XWQF and Australian Capital Territory (Compensation)

XWQF and Australian Capital Territory (Compensation) [2022] AATA 476 (11 March 2022)
Division:GENERAL DIVISION
File Number(s): 2020/2131
Re:XWQF
APPLICANT

Australian Capital TerritoryAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:11 March 2022
Place:Canberra

The decision under review is affirmed.
………………[sgd]…………………...
Mr S. Webb, Member
Catchwords
WORKER’S COMPENSATION – claim for psychological injury – allegations of bullying, misdirection and inadequate support – previous psychiatric illness and compensation claim – issues of credit and reliability – inconsistent evidence – nature and diagnosis of psychiatric illness – ongoing illness and treatment - illness in the context of employment – employment contribution not to a significant degree – claim not made out – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14
Cases
WWQF and Comcare unreported, 2015/3676, 23 May 2017
REASONS FOR DECISION
Mr S. Webb, Member
11 March 2022

XWQF has professional qualifications and a background in information technology. XWQF was employed by the Australian Capital Territory Department of Health (ACT Health). In the course of that employment, XWQF lodged a compensation claim for psychological injury.[1] Employers Mutual Limited (EML), claims managers for the Australian Capital Territory (ACT), decided to reject the claim by primary determination[2] and on reconsideration.[3] XWQF applied for review of this decision.[4]
[1] T27.
[2] T39.
[3] T50.
[4] T2.
XWQF alleges that circumstances in their employment by ACT Health significantly contributed to cause their psychological ailment, a major depressive disorder. In their submission, this condition was originally caused by their employment in the Department of Finance in 2011 or 2012, but the condition remitted over time and XWQF was well in February 2018. XWQF asserts that they worked in other employments in 2018 without any psychological symptoms or difficulties. XWQF maintains that their problems began when XWQF commenced employment at ACT Health, in which XWQF was not provided with adequate support and XWQF was subjected to bullying and unreasonable treatment by co-workers and supervisors. This, XWQF argues, caused them to experience stress and psychological symptoms, including panic attacks, which amount to a psychological injury in the form of a new psychological illness or the aggravation of their previous illness.
XWQF asserts that XWQF was bullied, unsupported, over-worked and not respected by work colleagues and supervisors in their employment by ACT Health, and unreasonable actions were taken against their by their employer. It was these events, XWQF alleges, that caused the injury for which XWQF claimed compensation. XWQF asserts that their claim arose from unreasonable treatment by their employer and it should not be excluded. XWQF urged the Tribunal to find liability against the ACT for their claimed injury.
The ACT disagrees. In the ACT’s submission, XWQF’s case is flawed by profound inconsistencies and it relies on XWQF’s evidence, which is not reliable. The ACT asserts XWQF has not been entirely honest about and has downplayed their psychiatric history. The ACT argues XWQF’s lack of candour about such matters is consistent with their reluctance to admit to minor faults and psychological testing which suggests their presentation is associated with malingering.
The ACT asserts that XWQF suffers from Bipolar Disorder Type 1 rather than Major Depressive Disorder. On this point, the ACT argues that the expert opinion of Dr Ventura (a consultant psychiatrist) should be preferred over the evidence of other doctors as XWQF had access to all XWQF’s clinical records and a complete history.
Furthermore, it is the ACT’s submission that if XWQF’s employment was found to have significantly contributed to their psychiatric condition, no ‘injury’ within the meaning of the Safety, Rehabilitation and Compensations Act 1988 (SRC Act) would result. The reason for this, the ACT argues, is the exclusionary proviso in s 5A(1) applies as the actions taken by XWQF’s superiors amounts to reasonable administrative action taken in a reasonable manner in respect of their employment. For these reasons, the ACT asserts the decision rejecting their claim is correct and it should be affirmed.
Credit
At this point, it is appropriate to observe that there are serious questions about the extent to which XWQF’s evidence can be relied upon.
This is principally because XWQF has a psychiatric illness that affects their memory and there is evidence that XWQF’s complaints of psychological symptoms have an attitudinal element. Furthermore, XWQF has provided inconsistent accounts of their psychiatric history to various doctors who have examined XWQF. There are clear inconsistencies in XWQF’s documents and evidence in these proceedings.
I do not propose to discount XWQF’s evidence entirely, but I think it is appropriate to consider it carefully and to note that, where XWQF’s account is not reliably corroborated, it will be given less weight.
Background facts
XWQF was employed by the Australian Tax Office for several years and then by the Commonwealth Department of Veterans Affairs. XWQF was involved with a cultural community, particularly in musical activities.[5] XWQF experienced marital difficulties. There were issues of abuse in the marriage.[6] XWQF’s marriage broke down in 2010.They divorced in 2013. XWQF has since remarried.
[5] Exhibit 3 and Exhibit 8.
[6] Ibid, page 3.
In November 2010, XWQF obtained employment at the Commonwealth Department of Finance. Things did not go well and XWQF became psychiatrically unwell and was rendered unfit for work. XWQF claimed compensation for a psychiatric injury. The claim was rejected.
XWQF pressed their rights of review in the Tribunal. In the result, the Tribunal affirmed the decision to reject their claim.[7] The Tribunal found that XWQF’s employment contributed to their ailment, but the causal factor was reasonable administrative action taken in a reasonable manner in respect of XWQF’s employment which excluded the ailment from meeting the threshold for an injury under s 5A of the SRC Act. XWQF appealed this decision in the Federal Court, but subsequently withdrew.
[7] WWQF and Comcare unreported, 2015/3676, 23 May 2017.
XWQF experienced a number of personal and family health issues and underwent a number of surgical procedures. It is not necessary to address these matters in detail. XWQF was unfit for work for an extended period from 2014 to 2018. In 2018, XWQF obtained work with the Salvation Army and in a childcare centre.
On 5 November 2018, XWQF commenced employment with ACT Health. Things did not go well. XWQF perceived that XWQF was bullied and not given appropriate support and training in their new job. XWQF experienced stress and psychological symptoms that were sufficient to cause incapacity for work on 20 December 2018 and at various times thereafter.
This notwithstanding, on 13 November 2018, XWQF sought and was granted approval to work in a second job outside ACT Health. This was subsequently withdrawn in the context of performance issues on 25 July 2019.[8]
[8] ST5, folio 116.
Issues arose in respect of conduct and performance. As will appear, XWQF’s allegations of bullying related to interpersonal difficulties with co-workers and supervisors – XWQF perceived that XWQF was treated differently than co-workers. XWQF also alleged XWQF was not properly supported in their work and XWQF was asked to undertake actions XWQF considered to be inappropriate or unlawful. Complaints were made and investigations were undertaken.[9] In the course of these processes, XWQF was involved in meetings and communications with their supervisor, and their manager, (among others).[10] Issues arose in respect of XWQF’s Performance Development Agreement and their Performance Development Plan.[11]
[9] See ST8a, ST26a, ST26b, ST26c, T9, T17, T18, T19, T20, T21, T22, T24 and T25, for example.
[10] T9, ST24b, ST24c
[11] ST8, ST9, ST12, ST13 and ST16, for example
On 16 September 2019, XWQF lodged a claim for compensation in respect of a psychological injury. [12] EML decided to refuse their claim by primary determination and on reconsideration. It was in respect of this decision XWQF applied for review by the Tribunal.
[12] T27.
Issues
The issues to be decided in this review are:
(a)the nature of the ailment XWQF has claimed as an injury;
(b)whether the ailment amounts to a ‘disease’ to which XWQF’s employment contributed to a significant degree for the purposes of s 5B of the SRC Act;
(c)whether the ‘disease’ amounts to an ‘injury’ for the purposes of s 5A of the SRC Act;
(d)if the ‘injury’ resulted in impairment or incapacity for work for the purposes of s 14 of the SRC Act.
Ailment
In order to determine the nature of the ailment for which XWQF has claimed compensation, it is necessary to consider the medical evidence and their history of psychiatric illness in some detail.
There is a large body of medical records and reports in evidence. This material includes reports and clinical notes of a number of psychiatrists, doctors and psychologists. There are reports of Dr Bhattacharyya,[13] Dr Reddy,[14] Dr Oelrichs,[15] Dr Zsadanyi,[16] Dr Di Bella,[17] Dr Bonner,[18] Dr Ventura[19] and Dr Arya,[20] all of whom are psychiatrists, as well as a report by Dr du Plessis, a consultant neurologist and rehabilitation physician and Dr Ram Malhotra, a neurologist.[21] Additionally, there are reports and clinical notes of XWQF’s treating general practitioners, including Dr Ziaee[22] and Dr Mathew,[23] and psychologists who have assessed XWQF, including Daniel Troy,[24] John McMahon,[25] Kerrianne Abbott,[26] Merilyn Lewis.[27] There are also clinical records produced by Calvary Hospital and The Canberra Hospital.
[13] Exhibit 10, pages 1-6.
[14] Ibid, page 10.
[15] Ibid, pages 12-19.
[16] Ibid, pages 20-31.
[17] Ibid, pages 59-60 and 101-102; Exhibit 5 refers.
[18] T35.
[19] T26, T38, Exhibit 9; exhibit 10, pages 70-76.
[20] Exhibit 10, pages 57-58; Exhibit 6.
[21] Ibid, page 295.
[22] T14, T15, T16, T57, T58 and T59.
[23] Exhibit 7; Exhibit 10, pages 163-221.
[24] Exhibit 10, pages 34 and 40.
[25] Ibid, pages 141-153 and 302-311.
[26] Ibid, pages 159-162.
[27] Ibid, pages 296-301.
On close examination of this material, I am reasonably satisfied XWQF suffered a psychiatric illness that began gradually in 2011. I am also reasonably satisfied the illness has fluctuated in symptomatic severity thereafter. It is probable the illness has an episodic or fluctuating character which may be triggered reactively or spontaneously.
There is no reliable evidence XWQF experienced psychological symptoms prior to 2011.
In 2011 and 2012, XWQF experienced psychological symptoms including, by their own account, panic attacks. These symptoms persisted in varying degrees. XWQF attributes them to their previous employment. This is consistent with the Tribunal’s previous decision, albeit that XWQF was not entitled to compensation.
On 28 June 2012, Dr Donaghy prescribed Dosulepin (an antidepressant medication, also known as Prothiaden) and, on 38 August 2012, this was changed to Sertraline (another antidepressant medication, also known as Zoloft).[28]
[28] Ibid, page 61.
On 20 February 2013, Dr Bhattacharyya reported that XWQF was suffering from a Major Depressive Episode,[29] and set out the following history:
[XWQF] had marital problems for several years and started sharing [their] problems with [their] manager. According to [XWQF] he appeared to be kind but reported [XWQF] for underperformance. [XWQF] felt unsupported and became depressed. [XWQF] sought counselling from EAP services. Eventually [XWQF] was informed that there were no problems with [their] performance at work. [XWQF] sought help from [their] General Practitioner Dr Donaghy and was commenced on Zoloft (antidepressant medication) 50 mg per day. [XWQF’s] mother required surgery in December 2011 and [XWQF] exhausted all [their] leave while looking after [their] mother.
In October 2012 [XWQF] had severe abdominal pain and was referred to Dr Grahame Bates, Obstetrician and Gynaecologist, for assessment and treatment… [XWQF] required psychological intervention in September last year for depression and anxiety.[30]
[29] Ibid, page 4.
[30] Ibid, page 2.
It was Dr Bhattacharyya’s opinion XWQF was fit for their full duties, to which XWQF returned.
XWQF’s psychological condition persisted and deteriorated. On 3 April 2014, XWQF was reviewed on presentation at The Canberra Hospital and it was noted XWQF had a possible personality disorder, poor impulse control and was possibly unresponsive to treatment with definite Lack of support/Isolation, Unemployed/employment problems and History of being abused.[31] It was also recorded that XWQF did not have relationship problems/recent breakup.
[31] Ibid, page 7.
The Canberra Hospital records on 22 April 2014 reveal that XWQF was reviewed at Calvary:
Impression: Depressive episode, personality vulnerabilities.[32]
[32] Ibid, page 8.
On 2 May 2014, Dr Hassanin prescribed Quetiapine, an antipsychotic and mood stabilising medication.[33]
[33] Ibid, page 63.
From 5 June 2014 to 28 July 2014 XWQF was admitted to the psychiatric inpatient ward at the Calvary Hospital with Severe Anxiety.[34]
[34] Ibid, page 10.
On 5 June 2014, Dr Di Bella reported:
Final Diagnosis: Mixed mood disorder
Severe anxiety with somatization
DDx Bipolar Affective Disorder
Other Diagnosis: (including alcohol and other substance disorders)
Histrionic personality traits
… At the time of presentation [XWQF] appeared to have a mixed mood disorder with severe anxiety with panic attacks and dissociation… [XWQF] may also have been experiencing psychotic symptoms (persecutory delusions)…[35]
[35] Ibid, page 59.
The doctor prescribed Desvenlafaxine (an antidepressant medication, also known as Pristiq) and Quetiapine. On 29 July 2014, Dr Di Bella issued a further prescription for Quetiapine. [36] In a subsequent report, the doctor set out XWQF’s symptoms in more detail, including that XWQF described some unusual beliefs of somehow being at risk of harm if [XWQF] watched television, auditory hallucinations and persecutory beliefs.[37]
[36] Ibid, page 63.
[37] Ibid, page 101.
On 1 September 2014, Dr Reddy reported that XWQF was under the care of the Belconnen Mental Health Team from 16 June 2014.[38] It appears that XWQF consulted Dr Reddy on a bi-monthly basis[39] and, on 26 September 2014, the doctor issued a further prescription for Quetiapine.[40] This suggests the persistence of mood disturbance or psychotic symptoms at this time.
[38] Ibid.
[39] Ibid, page 13.
[40] Ibid, page 64.
On 16 October 2014, Dr Oelrichs reported that XWQF was suffering from major depressive disorder, recent acute relapse and current active symptoms.[41]
[41] Ibid, page 17.
On 18 December 2014, Dr Zsadanyi diagnosed XWQF with Chronic major depressive disorder, severe, with melancholic features and psychotic symptoms.[42] It was Dr Zsadanyi’s opinion that:
… [XWQF’s] perspective of workplace events were significantly skewed. In all likelihood, [XWQF] was already becoming depressed and this could be a significant contributing factor to why [XWQF] misperceived workplace events, or possibly even misinterpreted them. There is enough information from several IME’s to suggest that [XWQF] had been experiencing psychotic as well as depressive symptoms. It is possible [XWQF] was already experiencing psychotic symptoms at the time [XWQF] was still working…[43]
[42] Ibid, page 28.
[43] Ibid, page 27.
The notes of The Canberra Hospital from 15 January 2015 to 7 July 2015 show that XWQF continued to experience psychiatric symptoms throughout this period. On 6 February 2015, the records of a telephone consultation with Mr Troy suggest that he considered XWQF has a primary problem of a collection of Personality Disorder traits with elements of histrionic, dependent and narcissistic types.[44]
[44] Ibid, page 34.
The prescription evidence reveals that XWQF was regularly prescribed Desvenlafaxine and Quetiapine in 2015, 2016 and up to 27 July 2017, at which point it appears that Dr Ziaee stopped prescribing Quetiapine although he continued to prescribe Desvenlafaxine to 18 February 2020.[45] These records reveal that Dr Ziaee prescribed Quetiapine again on 4 November 2019 and subsequently on 15 January and 15 February 2020, and that he changed XWQF’s prescribed antidepressant to Fluoxetine (another antidepressant medication, also known as Prozac) on 18 March 2020.[46]
[45] Ibid, pages 65-69.
[46] Ibid, page 69.
The prescription history strongly suggests that XWQF continued to require treatment for their psychiatric illness throughout these periods. This is supported by the 21 September 2017 report of Dr Ziaee in which he refers to XWQF as a regular patient of this practice since 3/4/2014 due to [their] depression and anxiety with regular visits and follow up.[47] It is also supported by records of The Canberra Hospital on 15 and 16 June 2018,[48] albeit that a social worker recorded that XWQF was Not taking AD regularly.[49]
[47] T57, folio 420.
[48] Ibid, pages 48-52.
[49] Ibid, page 51.
It is XWQF’s evidence that XWQF ceased taking antidepressant medication from February 2018 because, at the time, XWQF was well and free of psychological symptoms. XWQF’s evidence is not consistent with the prescription records and The Canberra Hospital records to which I have referred above.
It is conceivable that XWQF was capable of undertaking the voluntary work and childcare work in which XWQF engaged in 2018, as XWQF asserts, but this does not indicate XWQF was psychiatrically well. The contemporaneous and prescription records point to a contrary conclusion, albeit perhaps that their symptoms were managed by the medications XWQF was taking, which XWQF denies. The events of 15 June 2018 are evidence that XWQF’s symptoms were susceptible to flare up.
It is likely that XWQF was experiencing stress in October and November 2018. On 2 October 2018, Dr Sadia Athar noted that XWQF was having sorethroat not getting better vey stressed out not sleeping well.[50]
[50] T57, folio 399.
On 19 November 2018, Dr Ziaee noted started [their] job in 2 wks ago and in stress.[51] On 20 December 2018, the doctor noted XWQF was bullied at [their] new work[52] and issued a medical certificate stating that XWQF was unfit for work as a result of bulling at work.[53]
[51] T58, folio 437.
[52] Ibid.
[53] T57, folio 422.
On 31 January 2019:
[XWQF] insist that [XWQF] likes to back to [their] work but [their] situation does not let [them] go
…
[XWQF] had stress at [their] work and [XWQF] claimed that one colleague was talking with [XWQF] unrespectfully in front of other people in informal meeting
[XWQF] blieve that it was a group attack…[54]
[54] T58, folio 439.
Dr Ziaee’s clinical notes on 27 February 2019 disclose that XWQF experienced psychological symptoms at that time, including emotional problem, sleep problem, low appetite, low memory and concentration, as well as flat mood and flat affect.[55] The doctor noted:
[XWQF] was working and [XWQF] was received email regarding work related issues which the email was confident and [XWQF] was not able to disclose it to me
but [XWQF] claimed that the information supposed to be released to [XWQF] has not been released before and [XWQF] was in emotional situation[56]
[55] Ibid, folio 443.
[56] Ibid.
On 28 February 2019, XWQF again consulted Dr Ziaee who noted:
attend againe as [XWQF] has some tough situation in [their] work
and [XWQF] has too leave [their] work earlier
Feel upset
tearful
[XWQF] stated that [XWQF] was Bullied and aharased at their work
[XWQF] claimed that [XWQF] had to fight for seeking knowledge as the instructions passed to [XWQF] was poor and unclear and was treated unprofessionally[57]
[57] Ibid, folio 444.
Dr Ziaee’s clinical notes of subsequent consultations with XWQF on 31 March 2019, 6 June 2019, 20 June 2019, 3 July 2019, 23 July 2019, 25 July 2019, 29 July 2019, 7 August 2019, 19 August 2019, 25 August 2019, 3 September 2019 and 26 September 2019 reveal that XWQF continued to experience psychological symptoms or stress that XWQF attributed to circumstances in their employment.[58]
[58] T58 folios 445-461.

XWQF contacted the Access Mental Health Team in July 2019 and was examined by Dr Bonner on 30 September 2019 who diagnosed Major Depressive Disorder with complaint of bullying. The doctor reported the following history:
Today [XWQF] went back to work and [their] desk was bare. [XWQF] received a text from [their] manager that started “Good Morning”. He did not use [their] name. [XWQF] does not feel welcome. They said they will performance manage [XWQF].
[XWQF] says they had 4 allegations against [XWQF].
3 weeks ago [XWQF] was told not to go to work because of a medical assessment.
[XWQF] saw a psychiatrist, Dr Ventura, on 12 September 2019.
10-11 months since [XWQF] started working with ACT Health.
Similar incidents occurred in 2010-2014, with bullying and harassment in a different workplace (Department of Finance).
[XWQF] has attempted a childcare job and a volunteer job with Salvation army.
[XWQF] does not want to lose [their] job.
[XWQF] feels that a ‘mistake’ on [their] timesheet may have been fabricated. [XWQF] says that work has stated this is a ‘code of conduct’ issue.
[XWQF] says, “the whole department is against me”.
…
[XWQF] has been asked to use someone else’s login, use [their] own Medicare details, and [their] own physical observations (as a model for a deteriorating patient), and feels it was not right that [XWQF] be asked to do this.
[XWQF] hears people indirectly making comments about [them] (possibly referring to [XWQF] as a “waste” and “blocking”), and interprets them putting waste in a bin as referring to [them] as “waste”.
[XWQF] has met with a rehabilitation provider and made a compensation claim.
[XWQF] says [their] GP has told [them] [XWQF] is fit for work. [XWQF] is dreading this.
[XWQF] has much less sleep in anticipation of going back to work.[59]
[59] T35, folio 188.
The doctor noted XWQF’s past psychiatric history included Major Depressive Disorder with possible psychotic features (persecutory delusions, with longstanding allegations of bullying possibly amounting to querulous paranoia and occasional auditory hallucinations of [their] name being called) and Bipolar disorder.[60] Dr Bonner prescribed Risperidone (an antipsychotic medication).[61]
[60] Ibid.
[61] T35, folio 119.
On 13 September 2019, Dr Ventura examined XWQF and reported no evidence of a psychiatric disorder[62] and noted:
[XWQF] was not forthright when relaying their symptoms and gave vague and contradictory answers.[63]
The doctor consulted Dr Ziaee and reported that Dr Ziaee told me that [XWQF] gives a changeable story to him as well.[64]
[62] T26, folio 100.
[63] Ibid, folio 99.
[64] Ibid, folio 100.
Dr Ventura produced a supplementary report on 21 October 2019 in which XWQF responded to and disagreed with Dr Bonner’s assessment of XWQF, stating:
During my assessment I found that [XWQF] gave a number of inconsistent and contradictory responses. This was confirmed by a telephone discussion with [their] general practitioner, Dr Ziaee… It is therefore more likely than not that Dr Bonner was given a history by [XWQF] which did not necessarily reflect [their] true clinical picture.[65]
[XWQF] has a possible history of bipolar affective disorder. I have not been able to elicit the symptoms during the assessment; however, that diagnosis has been reported elsewhere. It is possible for someone with bipolar affective disorder to have a sudden change in mental state from depression to mania; however, Dr Bonner, on the occasion of his assessment, did not describe a presentation consistent with bipolar affective disorder. In his mental state examination he only states “tearful and distressed about the bullying [XWQF] describes”.[66]
[65] T38, folio 226.
[66] Ibid, folio 227.
On 22 April 2021, Dr Ventura produced a further report in response to additional briefing materials, including medical records from 2013 and 2014, in which XWQF stated:
Having consider the material presently before me, it causes me to change my diagnostic opinion expressed in my report of 13 September 2019 and 21 October 2019. There is now documentation that clearly and unambiguously confirms a long history of bipolar 1 disorder. I therefore conclude that although at the time of my assessment of 12 September 2019 [XWQF] was euthymic, meaning [XWQF] was neither depressed or manic, [XWQF] did have a diagnosable psychiatric disorder, namely bipolar 1 disorder.[67]
[67] Exhibit 9, page 7.
XWQF was not satisfied with Dr Ziaee and commenced treatment with a new general practitioner, Dr Mathew, on 21 January 2020. The doctor recorded extensive notes in consultations with XWQF on 21 and 22 January 2020 and diagnosed Depression/Anxiety.[68]
[68] Exhibit 10, pages 163-166.
On 8 September 2020, Dr Mathew reported that XWQF was kicked by a child while working at a childcare centre the previous day.[69] In a related consultation on 19 October 2020, Dr Mathew recorded extensive clinical notes of psychological symptoms XWQF was experiencing at the time, including fear, flashbacks, anxiety, memory, hypervigilance, low mood, lack of motivation, anhedonia, altered eating habits and tiredness.[70] He diagnosed Post Traumatic Stress Disorder.[71]
[69] Ibid, page 177; see rehabilitation report dated 20 October 2020, pages 106-119.
[70] Ibid, pages 180-181; see referral to Ms Lewis on 7 November 2020, page 124.
[71] Ibid, page 181.
On 9 November 2020, Dr Du Plessis, a consultant neurologist and rehabilitation physician, produced a report following assessment of XWQF on 28 October 2020. The doctor reported XWQF’s account of extensive symptomatology and stated:
It is my opinion that [XWQF] suffered only a minor… injury… nothing more than soft tissue injuries to their lower lip and chin…
[XWQF’s] large number of symptoms and the extent of these symptoms cannot have arisen from their reported injury.
…
What struck me and what causes me concern is the fact that [XWQF] has reacted psychologically very negatively to this injury. This may be because of a previous similar type of experience of having been bullied and harassed in the workplace. Although the index injury was a minor physical injury, the workplace incident is causing significant psychological problems. There is no doubt that [XWQF’s] current presentation is more in keeping with [their] psychological state causing [them] to complain of physical symptoms…[72]
[72] Ibid, page 137.
On 27 April 2021, Dr Mathew referred XWQF to Dr Arya for ongoing care and management and stated:
Since your last review, [XWQF] had developed symptoms that satisfied DSM-V criteria for PTSD following a kick … by a child at work. Subsequent to the injury, [XWQF] has had significant worsening of low mood, anxiety, nightmares, flashbacks, avoidance behaviour including never wanting to return to work in the childcare setting, insomnia and hyper vigilance.[73]
[73] Ibid, page 157.
In a report dated 6 May 2021, Dr Mathew took exception to Dr Ventura’s diagnosis of Bipolar Disorder type 1 and stated I find the assertion that [XWQF] has Bipolar 1 absurd and, quite frankly, malicious.[74]
[74] Exhibit 7, page 2.
There are 3 reports by Dr Arya in evidence, dated 18 March 2020, 24 July 2020 and 8 July 2021.[75] In Dr Arya’s opinion, XWQF suffers from Major Depressive Disorder to which Work-related stressors seem to have contributed.[76] The doctor noted that XWQF was taking Pristiq and Seroquel (Quetiapine), which he considered no longer necessary, and reported:
There is no evidence of any delusions or hallucinations or any other disorder of thought or perception.[77]
The doctor noted in his report, and confirmed in his oral evidence, that he relied upon the information and history XWQF provided.
[75] Exhibit 6.
[76] Ibid, report dated 18 March 2020, page 4.
[77] Ibid.
On 24 July 2020, Dr Arya reported that, although XWQF was experiencing sleep difficulties, XWQF’s mood had improved following their transition from Pristiq to fluoxetine and that XWQF feels that emotionally [XWQF] is a lot more stable than before.[78] In his final report, Dr Arya stated he was not convinced that [XWQF] has a bipolar disorder.[79]
[78] Ibid, report dated 24 July 2020, page 1.
[79] Ibid, report date 8 July 2021, page 1.
On 10 November 2020, John McMahon, a clinical psychologist, assessed XWQF and reported there appears to be an attitudinal component to [XWQF’s] presentation as evidenced by the poor performance on the Test of Memory Malingering and the Personality Assessment Inventory.[80] Mr McMahon referred to possible medical causes and concluded that their symptoms did not meet the full criteria for Post-Traumatic Stress Disorder, especially there was not the requisite reliving phenomena, but there is clinically significant reactive anxiety and marked avoidance. He stated:
Taken at face value, [XWQF’s] symptoms meet criteria for Adjustment Disorder with Anxiety associated with the event of [them] being assaulted in the workplace.[81]
[80] Exhibit 10, page 150.
[81] Ibid.
In a subsequent report, dated 12 August 2021, Mr McMahon reported that XWQF no longer meets criteria for a mental disorder or condition.[82]
[82] Ibid, page 307.
On 8 April 2021, Merilyn Lewis, a psychologist, reported that XWQF was referred for treatment on 7 November 2020 after being allegedly kicked … by a child at the Childcare Centre where [XWQF] worked.[83] Ms Lewis reported:
[XQWF] was extremely distressed when I first met [XWQF] on 13/11/20. I noted that [XWQF[ presented with Extremely Severe Depression and Anxiety and Severe Stress…
… I am now convinced that [XWQF] meets the DSM-5 Criteria for Adjustment Disorder with Anxiety…
[XWQF] meets this diagnosis because XWQF has been experiencing excessive emotional and behavioural symptoms in response to an identifiable stressor.[84]
[83] Ibid, page 296.
[84] Ibid, page 298.
As can be seen from the foregoing accounts, the psychiatric ailment XWQF suffers from is not easy to determine. Medical opinions diverge on the point of diagnosis.
Dr Di Bella’s report that XWQF was suffering from a mixed mood disorder and severe anxiety with a possible differential diagnosis of Bipolar Disorder even though XWQF presented with symptoms consistent with a Major Depressive Episode indicates the diagnostic difficulty.
Dr Bhattacharyya, Dr Oelrichs, Dr Zsadanyi, Dr Bonner and Dr Arya relied very heavily on XWQF’s account of their ailment and history, as well as their clinical judgement, without access to the full medical records placed before the Tribunal. Even though Dr Arya treated XWQF over a period, the weight of his opinion is somewhat diminished by the limited materials and the incomplete history he was given by XWQF. With the exception of Dr Zsadanyi, these doctors did not obtain a history that XWQF suffered from psychotic symptoms such as the persecutory delusions, auditory hallucinations or strange beliefs Dr Di Bella referred to, and no such symptoms were elicited on examination or reported.
Dr Zsadanyi’s and Dr Di Bella’s assessments substantially align with Dr Ventura’s ultimate assessment, once XWQF had reviewed all the material and in consideration of XWQF’s complete psychiatric history. XWQF concluded that Bipolar Affective Disorder type 1 is the correct diagnosis.
On balance, and for these reasons, Dr Ventura’s opinion is preferred over those of Dr Bhattacharyya, Dr Oelrichs, Dr Bonner and Dr Arya. Dr Ziaee and Dr Mathew are not psychiatrically qualified and, even though they have treated XWQF over extended periods, their opinions about psychiatric diagnosis carry less weight that those given by qualified psychiatrists. Furthermore, having heard Dr Mathew’s evidence, there is a concern that his evidence may be tainted by advocacy for his patient and this diminishes the weight it can be given.
With respect to Mr McMahon and Ms Lewis, on questions of diagnosis, their opinions must be weighed against the opinions of qualified psychiatrists. Mr McMahon identified attitudinal factors that he considered to be significant in reducing the reliability of the diagnosis he reported, taking XWQF’s reported symptoms at face value. Some of the symptoms he and Ms Lewis reported may have been considered differently had they been given XWQF’s full psychiatric history. These matters diminish the weight that can be given to their opinions on the question of diagnosis.
In conclusion on this issue, on balance, in consideration of all the medical and related evidence, I am reasonably satisfied that XWQF suffers from a psychiatric ailment in the form of Bipolar Affective Disorder Type 1. Even if this is not correct and a diagnosis of Major Depressive Disorder with psychotic symptoms is adopted, no different result is obtained.
XWQF’s psychiatric illness emerged in or about 2012 and it is associated with mood disturbance, anxiety and psychotic symptoms. It is characterised by fluctuating symptomatology, including periods in which XWQF is euthymic. Fluctuation of symptoms may be triggered spontaneously or reactively, in response to stress for example, and they may remit with treatment.
Disease
For XWQF’s psychiatric illness to be considered as a disease for the purposes of the SRC Act, the thresholds set out in s 5B must be met:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
As can be seen, the key threshold is that the employment has contributed to the ailment, or to the aggravation of the ailment, to a significant degree, being a degree that is substantially more than material.
In my assessment of the evidence, for reasons that follow, this threshold is not made out in XWQF’s case.
I am satisfied that XWQF’s psychiatric illness commenced years before XWQF commenced employment by ACT Health in November 2018.
As I have said, the nature of XWQF’s illness involves fluctuating symptoms, including periods in which symptoms are not immediately apparent. It is possible XWQF’s symptoms remitted to the extent XWQF was able to engage in work with the Salvation Army and a childcare centre in 2018, or to engage in musical activities and performances in their cultural community. The absence of apparent symptoms, however, does not indicate XWQF’s illness resolved. It is prone to flare up from time to time in response to circumstances or stress, or perhaps spontaneously. That is what occurred in June 2018, shortly before XWQF started work with ACT Health.
The clinical notes of Dr Athar establish that XWQF was complaining of stress prior to the commencement of their employment on 5 November 2018.
I am satisfied that XWQF experienced psychological symptoms in the context of their employment by ACT Health, and XWQF did so from very early on in that employment. By their own account, XWQF started to feel psychologically unwell in their new job Right from the beginning.[85] This is consistent with Dr Ventura’s report that XWQF gave a history of experiencing difficulties within the first week of their new employment.[86] Dr Ziaee’s clinical notes on 19 November 2018 record that XWQF was experiencing stress in their new employment. The doctor’s notes on 20 December 2018, 31 January 2019 and 27 February 2019 indicate the progression of their symptoms over that period.
[85] Exhibit 1, page 5.
[86] T37, folio 204.
The accounts XWQF has given in written materials[87] and in their oral evidence about the toxic work environment XWQF perceived at ACT Health are extensive. These traverse many aspects of XWQF’s work and their interactions with colleagues and supervisors in their employment. XWQF asserts:
This includes frequent changes to seating arrangements, avoiding me from meetings, restricting me from talking to business analysts and project stakeholders, removing from major projects, restricting my access or taking my access away, not providing access to project information and data, overloading me with information, providing unreasonable tight deadlines, rude behaviour from team leaders and managers, asking me not to communicate via email, favoritism, giving me unclear instructions, giving me unclear scenarios to make me fail, lack of constant support …, unreasonable PDA and PDA reviews, constant micromanagement, unreasonable and intimidating behaviour, , removing me from further application and training tools, nil training or support, humiliating in front of colleagues, making sarcastic comments, overloading me with information jobs without proper documentation or requirements, no provision of work life balance, shouting at me in front of other colleagues and managers several times, and blaming on performance issues in writing without providing adequate reasons and on top of team leaders have asked me to do unlawful activities without written authority or consent from management…[88]
With no proper seating arrangement, no access to computer or relevant software, frequent shifting of seating arrangement, directing me to use wrong ID and instruction to work inappropriately in the very early stage of my work at ACT Health directorate gave me constant stress since the beginning of my work at ACT Health Directorate.[89]
[87] T47; Exhibit 1, pages 19-56, and XWQF’s unsigned and undated response to the Respondent’s Statement of Facts Issues and Contentions; Exhibit 2; Exhibit 4.
[88] Exhibit 1, page 19.
[89] Exhibit 4, page 1.
On Dr Ventura’s evidence, I am reasonably satisfied that XWQF’s perceptions of what occurred after XWQF commenced work at ACT Health were affected by their psychiatric illness. Furthermore, in many regards XWQF’s perceptions have a fixed character which align with previous persecutory delusions XWQF experienced in the course of their psychiatric illness. In my assessment of the evidence, on Dr Ventura’s expert evidence in particular, these are probably manifestations of their already existing illness, albeit reactive to the circumstances of their (then) new employment.
Close consideration of the extensive litany of perceived wrongs XWQF has set out in their documents and in their oral evidence does not point to any different conclusion. There are substantial inconsistencies in their allegations. For example, XWQF alleges XWQF was given no training, but XWQF refers to being provided with ACT Health specific onsite training between 5 and 16 November 2018.[90] XWQF alleges XWQF was not provided access to information while also asserting XWQF was overloaded with information.[91] XWQF alleges that they were not given access to a key area of their work until 6 February 2019[92] but also asserts From the third week of my joining onwards the work leader asked XWQF to do work in that area and specifically asked me to use my own Medicare card … which I constantly declined.[93]
[90] Exhibit 1, XWQF’s unsigned and undated response to the Respondent’s Statement of Facts Issues and Contentions, page 1.
[91] Exhibit 1, page 19.
[92] T47, folio 246.
[93] Exhibit 2, page 1.
This is not a case in which XWQF’s perceptions derive from factual events established by probative evidence to have actually occurred in a manner that rendered their perceptions reasonable.
Sadly, there are many instances in which the factual basis underlying XWQF’s perceptions of circumstances or events in their new workplace indicate the extent to which they were affected by their psychiatric illness and their susceptibility to persecutory delusions. For example, arriving at their work on the first day to find no seating arrangement, computer access or network access caused XWQF to experience anxiety and a perception that XWQF was not welcome and not wanted.[94] Another example is the informal meeting XWQF informed Dr Ziaee about on 31 January 2019, in which XWQF perceived that a co-worker spoke to them disrespectfully and the meeting was a group attack. There is no compelling evidence those perceptions were reasonable responses to actual events that occurred.
[94] Ibid, page 19.

There is evidence that XWQF engaged in unusual behaviour when dealing with their work colleagues. For example, on 19 December 2018, a co-worker referred to XWQF pulling their hair twice at a work lunch.[95] XWQF denies this and XWQF denies the evidence of all the co-workers and supervisors who have given accounts which do not align with their own. When cross-examined about such matters, XWQF staunchly denied any flaw in their account or their conduct, however minor, and XWQF accused those with contrary accounts of lying. In my assessment, XWQF’s adherence to a fixed belief in their own rectitude, without any concession, is consistent with delusional features of the psychiatric illness Dr Ventura diagnosed.
[95] T37, folio 190.
Having carefully examined documents relevant to the factual basis of allegations XWQF has made,[96] including the extensive documents XWQF has provided, I am reasonably satisfied that XWQF’s perceptions about events which actually occurred were likely informed by the personality traits Mr Troy identified in 2015[97] and by fixed beliefs XWQF holds that are not amenable to change in response to contrary evidence. These, I am satisfied, are features of XWQF’s psychiatric illness.
[96] Including T4, T6, T7, T8, T9, T10, T11, T13, T17, T18, T19, T20, T21, T22, T23, T24, T25, T29, T31, T32, T33, T36, T37, T44, T45, T46, T47, T53, T54, T55, T56 and the ST documents
[97] Exhibit 10, page 34.
That said, it can be accepted that some of the procedural failings and unlawful activity about which XWQF complained have some real basis. But XWQF’s perceptions of and responses to such matters are affected by their then ongoing psychiatric illness.
In all likelihood, the symptoms Dr Ziaee noted on 19 November 2018, 20 December 2018, 31 January 2019 and 27 February 2019 adversely affected XWQF’s work capabilities and their interactions with work colleagues and supervisors. XWQF’s assertion that the events and circumstances XWQF perceived were causally related to the onset of psychological symptoms is not made out. In my assessment of the evidence, XWQF’s psychiatric illness affected their perceptions about the events and circumstances XWQF encountered in their (then) new workplace and this led, in significant part at least, to subsequent complaints, investigations, performance review processes and related administrative actions.
XWQF’s case is not one in which their existing psychiatric ailment was aggravated by circumstances in their employment. It is not established that XWQF’s psychiatric illness was acquiescent prior to 5 November 2018 or that it was triggered to recur by circumstances in XWQF’s employment in any truly causal sense.
XWQF’s illness was florid in June 2019 and the absence of any report of symptoms does not mean that it remitted or that it was not present prior to their beginning work on 5 November 2018. As I have said, the notes of Dr Ashar and Dr Ziaee establish that XWQF was experiencing stress before and after XWQF commenced work for ACT Health. I do not accept XWQF’s evidence that XWQF ceased taking pharmacological treatments for their psychiatric illness in February 2018. The prescription records point to a contrary conclusion.
In my assessment, the increase in psychological symptoms XWQF experienced after 5 November 2018 is more likely attributable to perceptions affected by XWQF’s existing psychiatric illness operating in the context of their employment, rather than to the events or circumstances in XWQF’s employment causing an escalation of such symptoms or a recurrence of their psychiatric illness.
The period of XWQF’s ACT Health employment, before their psychiatric illness produced symptoms that affected their memory and concentration was very short. Dr Ziaee’s notes establish that XWQF was experiencing symptoms from the commencement of their employment at ACT Health and these escalated to the extent XWQF was certified unfit for work on 20 December 2018. On 27 February 2019 XWQF was experiencing symptoms that affected their memory, concentration, motivation and mood. I am satisfied that those symptoms adversely affected XWQF’s ability to engage in aspects of their work that involved memory and concentration at that time.
I am reasonably satisfied that the extensive meetings, investigations and performance related events and processes in which XWQF was involved in 2019, including in respect of the complaints XWQF made in July of that year, did not significantly contribute to aggravate or causally affect the progress of XWQF’s psychological symptoms or their psychiatric illness. In my assessment of the evidence, the administrative actions that were taken were reasonable, and they were undertaken in a reasonable manner in the circumstances. No doubt the circumstances XWQF experienced, affected by psychiatric illness and confronted by events XWQF considered to be unreasonable, unjust or wrong, acted upon XWQF’s already unwell mind and their symptoms. But those reactions and XWQF’s related perceptions were largely attributable to XWQF’s psychiatric illness to the extent that any causal contribution by XWQF’s employment was contextual rather than truly causal.
In conclusion on this issue, I am not persuaded that XWQF’s employment by ACT Health contributed to a significant degree to the psychiatric ailment for which XWQF has claimed compensation. If the circumstances in XWQF’s employment contributed to cause perceptions and related psychological symptoms, the degree of any such contribution was very minor and incidental to the psychiatric illness XWQF suffered prior to and in the context of that employment. XWQF’s employment was the setting in which the psychiatric ailment progressed according to its fluctuating nature. While symptoms may have had a reactive quality, the reaction was mediated by psychiatric illness rather than by the particular circumstances XWQF encountered in their work.
The threshold in s 5B(1) of the SRC Act in respect of a disease is not satisfied.
In consequence of this, the threshold for an injury under s 5A is not made out.
I note in conclusion that it is not necessary to proceed any further to consider if the exclusionary proviso in s 5A(1) applies in the circumstances of this case.
Decision
The decision under review is affirmed.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

.............................[sgd]....................................
Associate
Dated: 11 March 2022

96.     Date of hearing:

97.     1 - 2 December 2021

98.     Date final submissions received:

99.     2 December 2021

100.    Applicant:

101.    Counsel for the Respondent:

102.    Solicitor for Respondent:

103.    Self-Represented

104.    Ms Kate Slack

105.    Ms Sama Khan, McInnes Wilson Lawyers

106.

[2022] AATA 476

11 March 2022

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