YNCJ and Comcare (Compensation)
[2019] AATA 4795
•1 November 2019
YNCJ and Comcare (Compensation) [2019] AATA 4795 (1 November 2019)
Division: GENERAL DIVISION
File Number: 2018/0074
Re:YNCJ
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans
Date:1 November 2019
Place:Perth
1.The Reviewable Decision is set aside.
2. In substitution, the Tribunal finds that the Respondent is liable to pay compensation to the Applicant pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), for the psychological conditions of Major Depressive Disorder Recurrent (moderate) and Generalised Anxiety Disorder, as diagnosed by Clinical Psychology Registrar Mary Roberts, which are secondary to the Applicant’s left knee injury.
..................................[sgd]......................................
Senior Member Dr M Evans
CATCHWORDS
Workers’ Compensation – Commonwealth employee – whether liability should be accepted under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) –psychological injuries secondary to accepted knee injury – appropriate diagnosis of Applicant’s psychological conditions – whether a disease - whether an injury other than a disease – whether an ailment – causation – whether contributed to, to a significant degree, by employment – employer’s reliance on Facebook photographs –whether Applicant made wilful and false representations that she did not previously suffer from a psychological condition – Briginshaw v Briginshaw – Briginshaw standard – Reviewable Decision set aside – substituted with a new decision that Respondent is liable to pay compensation to the Applicant under s 14
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 33(1)(c)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4, 5A(1), 5A(1)(a), 5B, 5B(1)(a), 5B(2), 5B(3), 7(7), 14(1), 67(8), 68(13)
CASES
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Briginshaw v Briginshaw (1938) 60 CLR 336
Chu Yu Chee and Comcare [2018] AATA 1241
Comcare and Mooi [1996] 69 FCR 439
Comcare Australia v Porter (1996) 70 FCR 139
Comcare v Power (2015) 238 FCR 187
Dalton v Secretary, Department of Social Services [2018] AATA 2923
Duffy and Comcare [1996] AATA 676
Fiddian and Comcare (2019) 164 ALD 548
Hutchinson and Comcare [2018] AATA 4357
Iannella v French (1968) 119 CLR 84
Iliadis and Comcare [1996] AATA 602
JXTZ and Comcare [2017] AATA 880
Makin and Comcare [2010] AATA 432
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain and Comcare [2016] AATA 459
Prain v Comcare (2017) 256 FCR 65
von Stieglitz and Comcare [2010] AATA 263
Re Wilson and Comcare [1996] AATA 862
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Vo and Comcare [2005] AATA 773
ZXCF and Comcare [2019] AATA 3572
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th edition, 2013
The Hon Justice Duncan Kerr, “Keeping the AAT from Becoming a Court”, Australian Institute of Administrative Law (NSW) Seminar, 27 August 2013
REASONS FOR DECISION
Senior Member Dr M Evans
1 November 2019
SUMMARY
The Respondent previously accepted liability for an injury to the Applicant’s left knee under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Subsequently, the Applicant made a Workers’ Compensation claim for psychological conditions secondary to her knee injury, but a delegate of the Respondent (the Delegate) made a decision to deny liability. The Applicant now seeks a review of that decision in the Administrative Appeals Tribunal (the Tribunal).
BACKGROUND
The Applicant is a 40 year old woman who commenced work at the Department of Human Services (the Department) on approximately 19 November 2007 as a Service Officer (T12.2, page 50; Exhibit A1, paragraph [2.2]).
The Applicant was sent for a “fitness for duty” examination with Psychiatrist Dr Jonathan Spear (Dr Spear) on 13 January 2012. In his report dated 18 January 2012,
Dr Spear stated that the assessment was requested due to “concern about her absenteeism and reported history of anxiety”. Dr Spear further noted that the Applicant (T12.3, page 58):
…had periods off work because of a fracture [sic] rib, the flu, a motor vehicle accident, gastroenteritis, a personal matter, light-headedness, blisters, a bump to the head, backache and a nose bleed…
She had a stressor in 2010 when she broke up with her fiancé.
She complained of two incidents of “acoustic shock”, on 18 July 2011 and
2 August 2011. She was off work from 18 July 2011 and returned to work on
20 July 2011.
Dr Spear’s assessment stated (T12.3, page 61):
[YNCJ]
presents with an episode of anxiety, obsessional thoughts, somatisation and a sense of injustice. She does not currently meet the criteria for a DSM-IV Axis I disorder but may have met the criteria for an adjustment disorder in
September 2010.
The Applicant sustained a left knee injury while she was at work on 6 December 2016.
At the time of her knee injury, she had worked for the Department for approximately nine years and was most recently employed as a Program Support Officer (Exhibit A1, paragraph [2.2]).
More specifically, the Applicant described suffering a twisting injury to her knee when a pneumatic chair she was sitting on at work “suddenly descended” (Exhibit A1, paragraph [2.19]; which she also described as “suddenly fell down” at T4, page 17). The chair was subsequently repaired with the gas lifter being replaced (email from Applicant’s Team Leader dated 27 January 2017, Exhibit A9).
On 24 January 2017, the Applicant was examined by Orthopaedic Surgeon,
Dr Ian J Skinner (Dr Skinner). Dr Skinner noted an MRI scan performed on
10 January 2017 confirmed “a horizontal tear of the mid body and posterior horn of the medial meniscus” and recommended an arthroscopic debridement (Exhibit A8). Dr Skinner also noted that, “prior to the incident described, [YNCJ] had no problems with her knee. She is otherwise fit and healthy from the point of view of the musculoskeletal system”.
By a determination dated 3 February 2017 the Respondent accepted liability under s 14 of the SRC Act to pay compensation for a “left knee meniscus tear” (T3, pages 7-9).
On 7 February 2017, the Applicant underwent knee surgery which was performed by
Dr Skinner. Post-surgery the Applicant was on crutches for four weeks and was required to wear a knee brace for six weeks (T40, page 318). The Applicant stated that the surgery actually undertaken was different to the planned surgery. The planned surgery was “arthroscopic debridement” (Exhibit A8). She stated that Dr Skinner “performed left knee arthroscopy and elected to repair medial and lateral meniscal tears, rather than perform meniscal debridement” and that she was informed of the change in procedure and longer recovery period subsequent to the operation (Exhibit A1, paragraph [2.23]; see Operation Record in Exhibit A10).
On 13 March 2017 the Applicant returned to work on a Gradual Return to Work Program three hours a day for three days per week with a walking capacity of 100 metres (T10, page 40).
On 15 March 2017, the Applicant’s General Practitioner, Dr Arief Mulyadi (Dr Mulyadi), completed a progress certificate regarding the Applicant’s knee injury, which stated, “[p]atient also has ongoing stress associated with how the injury has impacted her professional and personal life”. This progress certificate also stated that the Applicant was having difficulty sleeping due to these factors as well as the pain in her left knee (T40, page 315-317). This progress certificate is the first medical certificate for the Applicant’s psychological injury claim.
In an application dated 31 May 2017, the Applicant made a claim for a secondary psychological condition. The Applicant stated that the psychological condition had been assessed by her treating General Practitioner, Dr Mulyadi as “likely to be Adjustment Disorder (manifested in low mood, anxiety, frustration, and emotional stress)” (T5, page 21).
The Respondent referred the Applicant for an assessment by a Consultant Occupational Physician, Dr Phillip Meyerkort (Dr Meyerkort). Dr Meyerkort assessed the Applicant on
9 June 2017, and produced a report dated 20 June 2017 (T13, page 112). He expressed some doubt as to whether the incident with the chair descending had caused the meniscus tear (T13, page 121 and 124). Dr Meyerkort also stated the opinion that the Applicant would “continue to make a good recovery“, with the qualification that “this will depend upon her access to appropriate psychological support” (T13, page 127).
By a determination dated 8 September 2017 (T23.1, page 229), the Delegate determined that the Respondent was not liable to pay compensation in accordance with s 14(1) of the SRC Act for “somatic symptom disorder (somatization disorder) and adjustment disorder with mixed anxiety and depressed mood (adjustment disorder with mixed emotional features)”, claimed to be secondary to the left knee injury.
In making this determination the Delegate relied upon a report written by Consultant Psychiatrist, Dr Brendan Jansen (Dr Jansen) dated 20 July 2017 (T23.2, page 231).
Dr Jansen had diagnosed the Applicant as suffering from “Somatic Symptom Disorder” and “Adjustment Disorder with mixed anxiety and depressed mood”. The Delegate concluded, relying on the opinion of Dr Jansen that the Applicant’s psychological symptoms were not contributed to, to a significant degree, by her employment. More specifically, the Delegate found the Applicant’s psychological conditions were related to “her personality factors, recurrence of post-traumatic symptomatology and predisposition to the ailment from past experiences, frustration and personal expectations to her progress which have perpetuated her condition” (T23.2, page 236).
In a letter dated 2 October 2017, the Applicant’s General practitioner, Dr Mulyadi, stated that (T26.2, page 256):
I wish to support [YNCJ’s] request for reconsideration for psychological claim related to her left knee injury. As I have stipulated in my Progress Certificate dated 15 March 2017, the patient has been experiencing [sic] significant amount of stress due to the left knee injury and how it impacts on her professional and personal life.
Her symptoms have continued to worsen since that date and on her visit on
28 April 2017, the patient revealed symptoms that are strongly suggestive of Adjustment Disorder which are likely due to the slow pace of rehabilitation/ recovery and how the injury has affected her personal and professional life…
The Applicant commenced seeing Psychologist Christopher G Semmens (Mr Semmens) on or around 3 October 2017. In a letter of the same date, Mr Semmens stated that the Applicant “is currently satisfying the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood” (T25, page 239).
On 10 October 2017, the Applicant, through her then solicitors, requested a review of the determination dated 8 September 2017 (T26, pages 242-243; T26.1, pages 244-255).
A letter dated 7 November 2017 from the Applicant’s Occupational Therapist, Jacintha Bell (Ms Bell) stated that the Applicant did not find the psychology sessions with
Mr Semmens to be of benefit (T30.1, page 272).
The Applicant was consequently referred to Clinical Psychology Registrar Mary Roberts (Ms Roberts) who first assessed the Applicant on 10 November 2017 (T33, page 287). Ms Roberts’ assessment of the Applicant at that time was (T33, page 288):
As has previously been diagnosed she had tears to her medial and lateral menisci of her left knee for which she underwent surgical repairs resulting in chronic pain. She also displays signs of adjustment disorder with significant depression and anxiety secondary to her chronic pain, together with clinical insomnia.
On 9 November 2017, the Respondent issued a determination that affirmed the determination dated 8 September 2017 (T32.1, pages 277-278). This is the Reviewable Decision currently before the Tribunal.
In a letter dated 17 November 2017 (T35, pages 290-291) Mr Semmens stated that had seen the Applicant for 10 sessions, but that she had decided to cease the therapy with him because she wanted to see another psychologist. In the opinion of Mr Semmens, the Applicant displayed characteristics of “cognitive rigidity” and he referred to “her diagnosis of adjustment disorder” (T35, pages 291).
In a report dated 14 December 2017, Dr Meyerkort recorded that as at December 2017, the Applicant’s work program was six hours per day, three days per week, and that the Applicant drove to work and had access to a parking bay close to her office (T38, page 303).
After reassessing the Applicant on 5 December 2017, Dr Meyerkort recommended a graduated increase in the Applicant’s working hours with a restriction for a six week period to avoid prolonged standing and to avoid standing or walking for longer than 10 minutes (T38, pages 307-308).
In a letter dated 13 February 2018, Ms Bell wrote (Exhibit A18):
There are many aspects of [YNCJ’s] life which have been directly affected by her injury. The injury has led to development of chronic pain, loss of function, poor sleep, weight gain, stress, anxiety and low mood. This has affected [YNCJ’s] life in the following ways: loss of independence, loss of intimacy and changing the nature of her relationship, loss of self-esteem, inability to attend work at usual capacity, inability to manage her home in the way she did previously, and inability to engage in usual leisure activities such as walking on the beach, photography and attending events.
…
In summary, I support [YNCJ’s] secondary claim, and believe that the work-related knee injury has been a significant contributor to the development of an adjustment disorder. If she had not had the knee injury, and all of the aforementioned consequences, she would not be experiencing an adjustment disorder at this time.
The letter from Ms Bell dated 13 February 2018 (Exhibit A18) also stated that the Applicant was “particularly distressed” at being able to travel to [country name omitted] to see her grandmother before she passed away and that she had “noted a significant decline in her mood as a result of this”. Ms Bell then noted in this letter that the Applicant “directly tributes her inability to travel to [country name omitted] to her injury”.
In a letter dated 6 March 2018 (Exhibit A14; Exhibit A3, Appendix D), Ms Roberts provided the following assessment of the Applicant:
She has tears to her medial lateral menisci of her left knee resulting in chronic pain. In addition she meets the DSM5 criteria for 296.32 Major Depressive Disorder Recurrent (moderate) and 300.02 Generalised Anxiety Disorder, both of these are secondary to her chronic pain. She also displays signs of adjustment disorder and clinical insomnia.
The letter from Ms Roberts also stated that the Applicant’s grandmother recently passed away in [country name omitted] and that the Applicant had planned to visit her, but after her injury the Applicant’s leave was declined by her employer.
On 25 June 2018, Dr Mulyadi provided a medical certificate certifying that (Exhibit A13):
The adjustment disorder (with depressed mood) that the patient has been having is directly related to the left knee injury that the patient acquired at workplace as well as the ongoing slow and complicated rehabilitation process. This is also because of how the injury has significantly affected patient’s life.
This opinion is also reflected consistently in statements included in previous Worker’s Compensation Progress Certificates which I have issued in the past (since 28 April 2017)…
On 28 August 2018, the Respondent referred the Applicant to Dr Yue Chong (Olivia) Lee (Dr Lee), Consultant Psychiatrist, for a psychiatric assessment. Dr Lee prepared a report dated 6 September 2018 (Exhibit A1, attachment 24), in which she stated herdiagnosis of the Applicant was “adjustment disorder with anxiety and low mood secondary to chronic pain” with a “differential diagnosis of somatic symptom disorder with predominant pain” (Exhibit A1, attachment 24, page 9). When asked when the effects of the injury were likely to fully resolve, Dr Lee stated, “Assuming the stressor of pain is likely to continue, the psychological symptoms are likely to fluctuate with her capacity to manage the pain” (Exhibit A1, attachment 24, page 10). Dr Lee recommended that (Exhibit A1, attachment 24, page 10):
I suggest that she be reviewed in another year’s time (August 2019). It would have been two years after the development of psychological symptoms. Her treatment has been appropriate thus far from a psychological point of view.
The Applicant lodged an application for a review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal) on 9 January 2018 (T1, pages 1-5).
In a Supplementary Report dated 18 January 2019, Dr Jansen confirmed his diagnosis of Somatic Symptom Disorder and Adjustment Disorder with mixed anxiety and depressed mood. He stated that he remained of the opinion that the Applicant’s knee injury did not contribute to these psychological conditions to a significant degree, and that there were other multiple causative factors (Exhibit R8, pages 7-9).
In contrast, in a report dated 17 May 2019, Ms Roberts restated her diagnosis of the Applicant with Major Depressive Disorder Recurrent (moderate) and Generalised Anxiety Disorder, which in her opinion were a direct result of the Applicant’s knee injury.
Ms Roberts was of the opinion that the Applicant’s knee injury had contributed to a significant degree to her psychological conditions (Exhibit A1, attachment 3, pages 2-4).
The outcome of this application largely depends upon whether the Tribunal prefers the evidence of Dr Jansen or Ms Roberts, and whether the Tribunal accepts the evidence of the Applicant. Thus, the evidence of each of these witnesses will be discussed in detail.
ISSUE
The issue before the Tribunal is whether the Respondent is liable to pay compensation under section 14 of the SRC Act in respect of the psychological condition (or conditions) claimed by the Applicant to be secondary to her left knee injury.
This requires the Tribunal to consider the following:
(a)The appropriate diagnosis of the Applicant’s psychological condition (or conditions) and whether it is an “injury” within the meaning of:
(i)s 5A(1)(a) and s 5B(1)(a) of the SRC Act (“a disease suffered by an employee”) which includes a consideration of whether the Applicant’s psychological condition (or conditions) constitute an “ailment” as defined by s 4 of the SRC Act; or
(ii)s 5A(1)(b) of the SRC Act (“an injury (other than a disease)”).
Whether the Applicant suffered an “injury” within the meaning of s 5A(1)(a) and
s 5A(1)(b) of the SRC Act will also depend upon whether the injury arose out of, or in the course of, the employee’s employment (for an injury other than a disease) or whether it was an ailment that was contributed to, to a significant degree, by the employee’s employment (for a disease).
(b)
Whether any disease suffered by the Applicant is not taken to be an injury for the purposes of the SRC Act due to the operation of s 7(7) of the SRC Act.
This involves a consideration of whether the Applicant made a wilful and false representation that she did not suffer from, or had not previously suffered from, that disease.
MATERIAL BEFORE THE TRIBUNAL
The hearing of this application was on 19 and 20 June 2019.
The Applicant was self-represented. She was assisted by her partner, who stated that he had obtained a law degree “a long time ago” but was currently working as a “manager” (transcript, page 20).
Mr Ternes appeared for the Respondent, instructed by Mr Vas from the Respondent.
The following witnesses gave oral evidence at the Tribunal hearing and were cross-examined:
(a)The Applicant;
(b)Ms Roberts, by telephone; and
(c)Dr Jansen, in person.
The following materials were admitted into evidence as Exhibits for the Applicant:
(a)
Applicant’s amended Statement of Facts, Issues and Contentions (SFIC) dated
12 June 2019 with attachments 1 to 35 (Exhibit A1);
(b)Applicant’s original SFIC dated 2 June 2019 (Exhibit A2);
(c)Applicant’s submission dated 6 March 2018 including Appendices A to D (Exhibit A3);
(d)Applicant’s Impact Statement to Senior Rehabilitation Case Manager, Department of Human Services dated 18 February 2018 (Exhibit A4);
(e)Briefing letter to Ms Roberts dated 23 April 2019 (Exhibit A5);
(f)Emails between Human Resources, union representative, occupational therapist and Applicant from 17 July 2018 to 23 August 2018 (Exhibit A6);
(g)Email from APM (Rehabilitation Provider) dated 24 July 2018 regarding Medical case conference held on 17 July 2018 (Exhibit A7);
(h)Report of Dr Lee dated 6 September 2018 (Exhibit A8);
(i)Workcover WA - Progress Certificate of Capacity dated 2 September 2018 (Exhibit A9);
(j)Letter from Ms Roberts to Human Resources dated 21 August 2018 (Exhibit A10);
(k)Report of Ms Bell dated 9 July 2018 (Exhibit A11);
(l)Email from Applicant dated 3 July 2018 attaching a Report of Ms Roberts dated 18 June 2018 (Exhibit A12);
(m)Medical Certificate of Dr Mulyadi dated 25 June 2018 (Exhibit A13);
(n)Report of Ms Roberts dated 6 March 2018 (which is also contained in Exhibit A3, Appendix D) (Exhibit A14);
(o)Workcover WA - Progress Certificate of Capacity dated 2 March 2018 (Exhibit A15);
(p)Correspondence from Applicant in relation to Dr Jansen’s report of 28 July 2017 dated 2 February 2018 (Exhibit A16);
(q)
Correspondence from Applicant in relation to Mr Semmens’ Report of
17 November 2017 dated 15 February 2018 (Exhibit A17);
(r)Letter from Ms Bell dated 13 February 2018 (Exhibit A18);
(s)
Progress Report of Mary Roberts (Clinical Psychologist Registrar) dated
6 February 2018 (Exhibit A19);
(t)Referral from Dr Skinner for Applicant to see Ms Bell dated 29 May 2017 (Exhibit A20);
(u)Letter from Allianz dated 7 April 2017 with attached Secondary Claim Form (Exhibit A21);
(v)Pre-injury Management Progress Report with a resubmitted date of 6 June 2017 (Exhibit A22); and
(w)Bundle of various medical documents produced under summons, relied on by the Applicant in the Tribunal hearing (Exhibit A23).
The following materials were admitted into evidence as Exhibits for the Respondent:
(a)Section 37 (T-documents) numbered T1 to T40 and comprising 396 pages (Exhibit R1);
(b)Supplementary T-documents numbered ST1 to ST14 and comprising pages 397 to 459 (Exhibit R2);
(c)Respondent’s Amended SFIC dated 7 June 2019 with Annexures A to G (Exhibit R3);
(d)Respondent’s SFIC dated 30 January 2019 (Exhibit R4);
(e)Briefing letter to Dr Jansen dated 6 June 2019 (Exhibit R5);
(f)Supplementary Report of Dr Jansen dated 11 June 2019 (Exhibit R6);
(g)Briefing letter to Dr Jansen dated 11 December 2018 (Exhibit R7);
(h)Supplementary Report of Dr Jansen dated 18 January 2019 (Exhibit R8);
(i)Claim for Workers’ Compensation for a left knee injury dated 26 January 2017 (same as Exhibit R3, Annexure G and also contained in R11) (Exhibit R9);
(j)Incident report dated 9 January 2017 (same as Exhibit R3 Annexure C and also contained in R11) (Exhibit R10);
(k)Response to request for Enclosures 10 to 16 with these enclosures attached (enclosure 10 is the same as Exhibit A3) (Exhibit R11);
(l)Bundle of various medical documents produced under summons comprising 23 pages (Exhibit R12); and
(m)Bundle of various medical documents produced under summons and relied upon by the Respondent in the Tribunal hearing, and listed in an index dated 20 June 2019 (Exhibit R13).
Subsequent to the Tribunal hearing, the parties filed the following extensive written closing submissions:
(a)Respondent’s written closing submissions, dated 12 July 2019;
(b)Applicant’s written closing submissions, dated 2 August 2019; and
(c)Respondent’s written submissions in reply, dated 8 August 2019.
LEGISLATIVE FRAMEWORK
The Respondent’s liability to pay compensation is provided for in s 14(1) of the SRC Act:
14.Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
An “injury” is defined in s 5A(1) of the SRC Act as follows:
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B of the SRC Act defines a “disease” as follows:
(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.
Section 4 of the SRC Act defines “ailment” as “…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
However, an ailment that would otherwise be a disease is not an injury for the purposes of the SRC Act if s 7(7) of the SRC Act applies:
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
The case law and Tribunal decisions which are relevant to these provisions are discussed under the relevant headings below.
APPLICANT’S EVIDENCE
The Applicant gave evidence on the first day of the hearing. The Applicant was self-represented, with the assistance of her partner. As with many self-represented persons, the distinction between submissions and evidence is sometimes blurred, and at times her written submissions doubled as evidence. The Applicant was sworn in at the commencement of the hearing, and the Tribunal has referred to both the Applicant’s submissions and her evidence at the hearing where relevant. Notwithstanding that the Applicant was self-represented; her written and oral submissions were logical, clearly expressed and detailed, with references to the evidence which supported her submissions where relevant.
At the time of the hearing, the Applicant stated that she was working five hours a day, four days per week, being a total of 20 hours a week (transcript, page 32).
The Applicant submitted that her psychological conditions were a direct result of her knee injury. She stated that, “I was psychologically asymptomatic prior to my knee injury. Following my workplace injury, I developed a psychological disorder secondary to chronic pain and significantly reduced function of my left leg” (Exhibit A1, paragraph [3.1]).
In Exhibit A1 at paragraph [2.32], the Applicant stated:
Prior to my knee injury, I was psychologically asymptomatic. Following my knee injury, I developed my current anxiety, stress and low mood symptoms as a direct result from my chronic pain, significantly reduced function of my leg, loss of independence and enjoyment in life…
And further (Exhibit A1 at paragraph [2.107]):
My accepted comprehensible physical injury has significantly impacted all areas of my life for 2 ½ years, and ongoing. I still exhibit existing physiological injury in my left knee from which the pain stems. I still have significantly reduced function of my left leg and chronic pain because of my workplace injury. My knee injury requires me to pace every activity in all areas of my life and I require assistance with many activities of daily living. I cannot kneel, squat, sit cross-legged, jump, run, walk more than a short distance, have difficulty with stairs, cannot walk on the sand …
In an impact statement dated 18 February 2018, the Applicant stated (Exhibit A4, page 9):
The workplace injury on 6 December 2016 has negatively and significantly affected all areas of my life. Some of the other ways in which my knee injury has impacted my life are as follows:
·I am in chronic pain every day, with varying intensity of pain;
·I have significantly reduced function of my left leg which prevents me from being able to do a lot of things - I cannot kneel on my left leg, squat, jump or run;
·I have an antalgic gait due to my knee injury;
·I have lost my independence as I rely on my partner and family to help with a lot of tasks, such as most household tasks, which I can no longer do because of my knee injury;
·I do not have the capacity to work my pre-injury full-time hours or role and I am treated differently and unfairly at work because of this;
·I am not able to engage in my usual leisure activities, such as walking on the beach, engaging in my hobby of photography in the way that I used to, or attend events which require a lot of walking around (e.g. expos, the zoo, festivals, etc.);
·I cannot walk more than a few hundred metres without increased swelling and pain;
·I have clinical insomnia from the sleep deprivation caused by my chronic pain;
·I have gained 15 kilos due to my significantly reduced mobility;
·All of this has affected my self-esteem;
·I have chronic stress from my knee injury and its impact on all areas of my life; and
·I have a diagnosed Adjustment Disorder with mixed anxiety and depression secondary to my knee injury.
In her evidence at the hearing, the Applicant expanded on how her knee injury had affected her (transcript, pages 27-28):
…I’ll just start with saying that the knee injury is unlike anything I’ve ever experienced in my life. It’s the first condition that’s actually restricted my mobility and caused chronic pain, so it’s the first condition or event in my life that has required significant adjustments in literally every area of my life. It’s impacted my health. My knee injury has caused chronic pain; significantly reduced function of my left leg; weight gain due to inability to walk more than a short distance for over two and a half years; insomnia due to chronic pain, and my secondary psychological disorder.
It’s caused the adjustment disorder, which has now more recently been changed to a diagnosis of major depressive disorder and generalised anxiety disorder, secondary to the chronic knee pain and significantly reduced function of my left leg. It’s impacted my immune system and caused ocular migraines from the chronic ongoing stress from my knee injury and workplace stress. My knee injury has impacted my self-esteem in the following ways: weight gain from 67 kilos to 84 kilos, so at one point I had a 17 kilo increase in weight, now down to 78 kilograms, which is still 11 kilos more than pre-injury.
I went from being confident in a bikini on a trip in [country name omitted] pre-injury, just months before my injury, to now hating the way I look. For over seven months post-op I could not take stairs in the normal manner, and for over 18 months walked with an antalgic gait, and I still have an antalgic gait during flareups. Loss of independence; it’s the first time in my life that I’m having to rely on the assistance of others for daily living tasks. Requirement to pace every activity in every area of my life; inability to perform many daily living tasks, such as a full load of shopping, vacuuming, mopping, cleaning bathrooms, which my partner and family need to assist me with; inability to engage in activities and hobbies that were a big part of my life and brought me so much joy pre-injury, such as beach photography; sexual intimacy with my partner is affected by my knee injury; loss of knowledge, skills, and confidence at work.
It’s impacted my relationship in the following ways: my partner, [name omitted], has had to take on the role of a carer as I physically cannot perform a lot of my daily living tasks. Due to my knee injury and the chronic pain, I cannot squat or kneel due to the knee injury, and as a result, cannot perform favourite sexual positions with my partner; reduced function of my left leg and chronic pain and the weight gain from my knee injury has impacted intimacy with my partner. Chronic pain impacts my mood, which impacts my relationship. Inability to do the enjoyable activities and hobbies due to my mobility restriction.
It’s impacted my work in the following ways: the knee injury has caused time off due to ongoing complications with my knee; anxiety due to the cumulative walking distance from the day - cumulative walking distance for the day when at work, due to flareups and particularly during the months of experiencing pseudo locking of my knee in the initial few months post-op when I couldn’t walk more than a couple of hundred metres without my knee locking, and causing significant swelling and pain. Loss of knowledge, skills and confidence at work…
The Applicant continued on to state (transcript, page 29):
My knee injury has impacted my social life and hobbies. The knee injury has caused inability to travel to [country name omitted] in 2017. My employer made it difficult to even just get one week off in October 2017. The one week off was finally granted by my employer after several letters of support from treating providers that it would be good for me to have a week off knee rehabilitation. My social life has been significantly reduced due to my inability to engage in my pre-injury hobbies and interests that I enjoy doing on my own, for example, walking on the beach and beach photography, and with my family and friends such as hiking, walking on the beach, attending expos et cetera, which involved a lot of walking, which I can no longer do.
Chronic pain and flareups impact my function and my mood. Inability to engage in the activities that brought me so much joy, which now impacts my mood and causes my depression, such as being able to view the ocean now, but not be able to walk on the sand or enjoy the beach in the ways that I used to. I am unable to kneel or squat or climb over rocks to engage in beach photography, which is a big passion of mine and I used to do every week before my injury.
I hate the way I look now due to my weight gain and due to my antalgic gait caused by my injury. I cannot walk more than a short distance. I cannot kneel, squat, sit cross-legged, jump or run. I still have difficulty with stairs and cannot walk on sand or uneven grounds due to flareups.
So that summarises how it impacts every area of my life, and how it’s unlike anything that I’ve ever experienced before, and I am still struggling to accept that I can no longer do the things that I would love to do and used to bring me so much joy.
In the following exchange during the Applicant’s evidence in chief, the Applicant stated her belief that her knee injury was the sole cause of her psychological conditions (transcript, page 32):
APPLICANT’S PARTNER: And do you think that there might be any other causes of your psychological symptoms, other than the knee injury?
APPLICANT: No, not at all. I know the respondent has mentioned my fertility, but that’s something I’ve known my whole life. So at age 10 my appendix ruptured, and as a result when I was 18 I found out that my tubes were blocked, and the gynaecologist attempted to open my tubes, and they closed again. So I’ve known my whole life that I will need IVF one day, and it’s not something that affected me because I wasn’t in pain, I wasn’t limited in any way. It didn’t restrict my mobility or - it didn’t impact my life, and I actually [sic] IVF as exciting, because you’re trying for a baby.
APPLICANT’S PARTNER: Yes?
APPLICANT: So I don’t view that as a stressor, no.
At the conclusion of her evidence in chief, the Applicant stated (transcript, page 34):
… pre-injury I was just thriving in life. I was at such a great place in my life. I had just returned from [country name omitted], I had an amazing time over there. I was selected by management to train existing staff into the role of program support officer in October. I was selected by management to train 13 new recruits in November, and the training was right up until 2 December, which was days before my injury, and I absolutely thrived in delivering training, and met my life partner. So I had - I was just in such a great place, and then the knee injury happened.
Under cross-examination, the Applicant was asked about the significance of an attempted burglary at her next door neighbour’s house on 17 May 2017 (transcript, page 63):
MR TERNES: YNCJ, the house next door to you was burgled on 17 May 2017; is that correct?
APPLICANT: There was an attempted burglary of the next door neighbour where they smashed the door and when the alarm went off they took off.
MR TERNES: And you had an increase in your anxiety following that event; didn’t you?
APPLICANT: No, I would not say an increase in anxiety. I was already experiencing anxiety from - I was already feeling vulnerable from my knee injury and my inability to walk more than a couple of hundred metres and the attempted burglary of my neighbour did make me think that if something like that happened to me at the time I only had a walking restriction of 50 metres and I was in significant flare-up, I could not take the stairs in a normal manner so it did increase my sense of vulnerability but I would not say that it increased my anxiety. It made me feel - because of my knee injury, that’s the only reason I would say that I would feel more vulnerable.
Under cross-examination, the Applicant was also asked about the impact of her prior medical history on her mental health. This included an aneurysm, sinusitis causing headaches (which she stated resolved when she was treated with antibiotics – transcript, page 106), fertility issues, hair loss, and fatigue (see generally transcript, pages 104-119).
With respect to her aneurysm, the Applicant agreed that her aneurysm was stable, but that it required monitoring (transcript, page 107). The Applicant’s evidence was that it did not impact on her life or cause her anxiety. She explained (transcript, page 106):
Well, it was picked up incidentally, it doesn’t cause me any problems at all… it must be about five years that I’ve known about that 2 millimetre aneurysm, but it hasn’t increased and it’s unlikely to and it doesn’t give me any symptoms, it’s just a little pleb.
The Applicant also had endometriosis in the past and has two fibroids. She requires IVF to conceive a baby (as noted above). She explained (transcript, page 108):
MR TERNES: Now you also suffer from endometriosis, is that right?
APPLICANT: I did have endometriosis in 2013 and in, I think it was June or July 2013 I had an operation. I had stage 4 endometriosis and an endometrioma, which is a cyst, and they removed the cyst, cleared up the endometriosis, and at the same time informed me that I have a fibroid, and then just to monitor the fibroid. So I’ve known since mid-2013 about the fibroid.
MR TERNES: And in fact, you’ve got multiple uterine fibroids, is that…?
APPLICANT: I have two.
MR TERNES: Right, you’ve got two?
APPLICANT: Yes.
MR TERNES: Okay. And you’ve got a condition called bilateral hydrosalpinx, is - I’m not sure if I’ve said it correctly?
APPLICANT: Salpinxes, yes.
MR TERNES: Salpinxes, I’m grateful for that?
APPLICANT: Which I’ve had since I was - well my appendix ruptured at age 10 and I’ve known since 18 that my tubes are blocked.
MR TERNES: So that’s a blocked fallopian tubes?
APPLICANT: Tubes, yes.
MR TERNES: And you’ve got it in both sides?
APPLICANT: Both sides, yes.
MR TERNES: Right. And that means that without having a procedure, you’re infertile, is that correct?
APPLICANT: No, I’m not infertile.
MR TERNES: Okay?
APPLICANT: My means to having a child is through IVF.
MR TERNES: But even to go through IVF, you would have a procedure before going through IVF, is that your understanding?
APPLICANT: Well I’m able to do egg collection first, and then remove my tubes and the fibroids, and then do a transfer of embryo.
The following evidence from the Applicant under cross-examination is also relevant to the extent of the impact of the Applicant’s fertility and other health issues on her psychological state (transcript, pages 104-105):
APPLICANT: If you’re referring to my gynaecological issues, they don’t limit me in the ways that my knee injury does, and I’ve known since I was age 18 about my blocked tubes, that I will need IVF. I had not been - it’s not like I can’t have a child, it’s - I would need IVF to have a child, and if anything having a partner - I mean I do need a partner to have a child, so IVF of blocked tubes is not an issue. And in terms of my fibroids, I’ve known since mid-2013 that I have a fibroid and it was recommended that I have regular pelvic scans just to keep an eye on the size of them. I was told I think in 2014 that eventually I will need to have an operation to remove the fibroids, but I’ve known since I was 18 that I will need to remove my tubes one day. So I’ve known years before a knee injury that I will need to remove my tubes and my fibroids at some stage, but those things don’t limit my life.
I - for a year and a half could not walk more than 250 metres. That is a huge limitation on one’s life, as well as having the chronic pain and not being able to have full function of my leg, not being able to do the activities that I like. My fibroids and my tubes do not limit my life.
MR TERNES: The case before the tribunal is about a psychological condition, so I just want to bring you back to that. So psychologically, what do you say about how you were in the first half of 2016?
APPLICANT: I was not depressed. I did have concerns about - I wasn’t sure whether to do some egg freezing or what to do to preserve my fertility, but I definitely wasn’t depressed about it. And at that point in January of 2016 actually, am
I - should I be going into detail about my medical history?
MR TERNES: No. I’m asking you about psychologically actually, was my question, YNCJ?
APPLICANT: So psychologically - - -
MR TERNES: Yes. You’ve said you weren’t depressed?
APPLICANT: No, I wasn’t depressed.
MR TERNES: What about your anxiety? Were you anxious?
APPLICANT: I wouldn’t say I was anxious.
MR TERNES: So you were not anxious, you were not depressed?
APPLICANT: I had concerns, but not anxiety. Asymptomatic.
MR TERNES: All right. So you were psychologically well, is what you’re saying to the tribunal, in the first half of 2016?
APPLICANT: Yes.
MR TERNES: All right?
APPLICANT: I was feeling very tired, so there were some investigations for - well, to put it into context, in January of 2016 I had my marina removed and then I was bleeding very heavily without the hormonal aspect, basically the fibroids make me have heavy periods, but the marina was keeping the heavy periods at bay, but it just wasn’t working for me in terms of - I was having spotting every day basically, so it just wasn’t working. So when they removed that they - I was on an oral medication for a month, but I experienced side effects from the medication, and then for two months they asked me just to try to be on no medication in terms of marina or oral contraceptive, and those two months I bled very, very heavily and I became very low in iron and had to have an iron infusion in April - end of April of 2016. And then after having that iron infusion I was still feeling fatigued, but I wasn’t feeling depressed or anxious. And then there were investigations whether I have celiac disease, and then I did test positive to celiac disease on a blood test, and I found that out in early September 2016, and the doctor confirmed that it would be reasonable for me to try a gluten free diet prior to doing a biopsy. And so that’s the shortened version of what happened in 2016. But no, I wasn’t depressed.
I was tired, but not depressed. And despite feeling tired in my submission the A1 to A35 in there is the overtime hours that I worked in 2016 and the flex leave accrued. So like I was working long hours as well. So it didn’t impact my motivation. But yes, I was feeling tired, not anxious or depression.
The following exchange on re-direct is also relevant (transcript, page 132):
APPLICANT’S PARTNER: And the second question is, now Mr Ternes took you through I would say just about your entire medical history up until the knee injury. So can you explain how, if in any way, all the medical conditions that were talked about impacted you on your trip to [country name omitted]? [24 July 2016 to 25 August 2016 – see Exhibit A1, paragraph [2.11]]---
APPLICANT: It didn’t impact me at all. I have stated in my SFIC that in [country name omitted] I went to the national park and I was doing seven or eight hours walking literally all day.
I was not limited in any which way. I was free of pain, I had no walking restriction, I had full function of my leg, I was able to go to the beaches and - there were no limitations, so these other conditions, they do not restrict me in any way. I was able to engage my beach photography and take my nieces and nephews to the zoo and to the beach and most things that require walking longer distance. I had full independence. The knee injury is the first event in my life that I have required assistance with daily living tasks. I cannot do my daily - all my daily living tasks. My partner and my family have to assist me quite a lot with daily living tasks and that has significantly impacted on my self esteem, to have lost my independence.
The Applicant’s Human Resources Department suggested that she did not experience a loss of social and personal life to the extent she had claimed. They referred to an excerpt from her Facebook page which “shows her visiting beaches and parks with her partner and nieces/nephews as well as a number of fine dining restaurants” (T18.3, page 179). The Applicant’s written response was (T18.3, page 179):
A handful of photographs over seven months on Facebook is not an indication of me living my life as I would have been had I not injured my knee. The photographs do not show that I cannot walk more than a few hundred metres, or that my boyfriend drops me off at the front of a restaurant while he parks the car, or that my niece and nephew are waiting with me at the front of a restaurant whilst my parents get the car to pick us up from the front of the restaurant, or that I have to walk up and down stairs in an embarrassing manner as I physically cannot walk up or down stairs normally. The photographs show I can get to a beach, however it does not show that I cannot enjoy my life to the extent that I could before the injury. E.g. I cannot walk on the beach to engage in my passion of photography. I can just look at it, which in itself is a depressing reminder of the losses in my life that have occurred as a result of my knee injury.
The excerpt from the Applicant’s Facebook page containing the photographs (called “check-ins”) (T12.11, page 109) was put to the Applicant during cross-examination (transcript pages 58-63). The Tribunal will now discuss the Applicant’s evidence from the hearing with respect to several of these photographs.
One photograph taken on approximately 1 January 2017, looked as if the Applicant was standing on the beach. The Applicant explained that she was in fact standing on a wooden deck overlooking the beach. The Applicant confirmed that in the first week of January, she travelled to Margaret River where she went to several restaurants (transcript, pages 60-61). In May 2017, a photograph indicated that the Applicant attended a restaurant which she explained was to celebrate the birthday of her partner’s sister. Another photograph was taken on a jetty sometime in the first half of 2017. The Applicant stated “…I can’t recall the month but Como Jetty is when I attempted my hobby of photography where we just went to the Jetty and took a photo of the sunset and I posted a photo of the sunset” (transcript, page 62). The following exchange is relevant (transcript, page 62):
MR TERNES: So you weren’t housebound in the first few months of 2017; were you?---
APPLICANT: This is not my usual social life. You’ve got a handful of photos over a period of six months. If this was my usual pre-injury life I would be going out at least a couple of times a week.
MR TERNES: YNCJ, the question I asked you was not whether this was your pre-injury life, I said you were not housebound and you weren’t; were you? In the first few months of 2017 you were far from housebound?
APPLICANT: I - my interpretation of housebound is not living the life that I was able to live before my injury.
MR TERNES: So in your statement to Allianz you said that you were “Mostly housebound”? Well, I suggest to you that these Facebook photos on any objective account you were a long way from being mostly housebound; that’s the case isn’t it?
APPLICANT: When you compare my life pre-injury, that to me is mostly housebound. Going out a handful of times in six months is not my pre-injury life.
MR TERNES: You don’t post every single occasion that you go out on Facebook; do you?
APPLICANT: Yes, I did and I wouldn’t call going to a local restaurant an occasion. I do need to eat.
MR TERNES: So you’re saying that the photos here are the sum total of what your social life for the first five or six months of 2017; is that what you’re saying?
APPLICANT: Yes, pretty much.
MR TERNES: All right. I suggest to you that you’ve exaggerated the extent of your disability in the document that you sent to Allianz; do you want to say anything to the tribunal about that?
APPLICANT: I can only write from my experience of how my life was before the injury to now and for me I feel mostly housebound compared to the freedom, the activities, that I was - I was walking on the beach three times a week before my injury so that’s just my exercise component and my hobby of photography in addition to seeing my friends and my family a couple of times [sic] week and going out with them so that is already five or six occasions every week whereas this is five or six occasions in a period of seven months.
The Tribunal makes the following preliminary findings about the Applicant’s evidence:
(a)The Tribunal disagrees with the Respondent’s submission that the Applicant was not a reliable witness (Respondent’s written closing submissions, paragraphs [29], [137]). The Applicant’s evidence was thoroughly tested under cross-examination, with the cross-examination commencing at 12.35pm, and concluding at approximately 5.00pm, with only a short rest break of 18 minutes in duration (transcript, pages 68, and 136). Notwithstanding the length of the cross-examination, the Tribunal was of the opinion that the Applicant gave consistent and credible answers to the questions put to her. When giving her oral evidence, the Applicant was reminded to answer the questions to the best of her recollection, without the need to support that recollection with reference to the evidence (which could be done later in closing submissions, for example). This was understandable given that the Applicant was not legally represented and was unfamiliar with Tribunal processes. The Tribunal’s impression of the Applicant was that she answered questions honestly and with an accurate recollection, and that she was organised and well prepared for the hearing.
(b)The Tribunal is of the opinion that the Applicant did not exaggerate the impact of her knee injury. The Tribunal accepts the Applicant’s evidence that her life has been impacted in the ways she described in her evidence. The Applicant’s explanations regarding her Facebook photos were reasonable and uncontrived, and were consistent with the exercises given to her by her treating psychologist Ms Roberts to encourage her to go out of the house and socialise (transcript, page 155).
(c)The Tribunal’s impression was that the Applicant was genuine in her belief that her knee injury was the sole cause of her current psychological condition.
(d)The Applicant gave credible explanations which tended to indicate that her other health issues had relatively little, if any, impact on her mental health.
These preliminary findings will be viewed with the other medical evidence before the Tribunal, and particularly the expert medical evidence of Ms Roberts and Dr Jansen, which are discussed below.
Mary Roberts, Clinical Psychology Registrar
Ms Roberts gave evidence on the second day of the hearing. She has been the Applicant’s treating psychologist since 6 November 2017 (transcript, pages 143 and 167), and had seen the Applicant approximately 53 times over this 18 month period (transcript, pages 143 and 168). Prior to the hearing, she most recently saw the Applicant on
17 June 2019 (transcript, page 143). The Applicant was initially referred to Ms Roberts by her General Practitioner (transcript, page 143). Ms Roberts wrote several reports concerning the Applicant including on 6 February 2018 (Exhibit A19), 6 March 2018 (Exhibit A14; Exhibit A3, Appendix D), 18 June 2018 (Exhibit A12) and 17 May 2019 (Exhibit A1, Attachment 3).Ms Roberts stated her qualifications and experience as follows (transcript, day 2, pages 141-142):
SENIOR MEMBER: …Are you able to outline your qualifications for the tribunal, please?---
MS ROBERTS: So, I am a clinical psychology registrar. I did both my Bachelor of Arts in Psychology and my Masters in Clinical Psychology at Murdoch University. However, I did my Masters combined with a PhD, which I am still finishing off, I am just near the end of that. And I completed all my supervised practice hours for, to be called a clinical psychologist, however, I can’t take that title until I have handed in my PhD. So, for the moment, I am still called a clinical psychology registrar, however, I have completed all the training and supervision required to be a clinical psychologist. I specialise in chronic pain. My PhD is in the relationship between chronic pain and sleep problems and I have had a number of articles published in that area. I run chronic pain management programs and I also train other health professionals in treating clients with chronic pain.
SENIOR MEMBER: How long have you been doing that for, working with clients with chronic pain, or patients with chronic pain?---
MS ROBERTS: Just over 10 years now, 10 and a half years.
SENIOR MEMBER: How many patients do you think you would see a week that have chronic pain issues?---
MS ROBERTS: In terms of the groups that I run, there would be between 12 and 20 people in a group and I run a group, it would be about once a fortnight that there would be a group program, I would present it. And then, in terms of my individual clients, probably about half of my case load are chronic pain clients for four days of my week and that would be probably three clients in a day. Then, on a Thursday where I work here, which is for a pain specialist, my entire case load is chronic pain clients and so, that would be seven clients a day on a Thursday.
When the Applicant initially saw Ms Roberts, Ms Roberts diagnosed an adjustment disorder (transcript, page 167; see also Exhibit A1, Attachment 3, page 2). However, her most recent diagnosis for the Applicant, as stated in her evidence at the hearing, was as follows (transcript, day 2, page 146; see also report dated 17 May 2019, Exhibit A1, Attachment 3, page 2):
SENIOR MEMBER: What is your diagnosis for YNCJ?---
MS ROBERTS: My diagnosis is major depressive disorder, recurrent, in the moderate range, as well as generalised anxiety disorder. And she also has clinical insomnia too.
SENIOR MEMBER: How did you reach those diagnoses?---
MS ROBERTS: By meeting the criteria that is expressed in the DSM-5, which is partly through my interviews with her and also through her scores on the DASS in particular.
Ms Roberts was able to articulate to the Tribunal in detail how she applied the relevant diagnostic criteria to reach this diagnosis (see transcript, pages 146-148). The relevant diagnostic criteria were the Depression Anxiety Stress Scales (DASS) and the current version of the Diagnostic and Statistical Manual of Mental Disorders, being the DSM-5 (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th edition DSM-5, 2013) (DSM-5). She was also able to provide a detailed explanation, based on the DSM-5 criteria, as to why she disagreed with Dr Jansen’s diagnosis of Somatic Symptom Disorder with predominant pain and Adjustment Disorder with mixed anxiety and depressed mood (see transcript, pages 148-150). Her evidence indicated that her diagnosis was based on a longitudinal perspective: “…in my diagnosis of YNCJ, I don’t base it just on one encounter with her. I base it on the numerous encounters that I have had with her” (transcript, page 170).
The report of 17 May 2019 is the most comprehensive of the reports written by
Ms Roberts. It was written after a review of relevant medical documentation. This report included the acknowledgment by Ms Roberts of her overriding duty to provide impartial assistance to the Tribunal. In this report, Ms Roberts provided further detail about her diagnosis of the Applicant and why she disagreed with the diagnosis of Dr Jansen (Exhibit A1, Attachment 3, pages 2-3):My original diagnosis was adjustment disorder as her primary mental health diagnosis. However, this changed subsequently due to her depression and anxiety symptoms meeting the criteria for Major depression and Generalised Anxiety.
As per the Diagnostic and Statistics Manual of Mental Disorders 5th edition (DSM-V) a diagnosis of Adjustment Disorder can no longer be made if the symptoms meet the criteria for another mental disorder (according to Adjustment disorder criteria C).
Since the report dated 24 April 2018 my opinion it has not changed. I maintain that She [sic] has tears to her medial lateral menisci of her left knee resulting in chronic pain. In addition she meets the DSM5 criteria for 296.32 Major Depressive Disorder Recurrent (moderate) and 300.02 Generalised Anxiety Disorder, both of these are secondary to her chronic pain. She is having difficulty adjusting to her change in circumstances and has clinical insomnia.
I note that Dr Brendan Jansen diagnosed [YNCJ] with the Somatic Symptom Disorder in his report dated 18th of January 2019. I disagree with this diagnosis. The medical records I have reviewed provide clear evidence of underlying structural problems with her knee (e.g. reports by physiotherapist Ben Heath, orthopedic [sic] surgeon Dr Richard Beaver and CT scan) that result in pain and it is my opinion that [YNCJ’s] self report of her pain and distress in her loss of function is proportionate to the injury that she has sustained.
Dr Jansen stated ih [sic] his report, supporting evidence for his diagnosis came from medical investigations of headaches and bowel concerns producing funding [sic] that were normal. What was not mentioned in his report was that these two complaints had further testing that resulted in a diagnosis of sinusitis in relation to the headaches and considerable food allergies resulting in her abdominal pain.
At the hearing, Ms Roberts explained how she was treating the Applicant (transcript, pages 157-158):
SENIOR MEMBER: Are you able to just tell me a bit about the treatment that you’re giving YNCJ?
MS ROBERTS: So my focus is on pain management and building up her pain management skills. So as part of that, I have done quite a [b]it of psychoeducation about the nature of chronic pain, what can exacerbate it and what can relieve it. I have taught her strategies to reduce - there’s - there’s something called central sensitisation that occurs with chronic pain, where the - the nervous system becomes sensitised in general, which drives pain scores up. And I have taught her strategies to reduce her central sensitisation. Part of that is making sure that she’s not going into flare-ups, so giving her strategies to manage her physical activities. Pacing is one of those, to make sure that she doesn’t push through. Another big aspect to calming down central sensitisation is doing relation strategies regularly to help calm down her central sensitisation. We also use something called graded exposure to her pain using mindfulness strategies. It’s basically using mindfulness to bring her attention to her pain and keeping her attention on it long enough for her brain to learn that this pain is not dangerous and to calm down the body’s threat response or the - the panic that can come with pain, doing some - some retraining of her body’s responses to her pain. In the course of pain management, we also look at improving her sleep, because if you are sleep deprived, it increases your pain sensitivity as well. So putting some good sleep strategies in for her has been part of that. We have also looked at increasing her enjoyable activities, because when you do enjoyable activities your body produces a number of hormones, two of which are something they call neuromodulators, which means they calm down the pain experience. They actually dampen down the - the nervous system activity. So I have been encouraging her to do enjoyable activities on a daily basis. There needs to be variety in the things that she does so that these hormones are produced at high enough levels. There are - there are many other things as well, but they have been the - the core focus.
SENIOR MEMBER: Okay. Thank you. And what about medication?
MS ROBERTS: So I don’t prescribe medication. Psychiatrists prescribe medication, but I don’t in any way disencourage [sic] clients. If they have been recommended and they’re finding it useful, then I encourage that they keep using medication. My understanding from YNCJ is that she is quite sensitive to medications and hasn’t had a good success from the medications that have been prescribed for her.
At the hearing, the Tribunal also asked Ms Roberts to comment on Dr Jansen’s opinion that there were other contributing factors to the Applicant’s psychological conditions including relationship issues, fertility concerns, and previous post-trauma symptomatology. Ms Roberts stated (transcript, day 2, pages 153-154):
…in terms of relationship difficulties and that has been the area where she has sought psychological support in the past, they were for past relationship that were actually abusive. That is not the case in her current relationship at all. And her concerns about the relationship at this point are more about the things that she can’t do as a result of her knee injury, that impact on the relationship. Not so much on her problems of the relationship itself. So, I don’t see her relationship as a contributor to her depression or anxiety. In terms of her past experience of trauma, yes, she was in a situation where she was attacked or the car was attacked by some guys in balaclavas, a number of years ago. I can’t remember the year, but it’s like over 10 years ago. And she did have some psychological support following that and it was for trauma-related psychological support that she received, but she never was given the diagnosis of post-traumatic stress disorder. And I have to say that in my treatment of YNCJ I don’t see any evidence of that at all. She did tell me about that and she also talked to me about a more recent experience of having her house been broken into, but that was right at the very beginning of me going to see her. It was only a brief mention and I haven’t seen an impact on her or in my time of seeing her. In those 53 sessions I have had with her, I don’t see any evidence of trauma-related mental health concerns. She doesn’t have any nightmares or any intrusive thoughts or memories of those situations, they don’t result in any anxiety attached to that in similar situations that she might be in now. In terms of when we talked about the break-in next door, that was the more recent trauma that is mentioned in that report, when we spoke about that, her concern was about being more vulnerable because she couldn’t run away because of her lack of function with her knee. That was what we talked about at that time, but we haven’t really talked about that since. It hasn’t been necessary to.
In her report of 17 May 2019, Ms Roberts stated that: “In my opinion [YNCJ’s] mental health concerns are a direct result of her knee injury on the 6 December 2016”.
Ms Roberts further stated (Exhibit A1, Attachment 3, page 3):[YNCJ’s]
depression and anxiety are secondary to her knee pain and the impact of that pain on her functional abilities. Prior to her injury she was asymptomatic.
As time has progressed and the impact of her loss in function has become more evident to [YNCJ], her mood and anxiety have deteriorated in relation. As such her knee injury has been the significant contributor to the emergence of her Major Depressive Disorder and Generalised Anxiety Disorder and a significant maintaining factor.
The following exchange under cross-examination is also relevant to Ms Robert’s opinion about the causes of the Applicant’s psychological conditions (transcript, page 170-171):
MR TERNES: Now, in terms of the diagnosed - the conditions you have diagnosed, so major depressive disorder, generalised anxiety disorder, is the - how do you describe the - the causation of those conditions? You have described the left knee injury. Are there any other causative factors, in your view?
MS ROBERTS: No.
MR TERNES: So the sole cause of those two conditions are - is the left knee that she - left knee injury that she experienced?
MS ROBERTS: Yes.
MR TERNES: All right. I suggest to you, Ms Roberts, that that would put you at odds with the vast realm of psychologists and psychiatrists the world over in terms of describing aetiology of psychiatric conditions. Do you have any comment on what I have just suggested to you then?
MS ROBERTS: No, I do believe that her depression and anxiety is secondary to her knee pain.
MR TERNES: So you don’t see any role that her past psychological history has played in the development of these two conditions that you have described? No role whatsoever?
MS ROBERTS: There - there may have been, that she is more vulnerable to develop depression because she has had it in the past, but in terms of her current episode of depression, it was triggered by her knee injury, and in terms of the severity of her current condition, it is directly resulted from her knee injury.
MR TERNES: All right. Well, why didn’t you comment on her prior psychological vulnerability when I asked you about causation a moment ago?
MS ROBERTS: Because I don’t believe that is a relevant factor to the pain that - sorry, for the - for her current mental health state.
I believe that the most significant causative factor is her knee injury.
MR TERNES: Well, that’s a very different thing to talking about the sole cause. The evidence you gave a moment ago was that the sole cause was the knee injury. That’s a different question to being a significant contributing factor, isn’t it?
MS ROBERTS: The most significant contributing factor.
In her report of 17 May 2019, Ms Roberts further stated the opinion that, “[a]s [YNCJ’s] mental health concerns are secondary to her pain and loss of function, it is to be expected that her depression and anxiety will persist as long as her pain and loss of function continues” (Exhibit A1, Attachment 3, page 4).
Ms Roberts acknowledged, however, that there were other factors which contributed to the Applicant’s current psychological conditions which were as follows (Exhibit A1, Attachment 3, page 4):
As stated previously it is my opinion that the knee injury and is [sic] associated pain and loss of function, is a significant contributor to the maintenance of her Major Depressive Disorder and Generalised Anxiety Disorder.
In addition it is likely that the way in which her human resources department’s use of her facebook posts to imply that she was not affected by her injury, will have had a detrimental impact on her Generalised Anxiety Disorder. The tardiness in the implementation of a training program as part of her return to work will also of [sic] increased her anxiety.
…
[YNCJ] shows signs of social anxiety due to the weight gain and change in gait following her injury and loss in function. This weight gain and change in self-image has also impacted her mood.
Ms Roberts was also asked about the Applicant’s personality, and whether it contributed to the Applicant’s psychological conditions (transcript, page 171):
MR TERNES: …Ms Roberts, have you assessed YNCJs personality?
MS ROBERTS: I have not performed a personality test on her, but I do observe her.
MR TERNES: And what observations, if any, do you have to make as to the involvement of her personality in the formation of the major depressive disorder and the generalised anxiety disorder?
MS ROBERTS: I - one thing that I see in YNCJ is that she does have perfectionistic traits in her, and it’s one of the reasons why she has been able to be good in her job, and I would imagine that you would have the same traits for you to be able to do your job well, as many people working in a high-functioning level require that trait. In terms of its impact on her current mental health, I don’t believe that it was a driving factor in her pain. I do believe that it can have an impact on her anxiety levels, as can be seen by her fear of not being compliant with requests by her insurer and her workplace.
I do see it has a factor to play there. However, it would not have resulted in depression or anxiety if she was not in a position of a knee injury and struggling with her desire to be compliant.
The Tribunal makes the following findings regarding the evidence of Ms Roberts:
(a)The Respondent has submitted that Ms Roberts is not medically qualified, and is in fact a Psychology Registrar, meaning that she is still under supervision rather than being an unrestricted psychologist (Respondent’s written closing submissions, paragraph [27]). However, the Tribunal notes that Ms Roberts does have a Bachelor of Arts in Psychology and a Masters Degree in Clinical Psychology. She has completed all of her supervised practice hours to be called a Clinical Psychologist, and cannot take up the title until she has completed her PhD which she is currently completing. The Tribunal further notes that Ms Roberts has extensive experience in the management of chronic pain, including working with clients with chronic pain for over 10 years and training other health professionals in treating clients with chronic pain, which the Applicant suffers from. Therefore, the Tribunal finds that Ms Roberts is well qualified to diagnose the Applicant and to give evidence to the Tribunal about how she reached that diagnosis and with respect to the causation of the Applicant’s psychological conditions.
(b)The Tribunal found Ms Roberts to be a reliable witness who was able to clearly explain the basis for her diagnosis of the Applicant. Specifically, in her evidence at the hearing Ms Roberts was able to articulate how she reached her opinion with specific reference to the relevant diagnostic criteria, being the DSM-5. The Respondent submitted (Respondent’s written closing submissions, paragraph [28]) that Ms Roberts “has relied heavily on the use of questionnaires to diagnose the Applicant”. However, with respect, the evidence before the Tribunal does not seem to support this submission. Although the DASS test utilises a questionnaire, Ms Roberts formed her opinion as to the correct diagnoses of the Applicant with reference to each of the relevant diagnostic criteria in DSM-5 and was able to clearly describe how these had been met with reference to the Applicant’s symptoms and presentation from treating and observing the Applicant over a period of time.
(c)
Ms Roberts was of the opinion that the significant cause of the Applicant’s psychological conditions is the pain and loss of function that the Applicant has experienced from her knee injury. She also noted that some weight gain as a result of the Applicant’s knee injury was contributing to the Applicant’s social anxiety.
Ms Roberts also referred to the use of the Applicant’s Facebook posts by her Human Resources department which had implied that she had exaggerated the impact of her knee injury; and difficulties with the Applicant returning to work, as both contributing to her psychological conditions to a minor degree. However, it was clear that Ms Roberts’ opinion was that the pain and loss of function from the Applicant’s knee injury was the significant contributor to the Applicant’s psychological conditions. She acknowledged that the Applicant had “perfectionistic traits” which were not “a driving factor in her pain” but which may have contributed to “her fear of not being compliant with requests by her insurer and her workplace”. Ms Roberts’ comment that “it would not have resulted in depression or anxiety if she was not in a position of a knee injury and struggling with her desire to be compliant” does tend to suggest that the Applicant’s perfectionistic traits had some contribution to her anxiety, albeit to a minimal extent.
(d)The Tribunal also notes that Ms Roberts has a longitudinal perspective because she has been treating the Applicant for approximately 18 months, and at the time of the hearing, had seen the Applicant approximately 53 times. The Tribunal is cognisant of the risk that a treating practitioner may build up a rapport with their patient over time, and that there is sometimes a risk of the treating practitioner advocating for the patient. However, the Tribunal did not form this impression of Ms Roberts who, in the Tribunal’s opinion, was objective in her evidence and understood that it was her role to impartially assist the Tribunal.
Dr Jansen, Consultant Psychiatrist
Dr Jansen has a Bachelor of Medicine/Bachelor of Surgery (MB BS), as well as being a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) since 1999. At the Tribunal hearing he explained his qualifications and experience as follows (transcript, page 178):
MR TERNES: And since 1999 have you carried on a practice as a psychiatrist?
DR JANSEN: I have. I worked for approximately 10 years in private practice, mainly at the Hollywood Hospital where I was a member of the medical advisory committee, director of the civilian posttraumatic stress disorder program, and the ECT service, and during that time I was also a member of the mental health review board, which is now the Mental Health Tribunal. In the last 10 years or so my practice has been more in the public system. I’ve been the head of service of Mirrabooka Community Mental Health for about three years. My current post is as head of department at the Department of Psychological Medicine at King Edward Hospital, mainly dealing with postnatal depression. I’m also a teacher and an examiner for the psychiatric college.
Dr Jansen confirmed in his evidence at the hearing that post-traumatic stress disorder “is a particular area of expertise” for him (transcript, page 181). Dr Jansen further explained his expertise during cross-examination (transcript, page 188):
DR JANSEN: …My major practice recently has been plaintiff work in relation to the Royal Commission into institutional responses to childhood sexual abuse….
…
APPLICANT’S PARTNER: Following on from that, can you state your area of expertise in psychiatry?
DR JANSEN: I have an interest and expertise in perinatal psychiatry. I started the Osborne Park Hospital prenatal psychiatry service in - back in the year 2000, and then that’s the area within which I can’t really work. In my private practice, as I say, because I was located at Hollywood Hospital, more by - by default than by design, I saw a lot of Vietnam Vets and so posttraumatic stress disorder became a - a focus for my - for my work and I became skilled, I guess, in that area. And finally in my private practice I did a lot - about 40 per cent was psychotherapy, psychodynamic, psychotherapy, and again mainly dealing with previous trauma, childhood trauma.
APPLICANT’S PARTNER: Do you regularly see patients suffering from chronic pain, or treat patients for chronic pain?
DR JANSEN: In our work at King Edward Hospital we provide a liaison service to the public pain clinic. It’s a very difficult area, obviously chronic pain, and it’s a - it’s a specialised area, a bit like eating - eating disorders. In my private practice I - I have - I have managed individuals with chronic pain, but it hasn’t been a large area of my practice.
Dr Jansen first examined the Applicant on 20 July 2017 and produced a report dated
28 July 2017 (T19, page 186). The examination was for approximately one and a half hours in duration (transcript, page 187). On 18 January 2019, he produced a supplementary report (Exhibit R8) and a further supplementary report on 11 June 2019 (Exhibit R6).In the “summary and assessment” section of his report dated 28 July 2017, Dr Jansen stated (T19, pages 195-196):
[YNCJ] has sustained an injury to her left knee, specifically medial and lateral meniscus tears, and has undergone surgical repair. Recovery has not been as initially anticipated for such an injury, with several setbacks encountered by [YNCJ] along the way.
[YNCJ] experienced a significant medical event at the age of 10 in which her life was at risk, after a ruptured appendix. This particular incident would conceivably have led to several possible outcomes. The first is of difficulty trusting the medical profession, further reinforced by her “unnecessary” surgery as a teen. The second is the effect that this experience may have had on the association of somatic symptoms and care-elicitation. It was difficult to elucidate the dynamics of [YNCJ’s] childhood; nonetheless, it is possible that her early experience of illness conditioned a somatisation focus. This tendency towards somatisation has been mentioned in the report by Dr Jonathon Spear.
[YNCJ] has also experienced significant trauma in the past. The incident in which she and her partner were held up by six men resulted in significant posttraumatic stress symptoms, sufficient to be diagnosed as posttraumatic stress disorder (PTSD) and treated by a clinical psychologist. The history suggests that the relationship with her then partner ended around the same time. The posttraumatic stress disorder appears to have been adequately treated and [YNCJ] reported that she had no overt residual symptoms of the disorder.
However, the previous trauma could have left subthreshold effects on [YNCJ], without full syndromal PTSD:
·Residual vigilance would result in neutral responses being viewed as perhaps more threatening, with a high need for control and a tendency towards suspicion of others’ motives. The Workers’ Compensation claim and medico-legal arena could be seen as a battleground for this control. This in turn could reignite issues within [YNCJ] of having her concerns validated. Strong symbolic resonance from past trauma can be re-enacted in the medicolegal process through a perceived lack of control over the process.
·An overtly defensive exterior can be projected, and in the context of perceived threat, some patients can disengage from treatment. As a result, such individuals can sometimes invite negative responses from some staff. (Here it is noteworthy that there has been a change of general practitioner, massage therapist and physiotherapist, and there was poor engagement with the psychologist.)
The recent events of the break-in of her neighbour in May 2017 has caused a recrudescence of some symptoms of posttraumatic stress, specifically that of heightened anxiety, avoidance and greater vigilance.
[YNCJ’s] response to her physical injury has included some grief over her loss of function that has been magnified due to pre-morbid obsessional and perfectionistic traits. These personality traits were alluded to by her partner in the interview and are also mentioned in Dr Jonathon Spear’s report of 2012. These personality factors would make pacing extremely difficult, and would lead to [YNCJ] becoming impatient for recovery. Her functional loss may therefore be felt more acutely.
Although her boyfriend has moved in with [YNCJ] in response to the burglary of her neighbour, there was some evidence of other secondary gain from [YNCJ’s] current sick role. Her partner is providing assistance with many activities. She also receives regular help from her family.
Other aspects of [YNCJ’s] presentation are also with [sic] noting. Her descriptions sometimes belie the agency she possesses. She has spent considerable time and effort to catalogue corrections to reports in obsessional detail, constructing herself as a victim of injustice.
[YNCJ’s] adjustment difficulties therefore have multiple contributions. These contributions include the impact of her previous trauma, her personality style and the particular dynamics around her support from her family and her boyfriend. Treatment for her psychological symptoms is therefore difficult. It is likely that any approach that attempts to reframe or challenge [YNCJ’s] cognitive style would be seen as disavowing and invalidating, and is likely that [YNCJ] would terminate such treatment.
Thus, as the Respondent correctly states in its closing submissions at paragraph [112], the practical onus is on the Respondent, who is asserting that the exclusion in s 7(7) of the SRC Act applies, to establish on the balance of probabilities that the elements of
s 7(7) of the SRC Act have been established. Even a single false and wilful misrepresentation could exclude an otherwise valid claim, and given these serious consequences for a claimant, s 7(7) of the SRC Act should not be applied liberally. This means that it should be construed in a manner favourable to a claimant.The Respondent has, however, made submissions that would have the effect of minimising or lessening this practical onus. The Respondent noted the Tribunal’s decision in JXTZ and Comcare [2017] AATA 880 at [28] in which the Tribunal suggested that the standard from Briginshaw v Briginshaw (1938) 60 CLR 336 (the Briginshaw standard) would apply to findings under s 7(7) of the SRC Act. The Briginshaw standard was succinctly summarised by The Hon Justice Duncan Kerr in a paper titled, “Keeping the AAT from Becoming a Court” at pages 8-9:
In Briginshaw v Briginshaw (1938) 60 CLR 336 the High Court of Australia, in a complex and much analysed decision, held that in cases involving the civil standard of proof, where grave and serious allegations have been made, a court cannot come to a “reasonable satisfaction” that the allegation has been established on the balance of probabilities unless the decision-maker “feels an actual persuasion”, feels “comfortably satisfied” and is not “oppressed by reasonable doubt”.
Briginshaw is commonly asserted to require, as a matter of law, that the more serious and grave, involving moral opprobrium, the nature and circumstances of the allegations are, the stronger and more reliable the evidence put forward to prove the facts in issue will need to be.
(Footnotes omitted.)
In support of its submission that the Tribunal need not apply the Briginshaw standard, the Respondent referred to the following passage from paragraphs [119]-[122] of the judgment of Flick and Perry JJ in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, a decision of the Full Court of the Federal Court:
119.Although the Tribunal is not obliged to accept evidence which is not contradicted by means of cross-examination or otherwise, it has long been recognised that the rejection of such evidence may amount to a denial of procedural fairness: cf. Hoskins v Repatriation Commission (1991) 32 FCR 443 per Pincus J. Equally a failure to provide adequate or any reasons for rejecting unchallenged evidence may constitute an error of law: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-588 per Samuels JA. See also: SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243 at [79] per Katzmann J; Ashby v Slipper (2014) 219 FCR 322 at [78] per Mansfield and Gilmour JJ. These are but two of the already accepted means whereby this Court can ensure that the Tribunal is not given an untrammelled power to make findings of fact free of all judicial scrutiny. Without being exhaustive, another constraint is the need for findings to be neither “irrational” nor “illogical”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 649-650 per Crennan and Bell JJ. A “failure rationally to consider probative evidence”, it has been said, “is not the same kind of error as a simple mistake of fact”: Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at [26] per Black CJ, Von Doussa and Carr JJ.
120.Within these already accepted principles, the Tribunal is otherwise free to make findings of fact which cannot be set aside by this Court. When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the Tribunal and thereafter this Court on “appeal”.
121.Cases may be found where the Tribunal has applied the decision in Briginshaw. But these cases are nothing more than the Tribunal proceeding, perhaps, in a manner which applies the common law rules of evidence. The provisions of s 33(1)(c), it will be recalled, simply provided that the Tribunal is not “bound” to apply those rules; it is not a prohibition upon the Tribunal applying those rules if it sees fit.
122.The imposition of the requirement now sought to be imposed by the Appellant’s general “principle of law”, it is concluded, would be an unnecessary constraint upon the freedom of the Tribunal to employ such procedures as it sees fit in undertaking its fact-finding role. It is a “principle of law” unsupported by authority and, indeed, contrary to authority.
However, as can be seen from the above passage, by virtue of s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal is not bound to apply the Briginshaw standard; rather, it is not prevented from doing so if it sees fit. In this application, the Tribunal does see fit to apply this standard, which is consistent with the beneficial nature of the SRC Act, and the court and Tribunal decisions which do not support a liberal construction of s 7(7) of the SRC Act. These decisions were discussed above and include: Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52; Power; and Dalton v Secretary, Department of Social Services [2018] AATA 2923.
Meaning of “wilful and false representation”
With respect to what constitutes a “wilful and false representation”, Jenkinson J in Comcare Australia v Porter (1996) 70 FCR 139 cited Barwick CJ in Iannella v French (1968) 119 CLR 84 as follows (at pages 149-150):
Barwick C.J. observed in Iannella v. French [1968] HCA 14; (1968) 119 C.L.R. 84 at 94-95:
“It is thus appropriate to consider the meaning and application of the word ‘wilful’ in the specification of an offence. The Chief Justice of South Australia, having examined the case law, has repeated the view that the cases show that the word ‘wilful’ is not a word of fixed meaning. But of this I cannot myself feel absolutely certain. I am inclined to think that in the description of a criminal offence its connotation is fairly constant: but that its denotation varies with the verbal context and the subject matter of the statutory provision. In my opinion, ‘wilful’ connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known. The answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence. Further, the word intention itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something. Of course, in some statutory circumstances, the mere doing without consequence or without purpose is forbidden, in which event the conscious doing of the act may suffice to make its performance intentional and in these circumstances wilful.”
That passage, although directed to the interpretation of a criminal statute, is in my opinion apposite in reference to s.7(7). The verbal context supplied by the phrase "false representation" exposes the legislature's attention to the conceptions and language of the common law, which distinguishes clearly between the objective falsity of a representation, signified by the word “false”, and the representor's knowledge of the falsity, commonly signified in civil proceedings by the word “fraudulent” (Halsbury’s Laws of England (4th ed, 1980), Vol 31, pars 1044, 1059, 1063-1065; R v Aspinall (1826) 2 QBD 48 at 56-57.). The clause “if the employee has ...... made a ...... false representation” may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of “wilful” in that verbal context excites the expectation that what the whole clause in the sub- section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s.7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease - a subject notoriously liable to human misapprehension - the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.
(Emphasis added.)
Thus, the Applicant must have made an objectively false representation, and when making the representation she must have had no belief that the representation was true. There must have been a deliberate falsity on the part of the Applicant, rather than carelessness or mistake (see Re Wilson and Comcare [1996] AATA 862 at [101]-[106]).
The following passage from the Tribunal’s decision in Iliadis and Comcare [1996] AATA 602 at [33] is relevant because there are similarities to the Applicant’s situation:
33. In relation to the medical form (Exhibit 3), the applicant’s answer “No” to several of the questions was shown to be incorrect. The form was completed by her prior to her attendance upon Dr McCarthy. Dr Griffith, in his evidence described the applicant’s previous back complaints as minor, and had the applicant disclosed her past back problems on the medical form, Dr McCarthy may well have come to the same view. Although the applicant had an x-ray of her lumbosacral spine (Exhibit 9) a month or so before completing the form, I am not satisfied that she was told or that she had an appreciation that it may be suggestive of a degenerative spinal condition. Taking into account the minor nature of her previous back complaints I am satisfied that she did not knowingly or intentionally misrepresent her medical condition. The applicant may have been motivated to omit details of her past symptoms and conditions by her desire to work, but I cannot accept that she deliberately misrepresented her back condition, or that she had any reason to believe that she had ever suffered any back disability in the past which ought to have been disclosed, or that she had any reason to believe that she had any illness which would interfere with her work.
(Emphasis added.)
Duffy and Comcare [1996] AATA 676 at [33] also contains some similarities to the Applicant’s situation:
…In the present case the applicant had no reason to believe that she had any ongoing back condition, or suffered from any back ailment or disease prior to making the statements that she made. The applicant was cross-examined at length about her failure to disclose her previous back history. She was vague as to dates and some events, but I accept that she did not recall those incidents. Prior to commencing her employment with the Department, the applicant had not previously suffered sciatica. She was able to complete her duties satisfactorily a year before the incident. To have deliberately attempted to mislead her employer the applicant would have had to have some appreciation of the significance of her problems. In fact she had no significant back problems prior to the February 1995 incident. In my opinion the applicant’s representations can not be described as “false and wilful”. I find the applicant was a witness of truth. [sic] and that she made no false representation intentionally, and certainly not wilfully.
(Emphasis added.)
Meaning of “that disease”
In Fiddian, Senior Member Kirk also noted, with respect to the phrase, “that disease” in
s 7(7) of the SRC Act, at [94]-[96]:94. In National Australia Bank Ltd v Georgoulas [2013] FCA 1412 (‘Georgoulas’) Perry J made the following observations concerning the interpretation of s 7(7) of the SRC Act:
[73] In my view, on a plain reading of the provision, the use of the phrase “that disease” in s 7(7) of the Act refers back to the disease, or to the aggravation of the disease, mentioned at the start of the provision, being the disease or aggravation of the disease which is the subject of the claim for compensation and complies with the test in [Comcare v Mooi (1996) 69 FCR 439]. As Hayne, Heydon, Crennan and Kiefel JJ held in Alcan (NT) Alumina Ply Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at 47 [47]:
“The language which has actually been employed in the text of legislation is the surest guide to legislative intention.”
[74] The suggestion that the question is whether a previous condition could properly be described as “a disease”, as the NAB submits, is contradicted by the plain words of the provision. The text of the section lends no support, in my view, to the proposition that it is sufficient to establish that the representation was false because the employee had suffered from similar symptoms in the context of a different disease...
…
[77] Section 7(7) deals with circumstances where the employee has made a wilful and false representation that he or she did not suffer, or had not previously suffered, from the “disease” which is the subject of the claim. That is a question of fact beyond the power of the Court to review. The provision does not ask whether the employee has failed to disclose that he or she had previously suffered from a “symptom”...
95. Senior Member Cotter in FWZW and Comcare 2016/4826 (unreported) summarised Perry J’s direction in relation to the interpretation of s 7(7) as follows:
As Perry J held in Georgoulas, s 7(7) of the SRC Act does not ask whether the employee has failed to disclose that he or she had previously suffered from a "symptom"; rather, the provision focuses on the disease which is the subject of the claim. As the provision is exclusionary in an otherwise beneficial statutory scheme, it is appropriate and consistent with the approach adopted by Madgwick J in Department of Employment and Workplace Relations v Comcare, to construe it strictly or narrowly, and not liberally. That is particularly so when it is remembered that the existence of disease is a subject ‘notoriously liable to human misapprehension’.
96. The Federal Court recently endorsed this interpretation of s7(7) of the SRC Act in Griffiths v Australian Postal Corporation [2018] FCA 520 at [19]- [20].
(Emphasis and footnotes omitted.)
In summary, the representation must have been that the Applicant did not suffer, or had not previously suffered from the same disease, or a substantially similar disease to the disease for which she is claiming compensation. More specifically, the question is not whether the Applicant failed to disclose that she had previously suffered from a symptom, but rather whether she failed to disclose that she had suffered from the same disease, or a substantially similar disease.
Connected with employment
With respect to whether the representations were connected with employment, the completion of a Workers’ Compensation claim has been found to be made for purposes connected with employment. In Fiddian, Senior Member Kirk explained at [92]-[93]:
92. The compensation claim form completed by the Applicant contained representations by her that were made for purposes connected with her employment by the ACT Government. In Kennedy and Comcare [2015] AATA 334 the Tribunal had no doubt that workers’ compensation claims are made for purposes connected with employment. This was recently confirmed by the Federal Court in K & S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518 at [61]. Collier J observed:
[I]t is difficult to see how the completion of the relevant form by the employee would not be for purposed connected with his employment ... given that the relevant form concerned an application by the employee for compensation from the employer for an incapacity resulting from aggravation of an ailment in the workplace.
93. The Tribunal is further satisfied that the email from the Applicant to Comcare dated 1 July 2014 and her consultations with the medical specialists were related to her compensation claim, and therefore any representations made by the Applicant in her correspondence with Comcare, and any relevant medical history withheld by the Applicant during her consultations with the medical specialists, were for purposes connected with her employment.
In Makin and Comcare [2010] AATA 432, the Tribunal found that some representations made by an applicant in a Health Status Assessment questionnaire and a superannuation form for the Public Sector Superannuation Scheme completed shortly after the commencement of her employment could be connected with employment for the purposes of s 7(7) of the SRC Act. With respect to the superannuation form, the Tribunal stated, at [28]:
28. There can be no doubt that the superannuation form related to and was connected with Mrs Makin’s employment. Superannuation contributions are, by definition, savings made by persons in employment. By the operation of the Superannuation Act 1994 (Cth), as an officer of the public service,
Mrs Makin became a member of the Public Sector Superannuation Scheme. That Mrs Makin was requested to complete the statement by a body that was not her employer does not in our view bring it outside the scope of s 7(7). Nor is it relevant in our view that there is no evidence that the OEA had knowledge of, or acted on, the representations made in the statement. The representation was made “for purposes connected with her employment” and that connection in our view is neither remote nor tenuous.Evidence regarding wilful and false representations
The Applicant’s partner asked her about whether she had made false representations when completing her Health Status Assessment Form during the evidence in chief of the Applicant (transcript, pages 32-33):
APPLICANT’S PARTNER: I just wanted to give you an opportunity to explain yourself and in your own words? …About, you know, whether you had made false representations on the questionnaire about whether you had had past psychological illnesses. Like can you tell me about that, or can you comment on that?
APPLICANT: Yes, sure. So I did not make any wilful and false statements. So in August of 2007, at that time I was experiencing a lot of work stress. I was a team leader. We were understaffed. There was a new manager over east who relied on me for a lot of assistance, and her staff were also calling me, plus I was in charge of my staff and we were understaffed so it was just like, too much. I was working very long hours and just under a heavy workload. And I went to the GP advising that I’m just feeling low mood, and I was prescribed some antidepressants. I was not advised that I have a disorder as such, and I was not referred to a psychiatrist or a psychologist. In fact, it was almost two years later when I was first referred to a psychiatrist. And the clinical notes, I wasn’t privy to that so it was actually a surprise to me as well when I went through the clinical notes to see that he had written “major depressive disorder”, but I was not advised at the time that I had a disorder. And the medication, I was not taking consistently and there is a letter from the GP, Dr Monica Lacey, who reviewed all my clinical notes, and she did state that I was taking the medication intermittently during that period, so there was definitely no wilful false statement on my behalf. In regards to the secondary claim form, when I submitted that it was for an adjustment disorder. And question 2, “Have you previously had any claims or symptoms of a similar nature?” And I responded with, “No prior cases of this nature”, and for me this is unlike anything I’ve ever experienced before, and I was claiming for an adjustment disorder. So there was no wilful and false statement in saying that I have no similar - no prior cases of this nature, of an adjustment disorder.
During cross-examination, the Applicant stated that she did not recall completing the form. She acknowledged that her handwriting was on the form, but could not recall if she ticked the boxes or if the doctor who undertook the pre-employment medical examination asked her the questions and ticked the boxes (transcript, page 91).
Under cross-examination, the Applicant stated that she had taken anti-depressants in the past for “low mood” because she was unhappy at work (for a previous employer) due to a high workload and long working hours (transcript, pages 33 and 77). She did not believe that she was suffering from any diagnosed psychological condition at that time. The following exchange during cross-examination is relevant (transcript, page 77-78):
MR TERNES: YNCJ, you gave some evidence to the tribunal earlier today about your work in 2007 and you were under a good deal of pressure at work as you saw it?---
APPLICANT: Yes.
MR TERNES: You worked for a travel agency at the time, is that right?---
APPLICANT: I was at a travel agency, yes.
MR TERNES: And you had some conflict at work with the manager, is that right?---
APPLICANT: I don’t recall conflict. I do recall working long hours and being understaffed and the manager over east left, who had been there as long as I had. I was there eight years and I had the new manager plus her staff calling me, “How do I do this?”, “How do I do that?”. Also, had the Sydney phone lines diverted directly to me, as well as being understaffed in Perth. I was just - just too much of a workload that I wasn’t coping, I felt low mood and I went and saw the doctor and he prescribed me some medication to assist with my mood. But I didn’t see any psychologists or psychiatrists until May 2009, which was also two years later.
MR TERNES: I will just start with 2007 for the moment. Low mood wasn’t the only difficulty you had at the time, in terms of psychological symptoms, was it? You were also losing sleep, does that sound right?---
APPLICANT: I was working long hours, I can’t recall. I do recall that I had low mood.
MR TERNES: It’s 12 years ago, I appreciate you may not remember specific symptoms?---
APPLICANT: Yes.
MR TERNES: Suggests you were socially withdrawing at the time?---
APPLICANT: I did read the clinical notes and I would have to disagree with that. If you read the clinical note above - are you reading off the clinical notes at the moment or - - -
MR TERNES: I’m actually just asking you about what you remember at this stage?---
APPLICANT: Yes. I would disagree about the social withdraw.
MR TERNES: You were losing your enjoyment of life in 2007. Does that accord with your memory?---
APPLICANT: Not the loss of enjoyment of life, I was just unhappy in the workplace because of the workload.
MR TERNES: You had thoughts of self-harm?---
APPLICANT: No.
MR TERNES: You felt anxious. Is that right, in 2007?---
APPLICANT: No. I would associate that period with low mood.
Under cross-examination the Applicant denied being dishonest when answering these questions on the form, as indicated by the exchanges below (transcript, day 1, pages 93-95). In summary the Applicant’s evidence was that she was not aware that she had been diagnosed with any psychological condition in the past. The Applicant stated (transcript, page 93):
There was no wilful or false statement there. As I explained to you, I did not consider low mood a disorder or a mental condition. I was unhappy in the workplace due to the workload. I wouldn’t associate that with a disorder. There was no referral to a psychiatrist or psychologist for almost two years after that.
The Applicant was also asked about when she first saw a counsellor. In the following exchange the incident on Christmas Day in 2002 was referred to (transcript, page 70):
MR TERNES: YNCJ, do you remember when it was that you first saw a counsellor, so whether a psychologist or not, when you first saw a counsellor for emotional or psychological type symptoms?
APPLICANT: The first counsellor was my understanding of psychological terms has increased over the last year, but the victims of crime support in January of 2003 until April 2003, so as a result of being attacked by six men with balaclavas Christmas morning, December - Christmas morning 2002, the police gave me the contact for victims of crime support so I didn’t view that as - as counselling for the definition that I know counselling to be today. But under the victims of crime support the counsellors assist you with preparing your statement for - as a witness for the police for the incident, as well as support you through being a victim of crime.
MR TERNES: Right. The question was just about when. So the answer to that question is 2003, is that correct?
APPLICANT: Yes.
With regard to the counselling the Applicant received following the incident on Christmas Day in 2002, the following exchange is relevant (transcript, page 72-73):
MR TERNES: Let’s go back to 2003. You had eight sessions of counselling, is that correct?
APPLICANT: Yes.
MR TERNES: And what did you believe that the counselling - I’m asking you about what you believed at the time. So it may be a difficult question to answer, but indicate if you can’t answer it. But what did you think you were getting treatment for at the time?
APPLICANT: To talk about what happened and to help me to - well, basically, you know, being attacked by six men in balaclavas was pretty traumatic, and they also stole my wallet which had my house keys, my driver’s licence, and not knowing who they are as well, so clearly it’s a scary thing to go through. But I continued to still feel nervous but still go out and initially I did feel scared driving alone or going out alone, so initially I was accompanied driving, but then what victims of crime - I guess they just ensure that you continue, as much as possible, to go about your life after that and my case was closed within three months. When I discussed the matter with Mary Roberts she confirmed that that if I had PTSD I would not even have been able to go anywhere from such an event, and the fact that I was still going out with my friends, I was still going out nightclubbing at the time - this is 2002, it’s a long time ago, but I was still going out with my friends, I was still, you know, driving, so I wasn’t - I didn’t have PTSD. Yes.
MR TERNES: So you understood at the time that you were having counselling to help you deal with nervous symptoms, you understood that at the time, didn’t you?
APPLICANT: Yes.
MR TERNES: And to deal with feelings of anxiety, you understood that you were having some assistance to deal with those feelings, you understood that, didn’t you?
APPLICANT: I didn’t even know those terms before, but yes, I was scared of who was it, will it - it ended up being a random attack on Christmas Day but yes.
And further (transcript, pages 93-94):
MR TERNES: Let’s go back a step. You can’t remember filling this out, can you?
APPLICANT: No, I can’t remember filling out the form, but I do remember clearly that I was unhappy at the workplace and that I needed assistance with my mood.
MR TERNES: So you’re actually not in a position to tell the tribunal that when I filled this out, I didn’t think the counsellors were counsellors?
APPLICANT: I am in the position to say that because the terminology in terms of the psychological field, I have just become aware of these things over the last couple of years. I didn’t know what adjustment disorder is, I had to search that up when I was diagnosed. I didn’t know what major depressive disorder is, I had never even heard of that term until I saw it written on Dr Mondello’s report that his concern that it’s likely developing into a major depressive disorder. That was the first time I heard of major depressive disorder, first time I heard of adjustment disorder, PTSD. Like I mean that should show that I’m honest when Jacintha Bell, the occupational therapist came into my home, she did the initial assessment inside my home, and when she went through my past history and asked me about traumas, I did bring up that incident in 2002 and she asked me if I had PTSD and I recall having to ask her what does that mean. And when she described it, I said, well, I think that’s what I may have had. But back then my knowledge of all these things is not as it is today. So no, I do not recall filling in the form, but I do know that my knowledge about psychology and psychological terms has only increased in the last couple of years. So I can say safely that I wouldn’t have known counselling to be what I know it to be today, because I’ve only learnt about these things in the last couple of years. And there would be no wilful mess on my part there.
MR TERNES: So the difficulty with that answer is that you’re telling the tribunal that you saw a counsellor eight times in 2003, that you didn’t you regard it as counselling?
APPLICANT: Because I wasn’t referred by a medical practitioner. It was the police officer that gave me the phone number to contact victims of crimes support. So I didn’t view it as counselling back then, no.
…
APPLICANT: There wouldn’t be one person in the world that hasn’t experienced anxiety symptoms at some point in their life. I don’t view these questions as - I view these questions as disorders.
The Applicant also saw a psychologist, Mr Paul Ryan (Mr Ryan), from approximately 2010 to 2014. She was first referred to him following the breakup of her engagement (transcript, page 97). The Applicant stated (transcript, page 102):
The difficulty I was having back then is that I was staying in relationships that were not serving me - in unhealthy relationships where I was being mistreated and even Paul Ryan does state that I had a tendency to apologise and not stand up for myself in relationships and that that was the dysfunctional behaviour that I had. So it was more about relationship skills, communication skills…
The Applicant also saw a psychiatrist, Dr Dennis Tannenbaum (Dr Tannenbaum), from
May 2009 “off and on” until October 2010 “for the same reason that I saw Paul Ryan” (transcript, page 126). The following exchange is relevant:
MR TERNES: All right. So you accept that this was your first referral to
Dr Tannenbaum in the middle of - - …Or in May 2009. And you then saw him on and off for about a year and a half, didn’t you, so through till October 2010, is that correct?
APPLICANT: Yes.
MR TERNES: And he diagnosed you with depression, is that correct?
APPLICANT: Yes.
MR TERNES: So he told you, you had depression?
APPLICANT: In - in the context of relationships is why I was seeing him.
MR TERNES: And you were very keen to keep it private that you were seeing a psychiatrist, is that correct?
APPLICANT: Well, yes.
MR TERNES: And specifically you didn’t want your employer to know that you were seeing a psychiatrist?
APPLICANT: No, I wouldn’t have wanted my employer to know that I’m seeing a psychiatrist.
MR TERNES: And in fact on one occasion Dr Tannenbaum wrote you a medical certificate, and after he - that was so that you could present that to work, and you emailed him and specifically said that you didn’t want your work to know about your depression. Do you remember doing that and do you agree with that?
APPLICANT: I do know that I’m a very private person and that we have a legal right to not disclose - CPSU, who is the union representative for Medicare, they come to our workplace and we receive emails from them, and they have advised us that when you call in sick, for example, as long as you’ve got a medical certificate there is no legal obligation to disclose what the reason is. However, I prefer to have a close relationship with my team leader if I can, and as all the - I think it’s in the T documents where you have my - the leave records.
SENIOR MEMBER: Leave records, yes?
APPLICANT: And if you have a look in the leave records I’m very honest in saying when it comes to like physical things. But I was struggling with relationships and I don’t believe that my workplace need to know about my personal relationships.
Consideration regarding s 7(7) of the SRC Act
The Tribunal finds that the Health Status Assessment Form completed by the Applicant during her pre-employment medical examination contained representations that were connected with her proposed employment by the Commonwealth.
The Tribunal accepts that the Applicant did not recall completing the form approximately eleven years ago, although that is somewhat immaterial because the question is, objectively and based on the evidence before the Tribunal, whether the representation was wilfully false at the time the Applicant completed the questionnaire (see generally the Respondent’s Closing Submissions in Reply, paragraph [49]).
The Tribunal accepts the Applicant’s evidence that:
(a)she did not believe, when completing her pre-employment questionnaire and when making her claim for a secondary psychological injury, that she had previously been diagnosed with a psychological condition, or that she had received counselling for such a condition in the past;
(b)she understood that that she had taken antidepressants due to a period of “low mood” due to being under pressure at work which she did not regard as a having a psychological condition;
(c)In closing submissions, (paragraph [47]), the Respondent referred to previous medical records which suggested that the Applicant may previously have been diagnosed with similar psychological conditions. These included a note made by a General Practitioner dated 27 July 2007 which refers to “major depressive disorder”; Dr Tannenbaum’s previous diagnosis of depression in May 2009; and a note by Mr Ryan referring to a diagnosis of adjustment disorder following a relationship breakup and further, a “past history of depression”. The Tribunal accepts the Applicant’s evidence that she was not aware of these diagnoses. The Tribunal further accepts the Applicant’s evidence that she understood the reason she was seeing Mr Ryan and Dr Tannenbaum was for help with relationship issues, not for treatment for any diagnosed mental health issues; and
(d)she was never told of the diagnosis of PTSD subsequent to the Christmas day incident in 2002, and in any event, she appeared to recover from this incident within a three month period.
In summary, the Tribunal finds that, on the balance of probabilities, the Applicant was not dishonest and did not deliberately make any misrepresentations when completing the Health Status Assessment Form. Consequently, whilst some of the Applicant’s answers were factually inaccurate, when viewed against the evidence before the Tribunal, they were not wilful because they were made under an honest but mistaken belief that they were true.
Accordingly, the Tribunal finds that the Applicant did not make a wilful and false representation in her Health Status Assessment Form. Therefore the Tribunal finds that s 7(7) of the SRC Act does not apply to exclude the Applicant’s Psychological Conditions from being a compensable injury (in the form of a disease) under the SRC Act.
CONCLUSION
In summary, for the reasons set out above, the Tribunal finds that:
(a)the appropriate diagnoses for the Applicant’s Psychological Conditions are Major Depressive Disorder Recurrent (moderate) and Generalised Anxiety Disorder, as diagnosed by Ms Roberts;
(b)the Applicant’s Psychological Conditions constitute a disease which was contributed to, to a significant degree, by her knee injury and therefore the Applicant’s employment; and
(c)s 7(7) of the SRC Act does not apply because the Applicant did not make a wilful and false representation (or representations) in her Health Status Assessment Form.
DECISION
The Reviewable Decision is set aside.
In substitution, the Tribunal finds that the Respondent is liable to pay compensation to the Applicant pursuant to s 14 of the SRC Act for the Psychological Conditions of Major Depressive Disorder Recurrent (moderate) and Generalised Anxiety Disorder, as diagnosed by Clinical Psychology Registrar Mary Roberts, which are secondary to the Applicant’s left knee injury.
I certify that the preceding 159 (one hundred and fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans
....................................[sgd]....................................
Associate
Dated: 1 November 2019
Date(s) of hearing: 19 and 20 June 2019 Applicant: In person Advocate for the Applicant: Assisted by her partner Respondent: In person Counsel for the Respondent: Mr R Ternes
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