Canning v Workers' Compensation Regulator [2026] QIRC 51

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

CS Energy Limited v Q-Comp [2008] QIC 57

Fox v Percy [2003] HCA 22; [2003] 214 CLR 118

Nuske v Workers' Compensation Regulator [2019] QIRC 023

R v Butler [2009] QCA 111

Shaw v Workers' Compensation Regulator (No. 3) [2022] QIRC 33

Smith v Workers' Compensation Regulator [2024] QIRC 223

Turay v Workers' Compensation Regulator [2023] QIRC 001

Ms L. Willson of Counsel directly instructed by the Workers' Compensation Regulator

[1] Mr Shannon Canning ('the Appellant') worked as an internal auditor for Cover-More Insurance Services Pty Ltd ('Cover-More'). Mr Canning says that between 3 and 6 November 2023, a number of work-related stressors caused him to suffer an injury.

[2] WorkCover Queensland ('WorkCover') rejected Mr Canning's application for compensation and upon review, the Workers' Compensation Regulator ('the Regulator' or 'the Respondent') upheld that decision. In this appeal, Mr Canning requests that I set aside the Regulator's decision and substitute it with a decision that his claim is one for acceptance.

[3] This appeal is by way of a hearing de novo. This means that I will hear the matter afresh and decide it on the basis of the evidence which was brought before the Commission at the hearing. The onus of proof rests with Mr Canning, who must demonstrate, on the balance of probabilities, each element of his claim if he is to be successful.

[4] There are two issues for my consideration in this appeal:

(b) that 'arose out of or in the course of employment';

(c) in circumstances where 'employment was a significant contributing factor to the injury';

1. If those matters are established, did Mr Canning's injury:

(i) Reasonable management action taken in a reasonable way by the employer in connection with Mr Canning's employment;[2] or

(ii) Mr Canning's expectations or perceptions of reasonable management being taken against him.[3]

[5] The Respondent's case is that Mr Canning has not proved either of those two matters. As the Respondent submits in its written closing submissions:[4]

(a) the Appellant did not suffer a new injury pursuant to s 32(1) and s 32(3) of the WCR Act because the Appellant had been suffering a symptomatic anxiety disorder for many years before the alleged stressors; and

(b) if the Appellant did suffer an injury, then the Appellant's injury arose out of reasonable management action taken in a reasonable way and the appeal must be dismissed because s 32(5)(a) and/or s 32(5)(b) of the WCR Act operates to exclude the Appellant's injury from the definition of 'injury' within s 32(1) of the WCR Act.

[6] At hearing, Mr Canning gave evidence, as well as calling upon the evidence of three medical witnesses: his general practitioner, psychiatrist and psychologist. The Respondent called three witnesses who worked at Cover-More.

[7] The stressors nominated by Mr Canning relate to a particular Cover-More Insurance claim he had been working on. In his closing written submissions, Mr Canning sets out what he refers to as 'relevant issues and allegations':

1. Repeated attempts by Mr Dallas to force the appellant to disregard Cover-More's internal Audit Charter Process, the General Insurance Code of Practice, Insurance Contracts Act of 1984, and Cover-More's complaints handling obligations to ASIC.

1. 1st failed discussion attempt/the reprimand of 2/11/2023

1. 2nd failed discussion attempt/the train incident on 3/11/2023

1. 3rd failed discussion attempt with Mr Dallas on 6 November 2023

1. Mr Dallas's failure to take reasonable action to prevent the injury from occurring

[8] As an initial issue, I will note that the Respondent filed an amended Statement of Facts and Contentions in this matter. This is a routine procedural step undertaken with leave of the Commission and the Respondent properly underlined additions and struck out deletions in that amended document. It is that document which forms the Respondent's position in this matter. Mr Canning filed an amended Statement of Facts and Contentions which contained additional material. There was no objection to this document being filed. I am of the view that the proper approach in that scenario is that the document is read alongside the previous filed Appellant's Statement of Facts and Contentions. In my view, in not objecting to Mr Canning's amended Statement of Facts and Contentions, the Respondent saved the Commission from expending resources to deal with the matter.

[9] I understand that Mr Canning believes the Respondent should be held to the content of its unamended Statement of Facts and Contentions. Mr Canning believes that the Respondent cannot 'selectively disregard one document to suit its position' and that the Respondent is dishonest. Mr Canning is wrong on this point. I will not have regard to the initial unamended Statement of Facts and Contentions. If Mr Canning sought to object to the Respondent's amended Statement, it was open to him to do so at the time it was filed on 20 February 2025. Instead, Mr Canning filed his own amended Statement four-days later.

[10] Before turning to the issue of whether the injury arose out of, or in the course of, employment and if employment was a significant contributing factor to any injury, I must first be satisfied on the balance of probabilities that Mr Canning suffered a personal injury as a result of the events of 3-6 November 2023.

[11] If I am not satisfied on the balance of probabilities that the evidence before the Commission demonstrates that Mr Canning suffered a personal injury, it is needless to consider the other elements of s 32(1) of the WCRA.

[12] The Respondent does not admit that Mr Canning suffered a personal injury. As stated in its amended Statement of Facts and Contentions the Respondent contends that:[5]

(a) in the period of 1 November 2023 to 6 November 2023, the appellant was suffering an anxiety disorder with anxiety, not related to this claim;

(b) the events of 1 November 2023 to 6 November 2023 did not cause a new injury;

(c) the work capacity certificate in relation to this claim is dated 24 May 2024;

(d) there is a general medical certificate in relation to this claim dated 24 May 2024.

[13] In his amended Statement of Facts and Contentions, Mr Canning says that the injury sustained between 3 and 6 November 2023 the subject of the Appeal before me is an Adjustment Disorder Injury (with anxiety). Mr Canning says that he has a separate approved claim relating to a reaggravation of the injury sustained in this claim. To be clear, any later approved claim is not a matter I am considering in this appeal.

[14] Mr Canning says that the Respondent already has significant evidence on file that confirms the injury sustained is separate to previous diagnoses. Mr Canning also relies upon previous decisions of WorkCover and the Regulator in which he says it was accepted that he suffered an injury arising from the events of 3-6 November 2023. On that point, I note that this is a hearing de novo and the onus to demonstrate, on the balance of probabilities, that he suffered a personal injury as a result of the events from 3-6 November rests with Mr Canning. The only evidence I will be considering is evidence led at hearing.

[15] Mr Canning's Statement of Facts and Contentions also notes that he 'has been fully upfront and honest regarding his mental health disorder prior to this injury'.[6] Mr Canning states that there is no evidence that confirms the injury sustained in early November 2023 was related to his father committing suicide in 2022, or his Generalised Anxiety Disorder due to a severe family breakdown in 2017.

[16] In determining whether Mr Canning suffered a personal injury for the purposes of s 32(1) of the WCRA, I will first consider the medical evidence before the Commission.

[17] On 24 May 2024, Dr Hegtur wrote a medical certificate which stated the following:[7]

Mr Shannon Canning was seen in surgery with an episode of panic attack, chest pain, high blood pressure on 06/11/2023 and followed up again on 07/11/2023 following an work-related incident (sic) and was offered a workcover claim at that time.

[18] On 24 May 2024, Dr Hegtur also provided a workers' compensation 'work capacity certificate'. That certificate listed the mechanism of injury as 'Workplace conflict' and described that Mr Canning 'presented with chest pain and had high blood pressure and panic attack; evaluated/reassured'. The certificate noted that Mr Canning had a pre-existing anxiety disorder.[8]

[19] On 13 January 2025, Dr Hegtur wrote the following letter:[9]

I had a consultation with Mr Canning on 06/11/2023 at about 10.30am for his episode of panic attack on the morning.

known general anxiety on medication and the situation was under control before this episode.

His boss wanted him to do something he felt ethically not right

and situation lead to panic attack before going to work on Friday and had it again on Saturday

his blood pressure was very high but settled after deep breathing exercise.

He advised he is going back to work next day; talk to them and give an opportunity to do the right thing

conservative management, left the surgery in stable condition.

This was the report for the consultation on that day, given to him at his request.

[20] At the hearing, Mr Canning asked Dr Hegtur for a brief summary of his recollection of the date Mr Canning attended upon him. Dr Hegtur's evidence was to the effect that he sees many patients and the visit was 'quite a long time ago'.

Dr Hegtur confirmed that he had seen Mr Canning 'with regard to the panic episode and the chest pain that [he] had, and I think we went on to do the history and examination and background'.

[21] Dr Hegtur said that on the basis that Mr Canning's blood pressure came down to normal after a breathing exercise and the ECG did not show any acute coronary symptoms, 'we assumed that this probably is...lead by the anxiety...causing a panic episode then...and probably the chest pain'.[10]

[22] Dr Hegtur said that he offered Mr Canning a workers' compensation medical certificate because it was common practice where 'any health problems' are 'brought on by...work-related issues'. Dr Hegtur said he has no firsthand knowledge of what happened in the workplace and that is why the report does not elaborate on those matters. Dr Hegtur said his role was to assess the panic attack and chest pain and make sure that Mr Canning didn't have any 'other serious...underlying cause'.

Basically, I went on to...ask about his panic attacks, chest pain, blood pressure, ECG, and then, assuming that all these...are clear and then...the...underlying cause for his symptoms is basically the...anxiety or adjustment disorder or the conflict between...him and his boss, whatever was happening...I then offered him the WorkCover claim...he...was not keen on, so I gave him a sick certificate...and I sent him off.

[24] Dr Hegtur confirmed that Mr Canning did not raise with him that an incident report regarding the panic episode was not completed.

[25] In cross-examination, Dr Hegtur said that in the consultation, he 'didn't really touch upon' Mr Canning's previous anxiety. However, Dr Hegtur agreed that he looked at Mr Canning's records as he recorded that Mr Canning had known general anxiety and was on medication for that.

[26] Dr Hegtur agreed that it is possible that part of the symptoms of Mr Canning's anxiety disorder included getting easily angered and frustrated. Dr Hegtur said he was unable to comment on whether the symptoms Mr Canning experienced on the day of the visit were the same as those he had previously experienced as a part of his anxiety disorder as he did not recall going through all of those issues on that day.

[27] Dr Hegtur was taken to the records of Mr Canning's previous attendances upon Dr Chen at the medical practice. Dr Hegtur agreed that those records stated that Mr Canning had been diagnosed with anxiety many years ago, was on Effexor 150 milligrams and occasional Valium in the past. Dr Hegtur said:[12]

Yes... I know that he has... had anxiety in the past. ... that was probably one of the reasons that I - you know, after making sure his chest pain...wasn't related to any acute symptoms, and then that is how we concluded that it ... was a panic attack and chest pain.

[28] Dr Hegtur agreed that panic attack and chest pains are symptoms of an anxiety disorder. Dr Hegtur said that 'going by his symptoms, he 'did have an episode'. Dr Hegtur agreed that what he observed when he assessed Mr Canning is that he was having some symptoms of an anxiety disorder that settled. Dr Hegtur said he offered Mr Canning a WorkCover certificate because the work event may have triggered an episode and that it was difficult to say if it was 'part of the same thing or an independent thing'.[13]

[29] Dr Hegtur agreed that on that day, he did not change Mr Canning's medications and did not decide anything about his anxiety management.

[30] Dr Hegtur agreed that he had written in his notes, 'had a panic attack before going to work on Friday and had it again today' and that Dr Hegtur interpreted this as also having an episode of anxiety symptoms on the Friday as well as the day he presented to Dr Hegtur.

[31] Dr Hegtur said it was possible that a person who did not have a general anxiety disorder may suffer an episode of panic but that this was hypothetical because on the day in question, Mr Canning reported he had suffered symptoms and that they arose from a work conflict.

[32] Dr Khunteta provided a report to WorkCover dated 1 July 2024 which stated:[14]

Mr Shannon Canning sustained a separate and distinct injury due to work related stressors and events in November 2023.

He suffered from anxiety symptoms due to stressful events at work and had to take some days leave from work due to his symptoms.

Mr Canning informed that in November 2023 he picked up a mistake made by a claims officer which was going to affect a client. He also informed the Team Leader as felt that he was not heard. The client was underpaid. Mr Canning was upset as it was against the process and was unethical. He had two days leave from work due to significant anxiety symptoms. He had seen his General Practitioner to obtain a certificate for leave during that period.

Later on he was able to speak to the Head of Department who admitted that this should not have occurred. He was also then paid by work for these days off work.

I have also spoken to the psychologist and obtained collateral information.

He suffered from an Adjustment Disorder with Anxiety.

Although there is a past history of psychological problems he had been functioning reasonably until the stressful events at work in November 2023.

[33] Dr Khunteta's evidence was that the first time she saw Mr Canning was on 10 June 2024. Dr Khunteta said that she formed her opinion based on information given to her by Mr Canning and a phone call to Mr Canning's psychologist.

[34] Dr Khunteta said that Mr Canning had told her that he had never had to take time off work for psychological issues in the past and that this event was a major event for him. Dr Khunteta recalled what Mr Canning had told her about what had happened at work and that he had needed to take three-days off.

[35] Dr Khunteta said she had been aware that Mr Canning had been suffering an anxiety disorder since 2017. Dr Khunteta was aware that Mr Canning had been taking medication for his anxiety disorder and that at the start of 2023, his general practitioner referred him to a psychologist.

[36] Dr Khunteta understood that Mr Canning had been taking 150 milligrams of Effexor to treat his anxiety disorder and that at no point from December 2022 until November 2023 was the medication reduced or removed. Dr Khunteta said it was her understanding that the medication was required to keep the anxiety disorder under control.

[37] Dr Khunteta agreed that a panic attack is a symptom of an anxiety disorder. Dr Khunteta was asked if she was aware that Mr Canning had previously had a panic attack in May 2023. Dr Khunteta said that she was not aware of that.

[38] Dr Khunteta was asked if she would agree that a panic attack in May 2023 would be another symptom of Mr Canning's pre-existing anxiety disorder. Dr Khunteta said, 'It's [a] panic attack, yes, it's a symptom of an anxiety disorder'.[15]

[39] Dr Khunteta was asked if a panic attack in May 2023 would more specifically be a symptom of the anxiety disorder that he has had for a long time. She answered that it could be.

[40] Dr Khunteta described the dose of Effexor Mr Canning was prescribed as 'not a high dose' and 'somewhere in the middle'. She agreed that if Mr Canning's anxiety disorder was to worsen, it would be prudent to raise the dose higher if it was reasonably tolerated.

[41] Dr Khunteta was asked if internal anger issues and anxiety, including a doctor's note in March 2023 which said that 'Mr Canning gets angry and frustrated easily', could be a feature of an anxiety disorder. She said, 'It could be a feature of other things as well but, yes, anxiety disorder as well'.[16]

[42] It was put to Dr Khunteta that in reality, she doesn't know what it could be. She answered, 'It could be, ah, a lot of other things as well, you know, ah, with the anxiety disorder, yes, he can have irritability, frustration. It could be, um, you know, um, other - there could be other reasons for that as well.'[17]

[43] Dr Khunteta was taken to Mr Canning's Mental Health Plan dated 22 September 2023.[18] She noted that this plan lists diagnoses of 'anxiety disorder/PTSD'. Noting that she did not see Mr Canning until June the following year, Dr Khunteta was asked if she accepts that as at September, Mr Canning's GP had diagnosed him with a current anxiety disorder and whether that was consistent with the ongoing treatment of Effexor. Dr Khunteta accepted this.

[44] Dr Khunteta was taken to the Work Capacity Certificate competed by Dr Hegtur.[19] Dr Khunteta was taken to where that certificate states that Mr Canning presented with chest pain and had high blood pressure and a panic attack. Dr Khutneta agreed that those things are common features or symptoms of an anxiety disorder.

[45] It was put to Dr Khunteta that her diagnosis that Mr Canning had suffered a separate and distinct injury due to work-related stress and events could not be right given the history which Dr Khunteta had now been made aware of. Dr Khunteta disagreed and said that what she wrote that day is what she believes. She said that the history Mr Canning gave is that he had never had to take time off work or present to a general practitioner due to his anxiety symptoms in the past. Dr Khunteta said that people can have an anxiety disorder, but the question is about how it affects their functioning. Dr Khunteta said, 'that man's saying that that was the first time that he had to take leave from work due to his anxiety symptoms'.[20] Dr Khunteta noted that Mr Canning had had the anxiety disorder for a long time but to Dr Khunteta's knowledge, Mr Canning had not had to take time off work for his anxiety.

[46] Dr Khunteta was asked if Mr Canning had told her that he has a flexible working arrangement. Dr Khunteta was unaware of this. Dr Khunteta was asked if she was aware that an arrangement was in place where Mr Canning could take a break from work and log off whenever he felt he needed to and that there had been times when he had logged off from work because he didn't feel well. Dr Khunteta was not aware of that.

[47] Dr Khunteta agreed that based on the general practitioner's records, the anxiety symptoms Mr Canning presented with show that the anxiety response was short-lived.

[48] Dr Khunteta would not be moved on her opinion that Mr Canning had suffered a separate and distinct injury as a result of the events of November 2023. However, she went on to discuss matters that occurred and treatment she provided to Mr Canning at a later date. Any diagnosis at a later date due to other matters which occurred after 6 November 2023 is not relevant to this appeal.

[49] Dr Khunteta agreed that what occurred on 6 November 2023 was a temporary exacerbation and that the symptoms settled. However, she repeated that her diagnosis was made on the basis that Mr Canning had never had to take time off work before due to his anxiety disorder.

[50] Finally, the following exchange occurred:[21]

MS WILLSON: All right. I might take you back then because I'm not sure that got on the record. Doctor, I put to you that the symptoms that Mr Canning was suffering as at the 6th November when you look at them and are informed of them from the contemporaneous notes taken by the GP, supplemented by the information that I provided to you about what the GP said about that, you would have to agree that the state of Mr Canning's anxiety disorder was just a temporary exacerbation as at the 6th of November 2023; you would have to agree with that wouldn't you?

DR KHUNTETA: Look, ah, it - it could be that it was an exacerbation. Um, it was temporary, definitely, because it settled down.

[51] Mrs Jasmine Mourad has been Mr Canning's psychologist since April 2023. Mrs Mourad provided several letters to WorkCover regarding Mr Canning's treatment.

[52] In a letter dated 10 May 2024, Ms Mourad said that '... it is apparent that this workplace psychiatric injury sustained early November 2023 is its own independent injury separate to Shannon's reason for commencing therapy initially in April 2023'.[22] Mrs Mourad further states, 'As a result of the injury, Shannon and I have been unable to focus on his reasons for commencing therapy as his symptoms and presentation are solely related to the workplace psychiatric injury and is the current focus'.[23]

[53] In a further letter to WorkCover dated 18 June 2024, Mrs Mourad outlined the matters Mr Canning had relayed to her about the events of early November 2023. Mrs Mourad said that following the events of early November 2023, Mr Canning had 'voiced elevated anxiety', 'sleep difficulties' and 'additional panic attacks'.[24]

[54] On 10 September 2024, Mrs Mourad wrote a 'Support Letter' to WorkCover. Therein she notes that 'Shannon continues to present with adjustment disorder with mixed anxiety and depression'.[25] Mrs Mourad goes on to 'strongly suggest' that Mr Canning's WorkCover appeals be expedited.

[55] At hearing, Mrs Mourad gave evidence that Mr Canning had first commenced therapy with her in April 2023 because his father had died by suicide the prior year in November. Mrs Mourad said that Mr Canning had sought therapy '... to just kind of talk that through, resolve some of the anger that you had been feeling towards him and his actions'.[26]

[56] With reference to her notes of her sessions with Mr Canning, Mrs Mourad said it was normal for him to talk about a wide range of matters when he was seeing her for therapy.

[57] Mrs Mourad said that she concluded that Mr Canning had suffered a separate injury in November 2023 because his symptoms and the intensity of the symptoms had changed significantly and that they were not the same symptoms Mr Canning presented with when he commenced seeing her in April 2023.

[58] Under cross-examination, Mrs Mourad agreed that the opinion she provided in May 2024 was based on what had happened from November 2023 to May 2024.

[59] Mrs Mourad was asked if she was aware of any psychological condition Mr Canning was diagnosed with at the time she commenced seeing him in April 2023. Mrs Mourad said, 'I don't believe there was a clear diagnosis. I was more seeing him for the symptoms he was reporting and presenting with'.[27]

[60] Mrs Mourad was asked if it was her evidence that what happened to Mr Canning from 3-6 November 2023 has caused the diagnosis of an anxiety disorder with depression that she had arrived at or whether it was what had happened in November and up to May 2024 that caused the diagnosis. Mrs Mourad said that while written in May 2024, 'the point or the purpose of it was to provide a support letter to WorkCover to approve his claim for the injury he sustained in November...'.[28]

[61] Mrs Mourad was asked if she was saying the diagnosis of an adjustment disorder with mixed anxiety and depression was because she did not believe Mr Canning was diagnosed with an anxiety disorder before that date. Mrs Mourad disagreed.

[62] It was put to Mrs Mourad that Mr Canning has had an anxiety disorder since 2017. Mrs Mourad said she was not aware of that and that that was not specially disclosed except for in the mental health care plan.

[63] Mrs Mourad was asked to confirm that she was unaware that Mr Canning had a diagnosis of anxiety disorder prior to him seeing her in April 2023. Mrs Mourad said, 'in reading the mental health care plan, I was aware of that, but it was not part of our primary discussion'.[29]

[64] Mrs Mourad said that Mr Canning's anxiety had not been an issue at the time that she was seeing him. Mrs Mourad said that 'his anxiety had been stable, and there was (sic) no reports of any anxiety concerns, anxious episodes, panic attacks or anything like that'.[30]

[65] Mrs Mourad was asked if she was aware that Mr Canning had an anxiety attack in May 2023.[31] She looked through her notes and agreed that she was aware of that anxiety attack.

[66] Mrs Mourad agreed that the anxiety attack in May 2023 could be a symptom of an anxiety disorder. Mrs Mourad was asked if being unable to control anger is a symptom of an anxiety disorder to which she answered, 'not exclusively'.

[67] Mrs Mourad was asked if having anxiety is a symptom of an anxiety disorder. She said, 'not exclusively'.

[68] Mrs Mourad said that Mr Canning was not presenting with functional impacts as a result of his anxiety that was previously noted as a diagnosis and said that diagnoses are not stable and that they fluctuate over time. Mrs Mourad said, 'Shannon wasn't experiencing any significant anxiety over the course of me seeing him prior to his injury'.[32] It was put to Mrs Mourad that this was not true and that Mr Canning was experiencing significant symptoms of anxiety and an anxiety disorder in May 2023 when he had a panic attack. Mrs Mourad was asked if a panic attack is a significant symptom of an anxiety disorder, to which she again answered, 'not exclusively'.

[69] Mrs Maroud went on to opine that panic attacks can occur and be 'completely irrelevant to any sense of anxiety'. Mrs Maroud said that a person can have an anxiety disorder without panic attacks, and panic attacks without an anxiety disorder.

[70] Mrs Maroud was asked if a person who has a panic attack will experience some anxiety before the panic attack. She answered, 'not always'.

[71] I asked Mrs Maroud to explain some of the experiences a person may have before a panic attack. She said, '...Someone could be feeling anxiety or anxious. Somebody could be feeling fear. They could be feeling...disappointment. They could be feeling a wide array of emotions'.[33]

[72] Mrs Maroud's evidence appeared to be that Mr Canning's panic attacks in November 2023 were unrelated to his diagnosed anxiety disorder. However, she diagnosed an adjustment disorder and anxiety 'because of' those panic attacks.

[73] I found Mrs Maroud's evidence around this point to be confusing, evasive and unsatisfactory. Mrs Maroud appeared to be focused on not accepting that Mr Canning had experienced anxiety in relation to the panic attack he had experienced in May 2023 or in relation to the panic attacks experienced in November 2023. When further questioned on this point, Mrs Maroud said that Mr Canning had not listed anxiety as an emotion he was experiencing and that as it was not in her notes, she was unwilling to state that Mr Canning had experienced anxiety in relation to the panic attack in May 2023.

[74] Mrs Maroud was asked, regardless of what was in her notes, whether she could give a professional opinion as to what would be the precursor to Mr Canning's May 2023 panic attack if not anxiety. Mrs Maroud said she could not comment on that as her job was to comment on what was reported.

[75] Mrs Maroud was asked to give a professional opinion on whether anxiety was a precursor to the panic attacks and she said, 'I cannot'.[34]

[76] Mrs Maroud would not comment on the hypothetical proposition that if Mr Canning had experienced anxiety as a precursor to a panic attack in May 2023, that that could be used as a diagnosis for an anxiety disorder.

[77] Mrs Maroud was aware that Mr Canning was taking 150mg of Effexor from at least 2022 for his anxiety disorder and said that any discussion about increasing the dose due to a worsening anxiety disorder would be a matter for the GP.

[78] Mrs Maroud agreed that any notes she took about events which Mr Canning had said occurred were a result of his self-reporting and she did not undertake any independent investigation of the things he had said.

[79] Mrs Maroud was asked about a reference in her notes to Mr Canning experiencing nightmares and whether nightmares can be a symptom of an anxiety disorder. Mrs Maroud said, 'not always, not exclusively'. Mrs Maroud agreed that nightmares 'could be' relevant to an anxiety disorder.

[80] Mrs Maroud agreed that her notes indicated that she was aware that prior to November 2023, Mr Canning had reported that he struggled to deal with conflict. Mrs Maroud was asked if struggling to deal with conflict is in line with somebody suffering an anxiety disorder. She answered, 'not exclusively' but agreed that 'it could be'.

[81] Mrs Maroud agreed that there was an occasion in her notes where Mr Canning reported being angry about a situation and hyper-fixated on it. Mrs Maroud was asked if she was prepared to give an opinion that Mr Canning struggles in dealing with anger. She answered, 'I can't give an opinion. I can just report on what is in my notes'.[35]

[82] Mrs Maroud's notes referred to Mr Canning reporting, 'a work issue on top of everything'. It was put to her that clearly, that the work issue was not the sole reason he was feeling angry on that date. Mrs Maroud said that she could not recall the context but that was what she had written.

[83] Mrs Maroud agreed that her notes said that Mr Canning was wanting strategies to deal with his emotions. She was unwilling to provide any opinion about that matter.

[84] Mrs Maroud was taken to her notes where she had written that Mr Canning had reported that he had experienced a 'trauma response, retriggered from people doing the wrong thing'. Mrs Maroud agreed that was what was written but said that she could not recall the context in which it was reported.[36]

Other evidence related to matters addressed with the doctors pertaining to their opinions

[85] During cross-examination, a number of matters were raised with the expert witnesses. In particular, reference was made to Mr Canning's flexible work arrangements and supports which were put in place for him at work. I have reviewed the submissions and evidence before the Commission relevant to those matters.

[86] In its amended Statement of Facts and Contentions, the Respondent contends that Mr Canning regularly left work when he was not feeling well.[37]

[87] In his original Statement of Facts and Contentions, Mr Canning discusses his 'nominated "mental health support" persons, Ms Tahlia Wallis and Mrs Illiana Coetzee'. Mr Canning describes the role of these people as 'to assist the appellant in managing his mental health disorder, due to his father taking his own life in 2022.[38]

[88] Mr Canning also refers to his 'approved flexible workplace agreement' which was in place at the time.[39] Mr Canning explained that as a result of his flexible workplace agreement, he worked from home most of the time. Mr Canning said: [40]

I had a lot of flexibility in my role because I was - I consider myself quite good at my job. So as long as I was meeting my KPIs and it could - it was seen that I was contributing and not taking advantage of the matter, I never really had any complaints or any concerns with regards to it.

[89] Mr Canning said that on 3 November 2023, he had organised to go to the office as he was going to meet some of his colleagues to go out after work.[41] Mr Canning said there was some flexibility for him to determine whether he would, for example, work from 8.00am to 4.00pm or 9.00am to 5.00pm.

[90] Mr Canning said that when he first started at Cover-More, they had organised for him to have two support persons in case he ever suffered a panic attack at work. Mr Canning said that he had never had a panic attack in the office because he could work from home. Mr Canning said that he had a panic attack on 26 May 2023 related to his deceased father's birthday.

[91] Mr Canning said that as a result of that panic attack, he has 'a flexible workplace agreement here, and I also have messages to the specific people here in September saying that Michael has told me to nominate people in case something ever happens at the office and I need...help'.[42] Mr Canning said those nominated people did not have special training but were there to 'reassure me that everything's okay'.[43]

[92] The Respondent submits that the cross-examination of the evidence of the medical witnesses gives the Commission cause to review the nature of Mr Canning's presenting symptoms on 6 November 2023.[44]

[93] The Respondent says that despite Dr Hegtur writing a report dated 13 January 2025, on cross-examination, Dr Hegtur accepted that Mr Canning had a history of an anxiety disorder and was on medication. The Respondent says that ultimately, Dr Hegtur's evidence was to the effect that: on 6 November 2023, Mr Canning suffered symptoms of an anxiety disorder that settled; and that Dr Hegtur could not differentiate whether the symptoms of 6 November 2023 were part of Mr Canning's anxiety disorder or if it was independent.

[94] The Respondent notes that Dr Khunteta agreed that from 2022 to the end of 2023, Mr Canning was already suffering from an anxiety disorder. However, the Respondent notes that Dr Khunteta conceded that the basis for the opinion that Mr Canning had suffered a 'separate and distinct injury related to work stressors and events in November 2023' was the fact that Mr Canning had taken time away from work. The Respondent notes that Dr Khunteta was unaware of Mr Canning's previous anxiety attack in May 2023, or the fact or details of Mr Canning's flexible work arrangements.

[95] The Respondent submits that whether Mr Canning required time off work is not the legal test for determining if Mr Canning sustained an injury in s 32 of the WCRA. The Respondent submits that a temporary exacerbation of symptoms of a pre-existing anxiety disorder that settled is not an aggravation of a psychological injury or separate injury pursuant to s 32 of the WCRA.

[96] The Respondent submits that this matter can be distinguished from CS Energy v Q-Comp,[45] where the Appellant had a 'marked deterioration' in mental state following an event, demonstrating an aggravation injury.

[97] The Respondent submits that the evidence of Mrs Mourad cannot be relied upon as she was unwilling to comment on matters put to her or to provide an opinion with an identifiable foundation. Further, the Respondent says that Ms Mourad's evidence and reasoning was not clear or helpful to the Commission. The Respondent provides the following examples:[46]

(a) Mrs Mourad would not concede that a panic attack was a significant symptom of an anxiety disorder.

(b) Mrs Mourad stated: "Panic attacks can occur, and they can be completely irrelevant to any sense of anxiety", but then Mrs Mourad diagnosed Mr Canning with an anxiety disorder because Mr Canning did suffer an anxiety attack.

[98] The Respondent submits that the evidence of Mrs Mourad as a whole, should be disregarded or carry no weight because it is not helpful to the Commission in any way. The Respondent says this is particularly so where other medical practitioners have assisted the Commission by being responsive to questions about Mr Canning's psychological condition.

[99] The Respondent says that the appeal is in relation to whether Mr Canning suffered a psychological injury described as an 'acute stress/panic response' by the first Workers' Compensation Medical Certificate dated 24 May 2024.

[100] The Respondent submits that the state of the medical evidence as a whole, does not permit a conclusion that the events of 3-6 November 2023 caused a new injury or an aggravation injury. In essence, the Respondent's submission is that the 'acute stress/panic response' listed on the Workers' Compensation Medical Certificate was a regular symptom of the pre-existing anxiety disorder Mr Canning had been suffering from since 2017.[47]

[101] In support of its position, the Respondent makes detailed submissions with reference to the evidence before the Commission. It is convenient to set those submissions out here:[48]

(a) the mental health plan dated 22 September 2023 listed a diagnosis of 'anxiety disorder' as well as 'PTSD';

(b) the Appellant himself admits that he has suffered an anxiety disorder for many years and has been prescribed 150 milligrams [Effexor] consistently for years;[49]

(c) the Appellant suffered symptoms of an anxiety disorder routinely before 3 November 2023 which was indicated by:

(i) the Appellant had a flexible working arrangement;[50]

(ii) the employer had organised for the Appellant to have two support persons in case he ever had a panic attack at work;[51] One of these support persons was 'Iliana'.[52]

(iii) the Appellant had been diagnosed with anxiety in 2017;[53]

(iv) the fact that the Appellant had a panic attack in (sic) 26 May 2023, which was before the stressors relevant to this case;[54]

(v) in September (2023), Mr Dallas asked the Appellant to nominate people at workplace that can 'reassure' the Appellant 'that everything's okay' when he needed help with his symptoms;[55]

(vi) Mr Dallas, as the Appellant's supervisor gave evidence that the Appellant had 'anxieties' and in the past, the Appellant: 'logged out early or not logged on' from work[56] (although it must me (sic) noted that Mr Dallas did not know the extent of the Appellant's pre-existing condition and was not on notice that the

Appellant presented as vulnerable or a special risk);

(vii) the Appellant had visits to his GP with the following notations:

• (A) 23/2/2023 - 'want to deal with his internal anger issue and anxiety'

• (B) 1/3/2023 - 'Anxiety with anger issue, likely depression' 'gets angry and frustrated easily' 'reason for visit: mental health care plan'

• (C) 02/03/2023 'just wanting script for Effexor'

• (D) 26/07/2023 'here for repeat script for Effexor'

(viii) the contemporaneous notes from psychologist Mrs Jasmine Mourad show the following notations:

• (A) 'work incident on top of everything'[57]

• (B) 'psychoed of trauma response - retriggered from people doing the wrong thing'

(ix) Dr Khunteta identified that the following events involving the Appellant could be symptoms of anxiety disorder: panic attack,[58] internal anger issues and anxiety, gets angry and frustrated easily,[59] irritability and frustration;[60]

(x) the Appellants (sic) regular medication dose of Effexor (of 150 milligrams a day) was not increased when the Appellant say his GP doctor on 6 November 2023, in circumstances when it would be prudent for a doctor to do in the case of a worsening anxiety disorder;[61]

(xi) the Appellant had been previously prescribed Valium, although used it 'very, very infrequently';[62]

(d) by reference to the consultation notes of the GP, the Appellant's symptoms had settled before the consultation finished on 6 November 2023;

(e) in cross-examination the Appellant said: 'I was suffering anxiety due to having an abusive relationship with my father, that was the main reason why I had anxiety'[63] [Although it is noted that the Appellant denied that he was struggling with anxiety and that this was just the tipping point.][64]

[102] The Respondent goes on to say that if there was an injury, the Commission needs to be satisfied that Mr Canning's employment was a significant contributing factor to the occurrence of that injury. With reference to various authorities,[65] the Respondent says it is insufficient to establish that the employment was the setting in which the aggravation occurred.

[103] Mr Canning submits that in denying that he has sustained an injury, the Respondent has 'omitted critical medical evidence supplied to them' and 'departed from their previous justification for 'reasonable management action'. Mr Canning also says that the Respondent has failed to disclose that one of its witnesses was under investigation for providing misleading information to have his claim denied.

[104] At this stage, I will note with regard to Mr Canning's submissions above, that the medical evidence is open to be tested by way of cross-examination at hearing. The Respondent are bound by their amended Statement of Facts and Contentions and not any previous reasoning or decisions with respect to Mr Canning's claim. With regard to the witness Mr Canning says is under investigation and submissions he makes about prior actions or decision-making, I note that while Mr Canning may be aggrieved by the actions of various people in response to his claim for compensation, I am deciding the matter afresh based on the evidence before me. If Mr Canning believes I have been misled with regard to the medical evidence or other evidence at hearing relating to his claimed injury, it is a matter for him to raise that matter at the hearing. I am not focused on the actions of WorkCover or the Regulator. I am determining the matter based only on the evidence before me.

[105] Mr Canning submits that he has clearly substantiated that he has met the criteria for coverage under s 32 of the WCRA. Mr Canning submits that he suffered a new injury, specifically Adjustment Disorder with Anxiety and Depression; and also suffered an aggravation of a pre-existing injury, Anxiety Disorder.

[106] I understand that Mr Canning believes that the Respondent 'never disputed the medical evidence' he submitted prior to hearing. It seems to me that it should have been clear to Mr Canning based on the Respondent's Statement of Facts and Contentions that its case was that he was suffering from a pre-existing condition on 3-6 November 2023 and that Mr Canning did not suffer a personal injury.

[107] While the Respondent asked questions relating to whether the attendance on the doctor on 6 November 2023 was due to a 'temporary exacerbation' in symptoms and this was not specifically mentioned in its Statement of Facts and Contentions, I am satisfied that that line of questioning is sufficiently connected to a contention that no new injury was sustained on 6 November 2023.

[108] In circumstances where the Respondent knew what medical evidence was available, it was implicit in the Statement of Facts and Contentions that the Respondent did not accept that the medical evidence demonstrated that Mr Canning had sustained a new injury or aggravation resulting from the events of 3-6 November 2023.

[109] Mr Canning notes that all three expert witnesses stated that his anxiety was stable prior to the incident and that he sustained a psychological injury due to the work-related conflict.[66]

[110] With regard to Dr Hegtur's evidence, Mr Canning notes that under cross-examination, he could not confirm that the treatment sought on 6 November 2023 was merely for a temporary exacerbation of his anxiety disorder.[67] Mr Canning also notes that Dr Hegtur confirmed that the panic attack could have occurred regardless of whether Mr Canning had an anxiety disorder or not.[68]

[111] Mr Canning specifically submits that Dr Khunteta stood by her original determination of an adjustment disorder,[69] and said there were 'crucial differences' between anxiety disorders and adjustment disorders.[70] As canvassed at paragraphs [50] and [94] of these reasons Dr Khunteta's evidence went beyond this.

[112] Mr Canning notes that Dr Khunteta said the injury was not just a temporary exacerbation, because Mr Canning's symptoms following the event were significantly more than anything previously experienced and psychological treatment became focused on the injury after the event. Mr Canning also says that Dr Khunteta agreed that the events could have temporarily aggravated Mr Canning's anxiety disorder condition.

[113] Mr Canning says that Mrs Mourad stood by her original determination of an adjustment disorder and said that panic attacks are a stress response and 'can occur from any particular trigger that can be unrelated to anxiety'.

[114] Mr Canning highlights Mrs Mourad's evidence that his symptoms following the event were significantly more severe than anything he had previously experienced and resulted in treatment becoming purely focused on the injury after the event.

[115] Mr Canning submits that there is evidence to confirm that he continued to be affected by the workplace matters beyond 6 November 2023. He also says that there is no evidence that he had been affected by anxiety at work prior to the event and that his condition was confirmed to be stable.

[116] Mr Canning submits that there is no evidence that he suffered from an adjustment disorder prior to the event or that he had previously required medical intervention due to a panic attack.

[117] Mr Canning says he has substantiated that he sought medical treatment on 6 November 2023 and that this confirms the injury.

[118] Mr Canning says that his expert medical witnesses confirm that he sustained a personal injury, being a panic attack on 6 November 2023 and that he sustained a medical condition, being an adjustment disorder, due to the severity of the panic attack and the symptoms that followed on from the event. Mr Canning appears to argue in the alternative that he sustained an aggravation of his pre-existing anxiety disorder.

[119] To satisfy the initial part of s 32(1) of the WCRA, Mr Canning must demonstrate that he suffered a personal injury arising from the events of 3-6 November 2023.

[120] Mr Canning does not need to prove beyond reasonable doubt that he suffered a personal injury or aggravation arising from the events of 3-6 November 2023. However, he does need to demonstrate these matters on the balance of probabilities.

[121] In order to find that Mr Canning suffered a personal injury, I must feel an actual persuasion that this is the case.

[122] Mr Canning argues that the Respondent did not present any medical evidence to support its counterarguments regarding Mr Canning's injury. I note here that it was not necessary for the Respondent to present medical evidence in circumstances where it was content to rely on the cross-examination of Mr Canning's expert medical witnesses. The onus is on Mr Canning to demonstrate that he suffered a new injury or an aggravation.

[123] In deciding whether Mr Canning has successfully discharged the onus of proof, I am guided by the principles set out in decisions of this Commission, including His Honour Vice President O'Connor's decision of Smith,[71] Relevantly, His Honour stated that:[72]

[68] The Appellant bears the onus of establishing his entitlement to compensation. That is, it is for the Appellant to demonstrate to the Commission that the Respondent's decision was wrongly made. The standard of proof is on the balance of probabilities. Proof on the balance of probabilities requires actual persuasion.[73]

[69] The principles relevant to the discharge of the onus of proof were discussed in Nguyen v Cosmopolitan Homes[74] where McDougall J (McColl and Bell JJA agreeing) said:

1. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour's statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.

1. Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 where his Honour said that "[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied". Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161-162, and Mason J (with whom Brennan J agreed) in the same case at 168.

1. It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.

1. In Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:

A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.

1. On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours' approach, what is required is a determination of the respective probabilities of the event's having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.

[124] For the reasons which follow, when considering the evidence as a whole, I am not persuaded on the balance of probabilities that Mr Canning did suffer a new injury, or an aggravation of a pre-existing injury resulting from the events of 3-6 November 2023.

[125] The diagnosis relating to the events of 3-6 November 2023 is described in a range of ways throughout the material, however, in Mr Canning's original Statement of Facts and Contentions, he says that he is 'not claiming for his diagnosis of adjustment disorder' and that the injury in the claim is related to what occurred on 6 November 2023.[75] Mr Canning says that this claim is 'only for therapy sessions incurred between November 2023-March 2024, which are yet to be paid, the total cost being $1,946.60'.

[126] Mr Canning has made clear that this claim does not relate to the later claim which arose from the diagnosis of an adjustment disorder. The Workers' Compensation Certificate authored by the doctor who saw him on 6 November 2023 states the diagnosis as Acute stress/panic response.

[127] Mr Canning's evidence at hearing included that 'because I suffer a medical condition, the above incident triggered my anxiety massively and continued to do so...'.[76]

[128] Mr Canning said with regard to notes of a visit to Dr Chen, GP, on 23 February 2023 stating, 'Still on Effexor, 150 milligrams, and occasional Valium in the past', 'Yeah - so the Valium was just in case I incur a panic attack'.[77]

[129] Mr Canning was asked about a reference in the doctor's notes from that day stating, 'Anxiety with anger issue' and 'Nil homicidal ideation, but hard to let go of anger to other people if they got into an argument'. It was put to Mr Canning that what was happening between 3 and 6 November 2023 was that he was in a situation where he was angry and experiencing anxiety. Mr Canning said that it was not the same thing as the matters referred to in the general practitioner's notes related to his father's death and his family situation.

[130] However, Mr Canning went on to say that the work he was doing with his psychologist from early 2023 onwards:[78]

was not only working through the grief... but also how to communicate effectively with people based on, you know, my job and, you know, the other things, just general stressors of being an adult in this world on how I could handle those situations better.

[131] Mr Canning's evidence was that in September 2023, he returned to the general practitioner to seek a review of his Mental Health Care Plan and that that plan stated 'Problem/Diagnosis: Anxiety Disorder/PTSD'.

[132] It is clear and not in dispute that Mr Canning had a diagnosed anxiety disorder for a long period of time prior to 6 November 2023. It is also not in dispute that Mr Canning had experienced a panic attack earlier in 2023 and that he had a prescription for Valium which he took, albeit rarely but had access to nonetheless should he experience a panic attack. It is also clear from the notes and the evidence, that Mr Canning had requested help with anxiety and anger issues and that a Mental Health Care Plan had been put in place, and he had asked to review it in September 2023.

[133] There is a clear and unambiguous contemporaneous history of Mr Canning's anxiety disorder, an earlier panic attack, consistent medication for the anxiety disorder, and experience of anger issues. I understand that Mr Canning sought the mental health care plan to deal with the aftermath of his father's death, however, Mr Canning's own evidence was that he was seeking strategies to assist him at work and in daily life.

[134] I have considered the evidence of Dr Hegtur. Dr Hegtur's evidence was that on the basis that Mr Canning's blood pressure came down after a breathing exercise and that the ECG did not show underlying coronary symptoms, he assumed that anxiety had led to the panic episode.

[135] Dr Hegtur was aware that Mr Canning was taking Effexor and had an anxiety disorder. He said that it was on this basis that he concluded Mr Canning's symptoms were a panic attack and chest pain. Dr Hegtur's evidence at the hearing was that 'going by' Mr Canning's symptoms, he 'did have an episode'.

[136] Dr Hegtur agreed to the proposition that what he observed in the consultation was Mr Canning having some symptoms of an anxiety disorder that settled.

[137] Importantly, Dr Hegtur was unable to provide an opinion as to whether the panic attack arose from Mr Canning's pre-existing anxiety disorder or whether it was independent. Dr Hegtur did not make any change to Mr Canning's Effexor medication on that day, and his evidence was that Mr Canning's symptoms settled.

[138] It is not in dispute that Mr Canning suffered from a panic attack or panic episode on 6 November 2023 or that he reported to Dr Hegtur that he had also suffered a panic attack on 3 November 2023.

[139] Dr Hegtur's written report and evidence are not such that they make clear that the panic attack was not an episode related to, or symptom of, Mr Canning's pre-existing anxiety disorder.

[140] I now turn to the evidence of Dr Khunteta. Dr Khunteta's written report states definitively that Mr Canning 'suffered a separate and distinct injury' due to the events of 3-6 November 2023.

[141] While Dr Khunteta was aware that Mr Canning had a pre-existing anxiety disorder, was taking Effexor related to that disorder and had been seeing a psychologist since earlier in 2023, she was not aware that Mr Canning had suffered a panic attack earlier in 2023.

[142] Dr Khunteta agreed that a panic attack is a symptom of an anxiety disorder. When asked if the panic attack Mr Canning suffered in May 2023 would be another symptom of his pre-existing anxiety disorder, Dr Khunteta agreed. Dr Khunteta also agreed that if Mr Canning's anxiety disorder worsened, it would be prudent to raise the dosage but understood that the medication had not changed.

[143] With reference to the symptoms described on the Workers' Compensation Medical Certificate, Dr Khunteta agreed that those are common features or symptoms of an anxiety disorder.

[144] After being presented with that information about Mr Canning's recent medical history, including the panic attack he had previously suffered, and having agreed that panic attacks are a symptom of an anxiety disorder, Dr Khunteta was asked if this changed her diagnosis that Mr Canning had suffered a separate and distinct injury on 6 November 2023. Dr Khunteta said that she still believes that her diagnosis in the written report is correct.

[145] Dr Khunteta eventually agreed that the Mr Canning's symptoms as at 6 November 2023 were definitely temporary because they settled down. Further, Dr Khunteta agreed that 'it could be that it was an exacerbation'.

[146] My understanding of the evidence was that Dr Khunteta's diagnosis was made on the basis that even though he had a pre-existing anxiety disorder, Mr Canning had never had to take time off work before due to his anxiety disorder. My concern about that is that it became clear in the cross-examination that Dr Khunteta was not aware that Mr Canning had a flexible working arrangement which involved him largely working from home, that he was able to log off from work or take a break when he felt he needed to and that the workplace had nominated two support people for Mr Canning in the event that he experienced a panic attack while working.

[147] It is not unusual for a medical expert to continue to maintain their written opinion, despite hearing or being asked to consider other evidence at the hearing. However, I find it difficult to reconcile Dr Khunteta maintaining that Mr Canning had suffered a distinct and separate injury arising from the events of 3-6 November 2023 in circumstances where she: was unaware that Mr Canning had experienced a panic attack in May 2023; accepted that a panic attack can be a symptom of an anxiety disorder; accepted that Mr Canning had a pre-existing anxiety disorder; agreed that the panic attack and symptoms of 6 November 2023 were temporary and could be an exacerbation of anxiety disorder symptoms; made the diagnosis on the basis that Mr Canning had required time off work; was unaware that Mr Canning had a flexible working arrangement which involved him working from home with an ability to log off from work if he was unwell or needed a break.

[148] While Dr Khunteta did not change her opinion, I find that the matters I have listed above at [146] and [147], undermine that opinion.

[149] Above from [73]-[84], I have set out and provided some commentary and analysis of Mrs Mourad's evidence. I am of the view that Mrs Mourad could best be described as an advocate for Mr Canning. So much is demonstrated by her directing a 'letter of support' to WorkCover seeking that his appeals be expedited. Mrs Mourad's evidence under cross-examination did not assist me as she would not provide opinions on some matters and on others, was equivocal, answering in terms such as 'not exclusively'.

[150] Mrs Mourad was also of the view that at the time Mr Canning was referred to her under a Mental Health Plan, that there was 'no clear diagnosis'. However, she later agreed that the Mental Health Plan listed that Mr Canning had an anxiety disorder. Mrs Mourad maintained that she was unaware that Mr Canning had had a diagnosed anxiety disorder since 2017.

[151] Mrs Mourad's evidence was that Mr Canning's anxiety was stable prior to November 2023 and that he had not suffered any symptoms. However, she agreed after being taken to her notes that he had suffered a panic attack during the time she had been seeing him.

[152] Perhaps one of the most confounding things about Mr Mourad's evidence was that she was very reluctant to accept that a panic attack might be a symptom of an anxiety disorder or in fact be related to anxiety at all. When specifically asked if she could give a professional opinion on whether anxiety was a precursor to the panic attacks Mr Canning suffered, she answered 'I cannot'. Mrs Mourad would also not comment on hypothetical questions or propositions, would not provide an opinion about various other matters and when specifically asked about an aspect of her notes, was unable to recall the context in which Mr Canning had reported certain matters.

[153] The impression I was left with, was that despite the fact that Mr Canning had a pre-existing anxiety disorder at the time he commenced seeing her, and had reported a range of circumstances to her, including that he had suffered a panic attack, a trauma response, anger, issues in dealing with conflict and was seeking strategies to deal with his emotions, Mrs Mourad appeared to be committed to a version of events where Mr Canning was not experiencing anxiety until November 2023 or that if he was suffering symptoms, they were 'not exclusively' related to his pre-existing condition.

[154] In light of various authorities of this Commission with respect to expert witnesses who assume the role of an advocate,[79] I am of the view that Mrs Mourad's evidence should be given minimal weight. This leaves me with the medical expert opinions and evidence of Drs Hegtur and Khunteta.

[155] When considering the evidence of Drs Khunteta and Hegtur's evidence, I am unable to find on the balance of probabilities that the events of 3-6 November 2023 caused Mr Canning to suffer a separate and distinct injury or an aggravation of his pre-existing condition.

[156] In my view, taken at its highest for Mr Canning's case, the evidence of the doctors does no more than establish that Mr Canning experienced some symptoms between 3 and 6 November 2023 and that it is possible that those symptoms may give rise to a separate and distinct injury. Both doctors agreed that a panic attack is a symptom of an anxiety disorder. Both doctors accepted that Mr Canning had a pre-existing diagnosis of an anxiety disorder at the relevant time.

[157] The medical evidence does not establish that the probability that Mr Canning suffered a new personal injury or aggravation is greater than the probability that the presentation at his general practitioner on 6 November 2023 was related to symptoms or a temporary exacerbation of his pre-existing anxiety disorder.[80]

[158] As a result, Mr Canning has not succeeded in demonstrating the first limb of s 32(1) of the WCRA. I do not accept that he suffered a personal injury arising from the relevant events between 3-6 November 2023. For that reason, I will not consider the matter further. The appeal is dismissed.

1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the Review Decision dated 20 September 2024 is confirmed.

1. Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.

[1] Pursuant to ss 32(1)and 32(3) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCRA').

[2] Ibid s 32(5)(a).

[3] Ibid s 32(5)(b).

[4] Respondent's closing submissions filed in the Industrial Registry on 24 October 2025 [12].

[5] Respondent's amended Statement of Facts and Contentions filed in the Industrial Registry on 20 February 2025 [42].

[6] Mr Canning's amended Statement of Facts and Contentions filed in the Industrial Registry on 24 February 2025 [2(f)]

[31] I note here that the term 'anxiety attack' was being used, however, later the questioning returned to the term 'panic attack'

[37] Respondent's amended Statement of Facts and Contentions (n 5) [34], [37](c).

[38] Mr Canning's Statement of Facts and Contentions filed in the Industrial Registry on 5 November 2024, 20.

[44] Respondent's closing submissions (n 4) [19].

[45] [2008] QIC 2.

[46] Respondent's closing submissions (n 4) [24].

[65] Respondent's closing submissions (n 4) [29] citing JBS Australia Pty Ltd v Q-COMP (C/2012/35) cited by VP O'Connor in Nuske v Workers' Compensation Regulator [2019] QIRC 023, [39]; Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.

[71] Smith v Workers' Compensation Regulator [2024] QIRC 223 ('Smith').

[72] [2024] QIRC 223 [68]-[69].

[73] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.

[75] Mr Canning's Statement of Facts and Contentions (n 38) 15.

[79] Turay v Workers' Compensation Regulator [2023] QIRC 001, [60] and Shaw v Workers' Compensation Regulator (No. 3) [2022] QIRC 33, [87] citing R v Butler [2009] QCA 111, [127]-[128] and Fox v Percy [2003] HCA 22; [2003] 214 CLR 118, 167-168 [151].

[80] [2024] QIRC 223 [69] citing Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638.