XKGN and Comcare (Compensation)

[2020] AATA 291

XKGN and Comcare (Compensation) [2020] AATA 291 (25 February 2020)

Division:GENERAL DIVISION

File Numbers:         2017/5105 & 2018/3955

Re:XKGN

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:25 February 2020

Place:Melbourne

The reviewable decisions are set aside and in substitution the Tribunal decides the following in relation to each reviewable decision.

File Number 2017/5015:

(a)From 23 June 2017 to the present date (and at the present date), the Applicant undertook medical treatment and was incapacitated for work as a result of the injury identified as an adjustment reaction with anxious mood. The injury arose out of or in the course of her employment with the Department of Human Services (DHS), or to which that employment contributed to a significant degree. The injury was the subject of a claim for compensation dated 23 March 2015, which gives rise to entitlement to compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act).

(b)From 23 June 2017 to the present date (and at the present date), the Respondent shall pay to the Applicant:

a.the costs of all medical and related treatment expenses incurred in respect of the injury, pursuant to section 16 of the SRC Act; and

b.weekly payments of compensation in respect of incapacity for work for all periods, pursuant to section 19 of the SRC Act, on the basis that the employees ability to earn is no more than the actual earnings.

(c)The Respondent shall pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

File Number 2018/3955:

(a)The Applicant suffers a permanent impairment as a result of the injury which arose out of or in the course of her employment with DHS, or to which that employment contributed to a significant degree. The permanent impairment is the subject of a claim for compensation dated 23 March 2015, which gives rise to an entitlement to compensation pursuant to section 14 of the SRC Act.

(b)The Applicant suffers a degree of permanent impairment of 10% in respect of the injury and is entitled to permanent impairment compensation, pursuant to section 24 of the SRC Act.

(c)The Applicant is therefore entitled to non-economic loss compensation, pursuant to section 27 of the SRC Act.

(d)The Respondent shall pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

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

R Cameron, Senior Member

Catchwords

COMPENSATION – adjustment reaction with anxious mood – psychological condition – whether injury significantly contributed to by employment – entitlement to compensation – whether to injury is a permanent impairment of at least 10% – first and second reviewable decisions set aside and substituted

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases

Arnott's Ltd & Ors v Trade Practices Commission (1990) 24 FCR 313

REASONS FOR DECISION

R Cameron Senior Member

25 February 2020

INTRODUCTION

1. There are two applications before the Tribunal.

2. The first application (2017/5015) seeks review of the Respondent’s decision made on 26 July 2017 affirming a previous decision made on 23 June 2017, that the Applicant had no present entitlement to compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) for a condition of adjustment reaction with anxious mood with a date of injury of 30 June 2014 (“the first reviewable decision”).

3. The second application (2018/3955) seeks review of the Respondent’s decision made on 11 July 2018 affirming a previous decision made on 1 June 2018 denying the Applicant compensation under sections 24 and 27 of the SRC Act on the grounds that she does not presently suffer from an employment related psychological condition (“the second reviewable decision”).

   THE EVIDENCE

4. The hearing of this application, although fragmented, occupied five sitting days.          There was both viva voce and documentary evidence.

5. The Applicant gave viva voce evidence. Additionally, two witness statements made by her were tendered. The Applicant's first witness statement dated 28 March 2018 was exhibit "A-4". A subsequent witness statement dated 21 April 2019 was exhibit "A-5".

6. The Respondent called a lay witness from the Department of Human Services (“DHS”) who will be referred to in these reasons as “KA” so as to minimise to the largest possible degree potential identification of the Applicant. In 2014 KA was Assistant Director of the Rehabilitation and Recovery team (“R & R team”) of the DHS. In addition to her viva voce evidence she also filed a witness statement. KA’s witness statement was exhibit "R-5".

7. Viva voce evidence was adduced from several experts. Those experts were:

   (e)Dr Nigel Strauss, a Consultant and Occupational Psychiatrist[1];

   (f)Dr Sarah Valentine, a Clinical Psychologist[2]; and

   (g)Dr James Hundertmark, a Consultant Psychiatrist[3].

   [1] Two reports from Dr Strauss were in evidence, dated 13 February 2018 and 6 March 2018 (exhibit "A-2").

   [2] A report from Dr Valentine was in evidence before the Tribunal and was document T 11 in the T documents in application 2017/5105.

   [3] There were several reports in evidence before the Tribunal from Dr Hundertmark. They were dated           31 March 2017 (document T 14 of the T documents in application 2017/5105), a "Supplementary Medical Report" dated 26 April 2017 (document T 16 of the T documents in application 2017/5105) and a further supplementary report dated 18 May 2018 (exhibit "R-7").

8. There was a significant volume of documentary evidence including the documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) in both proceedings, which need not be recorded in full in these reasons.

9. A witness statement from another Assistant Director Human Resources Support, made on 7 May 2019 who will be referred to in these reasons as “OT” also to minimise to the largest possible degree potential identification of the Applicant, was tendered by the Respondent. The witness statement of OT was exhibit "R-6". She did not give viva voce evidence.

10. Also tendered during the course of the hearing were several reports of experts who did not give viva voce evidence; which should be noted as the reports will feature later in the course of these reasons.

11. The following further expert reports were in evidence:

    (a)Dr Ash Takyar, Consultant Psychiatrist, dated 21 April 2015;[4]

    (b)Dr Scott Chambers, Consultant Psychiatrist, dated 12 May 2015,[5] 1 July 2015[6],     5 August 2016[7], 29 November 2016[8], 28 February 2017[9] and 22 May 2017[10];

    (c)Dr  Kirthi Kumar, Consultant Psychiatrist, dated 10 August 2016[11] and                  31 August 2016[12]; and

    (d)Dr Andria Economidis, General Practitioner (“GP”), dated 22 April 2015.[13]

    [4] Document T 5 of the T documents in application 2017/5105.

    [5] Document T 24.7 (page 274 of the T documents in application 2017/5105).

    [6] Exhibit "A-1".

    [7] Document T 24.12 (page 457 of the T documents in application 2017/5105).

    [8] Document T 10 of the T documents in application 2017/5105.

    [9] Document T 13 of the T documents in application 2017/5105.

    [10] Document T 24.19 (page 529 of the T documents in application 2017/5105).

    [11] Exhibit "A-3".

    [12] Exhibit "A-3"

    [13] Document T 6 of the T documents in application 2017/5105.

    ISSUES BEFORE THE TRIBUNAL

12. The parties to this application, in their respective Statements of Facts, Issues and Contentions, have formulated issues for determination by the Tribunal. Whilst the precise formulations of both parties differ slightly, the substance of the formulations is essentially the same.

13. In application 2017/5105, the issues can be described in the following terms:

    (e)Did the Applicant suffer and continue to suffer from an “injury” within the meaning of the SRC Act?

    (f)If so, was the injury contributed to a significant degree by her employment?

    (g)Is the Applicant entitled to compensation under sections 16 and 19 of the SRC Act?

14. In application 2018/3955, the issues can be described in the following terms:

    (a)Did the injury result in the Applicant suffering an impairment?

    (b)If so, is such impairment permanent for the purposes of sections 24 and 27 of the SRC Act?

    (c)If so, did the injury result in a degree of impairment of at least 10%?

15. The Respondent had for some time during the course of the conduct of both applications sought to rely on a contention that if the Applicant’s condition was an “injury” within the meaning of the SRC Act, such injury was suffered by her as a result of reasonable administrative action. The reliance on the question of reasonable administrative action was formally abandoned on the fourth day of the hearing.

    FACTUAL BACKGROUND

16. Many background facts are not in dispute[14]. It is useful to recount some of them to give context to this dispute.

    [14] Paragraphs 7 to 24 of the Applicant’s Amended Statement of Facts, Issues and Contentions of               31 October 2018 were admitted by the Respondent.

17. The Applicant has been employed by the Commonwealth since 29 November 1982.      The Tribunal has no reason to doubt that she was a dedicated and conscientious public servant.

18. At all times relevant to these applications, the Applicant was employed by the DHS as a Senior Rehabilitation Case Manager (“RCM”) at APS Level 6. She had performed such duties for approximately eight years prior to the onset of the injury she now complains of.

19. The Applicant gave evidence that from approximately 2011, her workload and that of her team seemed to increase. Part of the cause of this increased workload was, in her estimation, a result of the merging of several government agencies including Centrelink and Medicare into the DHS. There was an increase in the workload for all case managers including the Applicant. She described the situation as being a case of high workload with lowered resources.

20. The increase in workload also coincided with what she described, in various ways but generically, as a difficult case or a long-term case that she worked on for some years.   The difficult case she said she worked on was from approximately 2010 until the end of 2013. The difficulties with the case were compounded by the fact that the claimant worked on the first floor, whilst the Applicant worked on the ground floor of the same building in Devonshire Road, Sunshine. The person concerned, according to the Applicant, made statements that she felt were threatening and blamed her in some way for the conditions from which she suffered. There were apparently also threats made to her in various ways. These threats included references to the ability of the claimant to bring legal proceedings against the Applicant, exposing her to personal liability rather than that of her employer. After these threats were made she would only meet that person with someone else present. Additionally, the Applicant gave evidence that about the same time as the threats were made she received several nuisance telephone calls at home; which she inferred may have come from the claimant in the difficult case. She became increasingly worried about the reaction of the person whose case she was managing. By reason of these facts she was concerned for her safety and that of her children. Indeed, as was explored in some detail during the course of the Applicant’s evidence-in-chief and cross-examination, she took a cricket bat and a pair of scissors to bed at night for protection when her husband was overseas.

21. The Applicant even noted in one of her witness statements, that an independent medical examiner (“IME”) who visited her office to assess the claimant described her as being a psychopath. This statement was not challenged. Whether or not this description is accurate is not for the Tribunal to determine, but it does accept that the Applicant was affected in a material way by such a revelation from the IME.  This observation made by the Applicant is contained in a lengthy paragraph (paragraph 15) of her witness statement, dated 28 March 2018 (exhibit "A 4").

22. The Applicant gave evidence that she addressed the increase in work-related pressure by attempting to work harder, and as she put it, forcing herself “to do better”. She gave evidence that she kept working as hard as she could in the belief that she would eventually catch up, or manage the workload concerned, its demands and stresses. Indeed, it was a consistent theme of her evidence that she had never struggled with her work before, and she just thought that she would work harder and catch up. She did not.

23. By the end of 2013, the Applicant started to experience several emotions. She stated that she did not feel well emotionally or mentally. In some instances she described it as burnout, in others feeling overwhelmed or not as resilient, as a result of her workload.  She described how she was unable to keep up with her workload. In response to other questions she described it in terms of feeling emotional difficulties at that time.

24. The Applicant had been for some years, at least since 2005, a patient of the Altona Medical Centre. She did not specifically raise, or perhaps more accurately, seek treatment for work-related stress issues until 30 June 2014, when she consulted Dr Howard Bertram from that medical centre. This was notwithstanding that she had attended the Altona Medical Centre on approximately 20 occasions from approximately the middle of 2012 to the end of 2013.

25. Her symptoms continued throughout 2014. She continued to work but felt that her conditions were not improving. She gave evidence of a continuing struggle with her workload. Her condition developed to a point by May 2014 where she was thinking about work at night and suffering from very poor sleep as a result. She said that in the morning she would usually wake and immediately think of work. Work issues tended to dominate her thinking and emotions.

26. The Applicant gave evidence that she did from time to time, as her condition worsened throughout 2013 and 2014, advise her supervisors of the difficulties she was experiencing. She was questioned, particularly in cross-examination, about this. Her evidence was that she told her supervisor in 2013 that she was struggling, who will be referred to as “MA” in these reasons to minimise as to the largest possible degree potential identification of the Applicant.  MA was then Assistant Director of the R & R team. She also asked MA to be taken off the difficult case. At approximately the end of 2013, MA left on maternity leave. MA did not give evidence in this application. KA was Assistant Director of the R & R team from 17 February 2014 until 6 June 2014. Her evidence was that when KA “came on board” she told her she was struggling and not sleeping at night. OT was the Acting Assistant Director of the R & R team from 9 June 2014.

27. Throughout the first half of 2014, there was considerable contact between the Applicant and KA. Prior to the handover from MA to KA, they had a discussion which identified members of the R & R team who had either attendance or performance issues that required improvement. The Applicant was one of those team members discussed.       This prompted KA to review the Applicant’s Mid Cycle Individual Performance Agreement, which included comments from MA concerning areas of improvement and additional development. There was a document signed by both the Applicant and MA dated           16 January 2014 (which was acknowledged by the Applicant in the witness box), in which MA recounted previous discussions. These discussions included that she had not been able to allocate many cases to the Applicant that year. The Applicant in cross-examination acknowledged that there was a discussion between her and MA at this time about increasing the number of cases she would attend to. She also stated that few cases had been allocated to her because up until the time she had finished with the difficult case referred to previously, she was unable to take on many other cases.

28. It is not necessary to address the evidence of KA in detail in these reasons. She made both a witness statement and gave evidence from the witness box. Whilst there was some divergence between the evidence of the Applicant and KA on certain matters; on others there was considerable comity. KA acknowledged in her evidence that she and other officers of the DHS recognised that the Applicant was experiencing difficulties with her workload and work requirements. There were several discussions and meetings between them (and other officers of the DHS). In April 2014, several steps were undertaken.   These included the Applicant attending a training session conducted by the                Acting Director of People Support in Victoria, who will be referred to in these reasons as “FA” to minimise to the largest possible degree potential identification of the Applicant. There was also a telephone meeting with the Applicant, KA, other Directors, Assistant Directors and members of an organisation known as the “Tiger Team”. The Tiger Team provides assistance in the management of cases of the type conducted by the Applicant.          There were also direct discussions between KA and the Applicant, in which KA gave practical advice to assist the Applicant manage her cases, such as the use of running sheets and other workload tools. By May 2014 there had been a review of the case files conducted by the Applicant. In KA’s words, an improvement plan was also developed to assist the Applicant prioritise her work, meet the expected standards of case management and case management recordkeeping.

29. KA also readily acknowledged, particularly in cross-examination, that the Applicant had told her on numerous occasions that she was struggling with her workload. Consequently, in response to being told numerous times by the Applicant that she was struggling, the Applicant’s caseload was reduced to 14 in April 2014 and 10 in May 2014[15]. In March of that year, the Applicant had a caseload of 19 which KA readily acknowledged was a higher caseload than other employees in other DHS offices, whose performance was recorded in documents at were before the Tribunal[16]. This documentation showed that the Applicant was much closer to achieving a goal of 30 cases in the high to medium range, per RCM when compared particularly, to the top candidate at the Box Hill office.         When confronted with this fact, to her credit KA conceded that this was the case. Also to her credit, KA accepted that when one examines the documentation, particularly document “FST 47”, none of the case managers’ performance recorded in that document went anywhere close to the standard of 30 cases in the high and medium range.[17]         The Tribunal should record that it found KA to be a conscientious and dedicated public servant. She was a very credible witness. Lest it needs to be said, overall her evidence was not inconsistent with that of the Applicant in its key respects.

    [15] Evidence to this effect given by KA is to be found in the Transcript at pages 127-128. This was also consistent with the evidence given by the Applicant, particularly in her cross-examination. For instance, at pages 37 and 38 of the transcript.

    [16] Particular reference should be made to document "FST 47” (headed Attachment 5, on page 426 of 480 in the "Further Supplementary Section 37 Documents") which is described as "Notes of XKGN’s Caseload as of 25/3". Reference should also be made to exhibit "A-7" which records cases as at "25/3" for staff members employed at the Box Hill, Sunshine, Moorabbin and Geelong offices of the DHS.

    [17] Transcript at page 111.

30. The Applicant’s first contact with OT was to report that she was extremely busy.            The Applicant later informed her that she was not sleeping well, was constantly thinking about work, was falling behind with her work and was struggling to catch up.                  The Applicant from time to time, kept notes of her feelings and experiences that were particularly referred to in her first witness statement. There were detailed notes that she recorded of a conversation with OT on 4 October 2014, in which the Applicant explained the difficulties she was having with sleeping, her workload and her inability to keep up.      It also records that OT asked the Applicant if she was going to a GP. Apparently, OT suggested that the Applicant book a GP appointment, on or about that time.

1. OT did not give viva voce evidence, but provided a witness statement which was received in evidence by the Tribunal. As noted earlier, OT commenced on 9 June 2014 as the Acting Assistant Director of the R & R team. She confirmed that upon commencing in that position, she met with both KA and FA concerning the Applicant. The content of those conversations related to the Applicant’s workload management, timeliness of her output and part-time work arrangements. KA informed OT of the improvement plan referred to previously in these reasons. She stated that around this time there had become an expectation that the Applicant required further support to be able to work at the same capacity as others. Unfortunately, this could not be tested and is to some degree inconsistent with the evidence of KA referred to above and of course the documentary evidence which was explored with KA during the course of her cross-examination. Counselling sessions on several occasions occurred in an informal setting between OT and the Applicant.

2. In OT’s witness statement she identified that prior to the acceptance of the Applicant’s initial workers’ compensation claim; the Applicant had indicated to her that she was struggling to manage her caseload. OT also acknowledged that on 3 October 2014, she received a text message from the Applicant advising her that she had attended her GP, who had diagnosed her with a anxiety and stress condition. This observation was consistent with the evidence of the Applicant in the witness box. Additionally, the Applicant in her Amended Further Statement said that she had been informing her supervisors from time to time, for approximately the year prior to October 2014, that she had been struggling to manage her caseload. It was her belief that she first mentioned that she was struggling to MA prior to the commencement of her maternity leave in February 2014.   The Applicant certainly, in cross-examination, acknowledged that OT had offered the Applicant reductions in her caseload when she took up her position in June 2014. The Tribunal should observe that this is not inconsistent with the evidence given by the Applicant that she had notified OT of her struggle to manage her workload.                   OT’s statement did not contradict the contents of the Applicant’s first witness statement concerning the conversation with OT on 2 October 2014 referred to above. The Tribunal accepts the Applicant’s evidence as to the contents of such conversation.

3. Throughout the remainder of 2014, the Applicant’s caseload steadily decreased.

4. Ultimately, to use the Applicant’s words she fell in a heap, stopped going to work and couldn’t cope with anything. She ceased work on 12 March 2015.

5. For several months between approximately March and July 2015[18], after the Applicant stopped working she was so affected by her conditions that she did not wish family, friends and others around her to know that she was not working or otherwise had mental health problems. She informed Dr Chambers and Dr Hundertmark of this. It is recorded in Dr Chambers’ report of 5 August 2016 and Dr Hundertmark’s report of 31 March 2017[19]. Consequently, most days during those months she pretended to leave for, and return from work. After leaving home in the morning (by car so it would not be seen in the driveway) she would frequent such places as a shopping centre to fill in the time in between, before returning home.

   [18] Transcript page 80.

   [19] The relevant section of Dr Chambers report is at page 460 of the T documents in application 2017/5105 (document T 24.12) and in Dr Hundertmark’s report at page 79 of the T documents in application 2017/5105 (document T 14).

6. The Applicant lodged a claim for Workers’ Compensation on 22 March 2015                (“the claim”)[20]. The claim was received by OT on 23 March 2015. The illness identified in the claim form was said to be work related stress/anxiety. Under the part of the body most affected (question 11 of the Claim Form), it was said to be mental state.

   [20] The "Claim for Workers Compensation" (the Applicant's "Part 1") is document T 3 of the T documents in application 2017/5105. The "Part 2-Employer to complete" is dated 1 April 2015 and signed by OT. It is document T 4 of the T documents in application 2017/5105.

7. The Respondent arranged for the Applicant to see Dr Takyar, a Consultant Psychiatrist, to prepare a report dated 21 April 2015.

8. On 27 May 2015, the Respondent accepted the Applicant’s claim under section 14 of the SRC Act for adjustment reaction with anxious mood.[21]

   [21] The letter of acceptance of 27 May 2015 is document T 7 in the T documents in application 2017/5105.      It should be noted that the letter of acceptance of 27 May 2015 described the Applicant's condition as "adjustment reaction with anxious mood". The Statement of Reasons attached to the letter described the Applicant's condition as diagnosed by Dr Takyar as "adjustment disorder with anxious mood". (Emphasis added.) The Tribunal infers that this is an oversight on the part of the author of the letter. It considers for the purposes of this application the use of the words "reaction" and "disorder" are interchangeable.

9. Subsequently, the Applicant saw several other healthcare professionals including psychiatrists, details of which will be referred to below. Amongst those psychiatrists she was referred to included Dr Hundertmark.

10. The Applicant returned to work in late January 2016.

11. Shortly after the Applicant’s return to work, an incident occurred which the Applicant gave evidence of and its effect upon her. On 1 February 2016, a senior Director of the DHS sent an email to all members of the Applicant’s team containing personal information. Attached to the email was a document that contained particulars including the names of persons making current compensation claims. The document included the Applicant and identified her as having both a physical and psychological claim. She stated that she considered this incident and the distribution of details of her claim to be a major breach of her privacy. She described in her evidence on several occasions that she that she did not want anyone to know that she had made a claim, or that she was suffering from, the conditions she described in various terms such as psychological problems. The effect was described by the Applicant as devastating. She said it was a major breach of her privacy. Immediately on finding out about the email on 1 February 2016, she became anxious and very upset. Her initial response was to leave her desk, go to the ladies’ bathroom and then walk out of the office. This incident caused the Applicant much distress and she considered it to be a significant contributor to the conditions from which she now suffers.

12. Following the events of 1 February 2016, the Applicant ceased work. She continued to see various healthcare professionals for some time. These included her GP,                   Dr Economidis and her psychologist, Dr Valentine. She also saw Dr Chambers for the purposes of reassessment and to examine the possibility of a return to work program.   The anticipated return to work program was on a part-time basis, of approximately three days per week for five hours per day. Eventually, she returned to work on approximately          15 March 2017. It was shortly after her return to work that she attended on   Dr Hundertmark, which led to the preparation of his first report on 31 March 2017.

13. On 23 June 2017, a determination was made by an authorised delegate of the Chief Executive Officer of the Respondent, that the Applicant had no present entitlement to compensation under the relevant sections of the SRC Act.[22] In the reasons attached to the determination, the decision-maker relied upon the report of Dr Hundertmark dated          31 March 2017, to conclude that the Applicant’s injury was a pre-existing, underlying condition, and that her employment had not caused the condition itself. The view expressed in those reasons was that the Applicant no longer suffered from an adjustment reaction with anxious mood attributable, to her employment with the DHS.

    [22] The determination of 23 June 2017 is document "T 22" of the T documents in application 2017/5105. Attached to the determination is a document headed "Assessment of claim" which includes the reasons relied upon by the delegate in reaching the decision concerned.

    GENERAL OBSERVATIONS ON THE APPLICANT’S EVIDENCE

14. Something should be said about the Applicant’s evidence from the witness box including her credibility and demeanour. It was readily apparent from observing the Applicant that she has been profoundly affected by the conditions from which she suffers.                   The manifestations of these effects took several forms. She was from time to time quite tearful and emotional in the course of responding to questions put to her in                 cross-examination. Another feature of her evidence was that she had considerable difficulty recalling many of the events that took place. Often this difficulty in recalling these events was not assisted when for instance statements, clinical notes and other contemporaneous documents were put to her in an effort to revive her memory. She did not present as a witness who in any way was trying to reconstruct, embellish or exaggerate her evidence. The Tribunal wishes to emphasise that overall, the conclusion it reaches is that she did her best in the alien environment of the witness box (having never given evidence before), in what was a stressful and trying occasion for her. Overall, the Tribunal finds the Applicant a credible witness and accepts her evidence as to the facts and background of these matters.

    MEDICAL EVIDENCE

15. Dr Takyar’s report of 21 April 2015[23] (following an assessment made by him on the same day), recorded that the Applicant presented with a history of mainly anxiety symptoms of a moderate grade. He diagnosed her as having a history of adjustment disorder with anxiety, with a secondary mild mood component. The characteristics of these symptoms were altered sleep and concentration, irritability, greater restlessness than baseline, ongoing fatigue and muscular tension in her neck. There was also a report of two previous panic attacks, which had occurred in mid-February and April 2015. He also observed that there was some evidence of a mild depressive component, but overall her mood was relatively stable. He noted that it appeared to be described as mildly lowered, but with normal enjoyment, appetite and memory. The Applicant described some negative ruminations, along with sleep changes and a mild reduction in concentration and energy levels.

    [23] Document T 5 of the T documents in application 2017/5105.

16. When asked to express an opinion on when the Applicant first suffered from clinically identifiable symptoms, Dr Takyar responded that they were reported to have commenced in November to December 2013. He also recorded that there was no prior history of psychiatric illness. There was also no prior history of pre-existing or underlying conditions. He did not make a diagnosis of a biological or endogenous depressive illness,                  as Dr Hundertmark subsequently did.

17. Dr Takyar was asked to express an opinion as to what were the main factors (employment and non-employment) which had contributed to the Applicant’s claimed condition.          He stated that in his opinion, the main factors that appear to have led to the Applicant’s condition specifically related to difficulties with a particular client who she was case managing, as well as difficulty coping with workload after returning from a period of leave in the context of staff attrition. Reference is also made by him to the loss of the Applicant’s previous manager and the replacement with a reportedly less experienced manager. Further contributors to the Applicant’s conditions were said to be seeing two close colleagues suffer with workplace related stress, and their own psychological difficulties as a result. Also, another colleague suffered a burst aorta at work which was distressing to her. Critically, he considered that these factors had acted in concert, and it appeared that the initial changes in her mental state were in the context of difficulties with the client (presumably the difficult client referred to previously in these reasons), she was case managing, which led to a loss of resilience.

18. Dr Chambers’ report of 12 May 2015 was prepared after he assessed the Applicant on   29 April 2015. The purpose of the report was expressed to be an independent medical examination, with regard to a combined rehabilitation assessment and fitness for duty assessment. He took a detailed factual and medical history. The factual history was very similar to that recounted earlier in these reasons. Dr Chambers observed that outside of work there were no other identifiable stressors such as excess alcohol use, cigarette or drug use. Also noted by him was the fact that there was no prior history of psychiatric illness, and no history of postnatal depression. In his examination of the Applicant, he said her affect was anxious and tearful. In terms of her content of thought, there were ruminations with regard to the workplace and reduced self-confidence. He observed that there were no thoughts of harm to self or others, and no manic psychotic or perceptual abnormalities. His diagnosis of the Applicant was Adjustment Disorder with Anxiety.      Her presentation was consistent with an adjustment disorder; there was a history of identified workplace stressors, associated with a period of increasing stress and anxiety, leading to her feeling overwhelmed and unable to continue in the workplace. He did not make a diagnosis of a biological or endogenous depressive illness, as Dr Hundertmark subsequently did.

19. Dr Chambers recommended that the Applicant be referred to a psychologist by her GP. Given his conclusions of the moderate severity of her symptoms, he also recommended the Applicant consider taking anti-depressants. He noted that her GP had prescribed antidepressants. However, the Applicant informed him that she did not wish to take them due to potential side-effects. Dr Chambers also recorded that he had discussed the Applicant’s presentation with her GP Dr Economidis.

20. The purpose of Dr Chambers’ report dated 1 July 2015 (produced after what he described as a “re-assessment” of the Applicant on 25 June 2015, when she visited him),              was described as an independent medical examination with regard to a review of the Applicant’s fitness for duty and occupational health assessment. The report recorded that the Applicant presented with various symptoms including feeling persistently tired,           bi-frontal, tension-related headaches and continuing to ruminate about various events that emerged in her workplace. Her history was recorded with particular reference to several workplace issues, which the Applicant considered had contributed to her then current symptoms. Dr Chambers also observed that there had been no prior psychiatric history. He had also consulted with the Applicant’s GP Dr Economidis. His conclusion was that the Applicant’s presentation was most consistent with a diagnosis of Adjustment Disorder with Anxiety. He noted that this was the same diagnosis given by Dr Economidis. (It should be noted that there is a report from Dr Economidis in the T documents to this effect.           She attributed the Applicant’s anxiety to work-related stress. She also expressed the opinion that the Applicant’s increased and heavy workload had contributed to the development of her symptoms.)[24] Dr Chambers then made various recommendations concerning treatment, prognosis and fitness for duty. It perhaps also should be observed that he recorded in that report that the Applicant had been referred to Dr Valentine,           a psychologist, who has noted above provided a report which was in evidence before the Tribunal and also gave viva voce evidence. As at that date, he recorded that the Applicant had met Dr Valentine on three occasions from late May 2015.

    [24] Document T 6 of the T documents in application 2017/5105.

21. Dr Chambers prepared a further report on 5 August 2016, after having reassessed the Applicant on 27 July 2016. The purpose of the reassessment was with regard to a combined Section 36 and Fitness for Duty assessment. In that report, Dr Chambers recorded a patient history that included the events on 1 February 2016, and the email which the Applicant gave in evidence to the Tribunal about how he identified his previous diagnosis of adjustment disorder with anxiety. Dr Chambers also noted in that report that he had spoken to the Applicant’s treating GP, Dr Economidis and psychologist,               Dr Valentine, concerning her treatment and progress. It should be noted that                   Dr Chambers recorded no reported self-harm or suicidal thoughts or thoughts of harm to others during such reassessment. He concluded that she presented with an adjustment disorder with anxiety, and a differential diagnosis of a major depressive episode.            His conclusion from a diagnostic perspective was that her presentation was most consistent with an adjustment disorder with anxiety, with a differential diagnosis of a major depressive disorder. He did not anticipate that the Applicant could return to her preinjury duties and hours until there had been modifications made to her psychiatric treatment.    He concluded that in view of the entrenched nature of her anxiety, the Applicant would likely benefit from a combination of both psychological and pharmacological therapy.     The current levels of anxiety were a barrier to increasing her working hours beyond limited part-time.

22. Dr Kumar’s first report is dated 10 August 2016. It is a comparatively short report.           He observed that the Applicant had been absent from work for the previous six months, due to anxiety and depressive symptoms. He recorded the Applicant informing him about various work issues or challenges. He considered that from the Applicant’s description of events and her predicament, it seemed that she was suffering from an adjustment disorder but would need to be confirmed in subsequent reviews.

23. Dr Kumar’s second report is dated 31 August 2016. It followed from a second consultation with the Applicant. Dr Kumar stated that he had revisited the diagnosis and concluded that the Applicant had an adjustment disorder with depressive and anxiety symptoms. He went so far as to conclude that there was not sufficient information in favour of a diagnosis of major depression. Dr Kumar did not diagnose a biological or endogenous depressive illness in any of his reports, as Dr Hundertmark subsequently did.

24. Dr Chambers’ next report is dated 29 November 2016. It was produced after a                 re-assessment on 22 November 2016. This report contained a history of the difficulties that had been experienced by the Applicant in her workplace, which has been recounted above and also recorded in several other medical reports. Amongst other things, he recorded that the Applicant continued to present with ruminations about previous workplace issues and with an anxious effect. He stated that from a psychiatric perspective, the presentation was most consistent with an adjustment disorder with anxiety[25]. Another observation made by Dr Chambers was that there had been limited improvement to date. He considered the treatment program that had been undertaken was reasonable with psychological therapy, and that the Applicant had attended two sessions with consultant psychiatrist Dr Kumar. He observed that in his opinion, there was a reasonable chance antidepressant medication would significantly assist the Applicant in her recovery. However, she was reluctant to and had in fact declined what he described as the option of pharmacological therapy. He suggested continuation with one to two weekly psychological therapy sessions, using a supportive and cognitive-behavioural therapy approach. He recommended a GP review every two to four weeks for the subsequent six months.

    [25] It should also be observed that Dr Chambers in the initial portion of that report under the heading         "FILE MATERIAL", recorded that the Applicant attended a Fitness for Duty assessment with him on 27 July 2016 in which her presentation was most consistent with an adjustment disorder with anxiety and a differential diagnosis of a major depressive disorder. Dr Chambers also stated that the Applicant's anxiety was associated with irritability, fatigue, social withdrawal and anhedonia.

1. Dr Valentine’s report of 24 January 2017, diagnosed the Applicant as suffering from Major Depressive Disorder, and Adjustment Disorder with Anxiety symptoms. She also recorded that the Applicant was presenting with severe avoidance and obsessional thinking.        That report recorded that Dr Valentine had consulted the Applicant on 35 occasions between 28 May 2015 and 24 January 2017. (As at the date of the hearing, Dr Valentine gave evidence that she had probably seen the Applicant close to 60 times.[26] A typical consultation took approximately 50 minutes.)

   [26] Transcript pages 137 and 145.

2. In both evidence-in-chief and cross-examination, Dr Valentine was searchingly probed about the conclusions she had reached concerning the conditions suffered by the Applicant; being a major depressive disorder and an adjustment disorder with anxiety symptoms. She stated that the cause of those conditions was related to the stress of the Applicant’s workplace and as her workload became higher it increased her level of stress. She recounted that the Applicant was not able to produce the level of work that she had previously undertaken. This had to be viewed in the context of the Applicant having a personality that sought to do things thoroughly and to a high standard. Indeed as the Applicant was trying to describe herself, she was a perfectionist. Those circumstances combined according to Dr Valentine in the workplace setting put her in a real pressure cooker, which led to the mental health symptoms she had then and has now. Dr Valentine gave evidence that both the conditions of major depressive disorder, and the adjustment disorder with anxiety symptoms were caused by the same circumstances, which were related to the stress of the Applicant’s workplace situation.

3. To her credit, Dr Valentine quite readily acknowledged both in cross-examination and to a more limited extent in evidence-in-chief, that the symptoms she diagnosed the Applicant as suffering from (as with all mental health disorders) can have a biological component to them. She readily acknowledged that she was aware of the expression endogenous depression which is sometimes known as biological depression, can nonetheless be affected by external events. She did not however, make a diagnosis of a biological or endogenous depressive illness, as Dr Hundertmark subsequently did.

4. It was also acknowledged by Dr Valentine that she had in the course of her extensive consultations with the Applicant, discussed taking medication to assist in her treatment and recovery. She gave evidence that she understood that the Applicant had explored the option of medication, including speaking to her GP and other specialists that had decided to remain with a program of psychological treatment.

5. A further report from Dr Chambers dated 28 February 2017 was in evidence[27].                He conducted a reassessment of the Applicant on 20 February 2017. The Applicant was continuing to see her GP monthly and her psychologist every two or three weeks.         The report was apparently prepared for the purposes of progressing with a proposed return to work plan. It records that the Applicant had agreed with the return to work plan, however she was experiencing anticipatory anxiety. He observed that the Applicant continued to ruminate about how she would manage a return to work. There was a reference to a desire on the part of the Applicant not to work with a former manager K, this is an obvious reference to KA, a witness who gave evidence before the Tribunal as noted above.

   [27] Document T 13 of the T documents in application 2017/5105.

6. In this report of 28 February 2017, Dr Chambers stated that from a psychiatric perspective the Applicant’s presentation was consistent with an adjustment disorder with anxiety. There had also been co-morbid depressive features. This reference to depression was not the principal or dominant conclusion or opinion expressed. It was consistent with his earlier opinions conducted after previous assessments on three occasions as mentioned above. The recommendations made by Dr Chambers in that report largely revolved around a return to work in modified duties and hours. There was also an observation that the Applicant expressed reluctance to consider an antidepressant medication that could assist in managing her anxiety. He stressed that the option of antidepressant medication should not be ruled out, and recommended further discussion with her GP.

7. Dr Hundertmark prepared a report dated 31 March 2017, after conducting an assessment of the Applicant on 21 March 2017.[28] It should be noted that despite preparing three reports that were in evidence before the Tribunal, he only saw the Applicant once.      During the course of that assessment, Dr Hundertmark took both a factual and medical history from the Applicant. The factual history was in similar terms to the facts recited earlier in these reasons, and also those that had been given from other medical practitioners whom the Applicant had consulted previously. They need not be repeated.   In any event the contents of the report in this area speak for themselves. Dr Hundertmark recorded under the heading Presenting Complaints that the Applicant gave a history of weight gain and low energy levels. There was reference to headaches, irritability and poor sleep. He observed that the Applicant ruminated about her return to work. Under another heading Current Problems, Dr Hundertmark also observed that the Applicant complained that when she woke up she was tired with initial insomnia and early morning wakening. Critically, and it did occupy some extensive consideration in the course of his viva voce evidence he recorded that the Applicant admitted to some passive suicidal thinking. Additionally, she stated that sometimes she felt her family would be better off without her. She described to him her mood as being low, sad and anxious. The two earlier panic attacks referred to in Dr Chambers’ reports were also acknowledged by him.

   [28] Dr Hundertmark’s report of 31 March 2017 as document T 14 of the T documents in application 2017/5105.

8. In his Summary and Assessment, Dr Hundertmark expressed the opinion that the workplace issues referred to by the Applicant were far too modest to generate the intensity of the psychiatric illness that she was demonstrating. It was his opinion that the complex case she referred to, the difficulties relating to her compensation claim and the incident where she identified her own name amongst others in the relevant email were modest and did not represent significant stresses overall. He concluded that in his opinion the Applicant had an endogenous major depressive illness. He also expressed a strong opinion that the Applicant’s condition had been significantly worsened by reason of her failure to comply with the most appropriate recommended treatment, namely taking antidepressant medication. Overall, he expressed his opinion as being that the Applicant had a significant depressive illness, that she had not gained an insight into that illness, and had not therefore resorted to appropriate treatment by way of medication.

9. Dr Hundertmark concluded that work was not the contributing factor of significance in the Applicant’s psychiatric injury. It was his opinion that the Applicant had an endogenous condition, that is a condition that relates predominantly to internal biological factors.         As noted earlier, it was therefore his opinion that the stresses the Applicant referred to in the workplace were quite modest and could not be seen as being of particular significance in the aetiology of her condition. Put another way, he stated that the Applicant had a personality style and a significant vulnerability towards depression which is constitutional. He stated she has a tendency towards catastrophisation and all or nothing thinking as a result of her underlying vulnerability towards depression. He concluded that her employment was not a cause of her current diagnosis and that therefore she does not have an injury in the relevant sense contributed to by her employment.

10. Dr Hundertmark concluded that the Applicant had a most unusual attitude towards her depressive illness, as she had effectively hidden away from identifying and acknowledging it which had been most unhelpful to her.

11. Following the provision of the report from Dr Hundertmark of 31 March 2017, a copy of the same report was furnished to the Applicant’s GP Dr Economidis[29]. It would not be unfair to say that the Applicant did not agree with its contents. Correspondence ensued between her and an officer of the Respondent’s claims manager, Allianz. That correspondence is in evidence.[30] The contents speak for themselves. The Applicant asserted that                    Dr Hundertmark did not seem to have a copy of a statement that she had made, which was attached to her Workers’ Compensation Claim Form made on 22 March 2015[31].      The contents of that statement are reproduced in full in paragraph 15 of her witness statement of 28 March 2018, that was in evidence before the Tribunal[32]. An examination of Dr Hundertmark’s report under the heading FILE MATERIAL AVAILABLE identifies what records were made available to him. There is no reference to the Workers’ Compensation Claim Form and attached statement lodged with the Respondent on         22 March 2015. All that is referred to is a statement from the Applicant dated   2 February 2016, which the Tribunal has been unable to identify in the documentary evidence before it. The Tribunal was not taken to such statement in the course of the hearing of the application.

    [29] See the email from an officer of the Respondent's claims manager to the applicant of 5 April 2017 at page 87 of the T documents in application 2017/5105.

    [30] Document T 15 of the T documents in application 2017/5105.

    [31] She gives this evidence at paragraph 15 of her witness statement of 28 March 2018.

    [32] It is also attached to a copy of the claim form as part of document T 24. 4 of the T documents in application 2017/5105at pages 157-162.

12. In a further email from the Applicant to an officer of the Respondent’s claims manager on 13 April 2017, there was a detailed five-page statement attached, which the Applicant requested be sent to Dr Hundertmark as she did not have time to mention to him.          The contents of this email are of course at variance with what is deposed in paragraph 15 of the Applicant’s witness statement of 28 March 2018. It was not explored with the Applicant when she was in the witness box.

13. On examination of the subsequent report prepared by Dr Hundertmark on 26 April 2017, under the heading FILE MATERIAL AVAILABLE reveals that he was furnished with: Response from XKGN regarding our interview on 21 March 2017. It is not possible to determine whether the document furnished to Dr Hundertmark which was examined by him in preparing his 26 April 2017 report, was the statement attached to the           Workers’ Compensation Claim form of 22 March 2017, or the attachment to the email from the Applicant to the officer of the Respondent’s claims manager on 13 April 2017.        Once again this question was not explored with Dr Hundertmark when he gave his viva voce evidence. It is surprising given the contents of such reports that this question was not resolved during the course of his evidence.

14. Dr Hundertmark in his report of 26 April 2017, after considering the response from the Applicant (whichever one it may have been), reiterated his opinion that the Applicant has an endogenous major depressive illness. He repeated that overall it was his view that she had a significant depressive concern, but that she had not gained insight into that illness and had not gone on to receive the appropriate treatment (presumably medication by way of antidepressants). In the letter of instruction to him, specific criticisms identified by the Applicant in her response were put to him, with a request that they be addressed.[33]         His response was to state that his report remained unchanged. He stated the role of an independent medical examiner is to make up their own mind about the individual’s case, based upon the file material provided and the Applicant’s presentation and interview.      He went on to observe that many claimants would have the capacity to present material over an extended period of time, wishing to have all their grievances and issues fully understood. Critically, he noted there is only a limited time in which independent medical examinations take place. To his credit, he acknowledged the sections of his report that the Applicant had pointed out differences. He considered a statement and advised that it did not alter his diagnosis or opinion.

    [33] Those specific questions are contained on the second page of his report which is reproduced at page 95 of the T documents in application 2017/5105 (T 16).

15. Dr Chambers prepared a further report on 22 May 2017, after conducting a further reassessment of the Applicant on 12 May 2017. The purpose of the reassessment was with regard to a combined Fitness for Duty and Section 36 assessment. He observed that the Applicant continued to present with features of an adjustment disorder with anxiety, with comorbid features of depression, with a differential diagnosis of a major depressive disorder. Additionally, he recorded that there was no history of self-harm or suicidal thoughts. Further, there were no thoughts of harm to self or others. Dr Chambers noted there had been a history of anxiety. In that report, Dr Chambers also noted he had spoken to Dr Valentine and the Applicant’s treating GP, Dr Economidis concerning her treatment and progress. His conclusion was that the Applicant was not currently fit to return to her preinjury duties.

16. Dr Strauss prepared his first report on 13 February 2018, after seeing Applicant on the same day. He had not been provided with a copy of Dr Hundertmark’s report of                31 March 2017. He had been furnished with copies of “Tribunal Documents, records from Dr Valentine and Dr Economidis” together with “further information from Dr Kumar”.        He recorded that he had been instructed that Dr Hundertmark stated the stresses referred to by the Applicant were quite modest and should not be seen as being of particular significance in the aetiology of her condition. Dr Strauss recounted the factual history in much the same way as had other medical practitioners, perhaps in a slightly abbreviated way. However, the substance of that factual history was accurate. The Applicant’s medical history was then also reiterated, her current conditions were repeated and the results of a mental status examination were recorded. Dr Strauss found that the Applicant is an extremely agitated intense woman, who found it hard to give a coherent account of events. She was described as emotional and tearful (this observation largely accorded with that of Dr Hundertmark in his report of 31 March 2017). Dr Strauuss found her to be highly anxious and moderately depressed.

17. Dr Strauss expressed the opinion that the Applicant was suffering from a chronic adjustment disorder, with high levels of anxiety and agitation. He further expressed the view that the Applicant has always been a high achieving capable individual. In his opinion, the Applicant’s decline was precipitated by the difficult case that she undertook and was further aggravated by changes in the workplace situation, including the increased workload. He considered that the Applicant did her best to cope. He described her as a perfectionistic who worked hard to manage but gradually was unable to deal with her problems at work, particularly overwork and suffered a gradual psychological decline.     He then recorded the incident in February 2016, when the email was sent by a senior Director at the DHS, which included details of her illness and claim. These facts aggravated her underlying anxiety state. He emphasised that in his opinion, the Applicant had suffered from such an underlying anxiety state in high levels since approximately 2013 and 2014. He considered her current situation is related to her problems over the years since then.

18. Dr Strauss reiterated that the Applicant suffers from a chronic adjustment disorder with high levels of anxiety and adjustment largely due to her experiences at work. He did concede however, that additionally, the Applicant had always been somewhat of an obsessional individual and as such is a vulnerable person psychologically. He went on to observe that people with obsessional traits who are faced with an excessive workload often do psychologically decompensate. When they do they often never completely recover to their previous levels of efficiency and ability.

19. The conclusion Dr Strauss reached, is that the Applicant does have a permanent partial incapacity for employment, in that she is not capable of the higher standards of work that she was able to previously perform. She is capable of work but at a lower level. This led Dr Strauss to conclude that the Applicant suffers from a chronic adjustment disorder, with high levels of anxiety and agitation and on the balance of probabilities she has sustained an injury in the course of her employment. Dr Strauss assessed the Applicant as having a 10% permanent psychiatric impairment.

20. Dr Strauss prepared a further report of 6 March 2018 which addressed the opinions expressed by Dr Hundertmark in his reports of 31 March 2017 and 26 April 2017 referred to above (he did not re-examine the Applicant). He disagreed with the conclusions of       Dr Hundertmark. He addressed both what might be briefly described as the workplace issues which Dr Hundertmark considered were too modest to generate the intensity of the Applicant’s psychiatric illness, and the question of the Applicant’s failure to take antidepressant medication.

21. Concerning the workplace issues, he stated that he could not understand how                  Dr Hundertmark reached the conclusion that the Applicant’s perception of events at work was wrong. He reiterated that the Applicant, in his opinion, was significantly affected by her work situation, and considered that work had contributed to her psychiatric decompensation and that this remains the case. He continued to hold his opinion that work had been a significant contributing factor.

22. Dr Strauss was probingly cross-examined by Mr Wallace, who appeared on behalf of the Respondent. One of the matters explored was the difference between the opinion expressed by Dr Valentine, both in her report and her viva voce evidence, and that of      Dr Strauss. It was put to Dr Strauss that Dr Valentine concluded the Applicant was suffering from both a major depressive disorder and an adjustment disorder. Dr Strauss quite readily conceded that the Applicant has had depression. He disagreed that it was to the level of a major depression. He said there was no suicidal ideation[34] (this is in contrast to the observations of Dr Hundertmark which will be referred to later in these reasons).   He stated that to her credit, the Applicant had battled on and worked for considerable periods, even though she had been affected by a good deal of psychological distress.     He expressed the opinion that it had not ever reached the stage of a major depressive illness. He reiterated that he had no doubt that the employment circumstances had been very stressful, causing the Applicant to have high levels of anxiety and acknowledged that she had experienced depression as well.

    [34] Transcript page 156 line 16. This is also consistent with the contents of the reports of Dr Chambers on this topic where he consistently recorded that the Applicant reported no self-harm or suicidal thoughts.

23. Dr Strauss was also carefully cross-examined and the opinions of Dr Hundertmark were put to him. Particularly it was put to him that the diagnosis of major depressive disorder was biological in nature. Dr Strauss reiterated again that he strongly disagreed with         Dr Hundertmark’s conclusion because the Applicant had no past psychiatric history and had worked very hard and had a successful life. He explained that in the course of such working life stressful circumstances appear as occurred with the Applicant and to use his terminology she has been psychologically decompensated. He contended that it is a very rare event, particularly if there is no family history, for depression to occur just out of the blue. To assert that the Applicant developed a biological depression, which was not related to the stress that she had experienced, was in his opinion illogical, and that was why he did not agree with Dr Hundertmark. He reinforced this conclusion by his evidence that it is a very rare event, particularly if there is no family history, for depression to occur as he put it out of the blue if there is no stress. He considered that the spark or trigger that brought about the commencement of the Applicant’s conditions were what he called blatant environmental stressors. In this case occurring in the Applicant’s workplace.

1. Another matter concerning the issue of suicidal ideation being mid-range referred to by     Dr Hundertmark, arises from which of Dr Chambers reports he had at the time prepared his two reports on 31 March 2017 and 26 April 2017. It should be recalled that by the time Dr Hundertmark  prepared his first report, Dr Chambers had prepared five reports. In his first report, he acknowledges that he had two reports of Dr Chambers being those of      29 November 2016 and 28 February 2017. The Tribunal cannot understand why he was only furnished with two of Dr Chambers reports and not the five that existed at that time. No explanation for this was offered to the Tribunal. It is surprising conduct on the part of a model litigant.

2. An examination of Dr Chambers’ report of 29 November 2016 refers to the fact that he had made a previous report of 5 August 2016. It appears that Dr Hundertmark did not ask for production of that report. It is surprising that he did not do so. Presumably, if he had done so the existence of the other reports that had not been furnished would also have seen the light of day.

3. When Dr Hundertmark prepared his second report on 26 April 2017, the only other additional material that he was provided with was noted in that report as being Response from XKGN regarding our interview on 21 March 2017. This material appears to the Tribunal to be that contained in document T 15 of the T documents, which includes a series of emails passing between the Applicant and a case manager of the Respondent, which included an attached five-page statement made by her following the receipt of        Dr Hundertmark’s first report. The report of 26 April 2017 does not say if any of those other reports of Dr Chambers, not provided to him prior to the preparation of his first report, were subsequently furnished. The Tribunal infers that they were not. Once again the Tribunal has to note that this is surprising.

4. The concerns of the Tribunal about the failure to produce all of Dr Chambers’ reports to   Dr Hundertmark arise in several ways. His conclusions concerning the diagnosis of the Applicant’s conditions are different. He was retained by the Respondent. He could have been invited to express an opinion about Dr Chambers’ conclusions, particularly in light of Dr Chambers having had five previous consultations with the Applicant.   Also, Dr Chambers did not at any time express the opinion that the Applicant’s conditions were not work-related. Given that he did not do so, one might have expected the Respondent to have sought Dr Hundertmark to express an opinion on this topic. It is surprising that he did not do so and was not asked to do so.

5. Another matter that arises in this context is that throughout Dr Chambers’ reports he stated that the Applicant did not express any thoughts of harm to self or others or suicidal thoughts or ideation. This was in considerable contrast to the contents of   Dr Hundertmark’s first report and the evidence that he gave to the Tribunal and the witness box. Given the significantly different observations made by both doctors on this topic, one might have expected it to have been pursued in the interests of the Applicant.

6. By reason of the foregoing matters, the Tribunal concludes that the Applicant suffered and continues to suffer from an injury within the meaning of the SRC Act. It finds that such injury was contributed to a significant degree by her employment. She is thereby entitled to compensation under sections 16 and 19 of the SRC Act.

7. On the question of impairment, the evidence of the experts referred to above demonstrates adequately that the Applicant does suffer an impairment within the relevant sense. Indeed, it was readily conceded by all the experts who gave evidence, together with the reports that were also tendered, that there is little doubt the Applicant is impaired. Dr Strauss specifically expressed the opinion that the Applicant does have a partial incapacity for employment, in that she is not capable of the higher standards of work that she used to perform. She is capable of work but at a lower level. Dr Chambers in his several reports considered that the Applicant might be able to improve her position, but that it would require an altered regime of treatment. The Tribunal accepts the evidence of Dr Strauss on this topic. Indeed, in fairness the Respondent’s counsel readily conceded in his closing that the Applicant is not at all well.

8. Dr Strauss was the only medical expert who expressed an opinion as to the level of impairment. The Tribunal accepts his evidence. It was not seriously challenged.              He reached the conclusion in his report of 13 February 2018, that the Applicant suffers from a permanent stable psychiatric impairment, which will not change with further treatment. Based upon that conclusion, he concludes that she has a 10% permanent psychiatric impairment, in that she is capable of performing activities of daily living, but has reactions to stressors of daily living with minor loss of personal or social efficiency and minor distortions of thinking. The Tribunal accepts this conclusion also. There was no other medical evidence really challenging this conclusion.

9. The several reports prepared by Dr Chambers are also referred to. They were commissioned by the DHS for various purposes, including a psychiatric assessment and largely with regard to a combined Fitness for Duty and Section 36 assessment (“Assessment of capability of undertaking rehabilitation program”). Those reports chart amongst other things, a history of the Applicant’s return to work by means of a gradual increase in working hours. In the last report tendered in evidence dated 22 May 2017, Dr Chambers under the heading “Expected Recovery”, opined that he would expect a gradual improvement over a period of 12 months. He stated at that stage it was not possible to be more specific in view of the duration of the Applicant’s anxiety and gradual progress to date. The uncertainty expressed by Dr Chambers is not necessarily inconsistent with the findings of Dr Strauss. Whilst Dr Strauss concludes that the Applicant has a permanent stable psychiatric impairment, which will not change with further treatment, Dr Chambers observed the duration of her anxiety and gradual progress, which has now subsisted for many years. This indicates a likelihood of some degree of permanent impairment. Therefore, this prompts the Tribunal to lean towards preferring the conclusions or opinions expressed by Dr Strauss on the issue of permanency of the Applicant’s condition.

10. For these reasons, the Tribunal considers that the impairments suffered by the Applicant are permanent for the purposes of sections 24 and 27 of the SRC Act. It also concludes by reason of the matters referred to above, that the injury resulted in a degree of impairment of it least 10%.

11. Accordingly, in both applications the Tribunal will make decisions in accordance with those sought in the Applicant’s Statement of Facts, Issues and Contentions.

    CONCLUSION

12. File Number 2017/5015.

    (a)The reviewable decision is set aside.

    (b)In substitution the Tribunal finds that:

    (i)From 23 June 2017 to the present date (and at the present date), the Applicant undertook medical treatment and was incapacitated for work as a result of the injury identified as an adjustment reaction with anxious mood. The injury arose out of or in the course of her employment with the DHS, or to which that employment contributed to a significant degree. The injury was the subject of a claim for compensation dated 23 March 2015, and gives rise to entitlement to compensation pursuant to section 14 of the SRC Act.

    (ii)From 23 June 2017 to the present date (and at the present date), the Respondent shall pay to the Applicant:

    a.the costs of all medical and related treatment expenses incurred in respect of the injury, pursuant to section 16 of the SRC Act; and

    b.weekly payments of compensation in respect of incapacity for work for all periods pursuant to section 19 of the SRC Act, on the basis that the employees ability to earn is no more than the actual earnings.

    (c)The Respondent shall pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

13. File Number 2018/3955.

    (a)The reviewable decision is set aside.

    (b)In substitution the Tribunal finds that:

    (i)the Applicant suffers a permanent impairment as a result of the injury which arose out of or in the course of her employment with DHS, or to which that employment contributed to a significant degree. The permanent impairment is the subject of a claim for compensation dated 23 March 2015, which gives rise to an entitlement to compensation, pursuant to section 14 of the SRC Act;

    (ii)the Applicant suffers a degree of permanent impairment of 10% in respect of the injury and is entitled to permanent impairment compensation, pursuant to section 24 of the SRC Act; and

    (iii)the Applicant is therefore entitled to non-economic loss compensation, pursuant to section 27 of the SRC Act.

    (c)The Respondent shall pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

119.    I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member.

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

Associate

Dated:            25 February 2020

Dates of hearing:	2 to 6 December 2019
Counsel for the Applicant:	Mr McCreadie
Solicitors for the Applicant:	Ms Pennington Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr Wallace
Solicitors for the Respondent:	Mr Younane HWL Ebsworth Lawyers