HSDR and Comcare (Compensation) [2017] AATA 779 (29 May 2017)

........................[SGD]................................................

COMPENSATION - Commonwealth employees - Comcare accepted liability for applicant's psychological condition, contributed to in a material degree by her employment - applicant's condition not improved after almost ten years - whether applicant's condition still contributed to in a material degree by her previous employment - whether applicant continues to suffer a "disease", regardless of whether that contribution continues - whether applicant entitled to compensation for cost of gym membership - whether applicant entitled to compensation for cost of household services - whether applicant entitled to compensation for cost of treatment for bruxism.

Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A, 5B, 14, 16, 24, 27, 29

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, Schedule 1, items 5, 6, 11, 41, 42

Veterans' Entitlements Act 1986, s 196B

Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536

Gilkinson v Repatriation Commission [2011] FCAFC 133; (2011) 197 FCR 102

Hopkins and Comcare [2016] AATA 742

Howes v Comcare [2016] FCA 1521

Prain and Comcare [2016] AATA 459

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (fifth edition, 2013)

1. The applicant worked in an agency of the Commonwealth (the agency). Comcare accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) to pay the applicant compensation for a psychological injury that she suffered in 2006. In 2016, Comcare decided that it was no longer liable to pay compensation. The applicant still suffers from a psychological condition but, Comcare says, her condition is no longer contributed to in a material degree by her employment by the agency.
2. The applicant's current condition is still contributed to in a material degree by her perception of her employment by the agency. Comcare is still liable to pay the applicant compensation under s 14 of the SRC Act.
3. However, the applicant is not entitled to compensation for the cost of gym membership, because an exercise program would not be medical treatment obtained in relation to her injury for the purposes of s 16 of the SRC Act. And the applicant is not entitled to compensation for the cost of household services, because she does not reasonably require household services for the purposes of s 29. And, Comcare is not liable to pay the applicant compensation for bruxism treatment, because bruxism is not an injury arising out of, or in the course of, her employment for the purposes of the SRC Act.

1. "HSDR"[1] (the applicant) was a public servant from 1991 until 2000. From 2001 until 2004, she worked in the private sector, including running her own consulting business for some of that time. She rejoined the public service in 2005. She was employed by the agency from 2006 until April 2008. She has not worked since.
2. On 16 May 2008, the applicant made a claim for compensation for "workplace stress, adjustment disorder with anxiety". Initially, Comcare refused her claim. However, on 25 June 2010, the Tribunal,[2] with the agreement of the applicant and Comcare, decided that:
   • On 27 July 2006, the applicant suffered "a chronic adjustment disorder with anxious and depressed mood (the injury) that was materially contributed to by her perception of her employment by the Commonwealth".
   • Comcare is liable to pay compensation for the injury pursuant to s 14 of the SRC Act.

Applications 2015/2267, 2015/2272 and 2015/2273

1. On 30 April 2013, the applicant applied for compensation for a gym program under s 16 of the SRC Act. On 7 April 2014, Comcare determined that no such compensation was payable.
2. On 3 March 2014, the applicant applied for compensation for household services under s 29 of the SRC Act. On 3 March 2015, Comcare determined that no such compensation was payable.
3. On 25 March 2014, Comcare agreed to pay for a dental assessment of the applicant regarding "tooth grinding", noting that a "treatment plan [was] to be submitted for consideration". It appears that Comcare treated a medical certificate, provided by the applicant, as being an application for compensation for the costs of dental treatment for bruxism under s 16 of the SRC Act. On 3 March 2015, Comcare determined that no such compensation was payable.
4. On 10 March 2015, the applicant requested a reconsideration of each of those determinations. On 28 April 2015, Comcare varied the determination about dental care (denying liability under s 14) and affirmed the other two determinations.
5. On 12 May 2015, the applicant applied to the Tribunal, under s 64 of the SRC Act, for review of those decisions.

1. On 2 March 2015, the applicant applied for compensation for permanent impairment and non-economic loss. On 31 July 2015, Comcare determined her degree of permanent impairment resulting from her accepted condition as 30%. It identified that accepted condition as an "adjustment reaction with mixed emotional features". Comcare also determined that the applicant was entitled to a specified amount of compensation for permanent impairment (under s 24 of the SRC Act), and a specified additional amount of compensation for non-economic loss (under s 27).
2. On 17 May 2016, Comcare determined that the applicant no longer suffered from the effects of her accepted condition.
3. On 24 May 2016, the applicant requested a reconsideration of that determination. On 23 June 2016, Comcare affirmed its determination.
4. On 4 July 2016, the applicant applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

1. The decisions under review are Comcare's decisions:
   • on 28 April 2015, affirming its decisions that it is not liable to pay the applicant compensation for:
     • a gym program under s 16 of the SRC Act;
     • household services under s 29; and
     • treatment for bruxism under s 14; and
   • on 23 June 2016, affirming its decision that the applicant no longer suffers from the effects of her accepted condition.

1. The applicant and Comcare agree that the applicant still suffers from a psychological condition. But, Comcare says that her condition is no longer contributed to in a material degree by her employment. It follows, Comcare says, that Comcare is no longer liable to pay her compensation under the SRC Act.
2. So, the issues in this review are these:
   • Is Comcare still liable to pay the applicant compensation?
   • If so, is she entitled to compensation:
     • for the cost of her gym program, under s 16 of the SRC Act;
     • for the cost of household services, under s 29;
     • for the cost of treatment for bruxism, under ss 14 and 16?

1. I have before me many medical reports and records about the applicant. In addition, the following people gave evidence at the hearing:
   • the applicant;
   • her husband;
   • Dr Elizabeth Fraser, a general practitioner, who has treated the applicant since 2006;
   • Ms Carmel O'Sullivan, a clinical psychologist, who has treated the applicant since 2008;
   • Ms Megan Layton, a mental health social worker, and a meditation, mindfulness and yoga teacher, who has been providing services to the applicant since 2011;
   • Dr Delta Matias, a psychiatrist, who treated the applicant from 2010 until 2015;
   • Dr William Knox, a consultant psychiatrist, who saw the applicant on 29 April 2015;
   • Associate Professor Michael Robertson, a consultant psychiatrist, who saw the applicant on 20 November 2015; and
   • Dr Deepinder Miller, a consultant psychiatrist who saw the applicant on 21 October 2016.
2. I make the findings set out in [20]-[32] below, on the balance of probabilities. These findings are based on the medical records before me, and on the evidence of the witnesses listed at [18]. Many of these findings are based on notes in those medical records about what the applicant reported at various times. These findings are generally not contested.
3. As noted above,[3] in May 2008, the applicant and Comcare agreed that the applicant suffered a psychological injury in July 2006 that was materially contributed to by her perception of her employment by the Commonwealth. She claimed - and still claims - that she was subjected to bullying and harassment when she worked for the agency.
4. In July and August 2009, the applicant was experiencing financial difficulties, and was stressed by a debt collector arriving at her home.
5. In May 2010, Dr Graham George, a consultant psychiatrist, noted that it appeared that the applicant had been "subject to childhood sexual abuse by a family friend at the age of 11" and to "inappropriate attention by her father", and that the applicant's mother had not believed her when she reported the abuse.
6. In July 2010, the applicant was admitted to a psychiatric hospital. Dr Matias noted that the applicant:

Presented acutely suicidal with known history of depression and anxiety. She was also presenting with symptoms of conversion disorder, precipitated by work-related stress and bullying. She won her case for Comcare and felt exonerated but at the same token also felt it was a "good time to end her life".

Whilst in the hospital, the applicant reported having been abused as a child by her father. She was discharged in September 2010.

1. In March 2011, the applicant was admitted again to the psychiatric hospital. She "presented acutely suicidal again due to triggers of her injury sustained at work". She had been "plagued" by weekly house calls by process servers attempting to serve her with documents on behalf of the bank to which her home was mortgaged. She said that this made her feel unsafe. She was exhausted and unmotivated due to "ongoing delay in court case re Comcare claim". In May, the applicant reported that a cause of her injury was her relationship with her parents. In June, the applicant spent an evening at home. On her return to hospital, she was visibly distressed, complaining of relationship issues with her husband and financial concerns. In July, Ms Layton noted that the applicant had been sexually abused, as a child, by her father and other men, and that she had been estranged from her family in the late 1980s (when she was in her early twenties) after she "attempted negotiation". The applicant was discharged from hospital later in July 2011.
2. In October 2011, the applicant's husband said that he was being bullied at work. This revived memories for the applicant of her experience at the agency. Also in October, the applicant was declared bankrupt.
3. In January 2012, the applicant was stressed by relationship issues with her husband. In February 2012, the applicant collapsed after being near the building where she had previously worked for the agency. In December 2012 and January 2013, the applicant was again stressed by relationship issues with her husband.
4. In February 2013, the applicant was stressed by seeing, on television, the person who had been the minister responsible for the agency when the applicant worked there. In June, the applicant suffered an episode of paralysis on a plane when returning from a trip overseas. In August, the applicant enrolled part-time in a master of philosophy course. She undertook to the university that she would devote at least 20 hours per week to her research. In September, the applicant was experiencing financial pressure. In October, the applicant was "shattered" after her research supervisor missed an appointment with her.
5. In November 2013, the applicant was admitted again to the psychiatric hospital. In January 2014, Dr Matias noted that the applicant was "making some improvement with regards to her conversion symptoms" but was also "reliving previous traumatic experiences in childhood and her work-place injury". Later, Dr Matias noted that, during this third admission:

Issues of past sexual abuse resurfaced and was [sic] worked through, however as the admission progressed significant personality issues which was [sic] not useful for her progress came about. She was angry and defiant re: [discharge] plan despite prolonged admission and chronic expression of suicide persists.

Also in January 2014, Dr Matias wrote to Ms Layton, saying that the applicant "has only been acknowledging now her childhood trauma and relating it to her workplace trauma, she is more focused on the trauma and sense of victimisation rather than processing it and moving through". The applicant was discharged from hospital later that month.

1. In February 2014, the applicant was stressed by the death of her dog. In April, the electricity supply to the applicant's home was cut off due to unpaid bills. In April, May and June, the applicant was stressed by relationship issues with her husband. In June she was stressed by financial issues. In August, the applicant collapsed after a maintenance van had blocked her access to a disabled car park at university.
2. In September 2014, the applicant was "freaked out" by her university commitments. In October, she was stressed by an upcoming university presentation, and by not receiving household assistance. In December, the applicant was stressed by relationship issues with her husband. She also transferred from her part-time masters course to a part-time doctor of philosophy (PhD) course.
3. In February 2015, the applicant experienced what she called "catastrophic thinking" after having received a "terse" e-mail from her PhD supervisor. In March and April, the applicant was depressed, angry and suicidal because of her continuing legal battle with Comcare. In April, the applicant was stressed because her husband had confronted a person who had bullied her, and the police had become involved. In May 2015, the applicant was "stressed out" because of her battle with Comcare, issues relating to her PhD research, and an upcoming international flight.
4. The applicant suffers from what Dr Knox calls "a relatively rare set of symptoms and disabilities". She suffers chronic anxiety. She is hyperaroused and hypervigilant. She is sensitive to noise and over-stimulation. She has regular nightmares about subjects related to her experiences in the workplace. She suffers from fatigue. She often feels detached from her body and from many everyday matters. She has been, as Dr Robertson puts it, "plagued with persistent symptoms of a dissociative nature ... She seems to experience periods of derealisation and depersonalisation as well as numerous odd physical symptoms". She has, as Dr Robertson says, "evolved a chronic and disabling psychosomatic condition with concomitant chronic depressive symptoms". She has experienced episodes of psychogenic conversion. These episodes usually begin with lower limb paralysis, but can progress. When she saw Dr Knox, she was unable to leave the room unaided. She also has, as Dr Knox puts it, "an especially bizarre interpretation of the world". She has only been able to function by creating a relatively new identity for herself. Even so, her behaviour is, as Dr Knox says, "significantly disturbed ... by way of her avoidance of many 'normal' activities".

1. There have been several diagnoses of the applicant's condition, including:
   • a chronic adjustment disorder with anxious and depressed mood (in the Tribunal's consent decision on 25 June 2010: see [5] above);
   • ongoing severe anxiety symptoms related to work injury; ongoing depression; agoraphobia; and a conversion reaction to extreme stress (by Dr Matias on 13 October 2012);
   • a conversion disorder with weakness/paralysis and sensory loss; a chronic/recurrent syndrome of mixed dissociative symptoms; and a panic disorder with agoraphobia (by Dr Knox on 29 April 2015);
   • an adjustment reaction with mixed emotional features (in Comcare's determination about permanent impairment and non-economic loss on 31 July 2015: see [11] above);
   • a persistent depressive disorder; a conversion disorder which is chronic and recurrent; and elements of a Cluster B personality disorder,[4] with prominent narcissistic and histrionic traits (by Dr Robertson on 20 November 2015); and
   • a chronic adjustment disorder with depressed mood; a chronic conversion disorder; and Cluster B personality traits (By Dr Miller on 23 October 2016).
2. I adopt Dr Miller's diagnosis (the most recent of these diagnoses). I find that, on the balance of probabilities, the applicant suffers from a chronic adjustment disorder with depressed mood, a chronic conversion disorder, and Cluster B personality traits. In making this finding, I note that there is much overlap between the diagnoses of Dr Knox, Dr Robertson and Dr Miller, and that (at the hearing) Dr Knox agreed with Dr Robertson's diagnosis of a Cluster B personality disorder, and narcissistic and histrionic traits.
3. The applicant takes antidepressant and psychotropic medication. In 2015, she was seeing a psychiatrist (Dr Matias) every fortnight; a clinical psychologist (Ms O'Sullivan) every fortnight; and a social worker (Ms Layton) every week. She has also engaged in treatments that Dr Robertson characterises as "not mainstream psychiatric or psychological therapies".
4. Dr Knox says that the applicant "has received sufficient treatment to address her problems, but without rectification". He says that her condition is stable, and likely to continue permanently. Dr Robertson agrees that the applicant's distress is "genuine and intense", and that she has an "exceptionally poor prognosis", though he says that that is because her suffering "is continually reinforced by the compensation process, as well as enabling behaviours in those around her".

Is Comcare still liable to pay the applicant compensation?

1. As the Full Court of the Federal Court explained in Telstra Corporation Ltd v Hannaford, the Tribunal can (when reviewing a decision that further compensation is not payable under, for example, ss 16 and 27 of the SRC Act) "make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision ... under s 14 of the SRC Act to accept liability".[5] In this case, Comcare does not press me to make findings inconsistent with its liability to the applicant under s 14 before 2016.[6] Comcare does not dispute that the applicant continues to suffer from a psychological condition. In fact, Comcare says that the applicant's condition "appears to have substantially worsened some years after [she] ceased employment" in April 2008, "and, in particular, since her previous application before the Tribunal was finalised by consent on 25 June 2010". But, Comcare says that it is no longer liable to pay the applicant compensation because her condition is no longer contributed to in a material degree by her employment.

1. Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. "Injury" is defined in s 5A to include "a disease suffered by an employee". "Disease" is defined in s 5B. Sections 5A and 5B were inserted into the SRC Act on 13 April 2007.[7] The amending Act provides that the definitions in those sections apply only to injuries sustained on or after that date.[8] The applicant suffered her injury on 27 July 2006.[9] At that time, s 4(1) of the SRC Act relevantly provided:

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.[10]

(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.[11]

1. Comcare does not say that the applicant suffered (or suffers) an injury other than a disease, or an aggravation of such an injury. And Comcare does not say that the applicant's disease was (or is) suffered as a result of reasonable disciplinary action taken against her, or failure by her to obtain a promotion, transfer or benefit. So, when the Tribunal decided, by consent, that the applicant had suffered an injury on 27 July 2006, that injury must have been a disease and (therefore) an ailment, or aggravation of an ailment, that "was contributed to in a material degree" by the applicant's employment by the agency.

Is the degree of the current contribution relevant?

1. Comcare says that the applicant's ailment is no longer contributed to in a material degree by her employment by the agency. It follows, Comcare says, that it is no longer liable under s 14 because the applicant's ailment is no longer a disease, and no longer an injury for the purposes of the SRC Act.
2. A difficulty with this reasoning is the use of the past and present tense in the definitions of "disease" and "injury". An injury is "a disease suffered by an employee": it could be currently suffered, or it could have been previously suffered, or both. But a disease is "an ailment ... that was contributed to in a material degree by the employee's employment". That suggests that a current contribution is not required, only a previous contribution. On that view, the fact that the applicant's ailment was (at least in 2006) contributed to in a material degree by her employment, means that it is not relevant whether her employment continues to contribute to that degree. (I note that this argument can also be applied to the definitions of "disease" and "injury" in ss 5B and 5A of the SRC Act.[12])
3. Comcare referred me to two recent decisions of the Tribunal which addressed this issue. In Prain and Comcare, Comcare argued that the events in Mrs Prain's workplace that had contributed to her illness were, after five years, diminished in significance and impact on that illness.[13] Humphries DP said:

... in reviewing Comcare's decision to discontinue her entitlement to compensation, the Tribunal must consider, as at 16 July 2015, (a) whether Mrs Prain continued to suffer an ailment and (b) whether the circumstances of her employment in 2011 were still contributing, to a significant degree, to that ailment. If the answers to both these questions are yes, the Tribunal should then consider whether her employment continues to contribute to a significant degree to her ailment.[14]

In Hopkins and Comcare, Kendall DP had to decide whether Ms Hopkins's condition remained materially contributed to by her employment. He said:

In these circumstances, the Tribunal may well find, as it is entitled to do (as per Telstra Corporation Limited v Hannaford ...) that Ms Hopkins never in fact suffered an injury or an aggravation of it. Should that occur, it goes without saying that Ms Hopkins may not currently be entitled to compensation payments. Further, the Tribunal may well find (again, as it is entitled to do) that something has changed medically such that whatever physical ailments Ms Hopkins now suffers from (however serious they might be) they are sufficiently different from her previous compensable injury because it cannot be said to the requisite degree that her employment with Comcare materially contributed to her current medical condition.[15]

1. I am not bound by the decisions of Deputy Presidents Humphries and Kendall. But the sense in their approach is obvious. If a person continues to suffer an ailment that was originally contributed to in a material degree by their employment, but to which employment no longer makes that contribution, why should Comcare continue to be liable? As Comcare submitted, "[t]he conclusion that an employee is entitled on an ongoing basis to compensation, so long as they continue to suffer from the ailment, merely because the employment had contributed to it, even for a very short period of time, would be contrary to the purpose and intention of the legislative provisions that limit liability on Comcare's part". Nonetheless, in my view, the definition of "disease", in its terms, is satisfied if the employee's ailment was contributed to in a material degree by their employment, regardless of whether that contribution continues. (I note that, in circumstances where an employee no longer suffers from the ailment, this interpretation does not preclude a decision that Comcare is no longer liable: the disease is no longer "suffered by an employee" and, therefore, there is no longer an injury.)
2. However, because of the conclusion that I have come to below (that the applicant's ailment is still contributed to in a material degree by her employment),[16] I do not need to come to a conclusion on this point.

1. On the assumption that the definition of "disease" is not satisfied if an employee's ailment is no longer contributed to in a material degree by their employment, I will consider the evidence about the degree of that contribution in this case.
2. Dr Fraser has been the applicant's GP since 2006. At the hearing, she was asked whether she had observed the applicant reacting to different stressors at different times in different ways. She said:

Not particularly in different ways. There's a set of symptoms which pretty much have stayed the same. Like I said, suicidality, depression, low energy, collapses and muscle paralysis of varying degrees, nightmares, the high anxiety, panic kinds of symptoms.

... By stressor it may not be something that you or I would regard as being challenging, but [the applicant] experiences it as challenging.

Dr Fraser was asked whether the applicant's condition in 2015 could be explained by reference to her relationship issues. She said:

[The applicant] had an ongoing vulnerability, which was initiated by the workplace events of earlier years, and the symptoms have not changed substantially but they ratchet up in intensity in response to current stressors.

Counsel for Comcare pointed out to Dr Fraser that, when her clinical notes recorded that the applicant had reported a particular event as having been stressful, those notes did not attribute the applicant's condition to her previous employment. Dr Fraser said:

We're looking at the current events, the thing that's gone on, that has triggered or ratcheted up the typical presentation, the presentation that was started back then. It's a reactivation of that cluster of symptoms, the suicidality, the preoccupation with dying, the nightmares, the high anxiety, the panic, all those things never go away and get ramped up by current events.

... That would be the trigger, but the thing that has lowered the threshold are the events of the past events, the things that happened between 2006 and 2008. So I think what - perhaps I can spell this out, there might be a current trigger, but the threshold for triggering is low and it's that low threshold which is the permanent effect.

1. Ms O'Sullivan is a clinical psychologist. She has treated the applicant since 2008. She was asked about how a person's response might be attributed to a particular stressor. Ms O'Sullivan said:

... once someone has had a trauma and it's a chronic trauma, and a condition that they have, that it doesn't matter what stressors you have, there are two sorts. One is a trigger back to your original trauma, which is really big. And the other is just common everyday stressors which you experience in a bigger way, and a more, you know, long-lasting way than you would if you didn't have a trauma condition.

1. Dr Miller is a consultant psychiatrist. He saw the applicant on 21 October 2016. He reported that:

[The applicant] was subjected to a culture of bullying and intimidation whilst working for the [agency]. This bullying is a significant and material factor in her current mood state. The fact that her previous managers have not been disciplined and that the issues of bullying have been largely ignored, continue to exacerbate her current mental state.

He also reported that the applicant's "current psychiatric condition is causally linked to her employment". At the hearing, he expanded upon his view:

... it's not as simple as she was bullied, she was in that environment; now she's not in that environment, she's not being bullied, therefore, it should be over. It's not quite that simplistic. In psychiatry it's really about the psychiatric sequelae of that bullying. So what significant psychological distress did that bullying cause? And if there is a belief by the patient that there has been no sense of natural justice, that the - you know, that the perpetrators of the bullying have not been admonished in any way or, you know, demoted or whatever the patient would think would be a reasonable action for her employer to take, given that none of that really occurred, and that her attempts at seeking justice were largely ignored, it makes complete sense then that that patient would continue to feel the injury that occurred from the bullying.

... And I think the other thing is that, you know, there has been quite a lot of litigation over the years as well. Most of which has not brought about a sense of justice for [the applicant]. And I think that then continues to perpetuate the original injury.

1. Dr Miller was asked how a person would present if they had adopted a "sick role" (as Dr Robertson says the applicant has).[17] Dr Miller said:

A sick role is less about the presentation and more about how invested the person is in being ill. I didn't believe that [the applicant] was invested particularly in being ill. Quite the reverse, in fact. I thought that she was really trying to get help.

1. Towards the end of Dr Miller's evidence, the following exchange took place between him and Counsel for Comcare:

COUNSEL: But against a fuller historical picture, it's not properly or fairly said that the events of 11 years ago in the workplace are what has brought about her condition. Wouldn't you agree that she brings her own contribution to it because of her personality, and that narrative that she has constructed?

DR MILLER: Please forgive me, I would respectfully disagree with that because her personality is more about how she expresses her distress. Not that because she expresses her distress this way, therefore, she's constructing this. It's more the fact she doesn't express her distress in a way that we would expect people to do. She is quite exaggerated and theatrical in style, as I said. And, you know, that can, as I said, irritate some people, and sometimes people can, as I've written in my report, ignore or downplay what is very genuine distress because of that theatrical style. It almost feels like it's made up. But I don't think that it is. I think it's very real. I think it's very genuine. It's just expressed in a maladaptive and unhelpful manner. So I don't believe that this is a construct in order to manipulate. I think this is her real experience.

Having observed the applicant as a witness, I agree with Dr Miller's characterisation of the applicant.

1. Dr Knox is a consultant psychiatrist. He saw the applicant on 29 April 2015. He reported that she "employs an extremely restrictive life pattern to limit her exposure to anxiety-provoking circumstances", and "avoids triggers that might remind her of her unpleasant circumstances in her previous workplace". At the hearing, he said:

... my understanding of what has happened is that then she had psychologically very stressful encounters with one individual, I think, and maybe more, in that [agency] workplace, and as a result of that has developed this very severe chronic condition with a gross decompensation, as we call it; in other words, a breakdown, a regression from being a mature adult to being a more primitive, immature person who is just not dealing with the world in a [indistinct] way in many respects. So I don't believe that we can form the view that the workplace can just be eliminated because there's no evidence that the illness that started with the workplace and never gone away, it has just got worse. And I agree that there have been other stressful factors, but I believe they're just complementary, as it were, to the fundamental illness, and not at all a new phenomenon which absolutely replaces what has been going on previously.

1. Dr Knox was asked whether the applicant's current condition was "too downstream" from her perceptions of the workplace in 2006. He thought not.

I understand that where a person who has become - if someone is to have a conversion disorder and to be dissociating, indicates that this person has had a huge disruption of their psychological identity, and that had occurred, and it evolved from those earlier things. So anything that has come along later - and I've not read anything in Prof. Robertson's report suggesting that there were any other later traumas, such as a violent encounter with a gunman in a bank, or a rape, or a bad car accident, et cetera; it has all, to me, gone along from the original foundations of what happened in that workplace ... Now, if she had been sexually abused when she was younger, and even if she didn't have a mental illness and had buried it in her identity, and then later on had had a traumatic period over a year or two, struggling in the workplace with somebody, that would bring all that alive; and that's the type of trauma which accounts for something as severe as this. Other sorts of everyday life events, the sorts of things that Prof. Robertson talks about, of possibly causing compensation neurosis or abnormal illness behaviour, those things don't bring about, from my knowledge of the literature and my cases over the years, an illness this severe. This is a very severe illness, indicating major trauma, at least in the mind, of how this woman perceived it, and possibly on top of trauma in her early developmental years.

... If someone loses a leg or someone is blind in one eye and loses their job; they're unhappy, they're pretty disappointed, life doesn't go so well, they don't have as much money as necessary, there are stressors in the relationship, more demands on a partner; of course. There's a whole domino effect that happens here. Once a few big dominoes fall over, lots of little ones fall over as well, but they're primarily secondary unless one can establish that they came completely from left field and have nothing at all to do with the whole pattern of subsequent illness.

1. When asked about the impact of financial stress upon the applicant's condition, Dr Knox said:

I would have thought that was a secondary development as well. There are many secondary complications that flow from a person losing their work and becoming sick which are not separate from what the original causation was, even though some people say there are always other things happening on subsequently, but they're usually the consequences of having had a major disruption to your life earlier on, such as falling out with a workplace and becoming sick.

He expressed a similar view about the impact of relationship issues:

... very often those things are secondary. I mean, we need to get a history of a lot of trauma and distress in the marriage before the workplace event, and then I could say, "Yes, here's a person that always had difficulty in relationships or in a bad marriage or whatever", but if they occurred after a person became sick, it's highly likely that the marriage difficulties are a consequence of the person's illness to a significant degree.

When it was put to him that it was "not entirely credible to attribute her current presentation totally to what happened in the workplace back in 2006", Dr Knox said:

... if we have the model of the house and if we lay the foundations of the house and there's concrete, and then you put the posts up and you build the house; and then later on you might change the windows or paint the house a different colour. I think [this is] a case where there were the foundations of this house - in other words, her illness - which were laid down there back in the workplace, and perhaps earlier in her life, and then later on there has been some modifications and extensions to the house, but the basic house didn't go away, it's still there, it's still the foundation of this problem.

1. Dr Matias is a psychiatrist. She treated the applicant from 2010 until 2015. At the hearing, Dr Matias agreed with Comcare's counsel that the applicant's current condition could not be completely explained by reference to what happened in the workplace in 2006:

I think that there are other things such as, you know, personality constitutional aspects. There are psycho-social stressors as well that were impacting on her. Those intrinsic vulnerabilities ... kind of result in the perpetuation of all the conditions, but it also indicated to me that perhaps because of those personality vulnerabilities that she became a target in the workplace, yes, so I don't think that is all due to the workplace.

She was unable to specify a degree to which she thought that workplace issues continued to contribute to the applicant's condition, though she was of the view that "the employment situation was still contributing" to the applicant's condition when she ceased treating her in 2015.

1. Dr Robertson is a consultant psychiatrist. He saw the applicant on 20 November 2015. He reported that:

In the course of her employment, [the applicant] seems to have personalised much of the interaction with her superiors and evolved the current symptom complex. ...

I do not believe there is any credible argument that her former employment with the Agency continues to contribute to her current condition.

Dr Robertson was asked whether the applicant would have developed her current condition as a natural progression of a pre-existing condition irrespective of her employment by the agency. He reported:

This is a speculative question. I suspect that in the final analysis, [the applicant] would have developed some sort of psychopathology. Whether the degree of impairment and the trajectory of the illness would have been the same is conjectural.

I accept Dr Robertson's evidence on this point. But, the question is not just conjectural - it is not relevant to the decision that I must make. The applicant did develop a psychopathology, and the development of her condition was contributed to in a material degree by her perception of her employment by the agency.

1. At the hearing, Dr Robertson said that the applicant's presentation is "much more related to the medico-legal process that has since displaced the original work-related injury". He also identified, as a contributing factor:

... the chronic assumption of the sick role and the reinforcement that treatment behaviour seems to have to that. So when a patient presents with these chronic psychosomatic level of complaint, the GP or any specialist involved in the care is compelled, under good practice, to investigate the complaint, and taking the complaint on face value and make sure that they can exclude, as far as they can, a medical cause. With each scan, with each blood test, with each consultation [indistinct] that's helped these to become normalities for the patient. So, in a sense, they become almost a career of seeking health care, seeking support through points of sickness. That is the essence of psychosomatic presentation. The conversion disorder is a very unusual component of this, they tend to be very spectacular when you see them, but they're very uncommon. ... So it certainly fits within that formulation of a histrionic style effect personality, very much engaged in a long-term process of abnormal behaviour. Now, I think that that has become the predominant clinical presentation it is a very long bow to draw to say that that could be attributed to her original workplace injury.

1. He reiterated his view that "it would be very hard to argue that the current presentation is largely or substantially contributed to by the workplace problem". In relation to the applicant's reports of having been sexually abused as a child, Dr Robertson said:

... those kinds of early traumatic experiences are common to the stories of people who develop these kinds of complex problems. One might argue that being traumatised in that way as a child makes one more vulnerable to social difficulties in relationships or indeed in workplace and they have a strong explanatory power for what we have seen with [the applicant's] mental health problems of late. But it does not alter my core view that what we are seeing is very much a product of recent challenges, rather than workplace difficulties.

1. While giving evidence at the hearing, Dr Robertson learnt that the applicant had exhibited conversion symptoms while she was employed by the agency - earlier than he had previously understood to be the case. That led to what he called a "softening" of his view. He said that those earlier conversion episodes meant that the later episodes could be a continuing feature of the applicant's condition, which "maybe goes to a slightly stronger causal association with employment than I had thought". Nonetheless, he said that this did not change his view "substantively".
2. The applicant says that her employment continues to contribute in a material degree to her current condition. Comcare says that the applicant's employment has ceased to contribute to that degree. Comcare says that the condition that she now suffers from is not credibly explained by reference to things that happened to her 11 years ago. Instead, Comcare says, the applicant's condition is explained by various stressors unrelated to her employment by the agency: for example, financial difficulties, relationship issues, and the demands of university research.
3. Having regard to the medical evidence before me, I make the following finding, on the balance of probabilities: the applicant's current condition is still contributed to in a material degree by her perception of her employment by the agency. In making this finding, I note the following:
   • Finn J explained, in Comcare v Sahu-Khan, that "'in a material degree' requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment, etc., in question ... whether this will be so in a given case will be a matter of fact and degree".[18]
   • The applicant's current condition is no better than it was in 2006. It is probably worse.
   • Her current condition is not completely explained by employment-related issues. Other issues contribute, too. But material contribution does not require sole causality.[19]
   • Dr Miller and Dr Robertson have different views about whether the applicant has adopted a "sick role". I make no finding as to whether she has. But, even if I had found that she has adopted that role, I do not think that that would be inconsistent with the applicant's employment continuing to contribute to her condition in a material degree.
   • I agree with Dr Knox's characterisation of the applicant's stressors, not related to her employment, as "secondary" and "complementary ... to the fundamental illness, and not at all a new phenomenon which absolutely replaces what has been going on previously".
   • The sexual abuse that the applicant says she suffered as a child clearly contributes to her current condition. As Dr Robertson says, "being traumatised in that way as a child makes one more vulnerable to social difficulties in relationships or indeed in [the] workplace and they have a strong explanatory power for what we have seen with [the applicant's] mental health problems". However, although the childhood abuse must be a significant contributor to her current condition, it was likely also a significant contributor to her condition in 2006. It may be that the applicant only acknowledged her childhood trauma (as Dr Matias said) in 2014. But, I do not think that that means the applicant's childhood sexual abuse could be said to have reduced the degree to which employment-related stressors contribute to her condition.
   • Several of the issues that Comcare point to as contributing to the applicant's current condition also arose before 2006. For example, there is evidence that the applicant attempted suicide in 2002 in response to relationship issues. This reduces the extent to which those contributing factors can be considered new or different to those that contributed to her injury in 2006.
   • I accept Dr Miller's evidence about the applicant's belief that she has been treated unjustly. The people who (she alleges) bullied and harassed her have not been disciplined. Her attempts to get "justice" have been "largely ignored". She suffers from the "psychiatric sequelae of that bullying". I make no findings about the truth of the applicant's allegations. But she perceives them to be true. The workplace issues that contributed to her injury in 2006 have not been resolved to her satisfaction. This, as Dr Miller says, continues to exacerbate her mental state, and "continues to perpetuate the original injury".
   • To the extent that the consultant psychiatrists disagree, I prefer the evidence of Drs Miller and Knox to that of Dr Robertson. Dr Miller would appear to have had less access to clinical notes than did Drs Knox and Robertson, and was not aware (before the hearing) of some relevant events. However, he would appear to have had more information about the details of the applicant's claims of bullying and harassment than did Drs Knox and Robertson. And, although Dr Robertson maintained his substantive view about the contribution of employment issues, he softened that view at the hearing. He said that the fact that the applicant had experienced earlier conversion episodes suggested "a slightly stronger causal association with employment" than he had previously posited.
4. The applicant's ailment is still contributed to in a material degree by her employment. It follows that her ailment is still a "disease" and, therefore, an "injury" as those terms were defined in the SRC Act in 2006, when the applicant suffered her injury.[20] Comcare is still liable to pay the applicant compensation under s 14.

1. The applicant says that she is entitled to compensation, under s 16 of the SRC Act, for the cost of gym membership, to undertake an exercise program. Dr Fraser has recommended that the applicant undertake an exercise program as part of the treatment of the applicant's condition, "to promote fitness, concentration, and stress management". Dr Matias supports an exercise program (yoga and Pilates classes) for the applicant as "part of the behavioural component to help with the accepted compensable condition". Ms O'Sullivan has also recommended that the applicant undertake such a program. Comcare says it is not liable for the cost of the applicant's gym membership.
2. Section 16(1) provides:

16 Compensation in respect of medical expenses etc.

(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

1. Drs Miller and Robertson both doubt that an exercise program could be considered treatment for the applicant's condition. Dr Miller reported:

... there is a paucity of randomised control studies which support an exercise programme in the treatment of depression or conversion disorder. It can therefore only be argued that exercise is beneficial for everyone but it cannot be argued that exercise is a treatment for psychiatric illness.

I do not believe that a gym membership represents psychiatric treatment. It is a worthwhile intervention for any individual and certainly has benefits for mental health, but should not, in my view, be considered mainstream psychiatric or psychological "treatment".

1. I find, on the balance of probabilities, that an exercise program would not be medical treatment obtained in relation to the applicant's injury, for the purposes of s 16. Such a program would be of benefit to the applicant, but there is no evidence before me that it would treat her condition. It follows that the applicant is not entitled to compensation, under s 16, for the cost of gym membership.

1. The applicant says that she is entitled to compensation, under s 29 of the SRC Act, for household services. Section 29(1) provides that Comcare is liable to pay compensation for the cost of household services "where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires".
2. The applicant lives with her husband. They have no dependants. The applicant is very dependent on her husband. Dr Knox says that she needs "supervision and direction by her husband, friends and therapists".
3. The applicant's husband says that, before his wife's injury, they shared the housework. He says that, since the injury, he has taken over most of the housework himself: she does some of it, but he restricts the amount of housework she does. He says:

[The applicant] does not have the energy to undertake any [household tasks] and whenever she tries she ends up so ill that she needs assistance ... Domestic chores ... often involve noisy machinery and this is a major trigger for [her] condition. Moreover, [she] has no sense of time or of process so she finds it difficult to know when tasks have been completed or remembering whether she has done them. As a result, engaging in these activities tends to lead to high acuity for her - rendering her either manic or exhausted or both. Apart from very small tasks undertaken only when she is well enough, for example, making the bed or unstacking a dishwasher, I have to undertake all of these tasks.

I accept this evidence. I note that Dr Robertson reported:

I cannot understand how a woman who is studying a higher degree ... in a particularly difficult disciplinary field ... can argue that she is incapable of organising a household. I do not believe any credible PhD candidature could be sustained in such circumstances.

But, I think that this amounts to scepticism about the applicant's capacity to undertake PhD research, rather than scepticism about her capacity to perform household tasks.

1. Dr Miller says that there are no physical limitations on the application undertaking household tasks. However, he says:

I think the issue for her is the conversion disorder. So she is very easily fatigued, and these repetitive falls that she keeps having, I think are the limiting factor for her to do her household tasks which are, therefore, now falling almost solely on her husband. So I think it is reasonable that she get some assistance with her household tasks and her gardening, which I genuinely believe that she is unable to do at this stage.

I find, on the balance of probabilities, that, although the applicant is physically capable of performing domestic tasks, she is not psychologically capable.

(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:

(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;

(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;

(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;

(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;

(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).

Having regard to these matters, I think that the applicant's husband might reasonably be expected to provide household services for himself and his wife. No doubt that would - and does - cause disruption to his employment and other activities. But I do not think it would cause substantial disruption to those activities.

1. I find, on the balance of probabilities, that the applicant does not reasonably require household services for the purposes of s 29. It follows that the applicant is not entitled to compensation, under s 29, for the cost of household services.

1. The applicant says that she is entitled to compensation, under s 16 of the SRC Act, for the cost of dental treatment for bruxism (grinding teeth). On 3 March 2015, Comcare determined that it was not liable for these costs under s 16. On 28 April 2015, in the decision under review, Comcare varied that determination: it denied liability in respect of bruxism under s 14.
2. Comcare is liable to pay compensation under s 16 only "in relation to" an injury. That means that there must be an appropriate relationship between the treatment and the injury.[21] There is no such relationship between treatment for bruxism and the applicant's psychological injury: the treatment could not be said to treat that injury. For Comcare to be liable to pay compensation for the applicant's bruxism treatment, that bruxism must be an injury itself.
3. The applicant's bruxism would appear to have arisen in 2013 - after the amendments to the SRC Act discussed above.[22] So, the applicable definitions of "injury" and "disease" are in ss 5A and 5B of the SRC Act, which relevantly provide:

(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;

that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

significant degree means a degree that is substantially more than material.

1. So, for the applicant's bruxism to be an "injury" for the purposes of the SRC Act, it would have to be:
   • an ailment, or an aggravation of an ailment, that was contributed to, to a significant degree by the applicant's employment; or
   • an injury, or an aggravation of an injury, arising out of, or in the course of, the applicant's employment.
2. There is evidence before me that the applicant suffers from bruxism. The applicant says that her bruxism was caused by her psychological injury. There is some evidence before me that bruxism can be caused by certain psychological conditions. But there is no evidence before me that the applicant's bruxism was contributed to, to a significant degree (that is, to a degree that is substantially more than material) by the applicant's employment. And, there is no evidence before me that the applicant's bruxism is an injury arising out of, or in the course of, the applicant's employment. Dr Miller reported that half of all bruxism "is caused by a genetic vulnerability". At the hearing he added:

It is possible to say that anxiety contributes, but because half the population has bruxism in any case, because it's a genetic vulnerability,[23] we can't really argue that in her case it's specifically to do with employment. It may be, you know, exacerbated by her condition but we certainly can't say that it's causally linked.

1. I find, on the balance of probabilities, that (if the applicant suffers from bruxism) her bruxism is not an injury arising out of, or in the course of, the applicant's employment. It follows that it is not an injury for the purposes of the SRC Act. Comcare is not liable under s 14 or s 16 in respect of bruxism.

1. The applicant suffers from a chronic adjustment disorder with depressed mood, a chronic conversion disorder, and Cluster B personality traits. Her current condition is still contributed to in a material degree by her perception of her employment by the agency. Her condition - her "ailment" - is still a "disease" and, therefore, an "injury" as those terms were defined in the SRC Act in 2006. Comcare is still liable to pay the applicant compensation under s 14.
2. However, the applicant is not entitled to compensation for the cost of gym membership (under s 16); or the cost of household services (s 29); or the cost of dental treatment for bruxism (ss 14 and 16).

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

...........................[SGD].............................................

[1] On 30 March 2017 (the last day of the hearing), I directed, pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, that the disclosure of the applicant's name, or any information tending to reveal her identity, be prohibited, and that she be identified by a pseudonym. I have withheld some relevant factual detail from these reasons for decision, to ensure that the applicant cannot be identified from these reasons.

[2] Creyke SM, under s 42C(2) of the Administrative Appeals Tribunal Act 1975.

[3] See [5] above.

[4] "Cluster B" personality disorders are defined in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (fifth edition, 2013) at 659-672.

[5] [2006] FCAFC 87; (2006) 151 FCR 253 at 274 [59] per Conti J, with whom Heerey and Dowsett JJ agreed.

[6] Presumably, before 17 May 2016 (when Comcare first determined that the applicant no longer suffered from the effects of her accepted condition) or 23 June 2016 (when Comcare affirmed its determination: see [12]-[13] above). Because of the conclusion that I have come to about the degree to which the applicant's ailment is still contributed to by her employment (see [60] below), nothing turns on this.

[7] Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (the amending Act), Schedule 1, item 11.

[8] Item 42 of Schedule 1 to the amending Act provides that "The definition of injury in the [SRC Act], as amended by this Schedule, applies in relation to a disease, injury or aggravation that an employee sustains on or after the day after this Act receives the Royal Assent". Item 41(1) of that Schedule provides that "The definition of disease in the [SRC Act], as amended by this Schedule, applies in relation to: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; that the employee suffers on or after the day after this Act receives the Royal Assent". The amending Act received Royal Assent on 12 April 2007.

[9] See [5] above.

[10] Item 5 of Schedule 1 to the amending Act replaced this definition with "disease has the meaning given by section 5B", from 13 April 2007.

[11] Item 6 of Schedule 1 to the amending Act replaced this definition with "injury has the meaning given by section 5A", from 13 April 2007.

[12] See [74] below.

[13] [2016] AATA 459 at [22] per Humphries DP.

[14] [2016] AATA 459 at [43] per Humphries DP. His consideration whether the contribution was "to a significant degree" reflects the definition of "disease" in s 5B of the SRC Act: see [74] below. That definition does not apply in this review: see [38] above.

[15] [2016] AATA 742 at 23 per Kendall DP. As noted at [37] above, Comcare does not say that Hannaford applies in this case

[16] See [60] below.

[17] See [56] below.

[18] [2007] FCA 15; (2007) 156 FCR 536 at 543 per Finn J.

[19] Perram J explained in Gilkinson v Repatriation Commission, that "Material contribution and aggravation connote, in ordinary English, a relationship of substantial causality although it is clear that sole causality is not meant": [2011] FCAFC 133; (2011) 197 FCR 102 at [5]. His Honour was considering the circumstances in which a factor causing or contributing to an injury, disease or death "was contributed to in a material degree by, or was aggravated by, ... service" for the purposes of s 196B of the Veterans' Entitlements Act 1986.

[20] See [38] above.

[21] Howes v Comcare [2016] FCA 1521 at [55] per Griffiths J.

[22] See [38] above.

[23] I take Dr Miller to mean that half of those people with bruxism have a genetic vulnerability to it (as he said in his report), not that half the population has bruxism, or a genetic vulnerability to it.