applicant?[6]
[4] This percentage is derived from an assessment of his impairments resulting from the accepted conditions under Table 5.1 in Part 1, Division 1, of the Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 (“the Guide”).
[5] This score is derived from an assessment of the non-economic loss he suffers as a result of the accepted conditions pursuant to Part 1, Division 2, of the Guide.
[6] The quantum for compensation is derived from an application of the formula appearing in Part 1, Division 3, of the Guide.
LEGISLATION
Section 4 of the Act defines “impairment” as “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”.
The relevant provisions for permanent impairment and non-economic loss comprise ss 24 and 27 of the Act.
Section 24 of the Act is cast as follows:
1Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
2For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
The Applicant has helpfully provided a summary[7] of other relevant aspects of s 24 of the Act. They comprise:
(a)a maximum amount for compensation for impairment;[8]
(b)any awarded compensation will be an amount that is the same percentage of the maximum as the percentage determined according to the Guide and will be expressed as a percentage;[9] and
(c)compensation is not payable if the impairment is less than 10%.[10]
[7] See Exhibit 15, Written Submissions of the Applicant, paragraph [43].
[8] Section 24(9) of the Act.
[9] Section 24(4) – (6) of the Act.
[10] Section 24(7)(b) of the Act.
Section 27 of the Act deals with assessment of compensation for non-economic loss. I note that a necessary prerequisite for the application of s 27 is a finding that an applicant has a permanent impairment under s 24. Section 27 is cast as follows:
Compensation for non-economic loss
1Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
2The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
“A” is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
“B” is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
3This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.
FACTUAL SUMMARY
The Respondent has made a helpful concession with reference to the facts of this matter.[11] Pursuant to clause 4.31 of this Tribunal’s General Practice Direction, the Respondent agrees with the facts set out in the Applicant’s Statement of Facts, Issues and Contentions.
[11] See Exhibit 7, Respondent’s Statement of Facts, Issues and Contentions, paragraph [4].
Be that as it may, the Respondent has also said that it relies on “a number of facts not pleaded by the applicant”.[12] For the sake of completeness, I will endeavor to list the totality of the relevant factual circumstances by reference to the Applicant’s evidence at the hearing.
[12] Ibid, paragraph [5].
The Applicant’s Evidence in Chief
The Applicant said he was born in Canada. He attained a Bachelor of Social Work and also completed a number of other management courses. He was employed in Canada – in the prison system – for approximately 11 years before taking a role with a telephone company. He was also in the military for a couple of years.
He moved to Australia in about 1990 and obtained employment here. His initial job in Australia saw him working for the Commonwealth Health Department. He was then promoted to a position with the Aboriginal and Torres Strait Islander Commission (“ATSIC”) in or about 1991. His position with ATSIC saw him based in the Northern Territory at Tennant Creek. The role involved him acting in the capacity of a Senior Project Officer responsible for administering programmes to Aboriginal communities together with initially vetting, then approving and ultimately overseeing those projects to completion.
He told the Tribunal that his role at ATSIC “…was a difficult job” and that he “had a lot of trouble from other people in the office there, which required [him] to repeat a lot of work”.[13] It seems these difficulties derived from deliberate misuse of and interference with the computer systems used by the office in which the Applicant worked. He said “The computer systems were sabotaged and things like that – yes, I had a lot of trouble with some of the people in the office there.”[14]
[13] Transcript for 13/11/2007, page 7, line 45 and page 8, line 1.
[14] Transcript for 13/11/2007, page 8, lines 2 – 3.
With further reference to these difficulties in his workplace, he was asked in evidence in chief about what prompted such difficulties resulting in the asserted issues in his then workplace. His evidence was to this effect:
Well I think there was just a lot of jealousy some people in the office had against me, and as I said, there was a lot of trouble in the office itself with computer systems being deleted, and projects being deleted and messed up and having to be re-done. It takes days and days to do a project sometimes. And also trouble at my work – the house I was assigned to was vandalised, and people were watching my movements, coming and going in my house, all the time.[15]
[15] Ibid, page 8, lines 10 – 17.
The Applicant developed asthma after only a few months in Tennant Creek. He experienced “…a lot of trouble adjusting, and a lot of anxiety and fear about what was going on, and couldn’t sleep at night because I was worried about what was happening and who was watching me…”.[16] According to his evidence, this insomnia and anxiety caused him to develop headaches that turned into migraine headaches for which he was placed on medication. Due to the lack of an asthma specialist in Tennant Creek, the Applicant recalls being sent to a hospital in Alice Springs for treatment on a few occasions.
[16] Ibid, page 8, lines 20 – 24.
He remained working in Tennant Creek “for about two years or so”[17] and was then eventually transferred to Canberra in or about 1993-1994. While in Canberra, he remained employed by the department that administered ATSIC, but the main focus of his work activities was now involved in the preparation of Ministerial briefings including research, speech-writing and completing other tasks as required by the Minister’s office from time to time.
[17] Ibid, page 8, line 30.
The Applicant’s evidence was that during his time in Canberra his mental health was not trending well. He said “I wasn’t feeling very well. I was still very anxious and sad about how things were turning out and I wasn’t seen to be getting anywhere; I wasn’t doing a very good job, I don’t think, because of that, and I was having to take a lot of time off work for illness, and saw a number of specialists in Canberra and was put on a lot of different medications.”[18] He recalls that in addition to medication for his mental health symptoms, he was also taking medication for asthma and migraines.
[18] Ibid, page 8, lines 41 – 46.
He continued to work in Canberra for approximately 2-2½ years at which time his wife formed an intention to move to Perth. This caused the Applicant to seek a transfer to Perth in or about 1995-1996. The transfer to Perth appears to have been motivated by two things: (1) a desire to be with his wife who apparently never enjoyed living in Canberra; and (2) the colder climate of Canberra was creating difficulties for the Applicant’s asthma condition. In his evidence to the Tribunal, the Applicant thought he “…wasn’t seeming [sic] to be getting any better, for any of my medical problems really”.
While in Perth, the Applicant remained with the department that administered ATSIC. He returned to more project-based work, much akin to what he did in Tennant Creek. He seems to have had difficulty adjusting to living and working in Perth. He seems to have reached a point where other factors caused him to be unable to complete his work role. Although he tried to perform his work in Perth, “…it just didn’t work out. I think I tried it two or three times and it just didn’t work. I was sick too often. I was hospitalised in Perth quite a few times, and eventually the doctors just didn’t recommend I continue working”.[19]
[19] Ibid, page 9, lines 27 – 31.
The Applicant described the symptoms he experienced in Perth as follows:
I had a lot of trouble – well my asthma never got better. It’s sort of stable now but it never got any better. It seemed to get worse with the anxiety, and I was hospitalised a few times there and different people saw me, and I was eventually referred to a psychologist that I remember. I think I saw some psychiatrists as well; certainly saw some in Canberra, and I think they referred me to some in Perth as well.
…
Not being able to sleep, being nervous all the time, afraid of situations where I had to meet people or there were new people or around [sic] or different people I didn’t know. As it turned out I didn’t have a lot of support there anyway. That’s why I didn’t do much there – yes, wasn’t able to do much; I was pretty boring.[20]
[20] Ibid, page 9, lines 35 – 46 and page 10, lines 1 – 2.
He ceased working in Perth in 1996 or 1997 and eventually returned to Queensland after spending several years attempting to return to work with ATSIC. The return to Queensland was motivated by two things: (1) Queensland was the place he first settled in when he initially arrived in Australia and so he had some measure of a support network there; and (2) his marriage broke down while in Perth.
It seems his symptoms persisted upon his return to Queensland. In particular, his mental health issues again troubled him. He recalls feeling “…depressed about the job [in Perth] not working out, and the trouble I had with the job initially and the people involved and so forth, so that has always stayed with me; I’ve never forgotten it. Then two years of daily/nightly harassment, it was pretty awful, and unexpected. So yes, I’ve never forgotten any of that.”[21]
[21] Ibid, page 10, lines 22 – 27.
He resumed consultations with general practitioners who have prescribed a significant amount of medication. For example, his current medication regime comprises:
Current Medications:
·Astrix Tablets 100mg Tablets 1 DAILY
·Atrovent Nebulising Solution 500mcg/mL Unit Dose Vials
·Imovane 7.5mg Tablets 1 at night for insomnia
·Nexium 20mg Tablets 1 daily
·Panadol Osteo 665mg Modified release tablets 2
·Seretide MDI (250/25) Inhaler (CFC-free) 2bd
·Systane Lubricating Eye Drops Eye drops as directed
·Ventolin CFC-free Inhaler 100mcg/dose Inhaler 2 qid
·Ventolin Nebules Nebulising Solution 5mg/2.5mL Nebulising Solution as directed [sic]
·Viagra 100mg Tablets 1 prn.[22]
[22] Exhibit 11, Medical Summary, page 1.
In terms of his mental health symptoms, the Applicant spoke of not being very happy, of being tired all the time and not motivated to do very much at all. He told the hearing that before initially experiencing his symptoms, he “…was very active. I used to play a lot of sport and had a lot of friends. I was too busy to ever turn the TV on. I don’t even think I owned one in those years. So I had, as I said, [sic] very active and very happy, and we liked meeting people, doing different things. I did a lot of exercise, a lot of hiking and things like that.”[23]
[23] Transcript 13/11/2017, page 10, lines 41 – 46.
Comparatively, the Applicant now seems to lead a more sedentary life. He was asked what an average day entails for him. He responded with “Well getting up at 5 o’clock and drinking coffee till everyone else gets out of bed, and really just not doing much all day long – walk my son to school, go home and potter in the garden all day; sit around. Sometimes I can read, but if I get a migraine I can’t – can’t read with a migraine”.[24]
[24] Ibid, page 11, lines 1 – 5.
He was asked about whether he socialises with friends and responded with “Almost never. Never made any new friends in years and years.”[25]
[25] Ibid, page 11, lines 6 – 7.
In terms of interaction with his children, the Applicant mentioned his 5 year old son but added that he lacks the strength to engage in any meaningful physical activity with his son nor does he have much desire to do so in any event. The Applicant said that during his interactions with his son “I try not to pass on my depression to him, but I’m sure he notices”.[26]
[26] Ibid, page 11, line 15.
According to his evidence in chief, the Applicant’s symptoms have now interfered with his capacity to maintain acceptable levels of personal hygiene. Prior to his injury, he had no such trouble. But his situation now is quite different. He said “Well if it wasn’t for my wife I probably wouldn’t change clothes for two weeks. She has to remind me to do everything really – shower and brushing my teeth and everything, she reminds me. She gets my medicine ready for me at night. I feel a bit helpless but otherwise I’d forget. And if I’ve got a migraine headache, I don’t want to do anything. Really I need to get away from everybody and sit in the corner somewhere. I don’t sleep very well. I try not to keep everyone else awake, but it’s pretty hard.”[27]
[27] Ibid, page 11, lines 27 – 35.
His symptoms have also minimised the Applicant’s capacity and/or inclination to drive a motor vehicle. He drove regularly before the injury but now drives on a “Very seldom” basis. He says he lacks the confidence to drive and that his wife does not feel safe when he does the driving. In his view, his “…reaction to time [sic] is very slow and I get scared or surprised very easily, so I’m just afraid of causing an accident or injury.”[28]
[28] Ibid, page 11, lines 42 – 44.
The Applicant gave evidence of travelling overseas since suffering his mental health injury. The main purpose of the trip was to meet his current wife whom he initially met online. He made this trip to China in or about 2009-2010. He was asked about what he did with her while he was in China and he responded with “Nothing; I just stayed with her in her home, but she was working at the time so I’d just stay at home and play on the internet or watch movies, DVDs”.[29] He denied ever being engaged in remunerative employment while in China.
[29] Ibid, page 12, lines 4 – 6.

The Applicant agreed that he has lived by himself and has been able to support himself without his wife. He gave evidence of returning to Australia while she remained in China and of sharing a unit with a friend. He said while living in this way did not cause him to live “a very good life” because “It was very basic”. He said that he and his flat mate “…didn’t cook much and things like that, and cleaning was non-existent I think. As I say, it was just very basic, living in a sort of a beach house”.[30]
[30] Ibid, page 12, lines 12 – 17.
The Applicant gave evidence of a cerebellar stroke he experienced in 2012. His evidence about the stroke seemed, to my mind, cautious and guarded, particularly with reference to any suggestion of this stroke being in any way wholly or partly causative of the mental health symptoms he now propounds:
I had a dizzy spell where I felt dizzy and fell down and may have been unconscious for a few seconds. I don’t know if it’s – the doctors thought it may have been a stroke or something like a stroke, and I had an MRI in Australia to check it out to see if there is some damage. So it’s never been completely confirmed, I guess, that it was a stroke, but there is some damage to the back of my brain – but there’s been no effects, left over effects from it that I know of, and they can’t seem to find any reason for why I would have had a stroke.[31]
(My underlining)
[31] Ibid, page 12, lines 20 – 27.
The Applicant denied any change in his mental health contemporaneous with or shortly after suffering his cerebellar stroke.
The Applicant was then taken to the year 2015 during which year he was diagnosed with a malignant and cancerous growth in his throat. Again, his evidence was, to my mind, cautious and guarded to the extent that it sought to compartmentalise this significant diagnosis of a malignancy away from any causative or contributory role to the mental health symptoms he now propounds:
I was diagnosed –my GP actually, and my present GP, diagnosed me with cancer – throat cancer – or at least he thought it was, and he sent me off right away for tests, which was confirmed, and within just a few weeks really I was in Royal Brisbane Hospital getting treatment for throat cancer. It was cancer in one or two of the nodes in my throat, lymph nodes, but they told me at the time that it was very treatable, and 95 or 98 per cent success or something because of the type of cancer I had, and they were very positive. I went through treatment for about three months.[32]
[32] Ibid, page 12, lines 32 – 42.
Radiation and chemotherapy were the primary forms of treatment for the Applicant’s throat cancer. The Applicant “…didn’t really have any side effects from the chemotherapy. The radiation caused some burns around [his] neck, but that eventually healed up as well.”[33] He gave evidence of feeling “…quite good about the prognosis”. He added “They expected the treatment to be very successful, and it was, and nothing else really changed in my life, to be honest.” [34]
[33] Ibid, page 12, lines 45 – 47.
[34] Ibid, page 13, lines 2 – 5.
He was asked whether he had noticed any difference in how he was feeling mentally before the diagnosis compared to after being diagnosed and treated. He responded with “No. I obviously was very concerned when it was diagnosed but they told me that treatment was usually very successful and they’ve got a good review ever since, so it’s completely cleared.”[35]
[35] Ibid, page 13, lines 7 – 11.
The Cross-Examination of the Applicant
The Applicant was asked about his period in Perth and, in particular, what he did in Perth during the five or six years between 1997 and 2003, prior to his return to Queensland. The Applicant agreed he ceased actively working with ATSIC in Perth in about 1997 and that he did no work at all while in Perth during the period 1997 – 2003. I note that it appears that the Applicant was still formally employed by ATSIC until 2001, when he was medically retired. After the relationship with his wife broke down, he lived with a number of different roommates in Perth.
He was asked to give his own assessment of his current mental state in terms of his level of tiredness, motivation and energy levels. He told the hearing that his mental state now is the same as it was while he resided in Perth in the late 1990’s. In particular, he told the Tribunal that his mental state had not changed since the late 1990’s, that he had not experienced periods where those symptoms had improved or worsened and that, as best as he knew, those symptoms had remained at a constant level throughout this period (that is, mid-late 1990’s to the present).
Counsel for the Respondent then sought to obtain the Applicant’s understanding of the ultimate nature and purpose of this claim. It seemed clear that the Applicant was cognisant of the positive benefits and outcomes that he has received, and that he stands to receive, as a result of the propounding of his mental health symptoms. The Applicant accepted that each of the following items are the result of or may eventuate from his now propounded symptoms:
(a)the Respondent had been paying him benefits on a weekly basis since at least 1994;
(b)while still an employee of ATSIC until 2001, the Respondent was paying him compensation for being unfit for work at various times;
(c)when he was retired on invalidity grounds, ComSuper also started paying him a pension;
(d)when he turns 65, the Respondent’s weekly payment of benefits will cease;
(e)the ultimate purpose of this application is for him to derive a measure of financial assistance if those reported symptoms form the basis of a finding of a permanent impairment.
This Applicant turned 65 in August 2017. He was asked to explain why it is that it was not until late 2014 or early 2015 that he made a decision to apply to be classified as having a permanent impairment with the Respondent. His response was less than convincing:
I think the solicitor that I had in Perth years ago, I’m pretty sure she recommended that I do it; if I was going to do that that I should do it later rather than earlier, but I think I just – I don’t recall how it started – I think I made some inquiries with my current solicitor who suggested that I should be applying for it.[36]
[36] Ibid, page 14, lines 41 – 45.
The Applicant was then asked to clarify whether, since his move back to Australia, he had experienced financial difficulties, having bought a house and having to raise two young children. He denied being in any financial difficulties as a result of these factors.
The Applicant’s travel movements were then put to him. He told the hearing that he had travelled to China on multiple occasions since 2002. In that year, he had met someone on line – not his current wife – and that he travelled to China to visit her. He said he found living in China to be very cheap and agreed that he made regular return trips to China over the next 10-12 years. He agreed that the period of time he spent in China increased with each subsequent visit. For example, on one visit, he lived in China for three months; on his next return visit he lived there for six months; on a subsequent visit he lived there for 12 months and then following a visit in 2006, he resided in China for three and a half years.
He was asked to explain what he was doing in China for such extended periods. He responded with “Maybe a bit of travelling, but mostly just staying there because it was cheap to live there.”[37] The Applicant denied ever being engaged in remunerative employment in China and also denied ever learning the local language, despite living there for a cumulative total of more than five years, other than “…half a dozen words – hello and goodbye, and where’s this at maybe – but no I can’t speak the language”.[38]
[37] Ibid, page 15, lines 32 – 33.
[38] Ibid, page 15, lines 45 – 47.
It was put to the Applicant that his earlier evidence in chief to the effect that a major component of his anxiety involved a fear of finding himself in crowds and dealing with people he did not know was inconsistent with his extended period of residence in a highly populous country where he seems to have done more than a token amount of travelling and in circumstances where he says he only knew half a dozen words of the local language. The Applicant’s response was tepid and unconvincing. He said “Yes, I kept to myself mainly.”[39]
[39] Ibid, page 16, lines 6 – 7.
Counsel for the Respondent pressed the point and suggested that the Applicant was more active and more engaged with life in China than what he suggested in his evidence in chief. He responded with “I don’t know what you mean.”[40] It was put to the Applicant that “…when you were in China you weren’t just sitting by yourself because it was cheap; you were engaged in life over there – you were travelling, you were meeting people, you met your wife, you got married – you were living a normal life?”[41]
[40] Ibid, page 16, lines 10 – 11.
[41] Ibid, page 16, lines 13 – 16.
He responded, uncompellingly, with “No, I wouldn’t say a normal life. I don’t have any friends from over there that I’m in contact with. I kept pretty much to myself. You can buy movies over there for 20 cents a CD, so I did a lot of that. I watched thousands of movies, and everything is very cheap there. Food is cheap, so I never had to cook.”[42]
[42] Ibid, page 16, lines 16 – 20.
The Applicant’s travels have also seen him return to his country of origin, Canada, on three separate occasions. He agreed that he made a trip to Canada in 2004 and remained there for six months. He did not recall a return trip to Canada in 2006 and that such visit was made during the period of time since he ceased his employment with ATSIC. He did, however, agree that he made a further trip to Canada in 2011 and explained that trip on the basis of “That’s when my wife took me to Canada, yes, to see my mother before she passed away.”[43]
[43] Ibid, page 16, lines 41 -42.
Counsel for the Respondent then pointed the Applicant to a passage in his evidence in chief relating to the extent of his interaction with his family. It was suggested to the Applicant that his answer to this question was incomplete in the sense that while he did make reference to his then-five year old son, he made no reference to his then-eight month old daughter. The Applicant told the hearing that he and his wife have two children, who were then aged five years and eight months, respectively. His further evidence was that both children were conceived naturally.
The Applicant was then referred to a certain form he completed in May 2015 entitled Compensation Claim for Permanent Impairment and Non-Economic Loss – Form and Checklist.[44] In this document, the Applicant recounted the impact of his symptoms on his levels of pain and suffering, his mobility, his social relationships and his recreational and leisure activities. There followed this exchange between Counsel for the Respondent and the Applicant:
Question:Is it your evidence, Mr Winchester, that firstly, the effects of your stroke that you suffered, or the suspected stroke that you suffered, in 2012, has had no continuing impact on your mental state?
Answer:No, it hasn’t, no.
Question:And is it your evidence to the tribunal that the effect of the cancer surgery you had in July 2015 has had no impact on your ongoing mental state?
Answer:That’s right, yes. I didn’t have any surgery though.
Question:And is it your evidence to the tribunal that beyond the circumstances which occurred when you were working at ATSIC in Tennant Creek in the early 1990s, that is the only thing which is continuing to cause you to experience your symptoms of anxiety and depression?
Answer:Yes.[45]
[44] See Exhibit 9, T Documents, T24, pages 123 – 136.
[45] Transcript, 13/11/2017, page 17, lines 31 – 43.
Counsel pressed the point as follows:
Question:Mr Winchester, you’re an intelligent man; you know that you need to say that, don’t you?
Answer:I don’t know what you mean.
Question:Well, you know that to get compensation for permanent impairment, you need to say that what’s wrong with you now still relates to something which happened over 25 years ago?
Answer:Well I say it because it’s the truth.[46]
[46] Ibid, page 17, lines 45 – 46 and page 18, lines 1 – 3.
The Applicant was then taken to the Nambour Hospital’s records for 19 November 2015,[47] which record that [the Applicant] “…has many financial stressors due to his unexpected health complication and is at risk of worsening health and hospitalisation.” Counsel for the Respondent put it to the Applicant that he must have told the doctors about experiencing these stressors and that he must have described their strain on him. The Applicant said that he did not recall saying this to doctors and sought to explain this record on the basis that “…I had the same stressors as anyone else, I suppose, financially. All my medical care was bulk-billed or funded by Medicare, so that wasn’t causing me any financial stress.” I find this response evasive and unconvincing because it does not answer the question. The question relates to whether the Applicant experienced financial stressors arising from his being unwell. I do not consider the scope of this question to be limited to the effect of medical costs. The Applicant has purported to answer the question on the basis that he has not experienced financial stressors because his medical costs are funded by Medicare. To my mind, that is avoiding the crux of the question.
[47] See Exhibit 10, Tender Bundle, page 24.
The evasive nature of the answer is confirmed by reference to the remaining part of the relevant medical record which says “Prior to the unexpected diagnosis and treatment period [the Applicant] had bought a house and has been going through the moving process and financial strain of this which is also having an impact on his health/recovery. His wife who resides with him is unable to work and they have a young son.”[48] The Applicant responded by saying “No, I don’t remember saying that, although obviously there’s difficulties involved in moving house, but yes, I don’t recall making that an issue at all.”[49]
[48] Ibid.
[49] Transcript, 13/11/2017, page 18, lines 29 – 30.
It was put to the Applicant that if he was seeing a doctor several months after moving house and that during that consultation with the doctor, the Applicant specifically told him the things appearing in the relevant medical record, then surely, at least at that time, those recorded financial stressors would have been at the forefront of the Applicant’s mind? The Applicant’s response was dismissive and consequently lacking in credibility “It may have been an off-hand comment, but I don’t think it was something that was bothering me, was affecting me at all, no.”[50]
[50] Ibid, page 18, lines 34 – 36.
It is, to my mind, stretching the bounds of credibility and reasonableness – particularly given what is recorded in the relevant medical records – for the Applicant to say that he either does not recall reporting such financial stressors and strains to a medical practitioner or, in the alternative, that it was an off-hand comment and not affecting him at all.
In a similar vein, the Applicant flatly denied a suggestion that another ongoing cause of his anxiety could be reasonably expected to derive from the reality of him meeting the challenge – as a father in his mid 60’s – to financially provide for two children aged five years and eight months respectively. His bald and unconvincing denial of such a possibility does not stand to reason in circumstances where:
(a)there were 13 years of parenting still attaching to the then-five year old child and 17 years of parenting still attaching to the then-eight month old child at the time he answered the question. This means the Applicant will most likely have primary financial responsibility for both children until he is approximately 78 years of age (for the five year old) and approximately 82 years of age (for the younger child);
(b)as will be demonstrated in following paragraphs, he has relatively recently (in January 2015) said exactly the opposite to a psychiatrist who has provided a report in these proceedings; and
(c)such a blatant and unconvincing denial does not square with his earlier evidence that he had the same financial stressors as anyone else.
With particular reference to sub-paragraph (c) of the immediately preceding paragraph, the Applicant was referred to the report of the Consultant Psychiatrist, Dr Axel Estensen, dated 17 April 2015.[51] This report was commissioned by or on behalf of the Applicant and results from the consultation between the Applicant and Dr Estensen on 22 January 2015. Dr Estensen made these findings about the causative drivers behind the Applicant’s anxiety:
Anxiety Symptoms:
The client said most of his anxieties related to his financial position and how he would provide for his son. While loving and being appreciative of his son, Mr Winchester said that his son’s conception was “an accident” with neither he nor his wife expecting a pregnancy at this stage of their life. His limited financial position was problematic and he was concerned of how he would provide for him. [52]
(My underlining)
[51] Exhibit 9, T Documents, T 23.3, pages 105-122.
[52] Ibid, page 110.
The Applicant agreed that this is what he told Dr Estensen. He was asked to square what he told Dr Estensen with his earlier flat denial that financial issues arising from his responsibility – as a 65 year old father – to meet the cost of raising one child then aged five years and another then aged eight months. He responded in vague, tepid and unconvincing terms:
Well, no, I don’t believe that it’s the cause of, you know, most of my anxiety. Obviously, raising children – anyone raising children is concerned about the finances and the difficulties raising children, but it’s not – it hasn’t been the cause of my medical problems.[53]
[53] Transcript, 13/11/2017, page 19, lines 16-19.
It is clear that his earlier refusal to accept financial pressure for raising two very young children is inconsistent with a concession that this financial factor is not the cause of “most” of his anxiety.
It was put to the Applicant that he was trying to downplay other factors that may impede a finding that only the ATSIC factors should be regarded as causative of his now propounded symptoms. He responded with “What are you asking? I don’t know.”[54] The Applicant maintained his view that the sole cause of his now-propounded symptoms was the events he recounted as having occurred during his time at ATSIC some 25 years previously.
[54] Ibid, line 29.
The Applicant was clearly very resistant towards – and even verging on dismissive of – accepting that there might be any other causative factors for his claimed difficulties. Such other possible causative factors include: (1) experiencing a cerebellar stroke in 2012; (2) receiving a diagnosis of throat cancer in 2015 for which he underwent surgery, chemotherapy and radiotherapy; and (3) meeting the financial responsibility as a 65 year old primary provider for two young children, in circumstances where his sole source of incoming funds has been, and will most likely be, invalidity benefits from Comcare and/or a pension from ComSuper and, presumably, the age pension. In response to the suggestion that such factors might cause the Applicant considerable concern, he said:
No, it’s causing some concern but I wouldn’t say considerable, even though the effects from the stroke and the cancer has been obliterated, so – raising children isn’t easy, but obviously, my wife does more than I do.[55]
[55] Ibid, lines 37-40.
I do not accept that (1) a concession that factors other than the ATSIC recounted incidents caused the Applicant “some concern”; (2) the apparent “obliteration” of any residual effects from the cerebellar stroke or the throat cancer; or (3) the apparently more significant role played by his wife for the daily care of the infant children – taken alone or in combination – could lead to those factors being excluded as, at least in some measure, from contributing towards or being causative of, his now propounded symptoms.

The Applicant repeated his feelings of anxiety having their basis in financial worries during a subsequent consultation with Dr Estensen on 28 July 2016. That consultation resulted in a second report by Dr Estensen dated 5 September 2016.[56] Dr Estensen made these findings:
At the time of the current review Mr Winchester described the following symptoms:
...
Anxiety Symptoms:
The client said most of his anxieties related to his financial position and how he would provide for his son and the child that was to be born in 2017. Mr Winchester said that his wife’s pregnancy, like his son’s conception, was unexpected. His limited financial position was problematic and he was concerned of how he would provide for his children. [57]
(My underlining)
[56] Exhibit 6, Report of Dr Axel Estensen, dated 5/9/2016.
[57] Ibid, pages 8-9.
In response, the Applicant said he wasn’t sure why Dr Estensen said that “most” of his anxieties related to his financial position:
I wouldn’t say most of my anxieties, I don’t know why he wrote “most”, but obviously there are some, but again, it’s not the cause of my medical problems, they were here long before the children. And everyone is concerned about the children.[58]
[58] Transcript, 13/11/2017, page 20, lines 6-10.
The Applicant was then questioned about the findings of the Consultant Psychiatrist, Dr Derek Lovell, who, at the request of the Respondent, prepared two reports for this proceeding dated 18 September 2015 and 10 November 2016. The former report was prepared contemporaneously with the Applicant undergoing treatment for throat cancer.
Counsel for the Respondent questioned the Applicant about his apparently quiet and solitary life in China for several years. He was referred to Dr Lovell’s historical commentary about the Applicant’s mode of life in China, which Dr Lovell recorded as, in Shenzhen, the Applicant “did little other than have contact with expats, participate in occasional language groups and surf the internet.”[59] The Applicant was asked to explain the nature of “language exchange groups”. He said:
Well, they were kind – sometimes the ex-pats would – the foreigners would meet at a restaurant or something and there’d be some local kids there and they’d be practicing their English, that sort of thing. I went along to meet other foreigners as someone to talk to more than anything for me. I didn’t do that very often, no.[60]
[59] Exhibit 9, T-Documents, T 27, page 160.
[60] Transcript, 13/11/2017, page 20, lines 25 – 29.
It is, to my mind, something of a leap of faith to believe that the Applicant’s extended stay in China was largely a lonely, solitary and inactive one due to his anxiety. I think it is more likely that he was more engaged in life in China than his evidence would suggest. The history recorded by Dr Lovell reveals at least some measure of social interaction with both local people “practicing their English” as well as other ex-patriate residents in China. The Applicant was obviously travelling through China and must have surely been having some kind of socially interactive existence while there, because, after all, he met his current wife and got married while in China.
The Applicant’s earlier evidence about either or both of the children resulting from unplanned or accidental pregnancies was also sought to be challenged in cross-examination. He agreed that his wife’s pregnancy with their daughter (the eight month old child) was unexpected. He was asked to explain how this evidence squares with his concession that he and his wife had been wanting to have further children. He conceded, “Well, we wanted them and actually had – was considering have (sic) some testing done to see whether it was even possible for us, so it was quite a surprise when she found out she was pregnant.” [61]
[61] Ibid, page 20, lines 35-38.
The Applicant’s evidence about accidental or unexpected pregnancies was brought into further question by some medical records in evidence before the Tribunal. While receiving treatment for the throat cancer condition in August 2015, the Applicant raised the possibility of having a further child or children with his treating oncologist, Dr Percival. On 3 August 2015, Dr Percival noted:
Pt [patient] raised question of “trying for a child”, stating he and his wife are hoping to have another child, Dr Hughes attended and explained necessity for delaying pregnancy.[62]
[62] Exhibit 10, Tender Bundle of medical records, page 6.
It is also apparent from the material that,[63] in March 2016, the Applicant arranged for semen analysis with his general practitioner, Dr Vogel. The Applicant sought to ameliorate this inconsistency in his evidence by saying, “My wife was more wanting another child than I, but yes, I think they said to hold off, but we weren’t having any success anyway.” [64]
[63] Ibid, page 25.
[64] Transcript, 13/11/2017, page 20, lines 45-47.
Counsel for the Respondent also sought to challenge the Applicant’s evidence that his mental state had not changed from the time he left Perth in the mid-2000’s until the time he met his current wife in 2009/2010 and, further, that his mental state had not changed since 2010. The Applicant’s movement recordsindicate he made at least five overseas trips during the period February 2010-May 2016.[65] It was put to the Applicant that notwithstanding his asserted mental health symptoms, how was it possible for him to be nevertheless capable of travelling overseas and visiting another country (China) in circumstances where he said he did not speak the language? It was also pointed out to him that he left for China on 11 February 2015, barely two weeks after his initial consultation with Dr Estensen on 22 January 2015, during which he told Dr Estensen of the adverse impacts of his mental health symptoms on his quality of life.
[65] Exhibit 14, Movement Details record, dated 8 September, 2017, page 1.
His responses were both unconvincing and lacked credibility:
Well, my wife arranged everything, I stayed with my wife the whole time. She was my complete support.
…
She certainly has to do most things for me, but I wish it were different. I wish I could do more for myself and for her...[66]
[66] Transcript, 13/11/2017, page 21, lines 38-39 and 45-47.
The evidence of Huifen He (Christy) Winchester
Mrs Winchester is the Applicant’s wife. She has provided a statement which has been included in the written evidence as Exhibit 2. The statement is dated 18 May 2017.
Her oral evidence in chief was of short compass. After initially confirming her personal details, she further confirmed (1) preparing a written statement in relation to this matter; (2) she had read that statement before attending the hearing to give oral evidence; and (3) she said (on oath) that the subject statement was true and correct to the best of her knowledge.[67]
[67] Ibid, page 24, lines 5-10.
It immediately became apparent upon hearing Mrs Winchester’s oral testimony, that there was a significant and inexplicable gap between the standard of English expression appearing in the written statement compared to Mrs Winchester’s level of proficiency in actually speaking English. This gap was plain for all to see and hear. I told Counsel for the Applicant that it was “a leap of faith for anyone to believe that the level of [Mrs Winchester’s] proficiency in English would, of itself, have produced a statement like this.”[68] I explained to Counsel for the Applicant that I felt compelled to request an explanation for how someone with Mrs Winchester’s level of proficiency in spoken English could produce a written statement in substantially better English than she could speak.
[68] Ibid, page 26, lines 8-10.
I made it clear to Counsel for the Applicant that I was concerned that the statement could have been the work of someone else and that unless that matter could be clarified, I would be giving Mrs Winchester’s statement only a certain level of weight.[69] Counsel for the Applicant helpfully took instructions from the bar table and told me this:
MS HEWSON:           I’m instructed that the usual course of practice is for the solicitor to take the statement. We’ve noted the initials in the reference down the bottom, ‘PTM’ indicates that it was Peta Miller who’s a solicitor at Maurice Blackburn, who is not present today though.
SENIOR MEMBER: And is Ms Miller proficient in Chinese or Mandarin?
MS HEWSON:           Don’t believe so.
SENIOR MEMBER: Right. Do we know if a third party was involved to filter the words from the witness to Ms Miller so that Ms Miller could write this, on behalf of the witness?
MS HEWSON:           We’d have to ask Ms Miller about that.[70]
[69] Ibid, page 26, lines 20-23.
[70] Ibid, page 26, lines 38-45 and page 27, lines 1-5. Ms Hewson is the name of Counsel for the Applicant.
Counsel for the Applicant sought further instructions overnight and at the commencement of the following hearing day, the following exchange occurred:
MS HEWSON:           Thank you. The only other additional matter that I raise at this time is in relation to Mrs Winchester’s statement.
SENIOR MEMBER: Yes. Yes.
MS HEWSON:           Inquiries have been made with the solicitor that took the statement, and my instructing solicitor has undertaken a review of the file. I can inform the tribunal that Mrs Winchester was provided with a schedule of questions which was provided by email. She provided a written a written response to those questions, and in turn they were effectively cut and pasted into a statement as it appears now.
SENIOR MEMBER: All right. Okay. They were cut and pasted into the statement that she then signed?
MS HEWSON:           Yes.
SENIOR MEMBER: All right. Thank you. Any submissions on that point, Mr Dube?
MR DUBE:                 I might address it in closing submissions.[71]
[71] Transcript 14/11/2017, page 55, lines 18-38. Mr Dube is the name of Counsel for the Respondent.
A cursory review of the actual oral evidence provided by Mrs Winchester in cross-examination clearly demonstrates that she does have a basic command of spoken English. It is possible to obtain from her transcribed evidence given in cross-examination a sufficiently cogent picture of her life with the Applicant. Her evidence in re-examination traversed predominantly domestic themes, such as the Applicant’s eating habits, his level of personal hygiene, his sleeping patterns, his general emotional demeanor, such as when, for example, he felt melancholy and tearful, his social orientation, such as if and when he drives a motor vehicle and the extent to which she socializes with him. On any reasonable view, her evidence largely complements that of the Applicant in this regard.
I have little doubt that Mrs Winchester her evidence to the best of her ability. I considered the weight I should allocate to her evidence, particularly with regard to the question of the need for supervision of the Applicant in his activities of daily living. Counsel for the Respondent observed, in my view correctly, that Mrs Winchester’s comprehension of spoken English is limited and that, consequently, one would expect her comprehension of written English to be even more limited. Her statement, comprising Exhibit 2 in these proceedings, was constructed on the basis that Mrs Winchester and her friend answered some questions and that the Applicant looked at those questions as well. The answers were cut and pasted into what now comprises Mrs Winchester’s statement.
As also observed by Counsel for the Respondent, again in my view correctly, the Tribunal cannot be certain about how the answers to those questions were composed or constructed and what level of consideration and refinement was given to those answers. Ultimately, the reservation I have with Mrs Winchester’s evidence is that the Tribunal cannot ascertain the extent to which it can be assumed that what Mrs Winchester says in this statement is exactly what type of domestic supervision and assistance she has been performing for the Applicant across the totality of the relevant period.
The transcript does reveal apparent confusion in the answers Mrs Winchester provided to certain questions, such that one had difficulty in comprehending her actual answer to a specific question. To resolve the point about weight to be allocated to Mrs Winchester’s evidence, I allocate only little weight to her oral evidence. Further, I afford little or no weight to her written statement because of (1) the considerable gap between her spoken English and the level of written English apparent in the statement; and (2) a lack of certainty as to how the written answers comprising the statement were composed.
In the final analysis, I am of the view that Mrs Winchester’s evidence is of minimal, if any, value to the seminal question of whether the Applicant’s asserted workplace experiences at ATSIC are still the sole or primary source of the symptoms he propounds in this application. She has only been with the Applicant since 2009 and has no medical training. She is thus in no position to delineate between the possible causes of his currently asserted symptoms. She cannot provide any objective evidence on whether the ATSIC factors are to blame or whether relatively more recent factors such as the cerebellar stroke, the throat cancer diagnosis and subsequent treatments have superseded the ATSIC factors and, if so, (1) to what extent the superseding has occurred; and (2) when it occurred.
On his own evidence, the Applicant says the ATSIC factors have made him unwell since the early 1990’s – a period of some 15 years before he met Mrs Winchester. A further point about Mrs Winchester’s evidence is that she has nothing to say about the Applicant recounting the ATSIC events to her. While such evidence would be, strictly speaking, hearsay, there can be no doubt that couples do talk about historical factors and events pre-dating their relationship. If the episodes at ATSIC were so pronounced and dominant as factors for how Mrs Winchester now finds him and, indeed, how she has experienced him since 2009, one would surely have expected the Applicant to have told her something of the ATSIC episodes. There is no evidence from Mrs Winchester that he ever did so.
THE MEDICAL EVIDENCE
Historical medical evidence – a summary
The primary expert and most recent medical evidence in this matter derives from two consultant psychiatrists: Dr Axel Estensen (who has prepared two reports at the request of the Applicant) and Dr Derek Lovell (who has prepared two reports at the request of the Respondent). Both Drs Estensen and Lovell gave oral evidence at the hearing. Prior to embarking upon a discussion and analysis of their respective evidence, it is necessary to provide a synopsis of the historical medical opinion relevant to the Applicant’s now-propounded symptoms.
The Applicant contends that he has suffered from his compensable psychiatric condition since “at least 8 March 1994”, and continues to do so.[72] This submission is based on the report of his then-general practitioner (“GP”), Dr Xenie Fedoroff, dated 8 March 1994 in which he opines that the Applicant “…is now suffering from acute stress as seen by migraines, insomnia, irritability and dizziness etc. to the extent that he finds coping with work difficult.” [73] Further in his report, Dr Fedoroff opined that the Applicant’s then-propounded asthma had become worse due to “…very stressful work situation… and also Mr Winchester now suffers from acute anxiety depression, secondary to his very stressful work situation”.[74]
[72] Exhibit 15, Written Submissions of the Applicant, page 9, paragraph [53].
[73] Exhibit 9, T Documents, T3, pages 14 – 15.
[74] Ibid, at page 14.
Also in 1994, the Applicant received a diagnosis of major depression with secondary alcoholism from the consultant psychiatrist, Dr John Saboisky. Dr Saboisky’s report is dated 30 June 1994 and is addressed to the Applicant’s then-GP (Dr Fedoroff) who had referred the Applicant “as a matter of some urgency”.[75] Dr Saboisky noted these things in terms of a history:
His psychological problems began when he took on a job in the Northern Territory in the town of Tennant Creek with ATSIC and there were considerable adjustment problems and a great deal of aggravation because of perceived incompetence and organisation irregularities.
…
His move to Canberra appears if anything to have made things worse and there have been added stresses at work which are of a different type than he had in the Northern Territory. He finds the ATSIC department where he works to be oppressive and stressful in the extreme.
…
As a result he tells me he has been feeling depressed, frustrated and angry.[76]
[75] Ibid, at page 16.
[76] Ibid.
In terms of clinical findings, Dr Saboisky noted these things:
While he has had a number of long term relationships he does not appear to have any particular personality disorder.
During my examination of him he was a tall, very tense and depressed man, who was desperate to find some solution to his plight.
I think he suffers from major depression with secondary alcoholism and I have prescribed Zoloft a new serotonin re-uptake blocker for him.[77]
[77] Ibid, at page 17.
The Applicant was then reviewed by the Commonwealth Medical Officer, Dr F W de Wilde, on 21 July 1994. Dr de Wilde produced a report dated 28 July 1994 and made these clinical findings:[78]
This officer is in obvious depression and is ill. He is unhappy in his work environment with complaints about co-workers and management. The combination of stress-induced asthma and the Canberra climate makes him unfit for work and in serious danger to his health.[79]
[78] Ibid, T5, pages 18 – 19.
[79] Ibid, at page 19.
Dr Saboisky then, at the request of the Respondent,[80] provided a further report dated 28 February 1995.[81] In terms of clinical observations and findings, Dr Saboisky said these things:
1. In my opinion he suffers from asthma and from depression.
2. I believe employment factors materially contributed to his conditions and I refer you to his letter to you outlining the various problems he had in the Northern Territory and subsequently here.
…
His level of distress regarding ATSIC here is such that I am of the view that he would not comfortably return to that work environment.
…
I have treated him for the last eight months with Zoloft and Sinequan and have not really noticed any great improvement in his condition. I think that his problems are now firmly entrenched and will not resolve until such time as this whole issue is sorted out.[82]
[80] Ibid, T6, at pages 20 – 21: Letter dated 17 February 1995 from Comcare Australia to Dr John Saboisky, Consultant Psychiatrist.
[81] Ibid, T6, pages 22 – 23.
[82] Ibid.
The Applicant was then referred by the Respondent to an Associate Professor in Occupational Medicine, Dr Peter Hollingworth, who provided a lengthy report dated 22 April 1997.[83] In terms of clinical observations and findings, Dr Hollingworth said:
1. The first thing about this man is that there appear to be some inconsistencies in his presentation. – His dry tickling cough, but lack of problems with expiration are not typical of asthma. So I think there is some abnormal illness behavior in his initial presentation and the fact that this settled after we had been talking for some time is very supportive of this opinion.
A person who has severe asthma, or severe shortness of breath, would find it very difficult to be talking for over 2 hours. This man appeared, rather than getting worse, to get better the longer he talked. So I think there is an element of abnormal behavior here and certainly he appears clinically depressed, with very little in the way of views of the future and a very pessimistic outlook.[84]
…
10. I think this man’s “depression” very much relates to what he perceives as the ill-treatment which he has had from ATSIC and certainly at the present time he seems to be quite fixed on the relationships which he has had with a variety of people in ATSIC and what he feels is the poor way in which he has been treated and certainly this has become to an extent where he is almost paranoid.[85]
[83] Ibid, T9, pages 27 – 41.
[84] Ibid, page 37.
[85] Ibid, page 39.

On 25 November 1998, at the request of the Respondent, the Applicant was examined by the Consultant Physician, Dr Peter Stevenson. Dr Stevenson’s report is dated 2 December 1998.[86] In response to questions put to him by the Respondent, Dr Stevenson made these comments:
[86] Ibid, T13, pages 51 – 59.
1.        What is the nature and extent of the original injury and Mr Winchester’s current condition?
The current condition appears to be that Mr Winchester very clearly suffers from bronchial asthma of at least moderate severity. The original putative injury would be I gather, his claim that the asthma was induced by the stress of his employment with ATSIC in 1992. Actual evidence that psychological stress is a cause of asthma is scanty [sic] and there is in fact little to support this hypothesis. However, there probably would be reasonable agreement amongst experienced clinicians that stress and emotional factors may appear as exacerbating or aggravating pre-established asthma.
…
His account of his time at ATSIC is fairly horrific, and he does appear to have continuing frustrations in his attempt to get out of ATSIC, so it may well be arguable that psychological distress induced by his employment predicament has not resolved and is in fact ongoing.
2.        Are there any other contributing factors to the condition? If so, can you identify them and comment on their significance in relation to Mr Winchester’s current condition?
There are likely to be other contributing factors to the condition which are basically constitutional, although a little difficult to pin down. It would seem more plausible that if there was an extrinsic cause of his asthma it may well have been some physical factor which he encountered near Tennant Creek such as a pollen or a chemical... I do not consider that psychological distress of a troublesome posting per se is a total cause of the condition. There is also a psychological component to the problem. Mr Winchester has clearly been depressed previously, though I note he is now no longer requiring anti-depressants.
3.        Does Mr Winchester have a pre-existing or underlying condition? If so, has he returned to a condition natural to the ongoing pre-existing state? If no, when would you anticipate this to occur?
There is no pre-existing or underlying condition… My opinion would be that if he were satisfactorily able to find work outside ATSIC or to be placed outside ATSIC the occupational aggravation would resolve.
…
5.        What type of work is Mr Winchester able to perform?
Mr Winchester appears reasonably capable of a wide variety of managerial and administrative work within the range of his previous training and experience.
…
7.        What is the relative impact of “work related stress” and Mr Winchester’s respiratory condition on his capacity to work in a clerical role at this time?
His asthma probably does not prevent him from performing sedentary work except episodically when he has an exacerbation. The condition of work related distress is probably mostly evident by his frustrated attempts to obtain employment elsewhere.
8.        Please comment on what is different about Mr Winchester’s capacity to work in the private sector, semi government or public sector (outside of ATSIC) at this time.
Mr Winchester appears quite capable of performing similar work in the private sector, the semi-government, or the public sector outside of ATSIC. It is likely that he would function much better there… He probably therefore could have in appropriate circumstances, some form of a short to middle term project job inside ATSIC. My impression would be that he could do that fairly competently…
9.         What is your view on Mr Winchester’s suitability to ultimately work in the Australian Public Service, outside of ATSIC, given Mr Winchester has indicated a preparedness to continue to work on this basis?
My impression is that Mr Winchester is probably quite suitable to work in the Australian Public Service outside of ATSIC…[87]
[87] Ibid, pages 55-58.
The Applicant was then examined by the Occupational Physician, Dr Stephen Dennis, on 2 December 1999. Dr Dennis produced a report dated 8 December 1999.[88] Dr Dennis made a diagnosis of “Anxiety with depressive features”.[89] Dr Dennis also noted:
I am not in a position to verify the veracity of Mr Winchester’s claims about his employer but it is patently clear that there is a substantial dispute about the appropriateness of his work, amongst other things. The fact that a compensation claim has been accepted suggests that other parties have accepted the relationship of his condition to the work stress.
…
The other condition is clearly the psychological symptoms of anxiety and depression that are similarly linked to his work environment.[90]
[88] Ibid, T14, pages 60 – 65.
[89] Ibid, page 60.
[90] Ibid, pages 62 - 63.
The Clinical Psychologist, Dr Valerie Lewis, provided four psychology reports dated 1 May 2000,[91] 31 July 2000,[92] 28 December 2000,[93] and 8 May 2001,[94] respectively. Dr Lewis made these findings:
·[in her report of 1 May 2000]: “Mr Winchester is suffering from severe anxiety and depression which has increased as a result of being unemployed with a claim outstanding for the past 6 years”;[95]
·[in her report of 31 July 2000]: “So, in summary, Mr Winchester has been suffering from depression and anxiety due to workplace stress and its aftermath. He is now extremely psychologically vulnerable and would in my opinion be likely to suffer an exacerbation of his symptoms with continued insistence on his being placed in work trials”;[96]
·[in her report of 28 December 2000]: “Mr Winchester has continued to attend for psychological help with his acute stress condition over the past few months and I am pleased to report that he is considerably better.”[97]
·“I feel it would not [sic] be advisable for him to complete psychological treatment at this time, and suggest a further ten sessions, spread over the next four months, as he is clearly benefiting from the psychological assistance and is still suffering from some stress symptoms”;[98]
·[in her report of 8 May 2001]: “He is still suffering depression and anxiety regarding what has happened to him… However, we have been doing cognitive work which appears to help him to manage his ruminations”.[99]
[91] Ibid, T15, pages 66 – 69.
[92] Ibid, T16, pages 70 – 71.
[93] Ibid, T17, pages 72 – 73.
[94] Ibid, T18, page 74.
[95] Ibid, page 67.
[96] Ibid, page 71.
[97] Ibid, page 72
[98] Ibid.
[99] Ibid, page 74.
The Occupational Physician, Dr Peter Vyrnwy-Jones, reviewed the Applicant on 14 June 2001. His report is dated 22 June 2001.[100] He initially noted “…this is an extremely complex case going back many years.”[101] In terms of an opinion/clinical findings, Dr Vyrnwy-Jones noted:
[100] Ibid, pages 75 – 80.
[101] Ibid, page 75.
The pertinent conditions appertaining to a disability are Mr Winchester’s asthma, anxiety/depression and persisting chronic headaches.
…
Mr Winchester suffers from in descending order of importance –
Severe asthma
Anxiety/Depression/”Burnout” syndrome
Chronic migrainous headaches
Chronic neck and low back stiffness
Recent knee surgery.
…
4. In my opinion, Mr Winchester will not be able to return to any form of useful employment…
…
7. In my opinion:
60% of his disability would be due to his asthma
30% due to his chronic anxiety/depression complex
10% to the remaining musculoskeletal problems and his migrainous headaches.[102]
[102] Ibid, pages 78 – 79.
The chronological appearance and sequence of the abovementioned reports ranging from March 1994 to June 2001 indicates an obvious proximity to the events in the ATSIC workplace that the Applicant says affected him to the extent that no other factor(s) can be pointed to as causative of those symptoms. The chronological reality of these reports is that they precede the occurrence and onset of later factors such as the cerebellar stroke, the throat cancer diagnosis and accompanying treatment and the financial challenge of meeting the cost of caring for and raising two very young children as a 65 year old father – by at least a decade, probably longer.
In my view, these reports, while sufficiently contemporaneous with the Applicant’s history of the apparent adverse impacts on his mental health arising from the ATSIC workplace, should be viewed through a historical and referential prism and should not be relied on as any sort of current analysis of whether (1) the Applicant still suffers from the accepted conditions at all; or (2) even if he does, whether those conditions – in their current manifestations – can now be found to have been materially contributed to by his former employment with ATSIC such that he continues to have a compensable “disease” for the purposes of the Act.
I note the Applicant’s general practitioner, Dr Wiaan Vogel, works at a clinic that the Applicant has attended for his medical care on an ongoing basis since July 2004. Dr Vogel has provided a report dated 28 June 2017 listing the Applicant’s current medication prescription. This list discloses that while the Applicant is prescribed medication for sleeping difficulties, he is not presently medicated for depression symptoms in any significant way.[103] Rather, he seems to be taking low doses of an antidepressant for help with sleeping difficulties. I further note that the Respondent was denied the opportunity to cross-examine Dr Vogel about matters going to the issue of permanency of the Applicant’s currently asserted mental health symptoms. It is a matter of concern to me that the hearing was denied evidence from a doctor with such a longstanding relationship with the Applicant, who would be able to shed light on his condition during this period.
[103] See Exhibit 5.
Dr Axel Estensen – report dated 17 April 2015
Dr Estensen initially examined the Applicant on 22 January 2015. He produced a report dated 17 April 2015.[104] In this report, Dr Estensen recorded a comprehensive history of the asserted symptomatology and made, inter alia, specific reference to the following factors:
Mood Symptoms
On an ordinal scale of zero to ten, where ten was the worst possible mood he could conceive and ten [sic – I presume this is intended to be “zero”] was his pre-incident self, Mr Winchester rated himself at four out of ten…
…
Anxiety Symptoms
The client said most of his anxieties related to his financial position and how he would provide for his son. While loving and being appreciative of his son, Mr Winchester said that his son’s conception was “an accident” with neither he nor his wife expecting a pregnancy at this stage of their life. His limited financial position was problematic and he was concerned of how he would provide for him.[105]
(My underlining)
[104] Report of Dr Axel Estensen, Consultant Psychiatrist, dated 17 April 2015, T23.3, pages 105 – 122.
[105] Ibid, page 109 – 110.
In terms of what he observed upon clinical examination, Dr Estensen noted:
Mr Winchester was a pleasant, cooperative, somewhat dishevelled man who showed mild psychomotor retardation. His speech was unremarkable. His mood was depressed and his affect reactive. There was no disturbance of the form, stream or possession of thought. Thought content included: depressive themes with respect to self-esteem, confidence and outlook to the future; and anxious concerns relating to his financial position, involvement with his son and longevity of his relationship. No perpetual disturbances were present. While not formally tested there was no suggestion of cognitive impairment. Both insight and judgment were reasonable.[106]
(My underlining)
[106] Ibid, page 114.
In terms of an ultimate diagnosis, Dr Estensen opined that the Applicant “…is suffering from a Major Depressive Disorder (chronic, moderate severity)”. He thought the Applicant had “…suffered from his depressive illness for approximately two decades. He has had appropriate and extensive therapy both psychological and pharmacological. He remains symptomatic. It would be reasonable to see his condition as permanent and continuing indefinitely.”[107]
[107] Ibid, pages 116 – 117.
Dr Estensen thought the Applicant “…fulfils the criteria for 25% whole person impairment. He needs supervision and direction in activities of daily living. He also shows the reactions, changes and disturbances in the areas of:
·reactions to stresses of daily living which cause modification of daily living patterns
·marked disturbances in thinking
·definite disturbances in behavior.”[108]
[108] Ibid, page 121.
Dr Derek Lovell – report dated 18 September 2015
Dr Lovell examined the Applicant on 15 September 2015. His report is dated 18 September 2015.[109] Dr Lovell reviewed the various historical medical and other reports. In terms of identifying data relevant to his currently asserted symptoms, Dr Lovell noted the Applicant “…receives an incapacity benefit from ComSuper and a top-up payment from Comcare for accepted conditions of a major depressive disorder, asthma and migraine which date back to 1 March 1994.”[110] Dr Lovell also noted that at the time of the clinical examination, the Applicant was:
…residing in the cancer lodge at the Royal Brisbane Hospital following a diagnosis of throat cancer which has spread to the left cervical nodes two months ago. He has had seven weeks of daily radiotherapy… and is also receiving chemotherapy… He has lost 12kg in weight and is troubled by chronic throat pain, for which he takes 40mg of Targin twice daily and up to 40mg per day of Endone.[111]
[109] Report of Dr Derek Lovell, Consultant Psychiatrist, dated 18 September 2015, T27, pages 155 – 165.
[110] Ibid, page 156.
[111] Ibid.
Dr Lovell further noted: “He previously returned to Australia for treatment of a cerebellar stroke, manifest by dizziness and truncal ataxia in 2012.” Further, that “He has held no further employment since being medically retired. Clearly, his current psychological state is greatly influenced by his diagnosis of throat cancer.”[112]
[112] Ibid, page 157.
Of relevance for present purposes, Dr Lovell noted the following current psychological symptoms:
More recently, mood has deteriorated further due to the uncertainty of the outcome of cancer treatment and his high intake of analgesics and chronic throat pain.
…
He stated that his confidence is reduced and that he tends to worry more particularly about the future.
In the last 12 months, he has had two panic attacks. These usually occur if there are events out of the ordinary or confrontation. He stated that during these attacks, he gets sweaty, experiences palpitations and is fearful of dying.[113]
[113] Ibid, page 158.
With particular reference to the Applicant’s past medical/psychiatric history, Dr Lovell noted:
There is a history of asthma, migraine and more recently a cerebellar stroke in 2012 and a diagnosis two months ago of throat cancer.
In relation to his psychiatric history, he has never been hospitalised for psychiatric illness. He was previously prescribed sertraline and amitriptyline. He is currently prescribed a low dose of mirtazapine. There has been no psychological counselling since he completed his treatment with Dr Valerie Lewis in 200 [sic].[114]
[114] Ibid, page 159.
Dr Lovell’s review of the Applicant’s file records led him to this finding:
I have reviewed the attached file records and it is most likely that he suffers from an adjustment disorder with anxiety and depressed mood. This condition did have its onset initially with work stress. More recently it relates to his cerebellar stroke, a need to return to Australia for treatment and a recent diagnosis of throat cancer of uncertain prognosis with the need for radiotherapy and chemotherapy.[115]
[115] Ibid, page 160.
In terms of (1) his opinion of the Applicant’s mental state upon examination; and (2) a diagnostic summary of the Applicant’s symptoms, Dr Lovell thought:
…He was anxious about the future. He was worried about the welfare of his wife and son in the event of a progression of his illness.
...
At present he described some symptoms of anxiety and depression largely related to the diagnosis of throat cancer and the uncertainty of his future.[116]
(My underlining)
[116] Ibid.
Dr Lovell then responded to specific questions put to him by the Respondent. His relevant responses warrant quoting in full:
Schedule of questions
Diagnosis and prognosis
…
3. What is the diagnosis/prognosis?
The current diagnosis is that of an adjustment disorder with anxiety and depressed mood. The stressor is the diagnosis of throat cancer.
4. Describe the aetiological factors and temporal relationship of the current diagnosis/diagnoses to the initial compensable condition/s.
The aetiological factors are currently related to his diagnosis with a cerebellar stroke, ongoing difficulties with asthma and most recently the diagnosis of malignancy.
5. What is the prognosis for the current compensable condition?
I do not believe that his current symptoms are related to the previous compensable condition.
…
Employment relationship
8. Is the condition currently suffered by Mr Winchester related to:
(a) Stress in his employment with ATSIC, initially in the NT but continuing with relocation to the ACT, and continuing with focus on the RTW issues with the employer in Perth upon relocation there, as described in early reporting/claim acceptance? Please comment.
The condition suffered by Mr Winchester was initially related to his stress in his employment with ATSIC and this would seem reasonable.
(b) Other factors related to work? Please comment.
Other health issues have become the stressors. The effects of employment appear to have abated. He has not had any psychological treatment since around 2000.
...
(e) The natural progression of an underlying condition? Please comment.
His current presentation does not represent the natural progression of an underlying condition.
(f) Any other social, health, family or financial issues? Please comment.
There are health issues, concerns about his three year old son and his wife and financial difficulties currently.
9. Has Mr Winchester’s initial condition been affected or superseded by a different condition? And if so, please provide your opinion about what factors have contributed to the condition.
His initial condition has been superseded by a different condition, in that the adjustment disorder he described now relates to the diagnosis of malignancy and a previous cerebellar stroke.
10. Given that the initial psychological condition was sustained on 1 March 1994 and Mr Winchester has been absent from Commonwealth employment since 2001, do you consider the condition is still attributable to Commonwealth employment related factors?
I am not of the view that work-related stressors still contribute to his current psychological symptoms.
…
11. Please provide details of any further treatment which may have been provided to Mr Winchester in relation to his condition.
No further psychological treatment has been provided since 2000.
…
13. How long will Mr Winchester need to continue with his current treatment?
He will need some counseling for his current symptoms, which are related to his terminal illness but this is not work-related.
14. What has been the response to treatment/medication? Are there any issues with comorbid disorders or compliance?
He is taking a very low dose of mirtazapine to try and assist him with sleep. His symptoms are not typical of a major depressive disorder.
15. Please advise whether, in your opinion, Mr Winchester would benefit from any other treatment? Please provide recommended treatment, frequency and commencement date.
He would not benefit from higher doses of antidepressant medications.
Assessment of compensable psychiatric impairment
...
Please note that an assessment above 10% requires you to consider whether the injured worker demonstrates a “need” for supervision and direction in activities of daily living as defined in the Guide. The terms “supervision” and “direction” are conjunctive and both must be present.
In answering which activities of daily living, as defined in Figure 5-A, requires supervision and direction, could you please assume that direction means:
·The injured worker could not perform the activity independently.
·There is a requirement for some form of instruction as distinct from mere encouragement in carrying out the activity of daily living.
·There is a need for some form of intrusive management by a person with the necessary experience and skills.
·The injured worker needs the decision to be made for them as to when and how to engage in the activity.
Using the Comcare table he suffers from a 10% whole person impairment. He does not require supervision. He is able to travel locally. He is independent in self-care and does not require direction in his activities of daily living.
It is likely that this impairment will continue and is stable. It is unlikely to be affected by further treatment.
18. Is the injured worker able to undertake activities of daily living independently? If unable to do so, does the injured worker require supervision, direction or assistance to undertake the activities of daily living? Please have regard to the information set out in the previous question when providing your response.
He is able to undertake activities of daily living independently. He does not require supervision, direction or assistance.
19. Which activities of daily living does the injured worker require some supervision and direction? Please elaborate with examples of the nature of support required.
His wife has taken over driving longer distances. He ceased driving but is able to drive locally.
20. If Mr Winchester has a pre-existing psychiatric condition:
a)Are you able to isolate the effects of the pre-existing condition which was contributed to by other factors not related to the compensable incident? Please provide a rating of permanent impairment solely for the pre-existing condition in accordance with Table 5.1 of the Guide. Please give reasons for your opinion.
b)If you cannot isolate the effects of the employment related impairment, please give an overall assessment of the psychiatric impairment based on Table 5.1 of the Guide.
There is no pre-existing condition. It is difficult to isolate any effects of the employment given the more substantial more [sic] stressors. An overall assessment for psychiatric impairment based on Table 5.1 of the Guide is given above.
(My underlining)
Dr Axel Estensen – report dated 5 September 2016

Dr Lovell was then asked about the possible effect of certain prescription medications upon the Applicant’s mood:
Question:And you’ve already indicated that Mr Winchester’s mood was influenced by his side-effects relating to his treatment for carcinoma?
Answer:          Yes.
Question:        And he was clearly affected by narcotic analgesia, you record?
Answer:          Analgesic, or a narcotic analgesia, yes.
Question:        So these matters would have influenced your assessment of          Mr Winchester?
Answer:          I think they’re described in my report, but I think in writing an assessment one needs to look at the longitudinal history, and that goes back to 1994, and what has occurred over the interim period to establish what the actual condition is. My view at the time I saw him was that the current difficulties of throat pain and the difficulty with dry mouth were impacting significantly upon him. But they have subsequently abated, and he has achieved remission.
Question:        You say in your second report that you would expect to see an improvement with Mr Winchester’s symptoms, given that his cancer diagnosis is now in remission?
Answer:          Yes. But it would also depend on other life events and other stressors, particularly the medicolegal stressors and the ongoing litigation. That may well have an adverse influence. I think what you’ve got to realise is that mental state is a dynamically changing quality and that life events and stressors frequently bring about changes.[154]
[154] Ibid, page 72, line 4 to page 72, line 25.
Counsel for the Applicant then suggested to Dr Lovell that Dr Estensen’s reports and the views expressed in them should be preferred over his own:
Question:And you told my friend before that in preparing your first report you were acting under a false assumption that Mr Winchester was terminally ill?
Answer:Yes.
Question:You would accept that Dr Estensen, who was not acting under a false assumption, would be in a better position to assess               Mr Winchester’s overall mental state?
Answer:I think Dr Estensen saw him considerably later than I did, at which time the crisis had passed.
Question:Dr Estensen saw him twice: once before…
Answer:Yes, once when he didn’t obtain the history that he had had a stroke, and prior to the diagnosis of the throat cancer; and secondly, I think after he had treatment there was a reasonable prognosis.
Question:        And you would accept that Dr Estensen, having seen him before and after the diagnosis and treatment of the carcinoma, would be in a better position to assess his overall mental state?
Answer:          I think the person who’s in the best position to assess his mental state would be the person who’s assessing him now, because the point I’ve made is that mental state is dynamically changing and constantly subject to stressors; and that’s evident by the fact that there have been changes in his circumstances. That is not to say that when Dr Estensen assessed him, there haven’t been significant changes since that time.
…
Question:Mr Winchester didn’t report to you that his stroke had changed his mental state, did he?
Answer:Well, I think that people often don’t have insight into changes in their mental state so they won’t report it, it will be observed by others.
…
Question:There was nothing reported to you to suggest that Mr Winchester’s stroke had any effect of his mental state?
Answer:I think you’ve got to look at the literature. Mr Winchester may not have reported difficulties, but if you look at the general literature at large about post-stroke depression and the general course of people after a stroke, you find that more than 30 percent have a very serious depressive disorder, and that may well relate to cerebral insufficiency and damage at that neuronal level, so that people develop difficulties with noradrenaline and serotonin secretion, and depression is very common post-stroke.[155]
[155] Ibid, page 72, line 34 to page 74 line 4.
Establishing the continuum of causative events
Towards the end of Dr Estensen’s evidence, I sought his further clarification about a specific theme raised by Counsel for the Respondent in cross-examination. It related to the relative dearth of medical evidence – apart from what the Applicant told Dr Estensen – about the nature and state of his mental health symptomatology from about 2002 to 2012. Essentially, the issue is one of examining the possibility of some type of disruption or break with respect to the continuum between (1) the workplace events from circa 1991 still propounded as primarily responsible for his present symptoms; and (2) the major depression with which Dr Estensen diagnosed him in 2015.
To my mind, this question takes on greater significance in this case when one has regard to the reality of other specific events during this period (i.e. 2002-2015), each of which can be said to have affected the Applicant. The central question for present purposes is to what extent, if any, can factors such as (1) the cerebellar stroke suffered in 2012; (2) the diagnosis of malignant throat cancer in 2015 requiring respective courses of radiotherapy and chemotherapy; and (3) his reported feelings of anxiety and apprehension about meeting – as a man in his mid-60s – the not insignificant burden of raising two infant children aged five years and eight months respectively, be regarded as integral components of the Applicant’s continuum of causative events from 1991 to 2015 at which time he presents before Dr Estensen and reports symptoms indicative of a major depressive disorder.
In a perhaps inelegant attempt to address this question, I put a certain theoretical scenario to Dr Estensen. I sought to equate a person’s mental health to fuel carried by a motor vehicle in its fuel tank. I asked Dr Estensen to assume that, on the evidence before the Tribunal, the Applicant could be said to have acquired an impurity in his fuel tank, such impurity being the asserted adverse effects arising from the ATSIC work-related incident in 1991. Such impurity has affected the Applicant’s mental health.
I further suggested to Dr Estensen that other impurities had also, over time, found their way into the fuel tank powering the Applicant’s mental health. Those additional impurities included the cerebellar stroke, the malignancy in the Applicant’s throat requiring emergent treatment and the not-insignificant burden of raising a very young family at an age when the vast majority of the workforce was either retired or seriously contemplating retirement.
I sought to understand Dr Estensen’s evidence in the context of this analogy or example. Have these impurities, over the continuum of time, been somehow filtered out of the fuel powering the Applicant’s mental health? Have they always been or have they been caused to become secondary to what is still asserted to be the main impurity, namely, the 1991 ATSIC work incident? Is Dr Estensen’s evidence to the effect that not even minimal residual elements of the non-1991 ATSIC impurities remain as impurities in the fuel, such that they can be entirely discounted as part of the continuum of causative events during the entirety of the Applicant’s mental health history with particular reference to “the quiet period”[156] between 2002 and 2012?
[156] That is, in terms of medical reporting/evidence of those symptoms.
Dr Estensen helpfully embraced my inelegant postulations and responded thus:
I say that the impure fuel has damaged the engine in a chronic and ongoing way. So I’d say his brain is a different brain, and even before the stroke, his brain is now a different brain than he had back in 1990 before the Tennant Creek incident. So those stressors and the onset of his depressive illness has – is ongoing, and as those stressors, the three that you made mention of, resolve, or, you know, come on, resolve, then they’re like other stressors that would happen, and within his sort of damaged engine, he continues to perform…[157]
[157] Transcript: 13/11/2007, page 47, lines 37-45.
Dr Estensen then adopted an analogy of his own in describing the nature of chronic mental health symptoms:
So, I mean the analogy that I sometimes say when people say, why is this depression still troubling me, you know, five years ago, particularly when it’s a stress related one, my analogy; it’s a bit like it doesn’t really matter how a bushfire starts, whether it be an arsonist flicking a match, a cigarette butt, a stray camp fire or lightning strike; once the bushfire ignites and starts burning the source of the ignition can be, you know, no longer present, but the illness, or you know, the fire which was generated, is ongoing. And I would really think that, without knowing his financial circumstance, that the thing about his child would be, you know, more of an anxious rumination as part of his depressive illness…[158]
[158] Ibid, page 48, lines 3-13.
As I understood Dr Estensen’s evidence, he attributed virtually the entirety of the causative matrix of the major depression he diagnosed in this Applicant in 2015 to either a singular and/or proximate series of incidents in the Applicant’s workplace in the early to mid-1990s – a period of some 20-25 years prior to Dr Estensen’s initial examination of him.
I have difficulty in accepting Dr Estensen’s thesis. I accept that the ATSIC workplace incidents was/were an “impurity” that may well have initially “damaged” the Applicant’s mental health “engine”. I am not certain that such “damage” resulted in a chronic and ongoing symptomatology sufficient to exclude other possible causes. Put another way, I have difficulty in accepting that whatever “damage” was done via the ATSIC event(s), alone, entirely precludes the possibility that other very significant and traumatic events and stressors such as (1) a cerebellar stroke; (2) a diagnosed throat malignancy; and (3) a genuine and self-reported apprehension of financial stricture from having a causative effect on the Applicant’s mental health condition. I am particularly skeptical about Dr Estensen’s denial that these events had any effect because of “the quiet period” from 2002 until 2015, during which it does not appear that the Applicant received any treatment for his purported mental health condition. It was only after the onset of the cerebellar stroke and the birth of his son in 2012 that the Applicant presented to Dr Estensen with an asserted major depression condition.
Dr Estensen says the three additional stressors somehow “…resolve, or, you know, come on, resolve, then they’re like other stressors that would happen, and within his sort of damaged engine, he continues to perform…”.[159] To accept this opinion would require me to, first, ignore the three abovementioned stressors, one of which (financial stricture) is reported by the Applicant himself to Dr Estensen in 2015 and recorded as “The client said most of his anxieties related to his financial position and how he would provide for his son.”[160] Secondly, it would require me to entirely discount the evidence of Dr Lovell, which I found credible and of such weight as to be incapable of being discounted. Dr Lovell did not accept that a major depressive disorder apparently diagnosed in the early to mid-1990’s had simply never resolved. He was clearly of the view that the periodic emergence of these symptoms in a person with major depression is the by-product of biochemical imbalances in a patient’s brain. Conversely, he considered that in cases of adjustment disorder – with which he diagnosed the Applicant – environmental stressors cause the emergence of depressive or anxious symptoms.
[159] Ibid, page 47, lines 43-45.
[160] See Exhibit 9, T Documents, First report of Dr Estensen, dated 17 April 2015, pages 105-122, at page 110; repeated in the Second report of Dr Estensen, dated 5 September 2016: see Exhibit 6, at page 9.
Dr Lovell was clear that the symptoms that initially emerged eventually resolved only to be replaced by similar symptoms at later stages of the Applicant’s life, with those similar symptoms arising as a result of contemporaneous stressors, such as an episode of throat malignancy, a cerebellar stroke and a genuinely-held fear of impending financial stricture. Dr Lovell stressed the need for a historical and longtitudinal understanding of a condition. He accepted that the Applicant’s initial symptoms in the early to mid-1990’s may well have occurred, but that this was just a first episode which was treated and which went into remission. Its recurrence is the result of other life events or stressors.
Any improvement in the Applicant’s symptoms, thought Dr Lovell, was also dependent on other life events and other stressors. Such stressors can be purely medicolegal in their derivation or purely circumstantial, such as, for example, stress and concern arising from the outcome of litigation on which the Applicant is relying for monetary relief from perceived impending financial stricture. Dr Lovell stressed that a patient’s mental state is a dynamically changing phenomenon and that life events and stressors frequently bring about changes to that mental state.
I prefer Dr Lovell’s multi-dimensional explanation of the Applicant’s symptomatology, especially during what I have called “the quiet period” where there is an obvious dearth of medical reporting, particularly between 2002 and 2012. I have difficulty in accepting the veracity of Dr Estensen’s analysis that a singular (or series of) workplace event(s) that occurred in or about the early to mid-1990’s is the only explanation for the Applicant’s present condition. I have even greater difficulty in accepting Dr Estensen’s further analysis that the ATSIC work-related episodes still operate to exclude factors such as a cerebellar stroke, malignancy and self-reported anxiety as in any way causative of the Applicant’s currently asserted symptoms.
Accordingly, I am of the view that these additional three factors or stressors do raise serious doubts with respect to the continuum of the causative events occurring from the early to mid-1990’s until 2015, when the Applicant presented to Dr Estensen, who makes a diagnosis of a major depressive condition.
SUMMARY OF FINDINGS
This claim essentially requires the Tribunal to identify an injury which has resulted in an impairment which can be regarded as “permanent”. This means that the impairment is likely to continue indefinitely. In addition, an impairment assessment of 10 percent or greater is required (pursuant to the Comcare Guide) and if that impairment threshold is reached, there is a resulting entitlement to compensation pursuant to s 27 of the Act.
The Applicant has limited his claim to a single impairment, that of major depressive disorder. I am mindful of the High Court’s decision in Canute v Comcare [2006] HCA 47 requiring me to ascertain whether there is permanent impairment arising in respect of each claimed injury. For present purposes, I consider it sufficient to ascertain whether there is permanent impairment arising from the propounded major depressive disorder condition and to not undertake that exercise in relation to the migraine, insomnia or aggravation of asthma conditions.
My comprehension of the Applicant’s claim and the case as a whole is that the Applicant seeks compensation for a major depressive condition for permanent impairment, pursuant to Table 5.1 of the Comcare Guide. Given the conclusions I will express below, there is no requirement to analyse or canvass factors mitigating for or against any level of permanent impairment. Similarly, there is no requirement that I discuss the aspect of non-economic loss.
For the factors I have outlined above, I am not satisfied that the Applicant’s asserted major depressive disorder continues to be materially contributed to by his employment with ATSIC, such employment having, for all intents and purposes, ended in or about 1995. I am of the further view that the Respondent has discharged its onus to establish sufficient evidence that there has been a material change of circumstances to justify a finding that the Applicant no longer suffers from his previously accepted psychiatric condition.
The Full Court decision in Telstra v Hannaford [2006] 151 FCR 253 makes it clear that there is no jurisdictional or other point preventing the Tribunal from not being satisfied, on the evidence before it, that the Applicant’s depressive condition is no longer materially contributed to by his former employment with ATSIC some 22 years after the events originally giving rise to it actually occurred. It is likewise clear to me that there is no requirement on the Respondent to have made a decision either (1) revoking its initial acceptance of liability; or (2) making a further determination pursuant to ss 16 or 19 of the Act that compensation for incapacity and medical treatment should have ceased.
It seems clear, therefore, that the Tribunal has scope to proceed to a determination of a discrete issue of whether, for the purposes of entitlement pursuant to s 24 of the Act, the Applicant continues to suffer from the previously accepted condition.
Guidance for proceeding on such a discrete determination appears in the recent Full Court authority of Prain v Comcare [2017] FCAFC 143 (“Prain”). In Prain, the Full Court set out the necessary test to be applied for determining how an event that occurred a number of years previously does or does not continue to have an effect on an Applicant’s current symptomatology. Applied to the present factual matrix, it is necessary for the Tribunal to look at how an Applicant presents now and to then be satisfied that the ATSIC workplace incident(s) giving rise to the original injury can still be regarded as being of causative effect in terms of the currently asserted symptoms.
As a matter of diagnosis, it is clear that the condition for which the Respondent accepted s 14 liability – and which Dr Estensen considered the Applicant to have – is major depression. However, Dr Lovell contested this diagnosis and instead considered that the Applicant suffers from an adjustment disorder. It seems to me that Dr Lovell’s diagnosis is now to be preferred. While the Applicant may have had an episode of major depression in the 1990s, the best evidence before me is that the Applicant’s mental state has improved or deteriorated with the ebbs and flows of his fortunes: for the decade-long “quiet period” while the Applicant was in a relatively comfortable life position, he is not recorded as attending either a psychologist or a psychiatrist. However, even Dr Estensen described the Applicant’s mental health as deteriorating and improving after his diagnosis with cancer and its remission, respectively. Such fluctuation in tune with external stimuli seems to be most concordant with the diagnosis proposed by Dr Lovell – adjustment disorder. I therefore find that the Applicant suffers from adjustment disorder. It follows that the Applicant no longer suffers from the condition for which the Respondent initially accepted liability.
In any event, I am not satisfied that the ATSIC workplace issues continues to contribute to a material degree to the Applicant’s currently asserted symptoms. Applied to the present facts, for the reasons outlined above, I consider it improbable that the stressor comprising the ATSIC workplace issues should still, some 20-25 years later, still amount to a significant factor in this Applicant’s asserted ongoing condition. Having regard to:
(a)Dr Estensen’s at least partial concession that the lack of history between at least 2002-2012, beyond what the Applicant told him, did raise doubt in his mind that there may be other factors, stressors or life events that may have played a role in the continuum of the causative events since the early to mid-1990’s; and
(b)Dr Lovell’s opinion that a patient’s mental state is a dynamically changing phenomenon and that life events and stressors frequently bring about changes to that mental state;

I have significant doubt that any asserted ongoing difficulties now experienced by the Applicant could be said to have been materially contributed to by what occurred in his former workplace at ATSIC some 20-25 years ago. Rather, other documented factors that have occurred during the continuum of causative events, such as (1) the cerebellar stroke in 2012; (2) the diagnosed and treated malignancy in 2015; and (3) the self-reported anxiety about impending financial stricture, have displaced the initial workplace incident(s) such that – even if I were to accept that the Applicant’s time at ATSIC in part contributed to his present condition – it can no longer be said that the Applicant’s time at ATSIC materially contributed to his present condition. It follows that the Applicant no longer suffers from an injury or disease, and so cannot satisfy the requirements of either ss 24 or 27 of the Act.
CONCLUSION
I return to the relevant issues for determination by the Tribunal mentioned earlier in these Reasons and respond (in bold) based upon my above findings:
(a)whether the Applicant continues to suffer from the accepted conditions, or instead whether he now suffers from a condition or conditions not materially contributed to by his work; The Applicant suffers from a condition that is not materially contributed to by his work.
(b)if the answer to issue (a) is that the Applicant continues to suffer from the accepted conditions, the resulting issue is whether the accepted conditions continue to be materially contributed to by the Applicant’s former employment with the Aboriginal and Torres Strait Islander Commission (“ATSIC”) such that a resulting finding can be made that he continues to have a disease for the purposes of the Act; They do not.
(c)if the answer to issue (b) is in the affirmative, the issue then devolves to a determination of two additional things:
(i)whether that disease constitutes a permanent impairment with permanent manifestation (or a likelihood to continue indefinitely); and Unnecessary to answer.
(ii)whether such permanent impairment gives rise to demonstrable non-economic loss attributable to the accepted conditions such that the Applicant may be entitled to lump sum compensation under ss 24 and 27 of the Act; Unnecessary to answer.
(d)if there is a positive finding for the questions raised in (c) (i) and (ii) above, then the following issues arise for determination:
(i)what is the percentage degree of the Applicant’s whole person impairment?; Unnecessary to answer.
(ii)what is the appropriate score attributable to the Applicant’s non-economic loss?; Unnecessary to answer.
(iii)what is the quantum of compensation payable to the Applicant? Unnecessary to answer.
DECISION
I affirm the reviewable decision dated 15 December 2015.

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

......................[sgd]..................................................
Associate
Dated: 10 July 2018

Dates of hearing: 13-14 November 2017

Counsel for the Applicant: J Hewson

Solicitors for the Applicant: Maurice Blackburn Lawyers

Counsel for the Respondent: B Dube

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 2146

10 July 2018

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Damages

Remedies

Statutory Construction

Dates of hearing:	13-14 November 2017
Counsel for the Applicant:	J Hewson
Solicitors for the Applicant:	Maurice Blackburn Lawyers
Counsel for the Respondent:	B Dube
Solicitors for the Respondent:	Australian Government Solicitor