XRLC and Comcare (Compensation)
[2019] AATA 3553
•10 September 2019
XRLC and Comcare (Compensation) [2019] AATA 3553 (10 September 2019)
Division: GENERAL DIVISION
File Number: 2017/7263
Re:XRLC
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:10 September 2019
Place:Sydney
The Tribunal decides that:
1. The reviewable decision dated 20 October 2017, being the decision of Comcare which determined that the applicant had no entitlement to claim compensation for medical expenses and incapacity payments in respect of a psychological injury, is set aside.
2. The matter is remitted to Comcare for reconsideration with the direction that the applicant is entitled to the payment of medical expenses under s 16 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) and to compensation for incapacity under s 20 of the Act.
3. The respondent is ordered pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay the costs incurred by the applicant of these proceedings.
...............................[sgd].............................
Deputy President B W Rayment OAM QC
CATCHWORDS
WORKERS’ COMPENSATION – claim for medical expenses and incapacity payments –persistent depressive disorder – ‘significant degree’ test applied – whether applicant’s employment significantly contributed to his psychological injury – whether applicant continues to be entitled to compensation for the cost of medical treatment obtained in relation to compensable injury – whether applicant continues to be incapacitated from work as a result of the compensable injury – decision under review set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 14, 16, 19, 20, 24, 27, 67
Compensation (Commonwealth Government Employees) Act (Cth) 1971CASES
Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power [2015] FCA 1502; (2015) 239 FCR 187
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536
Comcare v ZZRP [2019] FCA 952REASONS FOR DECISION
Deputy President B W Rayment OAM QC
10 September 2019
Background
The applicant formerly worked for the Australian Taxation Office from 22 September 2003 until 2 June 2016 and has not worked since 28 January 2014.
After the respondent initially rejected a claim for workers compensation in April 2013 for depression/anxiety in the context of work-related stress and bullying, it decided in October 2013 to accept liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) for adjustment disorder with mixed anxiety and depressed mood. It later reconsidered that determination of its own motion in March 2015, and instead characterised the injury as aggravation of depressive disorder, but maintained its acceptance of liability under the Act. The applicant was off work from 28 January 2014.
The expert evidence placed before the Tribunal is unanimous that the applicant suffers at the present time from a psychiatric condition described as a persistent depressive disorder which the parties agree is properly characterised as a disease, and therefore an injury within the meaning of the Act. Comcare stated that it accepted that the applicant (once) suffered an ‘ailment’ which was a condition, to use the language of Drummond J In Comcare v Mooi (1996) 69 FCR 439 at [437] was “a condition … outside the boundaries of normal mental functioning and behaviour”. The disease was of long standing, and according to evidence which I accept, was precipitated by years of bullying and harassment. As appears below I find that it persists today.
In April 2015 Comcare accepted liability under s 24 of the Act and s 27 of the Act for permanent impairment and non-economic loss in relation to the accepted condition.
In August 2017 the respondent determined that it was no longer liable to pay compensation for medical expenses under s 16 of the Act or compensation for an injury resulting in incapacity for work under s 19 of the Act, and on internal review, the respondent affirmed that decision in October 2017. The decision of October 2017 is the decision to be reviewed in these proceedings.
The respondent submits that for either of two reasons, the reviewable decision should be affirmed. In the first place, it submits that the respondent is not presently liable to pay compensation for the compensable condition because it is no longer contributed to, to a significant degree, by the applicant’s employment at the ATO. (I will call this question the “contribution to a significant degree” question). In the second place, it submits that if the first submission is wrong, there is no current need for medical treatment or for compensation under s 19 for an injury resulting in incapacity for work. (I will call this question “the current need question”).
The applicant agrees that those questions are the ones needing to be answered.
The “contribution to a significant degree” question
The applicant submits and the respondent concedes that the applicant once suffered an ailment, within the meaning of the Act, which was contributed to, to a significant degree, by his former employment at the ATO, so that the ailment met the description of a disease or a compensable injury for the purposes of the Act. This is consistent with the earlier determinations of Comcare. The decision of Comcare of March 2015 (characterising the previously accepted condition as an aggravation of a pre-existing decision) is not common ground between the parties, and the applicant submits that the earlier decision of Comcare of October 2013 was correct. Comcare decided in October 2013 that the applicant then had an adjustment disorder with depression and anxiety, and the applicant says he still suffers from it, and he says is still contributed to, to a significant degree, by the employment at the ATO, so as to satisfy the tests in s 5B of the Act.
Disease is defined by s 5B to include an ailment suffered by an employee, or an aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth. Section 5B(3) specifies that “significant degree” means a degree that is substantially more than material.
In Comcare v Power [2015] FCA 1502; (2015) 239 FCR 187 Katzman J traced the legislative history of s 5B(3). The prior legislation had used the language of “contributed to in a material degree” without a definition of the words “material degree”.
The predecessor statute, the Compensation (Commonwealth Government Employees) Act (Cth) 1971 had required that the employment be “a contributing factor” to the disease.
At [81] Katzman J said:
The SRC Act replaced the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act), which stipulated that the employment be “a contributing factor to the disease”. It did not expressly require the contribution to be a material one. In Australian Telecommunications Commission v Treloar (1989) 90 ALR 202, which was concerned with the 1971 Act, Davies J held at 204, however, that the contribution had to be of a causal nature and therefore “causally significant or, to use another term, material”. His Honour’s opinion was that the new definition in the SRC Act was similar. In Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316 the Full Court endorsed this interpretation, observing at 323 that the insertion of the word “material” “served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of”, and, provided the causal connection were established on the balance of probabilities, the size of the contribution did not matter. This approach was consistent with the common law jurisprudence. In Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 at 621 Lord Reid explained the meaning of a material contribution as follows:
What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.
However, in Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 at [249], French and Stone JJ compared the language of the 1971 Act and the 1988 Act and concluded that more than a contributing factor was required, and that effect had to be given to the introduction of the word “material”. This remark reflected the language used by the Minister in his second reading speech.
Her Honour next referred to the judgment of Finn J in Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 who “observed that the legislative history of the definition of “disease” makes it plain that the term “material” in the phrase “in a material degree” in the SRC Act was not used to denote a contribution which was only greater than de miminis. Thus, it appears that, despite the common law approach to “material contribution”, the intention of the SRC Act was that the contribution of the employment to the disease of an afflicted employee had to be not just greater than trivial. In Sahu-Khan Finn J noted (at [15]) that the Shorter Oxford English Dictionary defined “materially” to include “substantially” and “considerably”.
Finn J had added at [86]:
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii) whether this will be so in a given case will be a matter of fact and degree.
Thus, prior to the amendments to s 5B, steps had been taken to strengthen the contribution which the employment must make to the injury.
At [93] Her Honour said:
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.
In Comcare v ZZRP [2019] FCA 952 Flick J said at [14]:
The 2007 amendment, by requiring that a disease be one that was contributed “to a significant degree” by the relevant employment – being “a degree that is substantially more than material” – thus “strengthen[ed] the connection necessary between the employment and the contraction or aggravation of a disease” than that required by the definition previously considered by Finn J in Sahu-Khan: Comcare v Power [2015] FCA 1502 at [93], (2015) 238 FCR at 204. The test inserted in 2007 was that of “significant degree” rather than “material degree”. This was unquestionably one of the “important changes to the definition”: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [54] per Marshall, Tracey and Foster JJ. This “tightening of the causation standard” followed the report of the Productivity Commission into workers compensation titled National Workers Compensation and Occupational Health and Safety Frameworks, Report No 27, 16 March 2004: Zdziarski v Telstra Corporation Limited [2015] FCA 207 at [15] per Perram J.
Those are the tests to which the evidence called on this review and the findings made upon it must be subjected.
The Evidence
I will approach the evidence chronologically, so as to deal first with the issue to which I referred in [8] above, relating to whether the ailment suffered during the employment was an aggravation of a pre-existing condition.
The applicant gave evidence that between 28 March 1988 and 22 February 1996, he worked for the NSW Police Service. For the first four years, he did general duties at Liverpool, and for the next four years he worked in the State Command Surveillance unit. In 1995 he was interviewed by the Police Integrity Commission investigating allegations of excessive overtime and meal allowance claims. In 1996, he appeared before the Wood Royal Commission. He was suffering from distress and anxiety, and his General Practitioner Dr Leung certified him unfit for work for eleven days from 5 February 1996 until 16 February 1996.
The applicant underwent no form of psychological treatment and resigned from the NSW Police with effect from 22 February 1996. He made no claim for workers compensation. Within several weeks he was running his own private investigation firm, which he continued to operate until 2003 when he began to work for the ATO.
When making its decision of March 2015, Comcare had regard to a report of 5 March 2015 from Dr Barrett and a report of Dr Walker of 20 March 2015. Dr Melissa Barrett, a psychiatrist, reported on her consultation with the applicant on 19 February 2015 and, amongst other things, about the account he gave of the events of 1996. When telling Dr Barrett about those events he said they were highly stressful as the union did not support them, that is, meaning himself and others. He said that he had not done anything wrong, but the conclusion of the Commission was that they had “diddled over time”. He resigned and was threatened with charges unless he did so. He told Dr Barret that he should have stayed, and that others who did not resign were not charged. He told her he felt betrayed and humiliated and that he had high moral values.
In his evidence before me, he said that he was angry about what happened in 1996, although he was no longer angry.
Dr Barrett concluded that he may have been sensitised to trauma during his work in the police force. When he was told in 2013 that his unit would close, that retriggered his feelings of being unfairly treated and having his job taken from him in 1996.
Dr Barrett’s report of 5 March 2015 was sent to Dr Kipling Walker, who had written earlier reports for Comcare concerning the applicant. Dr Walker did not diagnose an adjustment reaction with mixed emotional features, but rather problematic personality characteristics, possibly a personality disorder. About the 1996 events he said: “he has ongoing grievances against the Police Force”.
When asked about the same matter, Associate Professor Robertson, a consultant psychiatrist who was called to give oral evidence before me, said that the events of 1996 sensitised the applicant, as had Dr Barrett. Associate Professor Robertson may have meant to refer to Dr Barrett when he said he agreed with Dr McDonald on this matter. Dr McDonald, whose report was tendered by the respondent, treated the effect of the 1996 incident as something that could only be speculated about since there was no contemporaneous diagnosis. He said that it is not possible to make a psychiatric diagnosis on the certificate from the GP of 1996. Possibly he suffered “emotional difficulties”, or possibly an adjustment disorder.
Dr Isailovic, a consultant psychiatrist called by the respondent by telephone, said that in 1996 the applicant probably went through a grievance and anxiety and stress, which was probably not a long-lasting state, and he recovered. It left him sensitised to the further loss in the later period when he worked for the ATO.
The oral evidence that the 1996 events sensitised him to the trauma of losing another job, together with Dr Barrett’s remark to the same effect, suggests to me that Comcare’s decision of March 2015, based upon Dr Barrett’s report and Dr Walker’s report that the disease of 2005 was an aggravation, was incorrect. The two reports do not seem to justify treating the 2013 condition as an aggravation. That is because there was no diagnosis of the disease said by Comcare to be aggravated, an adjustment disorder with depression and anxiety. The period during which he suffered from that condition was found by Comcare to date from 2007 to 2013. In the whole of that period he worked for the ATO, having left the police service in 1996.
There is no evidence that prior to his employment by the ATO in 2003, and while he was a private investigator, any psychiatric difficulties arose. Similarly, in the early period of his employment by the ATO, in the years 2003-2007, no psychiatric difficulties arose.
In 2007, he had a change of team leader at the ATO, having himself acted in that capacity for some time. Then began what he described as bullying, harassment and humiliation exerted by the new team leader upon him and others in the team. He said he felt overwhelmed by the constant criticism and always second guessing of him and his judgment. He says he tried to remain stoic but knew his mental health was progressively deteriorating under the new leadership.
In 2010 he and two work colleagues made a verbal complaint concerning his team leader to the National Manager, but he says that there was no action on his complaint. He reported to a psychologist in 2013 that his psychological functioning had deteriorated throughout 2012/13. His GP provided certificates that he was unfit for work, and he was prescribed an anti-depressant, Endep. His sleep was disturbed. He displayed high levels of anxiety, he expressed apprehension over a proposal that he do office work, which he had not done for many years. The psychologist, who saw the applicant on four occasions, diagnosed him with an adjustment disorder with mixed anxiety and depressed mood. He said that the treatment of choice was cognitive behaviour therapy.
In 2013, the applicant wrote an extensive report (T6) relating to the difficulties which he had with his team leader. Several of his workmates wrote statements for Comcare in 2013 (T7 and T8) concerning the team leader, which were generally supportive of his description of her behaviour.
Dr Kipling Walker was asked by Comcare to write a report. He said that the applicant was fit for office duties in July 2013. In a report dated the same date he diagnosed the applicant as suffering from a major depressive disorder, mild in severity.
In April 2014 he was seen by a consultant psychiatrist, Dr Anne-Marie Rees, who concluded that he suffered from an adjustment reaction with anxious, angry and depressed mood, expressing the qualification that the symptoms he described could be diagnosed as a major depressive disorder.
Dr Walker again saw the applicant in June 2014 and diagnosed a major depressive disorder and alcohol abuse. He added that whether he is unfit or unwilling to work is unclear. In 2017 he saw him again, and maintained the previous diagnoses, saying that he no longer believed his former employment with the ATO continues to aggravate his depression and alcohol abuse disorder. He said he remains unfit for work and still has a compensable condition.
His treating psychologist, who had treated him until he left Campbelltown, Dr Ilchef, reported to Comcare, having reviewed the applicant in August 2017, that he had debilitating depressive and post-traumatic symptoms throughout the time he had seen him, which historically seem to be closely related to his work disputes, as he had worked well and was in good health prior to 2007. He said that his symptoms now appeared to be of stable, disabling severity.
The last time the applicant worked was in January 2014, now more than five years ago.
The applicant called oral evidence from Associate Professor Robertson, who has now seen the applicant on three occasions. He gave concurrent evidence before me together with Dr Isailovic, who had consulted with the applicant by Skype.
Associate Professor Robertson wrote three reports, the first in January 2015 (T39), a report and supplementary report of June 2018 and one of May 2019. In his first report he diagnosed the applicant as having a chronic depressive illness, properly described as a persistent depressive disorder, rather than a chronic adjustment disorder. He said that his impairment was entirely attributable to the persistent depressive disorder which in his opinion “relates to the nature and conditions of his employment with the ATO”. As to the closure of his investigative unit, he expressed the view that it may well have been reasonable administrative action but was not the cause of his illness, but rather the pretext to him ceasing duties. He said that his illness was well established prior to this so-called reasonable action.
At the time of his second report, Associate Professor Robertson was provided with an extensive array of other medical reports. They included material which is in the section 37 documents, reports by Dr Illchef who was until 2017 the applicant’s treating psychiatrist, who says that while he was treating him, he had persistent debilitating symptoms of depression and a co-existing alcohol use disorder. Dr Illchef attributed the condition to the ATO employment. Dr Illchef also reported PTSD symptoms.
It emerged from the report of Dr Isailovic that the alcohol abuse had commenced in about 2007, when the bullying and harassment commenced. The applicant had stopped the heavy drinking by the time he consulted with Dr Isailovic.
At the time of his consultation with the applicant, Associate Professor Robertson went over matters arising from the other reports, including the events of 1996 and in detail the activities of bullying and harassment to which he was exposed over the years between 2007 and 2013.
Associate Professor Robertson diagnosed a persistent depressive disorder, being the long-term persistence of previous major depression. He said that the condition was likely initially an adjustment disorder which evolved into a depressive illness and then to a persistent depressive disorder.
Associate Professor Robertson considered the overall gestalt of the applicant’s experience and expressed the view that ‘moral injury’ best interrogated his experience and explains to some degree the persistence of his psychological distress. He said that the term was originally formulated to discuss the situation of returning Vietnam veterans, who were affronted by the killing in that war. He said that arguably moral injury represents an existential confrontation or compromise in which an individual’s value system is challenged by conduct by individuals or organisations that are contrary to their assumptions about life and their value system. He said that there were some aspects of his line manager’s conduct that represented a considerable affront for the applicant to which he had been sensitised by his experiences of 1996. When he put this to the applicant, he identified with the concept, describing it (his treatment by the line manager) as a “splinter” or a “foreign body” in his psyche. Associate Professor Robertson said that a moral injury has driven a chronic depressive syndrome that is unlikely to change. The moral injury he described as a highly targeted and hostile form of bullying perpetrated by his line manager.
Associate Professor Robertson rejected any suggestion that the Police Service experiences of 1996 were more than sensitising for the later events which occurred. He said that the 1996 experiences did not persist into a psychopathological state that was of relevance by the time he began to work for the ATO, and so he rejected the Comcare decision that the condition of 2013 was an aggravation of a pre-existing disorder.
Asked about other stressors, Associate Professor Robertson said that undoubtedly the medicolegal and compensation processes have factored into the persistence of his psychopathological state and he rejected that the death of his parents represents a significant competing cause.
While embracing a “moral injury” analysis stemming from the report of Dr McDonald, Associate Professor Robertson rejected another suggestion in Dr McDonald’s report that it would be unusual and inordinate for the effects of an adjustment disorder to continue for four years after he had worked at the ATO. Associate Professor Robertson described that remark as correct but irrelevant. He said it was irrelevant, because the applicant did not have a chronic adjustment disorder, and because the complex process which he described was not a psychological reaction to a psychosocial stressor, being bullying and harassment, but rather something more complex, as he discussed in relation to his ‘moral injury’ account of the applicant’s experience.
In answer to a question asked in a supplementary request of Associate Professor Robertson, he said that accepting the premise of his argument, employment with the ATO remained the substantial contributing factor to the applicant’s illness. That statement, despite its use of language different from that of s 5B of the Act, I take to mean that in the opinion of the witness, the employment with the ATO was the most prominent cause of the current condition of the applicant, and contrary to a submission of the respondent, I do not treat this answer as irrelevant.
In his report of May 2019, Associate Professor Robertson, having again consulted with the applicant, expressed disagreement with a report of Dr Isailovic which had suggested, amongst other things, that the applicant suffers from a narcissistic personality disorder. Having read Dr Isailovic’s report, he maintained the views which he had earlier expressed.
Dr Isailovic in her report described a narcissistic personality disorder as a strong possibility. She denied any link between the employment and his current condition, and asserted that the 1996 police-related events possibly led to an adjustment reaction or even adjustment disorder. She related his 2013 symptoms to losing the job as a surveillance officer, stating that it is equally possible that he has a mild, pre-existing depressive condition.
The reports of the two experts thus presented a stark contrast such that if one was correct, the other was incorrect. The theory advanced by Associate Professor Robertson was carefully thought through, took account of inconsistent views expressed by some of his psychiatric colleagues and involved rational commentary on those inconsistent views. I am satisfied to treat it as reliable in relation to the issues arising on this review.
Some of the views expressed by Dr Isailovic in her report are inconsistent with the finding I have made in [29] and [30] above. The statements of Dr Isailovic attributing primacy to the closure of the investigative unit rather than to prior bullying and harassment, (the fact of which was confirmed by his workmates in 2013), when compared to the alternative account of Associate Professor Robertson, lead me to prefer the latter.
In Dr Isailovic’s report of 10 June 2019 commenting on Associate Professor Robertson’s report of May 2019, she expressed the view that her “original diagnosis” of persistent low grade depressive disorder, such as dysthymia, which “is a genetic condition perpetuated by significant personality vulnerability, is the only plausible explanation”. I took her earlier report to contain a suggestion that a mild pre-existing depressive condition was equally possible, rather than that it was the only plausible explanation.
Dr Isailovic in her oral evidence made it clear, as she had in her reports that she placed reliance on the fact that the applicant sought no professional help over the years from 2007 to 2013 in relation to the bullying and harassment he was exposed to over that period, in denying that the bullying and harassment led to him contracting the disease. Professor Robertson said that the literature is replete with cases of men not seeking help for depression, and that not seeking help is not evidence of not having depression.
Asked whether any stressors after 2013 could account for his current condition, Dr Isailovic referred to abuse of alcohol, living with a partner with multiple sclerosis, who was not working, and the loss of his two parents, and she added that the events of 2007-2013 no longer affected his present condition. She also said that stressors are not necessary to maintain a depressive disorder.
The applicant’s partner had been diagnosed with MS before their relationship commenced. It was of slow progression. It did not appear to be a source of his depression. The death of the applicant’s parents was suggested by Associate Professor Robertson to be something which did not compete with the bullying and harassment as an underlying cause of the applicant’s condition.
The abuse of alcohol had the hallmarks of self-medication, and was coincident with the bullying and harassment. Associate Professor Robertson said that with persons of the applicant’s age, self-medication was not uncommon. The partner’s multiple sclerosis had commenced before their relationship and was slow in progress. The loss of the applicant’s parents was something on which the Associate Professor had previously commented.
The Associate Professor’s “moral injury” analysis was still his preferred explanation of the applicant’s current condition and his defence of it both in the witness box and in the written reports impressed me as a cogent explanation, which I prefer to the alternative suggestions of Dr Isailovic.
During his cross-examination by Ms Slack for the respondent the following exchange took place:
MS SLACK: If we're considering things on a spectrum and if we're talking about something that has - there's no contribution, there's minor contribution, moderate contribution, substantial contribution or significant contribution, significant being the highest.
ASSOCIATE PROFESSOR ROBERTSON: That's why he's here. That's why they're here, yes.
MS SLACK: The most severe. When we're talking about Mr XRLC's circumstances, when you have a look objectively at the relevance of the death of his parents and the severity of the compensation process and what it's having on him, then they outweigh the contribution by the bullying from - that ended six years ago, doesn't it?
ASSOCIATE PROFESSOR ROBERTSON: I'd say they'd be on a par perhaps.
MS SLACK: Well they'd all be less than - they'd all be around moderate contributing factors and they'd band together.
ASSOCIATE PROFESSOR ROBERTSON: Moderate's a reasonable - yes, the qualitative - so yes, I think moderate would be a reasonable statement.
MS SLACK: So the bullying from the ATO that ended six years ago is continuing to contribute but only to a moderate degree?
ASSOCIATE PROFESSOR ROBERTSON: That seems a fair summation, yes.
The answers elicited by Ms Slack are couched in language which the respondent submits is apt to cover similar ground to s 5B(3) of the Act, considered in the light of the tests I have set out above at [9]-[18]. Something which makes a “moderate contribution” would perhaps not normally be said to make “substantially more than a material contribution”, at least if the statutory tests were prominent in the questions which the witness was asked to answer.
I think that a close analysis of the answers I have set out suggests that the witness did not have in mind the distinction made by s 5B(3) of the Act. In the first place, he was asked to discuss the various causes which, in his opinion led to the applicant’s current condition. Associate Professor Robertson identified all of those to which he attributed a causal role. They were:
(a)The bullying and harassment. (He had already discounted the significance of the loss of his employment in a role he liked);
(b)The loss of his parents, and;
(c)The stress of the compensation process. Among those causes, he singled out the bullying, the stress of the compensation process, and the loss of his parents. The last two, he thought, taken together, were on a par with the first. That is, as I understood him, the bullying and harassment was a prominent cause, equal in importance with the other two.
The Associate Professor had already attributed a significant role to the compensation process, and a lesser role to the death of the parents, as I recorded in [47] above. The answer to the effect that those two things were on a par with the bullying from 2007 to 2013 does not, in my opinion, mean that the s 5B(3) issue is to be answered unfavourably to the applicant.
Associate Professor Robertson’s acceptance that all of the causes had a moderate effect on the applicant may mean no more than that the causative events did not cause the applicant consciously to ruminate about them, or did not do so more than moderately. The stress of the compensation process was current in the applicant’s mind when the doctor last saw the applicant, and played a role in the maintenance of his condition. Still, the doctor coupled the stress of the claim process with the loss of the parents, putting their importance taken together on a par with the importance of the bullying.
If Associate Professor Robertson had said that among the causes the employment played only a moderate role, by comparison with other, more prominent causes, the question posed by s 5B(3) would require a different answer.
The same conclusion is suggested by considering Associate Professor Robertson’s evidence as a whole. During his oral evidence he repeated his main conclusion that a “moral injury”, stemming from the bullying over a long period, had led to his persistent depressive condition. He described the persistent bullying as having had a “dose effect” on the applicant. I did not understand him to retract or qualify that view at any stage. That other causes, taken together, might have played an equal role in the causes of the applicant’s disease does not suggest that the bullying did not play a role which was significantly greater than material. Indeed, when asked directly about the significant degree question, he answered in the affirmative, in his report, as I mentioned in [46] above.
The answers in cross-examination which I have set out at [60], as I understand them, support a finding that the test posed by the definition contained in s 5B(3) (discussed at [10]-[18] above) is a test which is satisfied by the applicant.
One way to understand s 5B(3) is that the contribution made by the employment to the disease, in a case where multiple causes are present, is to take the more prominent causes, or those with a closer causal connection to the disease, as it now is. Two such causes, according to Associate Professor Robertson, appear to be the bullying and harassment over a 5-6 year period, causing a moral injury, and the stress of the compensation process. The first is employment-related and, as recorded in [46] by the Associate Professor, was the “substantial contributing factor”. The second is not relevantly employment-related. That a non-employment related cause might cooperate with an employment related cause, both making a contribution significantly more than material, does not preclude recovery by the applicant because of the employment-related cause.
The current need question
It is next necessary to consider, as outlined in [6] above, whether there is a current need for medical treatment or compensation under s 19 for an injury resulting in incapacity for work.
The respondent submits that since the applicant has discontinued using his medication or attending upon any psychiatrist or psychologist, there is no current need for the payment of medical expenses.
The respondent submits that the applicant has, on Dr Isailovic’s diagnosis, relatively mild symptoms of a depressive condition, which does not require treatment. It also submits that he expressed no desire for treatment.
The respondent also submits, based on Dr Isailovic’s evidence, that the applicant is capable of at least part-time work, notwithstanding his current condition. It also submits that, according to Dr McDonald, the applicant remains fit for work as a surveillance officer, security work, investigative or administrative work.
The opinion of Associate Professor Robertson was that the applicant has impaired cognitive function, diminished resilience, diminished interpersonal functioning and a highly reactive mental state, and that therefore his capacity for employment is limited.
Associate Professor Robertson said in his report of 5 June 2018 that it is “arguable” that there is a partial work capacity. He doubted whether he would be able to maintain more than 10 to 15 hours per week in a very basic role.
Section 20 of the Act states that compensation is payable to an employee who is “incapacitated for work as a result of an injury”, if the employee is retired from his or her employment and receives a pension under a superannuation scheme as a result of the employee’s retirement. The question is whether the evidence supports a conclusion that the applicant is incapacitated for work.
The expression “incapacitated for work” as a matter of ordinary English means that the employee must be unable to work. A person able to work includes a person able to work part time. On the evidence of Associate Professor Robertson, his ability to work part time is “arguable”, which does not permit me to be satisfied either that he can or that he cannot work part-time.
As between Associate Professor Robertson on the one hand and Dr McDonald and Dr Isailovic on the other hand, I would prefer the evidence of the Associate Professor, who supported his opinion with detailed reasoning, and who saw the applicant on three occasions. On the face of it, a man who has a persistent depressive condition, and who last worked five years ago, and who received a pension under a superannuation scheme following a period on workers compensation, may well not find employment if he sought it, and may not be motivated to seek employment in any event.
For Associate Professor Robertson to have stated only that it is arguable that he has capacity to obtain part-time employment suggests that it is also arguable that he does not have that capacity.
The applicant said in his statement of 28 November 2018:
I remain unfit for work and am not employed in any capacity.
I continue to feel depressed, anxious and upset on a daily basis and continue to remain affected by the psychological condition I sustained during the course of my employment with the ATO.
Prior to my psychological injury, my hobbies included golf, pistol shooting and photography. Since experiencing my psychological difficulties, I have stopped pistol shooting and photography. I have tried to play golf but have difficulty concentrating and can no longer play as well as I once did.
I only perform basic household activities due to lack of motivation and the inability to concentrate and have difficulty sleeping.
I have difficulty concentrating on tasks I may need to perform and become very irritated, confused and frustrated because I can no longer think clearly. When I have been required to prepare reports or conduct any personal business that requires concentration my thoughts become clouded and this leads to further anxiety. The condition then leads to headaches and can also affect my motor skills. I can no longer complete tasks with clarity that I once considered straightforward and simple. I cannot concentrate for periods of more than ten or fifteen minutes and need to take constant breaks to regather my thoughts.
I become very anxious and irritable when attending crowded places such as shopping centres or when travelling on public transport. I will deliberately avoid walking in crowded streets when possible and take detours rather than be trapped amongst so many people. I have difficulty focusing when I am subjected to noisy and claustrophobic environments and avoid them whenever possible. I avoid driving peak traffic times as I cannot find the patience or resilience.
There were questions asked by me and in cross-examination by Ms Slack about his efforts to find work at T41-T45, but the evidence in his statement set out in the previous paragraph was not directly challenged. The cross-examination elicited that in 2013 he did not believe he was suited in his then current research role or any other office-based role. He said that he still did not believe he could work in an office, or anywhere else.
What was said by the applicant in paragraphs 22-27 of his witness statement suggests to me that he has an incapacity for employment not only on a full-time basis but also on a part-time basis. I see no reason not to accept what he says in those paragraphs.
On balance, therefore, I conclude that he is incapacitated for work.
As to medical expenses, the applicant said in chief that he stopped seeing his psychiatrist Dr Ilchef because Dr Ilchef believed he had helped the applicant as much as he could and it would be very difficult to attend North Sydney, to which Dr Illchef moved, and because of the expense of the medications. He said he wasn’t aware he could get anything back from Medicare. His income is $1275 per fortnight from ComSuper.
Ms Slack for the respondent asked the applicant whether, if he could get 10 consultations a year that were free, he would get treatment then. He replied in the affirmative. He said that he would see his general practitioner and work out if he believed a psychologist or a psychiatrist would be the best person to see. Those answers satisfy me that he has a need for the payment of medical expenses, and that the cost was the main reason he stopped seeing a psychiatrist. Whether further medication suits his present circumstances can be worked out with medical practitioners.
For these reasons, the reviewable decision made on 20 October 2017 will be set aside and the matter will be remitted to Comcare with the direction that the applicant is entitled to the payment of medical expenses under s 16 of the Act and to compensation for incapacity under s 20 of the Act.
I also order that the respondent pay the costs incurred by the applicant of these proceedings pursuant to s 67 of the Act.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
..................................[sgd]..................................
Associate
Dated: 10 September 2019
Date(s) of hearing: 17 and 18 June 2019 Counsel for the Applicant: Mr J Mrsic, Slater & Gordon Lawyers Solicitor for the Applicant: Ms G Giunta, Slater & Gordon Lawyers Counsel for the Respondent: Ms K Slack, Australian Government Solicitor Solicitor for the Respondent: Ms N Donaghy, Australian Government Solicitor
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