WMZC and Comcare (Compensation)

[2021] AATA 23

WMZC and Comcare (Compensation) [2021] AATA 23 (19 January 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2019/6319
GENERAL DIVISION  )

Re: WMZC
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:  Member A Ward

DATE OF CORRIGENDUM:            30 April 2021

PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (the ‘Act’), to alter the text of the decision in this application as follows:

1.     delete the full stop in paragraph 111 of the decision, and insert the following:

“except:

(a)    within Comcare, the legal representatives of Comcare, NDIA Human 
        Resources and on the compensation file held by NDIA; and

(b)    as authorized by law, or in compliance with a rule, direction, or summons 
         issued by a Court or Tribunal requiring the production of information”; and

2.     where appearances for the Respondent are recorded on page 25 delete “Mr W Evans,
       Australian Government Solicitor” and substitute with “Ms S Wright, Counsel”.

.......................[SGND].......................

A WARD
  (Member)

Division:GENERAL DIVISION

File Number(s):      2019/6319

Re:WMZC  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member Stephan
Member Ward

Date:19 January 2021

Place:Adelaide

The decision of the Tribunal is to affirm the decision under Review.

..........................[sgnd]..............................................

Member Ward

..........................[sgnd]..............................................

Member Stephan

Catchwords

COMPENSATION – Claim for psychological injury – Whether employment contributed to aggravation of condition – Whether entitled to compensation – Failure to prove claimed aggravation arises from employment – Failure to disclose condition in pre-employment process – Hiding condition from employer – Claim defeated by non-disclosure – Decision under review affirmed – Anonymizing identity of applicant

Legislation

Mental Health Act 2007 (NSW)

Safety, Rehabilitation and Compensation Act 1988

Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

Member Stephan

Member Ward

INTRODUCTION

1. This is a claim for compensation made by the applicant which commenced on 7 May 2019.  The claim was for a Major Depressive Illness which was described as a ‘psychological injury exacerbated by the lack of support by my employer, bullying and harassment by management’.  The applicant stated that he was first aware of the symptoms on 17 July 2018 at 8:30am. 

2. The application was supported by a medical certificate by Dr Mark Fuller dated 7 May 2019, which was well after the nominated date in which the symptoms were reported to have first occurred.  Dr Fuller said that the applicant was first seen in relation to that condition at his practice on 7 May 2019.  Dr Fuller described the injury/disease as ‘an aggravation of a pre-existing condition’. The doctor gave further information that the ‘principal issue is interaction with managers and supervisors at work; the dynamics of these relationships need to be addressed’.[1]

   [1] Exhibit 1, T13, Dr Fuller, Certificate of Capacity for Work dated 19 June 2019, p 99.

3. It is important that the doctor considered the medical issue to be an aggravation of a pre-existing condition for the purpose of these factual findings. 

4. A Determination was made with regards to the application on 10 July 2019. It denied liability for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for the condition which had then been formulated as ‘an aggravation of Major Depressive Disorder; single episode’.  This decision was confirmed by a Review Officer of the respondent on 7 August 2019.  This hearing and reasons are a Review of that decision.

5. There was a dispute on the evidence as to the history of problems that the applicant had and the extent of these prior to his employment with the National Disability Insurance Agency (NDIA).

6. The issues before the Tribunal were summarised correctly by the respondent as follows:

   (a)Does the applicant suffer an ailment for the purpose of the SRC Act?

   (b)If so, was the ailment contributed to, by a significant degree, by his employment with the NDIA such as to constitute a disease for the purpose of s 5B of the SRC Act? and

   (c)Is the applicant’s claimed condition excluded from the definition of ‘injury’ by virtue of s 7(7) of the SRC Act?

7. For the reasons set out below, the Tribunal considers that the correct or preferable decision is that the applicant is unsuccessful in his claim and the decision under review is affirmed.

8. The hearing of the matter took place on Thursday, 3 December 2020.  The applicant gave evidence and was cross-examined.

9. Dr Gunapu, who provided a report dated 25 June 2020, gave evidence on behalf of the respondent.  He was cross-examined by the applicant. 

10. The applicant did not adduce any oral evidence from other witnesses. The applicant was unrepresented.

    PRE-EMPLOYMENT HEALTH

11. This concerns the applicant’s health and medical conditions prior to his employment with the NDIA. 

12. There was a matter of contention during the hearing as to the history of problems that the applicant had before commencing his employment with the NDIA in Sydney in late 2016.

13. The Tribunal’s attention was directed to evidence by Dr Alexander Main from the Marden Medical Clinic dated 24 August 2018.  The history in the referral is that the applicant moved to Sydney in 1998 and experienced his first episode of depression after experiencing workplace bullying.  He has had several relapses over the years which have been managed with medication and psychological treatment.  Dr Main referred him for treatment following the onset of symptoms which are the subject of this claim. He summarised the condition as follows in his referral:

    He recently moved back to Adelaide and got employment with NDIS; they have shifted him from office to office approximately 8 times against his will, resulting in significant stress.  This has resulted in a relapse of depression.

    The referral also noted:

    He is very literate with mental health, being both a patient and a previous mental health social worker. Your assistance with psychological treatments is appreciated.[2]

    [2] Exhibit 2, Letter from Dr Main to Dr Ruse dated 24 August 2018, p 646.

14. The note, which was prepared by the same clinic, refers to a three-month history of depression in the context of episodic depression over 20 years, and the case note and referral letter are quite similar: 

    Recently moved back to Adelaide.  Started working with NDIS and moved offices or departments 8 times.  This has resulted in significant stress and a relapse in his depression.[3]

    [3] Exhibit 2, Letter from Dr Main to Dr Ruse dated 24 August 2018, p 647.

15. In his evidence, the applicant was quite vague as to when he experienced depressive episodes (as he called them) before his employment with the NDIA.  He disputed the history that is set out above on the basis that it was not correct.  That is, early in his evidence he said the reference to depression over 20 years was wrong. He did however say that it was correct that he had relapses prior to his employment with the NDIA.  He gave evidence that he first fell into depression around 2012/2013.  He said in his evidence that this was not due to workplace stress or bullying, but the collapse of a self-managed super fund.

16. His attention was directed to a letter from the psychologist Mr Ruse dated 19 February 2019.  The letter said the applicant reported a long history of depression and anxiety reaching back more than 20 years.  In evidence, the applicant again said that was not correct.  He said his depression first arose with problems with his self-managed super fund in 2012/2013.

17. Various medical notes were obtained for the purpose of the hearing which were in evidence before the Tribunal.  The information in these medical notes confirm a description of anxiety and psychiatric issues over many years, often associated with stress at work. 

18. As some examples (and these are not all of the references to psychiatric or psychological problems in information before the Tribunal) there was an attendance on his doctor on 30 March 2009. The notes confirm that the applicant was having trouble sleeping and was suffering stress at work but that he will be starting a new job the next day.  The diagnosis was anxiety.

19. On 9 September 2009 he saw a doctor and reported he had poor sleep and was very anxious at work.  He would have to take a high amount of Valium to get to sleep.  On that occasion he referred to suffering from anxiety and depression back in 2002, and that he underwent treatment at an anxiety clinic in the past.  He would have panic attacks and a feeling of not being safe emotionally.  All of this was related to the work environment with ‘lots of anxiety related to work’ being recorded in the notes.  The issue had been reported as so bad for him over the last three months prior to the consultation on 9 September 2009 that when he was not at work, he was still anxious.

20. Later in his oral evidence, the applicant accepted that the references to those earlier matters were accurate, which would tend to support the sweeping statements of him having problems over the last 20 years.  It is not clear why he denied them earlier in his evidence.

21. His treating GP notes, which were tendered, record problems with sleep and stress related to his then work over 2010/2011. However, other causes of stress and anxiety were also referred to over the time leading up to his employment with the NDIA.

22. There is an entry on 16 February 2011 of anxiety caused by the woman on his street who had found out that he was gay, and he said that he was being harassed with eggs thrown at his car.  He required a referral to a psychologist.

23. That note is interesting because the applicant made much of the fact of another event that when he was in Sydney in early 2013, he was being harassed by his neighbour (who was a 14-year-old boy) calling him a ‘midget’.  The boy’s mother was apparently a policewoman.  The applicant considered the police would therefore not take his claim seriously.  This led to an increase of his symptoms. 

24. On 19 June 2015 he was admitted to a Community Mental Health Centre.  He was referred from the St George Police who had been receiving phone calls and letters from the applicant in the weeks prior to the referral complaining about various issues of a persecutory nature.  The applicant resisted a psychiatric review and declined further involvement with the mental health service.  The referral noted that the applicant had been reporting perceived harassment from random unknown males whom he believed drove past his home and workplace.  His view was that the harassment had been arranged by a past acquaintance in a nightclub and that he was being framed as an ice user.  On assessment in June 2015 he presented with persecutory delusions.  He was upset that he was being referred for assessment by the police and wanted to make a complaint against them.

25. When he moved to Sydney, problems occurred with regards to the neighbour as described above.  There is a note from his then general practitioner Dr Byrne of 8 July 2015, reporting a lot of discussion with regards to recent police and crisis team interaction.  The applicant told Dr Byrne that he had to change jobs for fear of being followed and referred to ‘neighbour (police) harassment’.  The applicant gave evidence that he went to her landlord asking for the tenant (presumably the policewoman) to stop her son harassing him. He advised that is when the problems with his neighbour began to start. 

26. The applicant was admitted to the St George Hospital Mental Health Unit between 9 March 2016 and 20 March 2016 for a mental health assessment under s 22 of the Mental Health Act (2007).[4] The admitting note was that he had been harassing the police several times a day, calling and visiting them and alleging that they were not considering his complaints seriously.  He complained to the Ombudsman. 

    [4] See, Mental Health Act 2007 (NSW) s 22 –

    22 Detention after apprehension by police

    (1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that--

    (a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

    (b) it would be beneficial to the person's welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

    (2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

27. Following his discharge from hospital, the applicant was referred back to the St George Community Health Service on 21 March 2016.

28. He was discharged from hospital on a three-month Community Treatment Order (CTO).  He described being assaulted near a bottle shop but was of the view that the incident was never investigated by the police.  He said, by way of additional history, that there was a break and enter around Easter 2015 when he was gardening.  He saw a stream of cars come past his house.  He went to bed and the next morning his house was ‘messed up’.  A meat cleaver and anchovies on the kitchen bench were noted.  He called the police five times and saw them face to face regarding the issue.  When they did not (in his view) investigate, he called another police station and wrote to the Ombudsman.  He also mentioned that his neighbour’s child accused him of being an ice user whilst his mother, who was a policewoman, laughed.  He said that he believed that the child’s mother had found out through social media that he used to enjoy ‘the Oxford Street night life’ and was offered drugs which he never accepted. These were matters he had discussed with medical practitioners at the relevant times before his employment with the NDIA. They are all matters referred to in histories in material before the tribunal.

29. A detailed Discharge Summary in 2015 says that whilst describing these events the applicant was guarded about how he answered questions as he feared that the answers would be used against him.  The Discharge Summary said: ‘His description included bizarre links, self-reference ideas and was delusional’.[5]  There was also discussion as to previous episodes of depression with poor sleep and low appetite which was secondary to financial stress, which is consistent with the information in the earlier GP notes.

    [5] Exhibit 3, Patient Health Care record dated 28 July 2016, p 839.

30. Several different types of medication were used around this period.  The medications caused side effects.  It appears that he made a good recovery and went into remission after the period of being on the CTO.

31. However, the situation did not continue well because there was a further referral to the St George Community Care Team on 14 January 2017.  His health professionals formed a view that he was ‘cycling in and out of a psychotic state’ which was characterised by a pre-occupation that he was under surveillance of the police.  This was also noticeable during the hearing of the dispute in 2020, when he referred to the problems with his former neighbour, the policewoman and her son, and the attitude of the police towards him. He became quite aroused when giving evidence on these events some three years later. They pre-date the matters that were the subject of the current dispute.

32. Although the applicant self-referred to the acute care team on 14 January 2017, he was not willing to be seen by a psychiatrist within their service when offered nor considered any form of medication to treat his presenting condition. 

33. The applicant next came to the attention of the St George Community Mental Health Service when he needed advice from the acute care team back to his treating doctor, Dr Byrne, on 5 October 2017.  The applicant was described as ‘well known to our service from previous mental health-related contacts in times of crisis’.[6]

    [6] Exhibit 3, Letter from St George Acute Care Team to Dr Byrne dated 5 October 2017, p 845.

34. He was again brought into the St George Emergency Department by police pursuant to statute.  The circumstances leading to his referral where that he was on the telephone to the regional complaints department of the police. He became frustrated by his perception of their consideration of his then complaint and said to the person to whom he was speaking that he ‘may as well just shoot’[7] himself.  When he was assessed at the facility, he denied any actual intent to kill himself, and that he said that to the police whilst highly distressed.  He perceived he was being harassed by the police and that the harassment was ongoing.

    [7] Exhibit 3, Letter from St George Acute Care Team to Dr Byrne dated 5 October 2017, p 845.

35. The hospital discharge summary says that the applicant:

    [H]as established diagnosis of Delusional Disorder and unfortunately he has incorporated police into his delusional system.  Crises are brought about by perceived invalidation and alleged ongoing harassment by police while the applicant continues with attempts to lodge complaints against them.[8]

    [8] Exhibit 3, Letter from St George Acute Care Team to Dr Byrne dated 5 October 2017, p 845.

36. The applicant was discharged with advice to see a clinical psychologist to help develop strategies and the applicant indicated then that he would be interested in doing so.

37. It is clear that the applicant was fully aware that he was having anxiety problems over the years leading up to his employment with NDIA. These were obvious with regards to his work, and he also had problems with regards to the relationship with his neighbours in Sydney. These included delusional beliefs that he was being persecuted by police.  He had periods where he was obliged by statute to undertake psychiatric assessment and treatment.  When he was under the CTO from 9 September 2015 to 21 October 2015, he pointed out to the Tribunal that he was only physically in the facility for four days and then was treated as an out-patient for the rest of the period.

38. He considered there were people driving past his house (presumably to have him under surveillance or harass him) and at best a lack of co-operation by those in authority – at worst a belief that authority was actively hostile to him. In addition, he thought that he was being attacked due to his sexual orientation and physical appearance as well as his ethnicity.

39. In his evidence for this hearing, the applicant was upset that these matters were being raised for the purpose of his current claim for compensation.  However, they are clearly highly relevant to his allegations of injury arising out of his employment. They were analysed and considered in detail in the report of Dr Gunapu. That report was provided to him well in advance of the hearing.

40. He remembered the three-monthly injections that he had to take whilst under the CTO and the side effects of them. He recalled they caused him physical pain which affected his ability to work.  He was able to give a clear account of that.

41. He had another emotional problem arising from the health of his dog. He sought medical treatment when the dog died in September 2016 and went onto Endep (an antidepressant medication).

    EMPLOYMENT WITH NDIA

42. The applicant applied for employment with the NDIA as stated.  In the course of this application for employment he filled out an Employment Health Declaration on 3 November 2016.  The declaration says: ‘I certify that this information supplied by me is true and complete to the best of my knowledge’.

1. As at 3 November 2016 the applicant was asked in the Employment Health Declaration:

   Have you ever had medical advice or treatment for the following:

   Mental or nervous condition, anxiety state or any depression?[9]

   There were two boxes in the form as an answer to that question: box ‘yes’ or box ’no’.  He ticked ‘no’.

   [9] Exhibit 2, ST4, NDIA Employment Health Declaration, p 56.

2. There is no doubt that the answer was incorrect and as a consequence misleading as to his pre-employment health. The inaccuracy was significant given the history set out above. Whatever label he might put on it,[10] these mental issues had certainly occurred prior to his employment with NDIA.

   [10] Such as ‘depression’

3. When cross examined on the application form, he said that he had only 30 minutes to complete the form.  Why that was so was never adequately explained, but why the time allowed caused him to tick ‘no’ instead of ‘yes’ when there is effectively no effort involved in doing that, nor any great time required was not explained. Even if there was a time limit, that is not a compelling to have made such a fundamental mis-statement.

4. The applicant earlier said that he did not accept the diagnosis that he had a delusional disorder but acknowledged in evidence that he did have depression and he took responsibility for not referring to that in the medical history.

5. The importance of his failure to make the health declaration meant that his employers could not, where necessary, adapt workplace practices or their dealings with him to be mindful of any vulnerability.

6. The applicant says he referred to his emotional health with his superiors in NDIA in NSW. He did not officially advise HR at NDIA. However, details of his advising NDIA in Sydney, if that ever occurred, are by no means clear.

7. In early 2018 when the applicant was working for the NDIA in Sydney, he was dealing with one Pamela Vildos who was senior to him in the organisation. She had concerns about his erratic office behaviour and was going to meet to discuss those concerns with him as his superior. He did not attend the scheduled meeting. In a follow-up email he said:

   … I apologise for leaving yesterday when we had planned to meet to discuss your concerns in relation to my behaviour. Can you please let me know if you are planning on meeting with me today and what time. I have to finish work by 4:00 PM to attend an appointment at 4:45 PM.

   I am sure you understand that the level of anxiety is quite heightened as I explained yesterday that it’s so severe that I have not been able to eat and that I was feeling physically ill resulting in nausea.[11]

   [11] Exhibit 2, ST3, Email from applicant to Pamela Vildos dated 15 February 2018, p 32.

8. This was in regard to complaints being raised against him around February 2018 and also concerns his employers had about his behaviour.  The Tribunal finds that he then referred to anxiety as set out above so as to put off the meeting, rather than to give a clear account of his pre-employment health.  This may be the situation where he says he spoke to one of his supervisors in Sydney about his psychological issues.  However, this is not compelling in terms of proper disclosure of his true condition.  

9. This reference to anxiety was used for the purpose of avoiding the meeting. If anxiety was mentioned in the Sydney office, it does not explain the applicant’s clear statement that he was hiding his psychiatric problems from his employers in Adelaide.  He admitted that he did not tell the HR members of NDIA that his application was incorrect. He admitted he did not take steps to officially correct the representation made. As noted, the representation as to his not having a ‘mental or nervous condition, anxiety state or any depression’ was misleading, and given the history, significantly so.

   EVENTS LEADING UP TO CLAIM

10. In 2018, the applicant moved from New South Wales to Adelaide.  His family is based in Adelaide and he took up work with the NDIA there in June 2018.  The NDIA has various office locations in the Adelaide area.

11. This information is contained in a detailed email from him to Comcare dated 9 May 2019[12] which is described as the correct course of events that led to the claim.

    [12] Exhibit 1, T5, Email from applicant to respondent dated 9 May 2019, p 26.

12. Firstly, while waiting for an interview when starting in Adelaide, the applicant overheard two women talking about the NDIA office at St Marys in a disparaging manner. 

13. He attended at the St Marys office and there were some problems locating a Surface Pro computer for him to use.

14. He was then at the Noarlunga office from 12 June 2018 to 29 June 2018.  He asked if he could work from an office at Marion.  These are locations in what would be described as the ‘greater Adelaide area’ although they are some distance apart.  The move to Marion was at the request of the applicant.  During his work at Marion, he was asked if he could attend at the Norwood office.  This appeared to be for a client interview as a once-off on one day.  Then, the applicant asked if he could work permanently from the Norwood office in early July 2018.  He then worked for a period at the Marion office.

15. He said he developed what he considered to be a comfortable working relationship with one of the officers there, Ms Fryar.  He felt emotionally safe and confident so that he could disclose his psychological disability to Ms Fryar and to let her know that he was finding the moves to different offices were having an impact on his emotional health. 

16. The fact that he said he felt emotionally safe and confident to disclose his psychological disability supports a contention by the respondent that he deliberately failed to do so in the application.  It also leads to a finding that he continually failed to rectify the error of that application.  He said he did refer to the problems to another person in Sydney, but there is no compelling evidence of that before the Tribunal[13].  The evidence of his own complaint to Comcare was that he did not disclose his psychological disability to his South Australian employers and supervisors until he said the point arose where he felt emotionally safe and confident to do so.  That is important.

    [13] Note discussion above para 49 - 50

17. The reference to the psychological disability was made in the circumstances of his wanting to have a favourable result of the office re-locations.  He then linked what he considered to be an unfavourable result (moving to St Marys’ office) to a failure on his employer’s part to accede to his request.  He described feeling shocked, dismayed and worthless as an employee, and that he had been humiliated by trusting someone who ran a course on depression and anxiety as well as other psychological disabilities.  He felt extremely unsupported as well as anxious.

18. He then had a further discussion with a superior officer, Ms Tremain, to say there was something else which added to his anxieties which was the discussion that he overheard about problems at the St Marys’ office.  This was confirmation that he did have psychological problems including anxiety prior to disclosure to Ms Fryar, accepting this sequence of events to be correct.

19. His descriptions on 9 May 2019 repeatedly refer to him feeling unsupported, humiliated and foolish ‘to disclose my status to my employer’.  This, again, confirms a deliberate act on the part of ticking ‘no’ with regards to the condition that was there.

20. This led to the applicant making complaints of discrimination.  He claimed that he was discriminated against because of the disclosure of his mental health issues.  He rejected assistance offered to him in dealing with his employment because efforts to respond to the dismissal of the complaint of discrimination would be ‘scripted in a manner that would suit the agency’.  He considered that a meeting that he had discussing these issues was not properly recorded in the Summary that was subsequently drawn.  That is a common theme of his complaint.  That is, things were put to him in written form, but he did not agree that the written form accurately reflected what was discussed.  There was much evidence on this. 

21. On another part of his complaint was that the applicant said he was not offered the hours that he wanted to work.  That was between 7.30am and 3.00pm.  The facility where he wanted this to occur did not officially open until 8.00am.  He thought he was being discriminated against because somebody else working there would get there at 7.30am on occasions.  He was quite adamant in his evidence that an email summarising positions offered to him that would suit his hours or geographic location were not the ones that were mentioned during the meeting, even though some of the sites offered did actually suit the hours that he had claimed he was after.  He brought a discrimination case to the Human Rights Commission which he says was based on the fact that the offer of a placement at Norwood was taken away because of the disclosure of his mental health state.

22. He said in an email to the respondent that: ‘I feel that I have been targeted by management on many levels including my physical appearance, a short statured male from CALD with heavy accent and a disability’.[14] That is also a common reference in much more florid language elsewhere in emails.

    [14] Exhibit 1, T5, Email from applicant to respondent dated 9 May 2019, p 28.

23. The employer sought assistance from a consulting psychiatrist as to the management of the applicant.  This was from Associate Professor Brinded, who proved a report o the employer dated 22 January 2019.[15]

    [15] Exhibit 1, T14, Report of Associate Professor Brinded dated 22 January 2019, pp 171–177.

24. The applicant told Associate Professor Brinded that his employer seemed to find it difficult to allow him time off to attend his treating GP or psychologist and he tried to arrange moves with respect to his workplace to accommodate that.  This is the important point – the extent to which the moves were forced upon him by work or moves that he was asking them to do to accommodate him.  It is not always clear. 

25. However, what is clear is that the workplace situation deteriorated so the decision was made for him not to attend the workplace on 7 December 2018 up to the time that he was assessed by Associate Professor Brinded on 21 January 2019.  Associate Professor Brinded obtained a history that the applicant would send emails to various members of the Management team expressing anger and the inappropriate nature of these communications would ultimately lead to the request that he not attend work prior to the fitness for duty assessment.  There is a similarity here of complaints against the police in the period when he was living in New South Wales.

26. A situation arose where the applicant thought he needed support and aggressively sought that, and then if it was not provided to his satisfaction, he would say that the employer’s actions had reached the level of ‘bullying and harassment’.  The support he required seemed to be having his wishes as to hours and location of his work being altered in accord to his requests.

27. The past psychiatric history put to Associate Professor Brinded by the applicant was inaccurate and notes none of the conditions as described at the beginning of these Reasons.  However, Associate Professor Brinded was not performing a forensic exercise as to causation of injuries, rather an assessment of fitness for employment and strategies to assist with that.

28. On the other hand, Dr Gunapu, who reported on 25 June 2020, was undertaking a psychiatric investigation as to the alleged injuries and of causation of them.  He had extensive material regarding his condition, both before and after the claimed onset (which was also before the Tribunal).  The applicant gave a history to Dr Gunapu as to problems as he considered relevant and expand upon them.  One of interest was that a certain person at work had driven past his house on Easter Sunday.  He reported that she had a romantic interest in him and that ‘she was coming on to me and she found out that I was gay.  She was upset with me.’[16]  That is he perceived she became difficult after finding out he was gay. He said she drove past his house. There is a contemporaneous email of 17 July 2019 which states:

    Can you please answer this question for me?  Why is my EL1 driving past my home in a side street with no shops or anything during one of the days I had off during Easter week.  I cannot confirm this other than seeing her in a very large granny gold Camry?  I have gone through school with bullies.  I know the behaviour when I see it.  Everyone wants to beat up on the little guy.[17]

    [16] Exhibit 2, Report of Dr Gunapu dated 25 June 2020, p 528.

    [17] Exhibit 1, T50, Email from applicant to respondent dated 17 July 2019, p 366.

29. The driving past the house holds similarities to the allegations of the police harassment, as he described it, in New South Wales.  When pressed as to how he knew the supervisor was driving past his house, Dr Gunapu’s report states that the applicant replied, ‘I can’t prove it to you but I know it’.[18]

    [18] Exhibit 2, Report of Dr Gunapu dated 25 June 2020, p 529.

30. Dr Gunapu had the benefit of access to the extensive notes that had been tendered to the Tribunal and also more detailed histories as to past medical and psychiatric injuries.  Thus, he was made aware about the applicant being prescribed Paliperidone on three occasions and the CTO for three months.  The applicant says that he did not think he had a psychiatric illness because he considered that the experiences were real.

31. Dr Gunapu considered that the long-term insecurities and clear issues with mood swings and impulsivity, high rejection sensitivity and affective instability of the chronic suicidal ideation in the context of stress were all relevant factors here.  He said the combination made the applicant very vulnerable in the long term to experience heightened interpersonal sensitivities.

32. He noted the history that the applicant had developed psychosis at various points in time and these were recorded contemporaneously by inpatient and outpatient mental health teams.  Dr Gunapu considered that the applicant’s manner of approaching large institutions and organisations such as the police, health, courts and councils indicates heightened perceptions of paranoia towards these organisations.  The issue with the council was inflammatory remarks that led to police intervention following the refusal of council to grant approval for a garage.

33. Importantly for the assessment of the case, Dr Gunapu says:

    His employment did not significantly contribute to this condition.  He would have had this condition in the background.  He would have had this condition in any work setting or non-work setting stresses, reasonable or otherwise.[19]

    [19] Exhibit 2, Report of Dr Gunapu dated 25 June 2020, p 531.

34. The applicant was very critical of Dr Gunapu’s report.  This criticism is consistent with the paranoia that Dr Gunapu describes.  As the report did not favour the applicant’s case, he thought it must have been produced by corruption or prejudice.  He asserted in the opening of his hearing that the Government Solicitor had paid the doctor to read the notes of previous history and to take what he wanted. 

35. The solicitors for the respondent had concern that Dr Gunapu’s report would upset the applicant.  They wanted to arrange for the report to be sent to the applicant’s general practitioner, Dr Fuller, who could then pass it to him in a supported setting.  The applicant took this as a bullying tactic and as a matter of principle refused to let this happen, and complained there was delay in providing the report to him.  There was no malice in the approach that the respondent suggested in view of the applicant’s behaviour and the fact that the report was negative to the case he wanted to present.

36. The applicant was able to cross-examine Dr Gunapu and raise issues with him.  A number of these issues were to do with the dealings with the police and the CTOs, which occurred prior to his moving to Adelaide in 2018.  At points of his cross examination, Dr Gunapu was asked whether the information raised by the applicant as to his clashes in the past with the police or his neighbour or the local council caused him to change his opinion.  On all occasions the doctor said ‘no’ – rather these extra details reinforced the doctor’s opinions.  Dr Gunapu said in his evidence that the issues raised by the applicant in cross-examination evinced a lack of retrospective insight.

37. Dr Gunapu was re-examined and advised that he not been biased in the opinions that he had presented and that he was mindful in not causing distress to the applicant in the examination, but that it was important that he conducted a thorough investigation as he was asked to do.  He considered that the applicant required treatment for the various conditions he diagnosed.

38. Dr Gunapu did note a reference to methamphetamine use.  The applicant cross-examined him on this and the basis for it, and also had further communication with the Tribunal following the hearing where he wanted to lodge a complaint that Dr Gunapu ‘used his power to dominate and belittle me by stating a blatant lie’.  The fact of the matter is that there is a medical note dated 21 August 2018 which does refer ‘to some methamphetamines smoked, one in the last three months.’

39. We take this ‘complaint’ as a further submission by the applicant on whether the Tribunal should accept the Doctor’s evidence. We find Dr Gunapu has conducted a thorough and thoughtful examination of the applicant and the extensive documentation that is relevant to issues of the various medical conditions and their causes. We reject any assertion that he was biased in his consideration of this matter. He assisted the Tribunal in his oral evidence. We accept his findings.

40. No point was taken of that reference to methamphetamine use as being relevant to our assessment by the respondent.  There was a basis for it in the notes.  The applicant could not explain that note of his GP and re-iterated that he was not a drug user.  Nothing turns on this point in the consideration of this Decision.

41. There are examples of aggressive emails that the applicant would often send in the material before the Tribunal.  These were often laced with sarcastic comments.  They were often designed to cause upset to the reader. Other times they would make references to self-harm by the applicant. Aggressive emails written during his time at the NDIA are very similar in tone and nature to comments made in emails prior to his employment at NDIA in South Australia.  Such a example is one of 10 July 2019 referring to:

    ‘women protecting women bullies … anyway probs good thing the sooner I am out of this world the better’.[20] 

    [20] Exhibit 1, T25, Email from applicant to respondent dated 10 July 2019, p 329.

42. These themes persisted such that on 11 July 2019, he wrote:

    ‘I wonder if I was a woman who told them I had breast cancer if I was going to be treated the same way. 

    I feel absolutely disrespected and disregarded by you for not being honest from the beginning. 

    I have already apologised to Hamish for being short, gay, from a CALD[21] background, I am sorry that my genitalia is so offensive to my managers that a woman can have any request met and my needs are not to be counted.  I am sorry I exist.  I am so sorry.’ [22]

    [21] Which we take to be a shorthand version of ‘culturally and linguistically diverse’.

    [22] Exhibit 1, T37, Email from applicant to respondent dated 11 July 2019, p 341.

43. His responses to enquiries with regards to work (not pertaining to his complaint) were also laced with sarcasm which might, in the instance of an email of 30 July 2019, be motivated by good intentions but his communication is not acceptable with its mocking sarcasm.[23]

    [23] Exhibit 1, T64, Email from applicant to respondent dated 30 July 2019, p 382.

44. There is a direct, expressed desire to want to kill himself because of the staff and the agency in an email of 31 July 2019.[24]  This was in direct response to a comment he made to one of the staff members, when the applicant asked where could he get a gun to shoot himself. 

    [24] Exhibit 1, T67, Email from applicant to respondent dated 31 July 2019, p 385.

1. The applicant left the NDIA and continues to work in the social care field.

   ANALYSIS

2. Section 14 of the SRC Act is the basis for the respondent’s liability to pay compensation with respect to injuries suffered by an employee that results in incapacity for work or impairment.

3. Injuries are defined in s 5A(1) of the Act and in this instance, would be paragraph (c) which is ‘an aggravation of a mental injury (other than a disease) suffered by an employee whether or not that injury arose out of and in the course of the employee’s employment’. The aggravation - to fit the qualification - must have arisen in the course of employment. It does not include an aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

4. ‘Disease’ is defined in s 5B of the Act which here relevantly would be an aggravation of an ailment that was contributed to by a significant degree by the employee’s employment. ‘Ailment’ is defined in s 4(1) of the Act to mean a mental ailment whether of sudden onset or gradual development. These are summaries of the sections.

5. The finding of the Tribunal is that the applicant had significant psychiatric illnesses. This had been described often by him over the years as depression, but the conditions had the type of features that were summarised by Dr Gunapu.  There is ample evidence, and the Tribunal finds, that he suffered from:

   ·chronic anxiety;

   ·chronic use of anxiety modulating medications;

   ·multiple trials of antidepressants;

   ·paranoid and referential delusions;

   ·emotional sensitivity and poor reaction to fatigue;

   ·sweeping beliefs of persecution on grounds of sexuality, physical appearance, ethnicity; and

   ·borderline personality traits.

   All of these are referred to in the report by Dr Gunapu which were accepted.  More importantly, they were all supported with contemporaneous evidence, often from the applicant himself in his emails and other communications, or otherwise what we accept as contemporaneous reports in medical notes.

6. There are very close similarities in his presentation before commencing work with NDIA and his presentation after commencing work with the NDIA in Adelaide consistent with the report of Dr Gunapu.  We accept the submission that the workplace was merely the setting where the applicant’s pre-existing conditions played out.  The applicant found himself in an increasingly administrative-driven process at work because the statements that he made at work and in emails had to be dealt with by the employer in terms of proper personnel management.  This is with regards to the offensive statements as well as the veiled or overt references to self-harm.

7. Section 4 of the Act describes ‘ailment’ as meaning ‘any physical or mental ailment, disorder or morbid condition (whether of sudden onset or gradual development)’.

8. As noted, the definition of ‘disease’ in section 5B means an ‘aggravation of an ailment that was contributed to by a significant degree by the employer’s employment by the Commonwealth’.

9. Here we find that the employment did not contribute to a significant degree to the aggravation of the ailment.  This is based on the evidence of Dr Gunapu as well as full consideration of the nature of the ailment prior to the applicant’s employment with the NDIA.

10. Looking at the definition then of ‘injury’ in section 5A, it would again come under 5A(1)(c) which is an aggravation of the mental injury, and the aggravation arose out of and in the course of employment. We find that the applicant did not suffer an injury for the purpose of section 5A as the condition was not aggravated by his employment. It is clearly no different to that in evidence before his NDIA employment.

11. For the reasons set out above, we again do not consider the aggravation arose out of employment.  There was no significant aggravation that occurred.  There was a manifestation of what had pre-existed and continued to exist.

12. If we are wrong in this view, then section 7(7) of the SRC Act applies, which states:

    … aggravation of such a disease shall not be taken to be an injury to the employee for the purpose of this Act if the employee has at any time, for the purpose connected with his or her employment or proposed employment with the Commonwealth, made a wilful and false representation that he or she did not suffer or did not previously suffer, from that disease.

13. Here, the failure to report the mental illnesses in response to an easy-to-read, understandable question on the application form, was admitted by the applicant.  We find that the failure to disclose the condition was both wilful and false. We find that the pre-employment psychiatric and psycological problems and their direct consequences upon him (ie various compelled examinations and treatments) were so significant and contemporaneous with the completion of the form that he could not have forgotten about them. He is a man of obvious intelligence. There is no evidence of an inability to comprehend the form. The fact that he claims he only had 30 minutes to complete it provides no excuse for the patently misleading information it contained. It is also consistent with his behaviour at the Adelaide office not to disclose his psychiatric symptoms, as has been discussed above.

14. It appears that psychiatric issues were discussed to a degree by him with a supervisor when working for NDIA in the New South Wales office.  This seems to be for avoiding the counselling meeting that was arranged as a result of his disruptive actions. He was anxious as a consequence of the forthcoming meeting, as distinct from his wanting to correct a matter of record. However, there was no evidence before the Tribunal of an attempt to correct the records with NDIA Human Resources, nor to ensure his problems were made known widely to those in charge of his management. The pre-existing problems were hidden from the South Australian management for a period – during which he claims his condition was exacerbated. Therefore, if the applicant’s assertion as to his injury made for the purpose of this claim was correct, the employer has been prejudiced by the withholding of this relevant information as to his potential vulnerability.

    DECISION OF THE TRIBUNAL

15. The decision of the Tribunal is that the decision under Review is affirmed.  The basis of the decision under Review is that that the claimed condition is not a disease or, if it was, the condition had not been disclosed as it should have been.

    IDENTIFICATION OF APPLICANT

16. Tribunal matters should be dealt with in public (as this matter was) and the decisions available to the public (as these are). However, circumstances can arise where the publication of identity of partied or witnesses should be restricted.[25]

    [25] See for example: BVFM and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 6110 (19 December 2019)

17. Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (set out below) matters are to be dealt with in public. Exceptions can be made and in this matter an order will be made to anonymise these proceedings. This decision will be subject to review by either party if there is any objection to it, such application to be made to the Tribunal within 21 days of the date of this decision. That is, neither the identity of the applicant nor any information to identify him can be disclosed in any further publication or other disclosure of these reasons.

18. The applicant has been unsuccessful, and to explain why he was, it was deemed necessary to explain the factual circumstances involved in this matter. However, it is also evident that his behaviours can be explained to a degree by his underlying condition.

19. These detailed reasons provide ample information for public scrutiny on the allegations made, the relevant facts and the basis of the decision. Matters referred to in footnotes are to assist the parties to review these reasons, and do not significantly add to the factual narrative set out herein. Details of the applicant’s identity are not necessary, in this case, to make sense of what went on. Identifying the applicant has the capacity to cause harm in his circumstances.

20. The Tribunal is mindful of the views of Brennan J, when he was President of the Tribunal, set out the rationale for Tribunal hearings being held in public saying that it is:

    “... calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process...and its exposure to public scrutiny is calculated to enhance greater public confidence in it." [26]

    [26] RE Pochi v Minister for Immigration and Ethnic Affairs[1979] AATA 64; (1979) 26 ALR 247, 270 – 273

21. In the peculiar circumstances of this case after proper consideration to the direction in s 35 (1), it is proper to apply s 35 (3) as set out below:

    S 35 (3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:

    (a) information tending to reveal the identity of:

    (i) a party to or witness in a proceeding before the Tribunal; or

    (ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or

    (b) information otherwise concerning a person referred to in paragraph (a)

    (4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

    (a) relates to a proceeding; and

    (b) is any of the following:

    (i) information that comprises evidence or information about evidence;

    (ii) information lodged with or otherwise given to the Tribunal.

22. To set this all out on a permanent, easily accessible public record which identifies the applicant personally would cause undue hardship and embarrassment to him. More importantly, it may lead to stress which could have the effect of re-aggravating his condition. This is an important factor in this case because his aggravated condition has involved self-harm episodes as set out in these reasons. 

23. However, as this decision on s 35 (3) was made in the absence of the parties both have liberty to apply on this part of the decision only within 21 days of the date of the decision.

    FULL DECISION OF THE TRIBUNAL

24. The decision of the Tribunal is that the decision under Review is affirmed.  The basis of the decision under Review is that the claimed condition is not a disease or, if it was, the condition had not been disclosed as it should have been.

25. A further order is made to anonymise these proceedings, in so far as the identity of the applicant must not be disclosed in the reasons nor in any further publication or other disclosure of these reasons.

26. The parties have liberty to apply on the order made in paragraphs 103 and 111 hereof, such application to be made within 21 days of the date of this Decision.

I certify that the preceding one hundred and twelve [112] paragraphs are a true copy of the reasons for the decision herein of Member Ward and Member Stephan.  

..................[sgnd].............................

Administrative Assistant Legal

Dated:     19 January 2021  

Date of hearing:  3 December 2020

Applicant’s Representative:  Self-represented      

Respondent’s Representative:  Mr W Evans, Australian Government Solicitor