5.4.2 Did the Tribunal's reasons for affirming the psychological injury reviewable decision comply with the requirements of s 43(2B) of the AAT Act?
78 With respect to the accepted condition of major depressive disorder, recurrent episode, the Tribunal observed that the applicant had been assessed by five different psychiatrists since the incident at Comcare's request. The Tribunal summarised that evidence at [19]-[32] as follows:
(1) Dr Richard Burek, consultant psychiatrist, assessed the applicant on 19 May 2014 and prepared a report dated 27 May 2014. The Tribunal summarised his evidence at [20] as concluding that the applicant "had a relapse of her major depressive episode which had waxed and waned since onset in 2004 and had worsened since the incident. He also described it as an aggravation of a preceding or underlying condition. Dr Burek wrote that Ms Karabolovska's major depressive disorder had not ceased and that the aggravation caused by the incident had not ceased either." Dr Burek referred to her symptoms and other conditions which in his opinion contributed to her condition, as well as the medication which she had been prescribed since the incident (Tribunal reasons at [21]).
(2) Dr Zsadanyi assessed the applicant on 5 August 2014 with a view to assessing her capacity to continue a rehabilitation program and wrote a report dated 19 August 2014. The Tribunal referred to his opinion that she was probably not working because she presents as moderately depressed with high anxiety levels precipitated by the incident, and observed that premorbidly, the applicant had a history of depression and presented as a fragile, vulnerable woman with decreased resilience and poor coping skills (Tribunal reasons at [23]). Subsequently, following his reassessment of her on 18 October 2016, Dr Zsadanyi assessed the applicant as having a permanent impairment of 10% under Table 5.1 of the Guide to the assessment of the degree of permanent impairment (Tribunal reasons at [27]).
(3) Dr Geoff McDonald assessed the applicant on 23 December 2014 and wrote a report dated 16 January 2015. He reassessed her on 19 June 2015 and wrote a report dated 23 June 2015. He considered the applicant's progress was guarded and she was likely to remain very anxious and depressed with significant impairment for about the next two years (Tribunal reasons at [24]-[26]).
(4) Dr Walker assessed the applicant on 26 April 2017 and prepared a report dated 1 August 2017. The Tribunal summarised his evidence at [29] in the following terms:
Ms Karabolovska's current symptoms were not due to the incident, the temporary aggravation ceased sometime after May 2014, Ms Karabolovska is predisposed to psychiatric conditions and it is likely that her current symptoms and conditions represent the natural progression of her pre-existing condition.
(5) Dr Walker provided a supplementary report dated 27 March 2019 in which he maintained his opinion (as he did in oral evidence) that the effects of the incident should have ceased in May 2014 after which the applicant was not at work for the ATO. The Tribunal observed at [31] that Dr Walker's supplementary report was not based upon a reassessment of the applicant. Rather, the Tribunal found at [31] that:
… He was provided with voluminous additional information to consider, including documents produced under summons by Ms Karabolovska's general practice [sic], Dr Pakula, Ms Jarman, Ms Trikkis, optometrist, Ms Bilton and Dr Serisier, the T documents and reports from Drs Jones, Delaney, Steiner, Champion and the statements of Mr Karabolovski and Ms Karabolovska.
(6) Dr Champion assessed the applicant on 6 July 2008 and wrote a report dated 9 July 2018. The Tribunal observed that he was provided with similar material to that provided to Dr Walker in 2019. The Tribunal at [30] summarised Dr Champion's evidence as follows:
… He agreed with Dr Walker's assessment that the incident was a relatively mild stressor and explained why. Dr Champion's opinion was that was [sic] some level of exacerbation in Ms Karabolovska's previous symptoms would be expected as a result of the incident, as would resolution over a period of days or weeks and pre-existing anxiety and depressive symptoms would be expected to continue after the incident as they had before.
(emphasis added)
79 In summarising the evidence of each of these expert witnesses, the Tribunal focused upon their conclusions and, in some cases, summarised the materials with which they had been provided. Notably, however, the Tribunal did not explain or analyse the reasons which each of the experts gave for reaching those conclusions.
80 The Tribunal then turned to consider the applicant's medical experts. First, it observed that "[t]here was copious documentary evidence from Dr Pakula from 2005 to date. That is, Dr Pakula being her treating psychiatrist during that period. His opinion is that Ms Karabolovska's current symptoms are caused by the incident" (Tribunal reasons at [33]). Despite Dr Pakula having been the applicant's treating psychiatrist throughout, there is no analysis by the Tribunal of his evidence which, as I later explain, was dismissed by the Tribunal on the basis that it was not objective.
81 The Tribunal also referred to the evidence of Dr Matthew Jones who wrote a report dated 30 April 2018, having assessed the applicant before that date. The Tribunal summarised his evidence as follows:
34. … In his opinion, Ms Karabolovska found the incident at work highly traumatising and it triggered a deterioration in her mental state and an exacerbation and/or relapse of her longstanding depressive illness and her anxiety also increased and continues.
35. He provided a brief supplementary report dated 30 April 2018 in which he set out his opinion that on the balance of probabilities but for the incident, Ms Karabolovska would likely be in some form of gainful employment. He maintained those opinions during his oral evidence.
82 With respect to the remaining medical evidence, the Tribunal simply said without elaboration at [36] that: "[t]he evidence included various reports and records from psychologists, including evidence from Ms Jarman who treated Ms Karabolovska from June 2014 until 2016 and again recently also gave oral evidence." Ms Jarman was a clinical psychologist and psychotherapist although no mention is made of her qualifications by the Tribunal in its reasons.
83 Again it is notable that to the extent to which the Tribunal summarised the evidence of the applicant's medical experts, it referred only to their conclusions. No attempt was made to analyse the reasons given by critical witnesses for the different opinions reached by them.
84 The Tribunal then turned to consider what findings it should make with respect to the evidence of the applicant and her husband, finding that:
39. The Tribunal assesses the evidence before it. The Tribunal finds that the evidence of Mr Karabolovski and Ms Karabolovska is not reliable. That is not a criticism of either of them. They have been living with Ms Karabolovska's condition since at least 2005. Ms Karabolovska firmly attributes the symptoms she has suffered since the incident including her vision symptoms to that incident. She has consistently minimised her symptoms prior to the incident. Years have now lapsed since the incident. Ms Karabolovska does continue to suffer symptoms. The Tribunal accepts that she has self-harmed since the incident which she had not before the incident.
40. The contemporaneous evidence about the medications being prescribed and whether she is taking them or not is inconsistent with her evidence about when she was or was not taking medications. The Tribunal accepts that she does not like taking medications because of the side effects.
41. Mr Karabolovski's accounts of what Ms Karabolovska did at home were inconsistent with her contemporaneous reports to doctors. During his oral evidence he was unable to recall how she was during a particular time and a particular year. The Tribunal repeats, it is not criticising either Ms Karabolovska or Mr Karabolovski in relation to their evidence.
85 The finding that the applicant and her husband's evidence was unreliable was plainly a critical finding. Yet no clear reasons are given for that finding. As best can be understood, after stating that conclusion, the remainder of paragraph [39] of the Tribunal's reasons is concerned with explaining that that finding is not a criticism of the applicant or her husband but a result of subconscious factors, and that the Tribunal nonetheless accepts that the applicant continues to suffer from symptoms and has self-harmed only after the incident. Paragraph [40] may go some way to explaining the basis for the finding at [39] although the Tribunal has not identified the contemporaneous evidence which is said to be inconsistent with the applicant's evidence, or the extent or nature of the inconsistencies. Nor in any event does an inconsistency in the applicant's evidence about her medications rationally explain (at least without more) why the applicant's evidence more generally was regarded as unreliable. Similarly, the Tribunal's finding that "Mr Karabolovski's accounts of what Ms Karabolovska did at home were inconsistent with her contemporaneous reports to doctors" does not identify the inconsistencies or the evidence relied upon save in the most general terms. Furthermore, it does not consider whether any explanations were given for those alleged inconsistencies and, if so, why they were rejected. Moreover, it is not apparent whether the Tribunal relied upon those inconsistencies in support of its finding that their evidence was unreliable or for some other purpose.
86 The Tribunal considered the critical contest in the medical evidence at [41]-[45].
87 First, the Tribunal referred to the submissions of the applicant's counsel that:
… Drs Walker and Champion disregarded the fact that Ms Karabolovska had been able to return to work at the ATO prior to the incident, obtained a promotion, and has not been able to work since the incident. He argued that the preponderance of medical evidence supported her case. He described Dr Walker as a gun for hire, gave reasons for that, and criticised Dr Champion for not engaging with questions, providing a very strange report, and for undermining Dr Pakula by referring to him as an advocate and providing an article on the subject.
(Tribunal reasons at [38])
88 The Tribunal's reasons for accepting the evidence of Drs Walker and Champion are set out in the following passages from its reasons as follows:
42. The Tribunal found Dr Champion's report to be a comprehensive consideration of the medical evidence and very persuasive. It supports the opinion expressed by Dr Walker. The Tribunal accepts that Dr Pakula's evidence is not objective. That is again, not a criticism of Dr Pakula. He has been in a therapeutic relationship with Ms Karabolovska since 2005 which he seeks to maintain. The analysis of his evidence demonstrates that his opinion that Ms Karabolovska was in remission prior to the incident is not objective and is inconsistent with his clinical notes.
43. The Tribunal does not accept that remission is an appropriate description of Ms Karabolovska's condition prior to working for the ATO or prior to the incident. The Tribunal also takes account other aspects of Dr Pakula's evidence commented on by Dr Champion. In addition to Dr Champion's comments on the evidence of other doctors, the Tribunal finds that Drs Burek, Zsadanyi and McDonald were provided with limited information upon which to form their views apart from the information obtained from Ms Karabolovska during the assessments which was unreliable.
44. It also notes that their evidence is consistent with that of Dr Champion in expecting that the exacerbation would end and that Ms Karabolovska would continue to suffer from what might be described as her underlying condition. It was not clear whether Dr Jones had all of Dr Pakula's clinical notes up to the time of the incident. He did not refer to clinical notes for 15 November 2014 or 23 January 2014.
45. The Tribunal accepts Dr Champion's description of the incident as a relatively mild stressor. That Ms Karabolovska returned to work after one or two days off, did not see a medical professional from the day of the incident until she sought a medical certificate on 15 March 2014 for those two days off and then worked her usual hours, although in alternative duties, supports that conclusion. It is unfortunate that Comcare did not look closely at the facts of this case some years ago.
89 These reasons fall well short of the standard required by law. The Tribunal has not sought at this point in its reasons or earlier to engage in any meaningful way with the competing medical evidence and has essentially stated its conclusions and expressed its reasons at the level of vague generalities. Nor do the Tribunal's reasons engage with the applicant's criticisms of Dr Walker's and Dr Champion's opinions, to which it briefly referred at [38] of its reasons. As such, the parties and the Court are left to speculate as to the actual path of reasoning adopted by the Tribunal member in reaching those conclusions.
90 This is not to suggest that the conclusions were not open to the Tribunal based upon the material before it. To the contrary, Mr Kelly, counsel for Comcare, explained in a careful and thorough manner the evidence which could have supported critical findings by the Tribunal and the reasoning which may have led the Tribunal to reach the conclusions which it did. However, while those submissions suggested that the conclusions were capable of being sustained by the evidence, they could not be a substitute for the actual reasons of the Tribunal. Two examples serve to illustrate the deficiencies.
91 First, as Mr Kelly pointed out in submissions with some force, there was a substantial body of evidence potentially capable of supporting the Tribunal's finding that Dr Pakula's evidence suffered from a lack of objectivity and should be rejected. That evidence included the following:
(1) the statements by Dr Pakula in his report to Comcare that the applicant was symptom-free (and not merely in remission) when she joined the ATO were allegedly inconsistent with Dr Pakula's own clinical notes which had been the subject of extensive cross-examination;
(2) the Tribunal's acceptance of Dr Champion's evidence in which he had relevantly expressed disagreement with Dr Pakula;
(3) the applicant's claims that the improvements to her pre-existing condition (such that she was able to re-enter the workforce) had "vanish[ed]" following the incident were potentially inconsistent with her evidence that she left work early on the day of the incident but worked the following day, had one day off, returned to work, and continued to work her usual hours until May 2014;
(4) the evidence of Dr Pakula in cross-examination that the applicant was perhaps suffering some symptoms of anxiety after commencing at the ATO, but not depression, whereas his clinical notes were said to have described the applicant as being in the midst of a depressive episode (T89.16-19); and
(5) Dr Champion's evidence that treating psychiatrists lack objectivity, and the 1997 article "On Wearing Two Hats…" attached to his report.
92 However, whether all or some of these matters in fact formed the basis of the Tribunal's rejection of the entirety of Dr Pakula's evidence is not disclosed by the reasons. Equally, if some or all of these matters underlay the Tribunal's finding, did the Tribunal reject Dr Pakula's evidence on the basis of the cumulative weight of these matters or did it consider that one or more of these matters in isolation provided a sufficient basis for rejecting his evidence? The answers are not apparent from the reasons. Nor does the Tribunal give reasons for rejecting Dr Pakula's explanations during cross-examination for the alleged inconsistencies.
93 Secondly, the Tribunal found at [42] that the report of Dr Champion was "a comprehensive consideration of the medical evidence and very persuasive". Again, counsel for the respondent submitted that this conclusion and the rejection of Dr Jones' evidence was supported by the evidence. In particular:
(1) Dr Champion's report in fact provided commentary on the extensive psychiatric evidence before the Tribunal (T85.19-20);
(2) in contrast to Dr Champion, the other psychiatrists, in preparing their reports, either: did not have before them the full extent of the applicant's history prior to the incident; or had before them the history recording that the applicant was well at the time of the incident which was disputed and allegedly inconsistent with Dr Pakula's clinical notes; and
(3) it was unclear, as the Tribunal accepted at [44], whether Dr Jones had all of Dr Pakula's clinical notes up to the time of the incident and he did not refer to clinical notes for 15 November 2013 or 23 January 2014 (being those immediately preceding the incident on 25 February 2014).
94 However, while the Tribunal's finding that Dr Champion's evidence was comprehensive is supported by the evidence referred to at (1) above, the mere fact that Dr Champion was provided with and apparently considered all of the other medical evidence does not, without more, explain why his views were accepted: nor does the bare statement that the Tribunal found Dr Champion's evidence to be "very persuasive". For example, it must be inferred that the Tribunal accepted Dr Champion's evidence that the applicant's rumination on her supposed visual difficulties was simply a symptom, albeit a new one, of her pre-existing condition and was not, as other witnesses had said, evidence of continuing aggravation. However, that significant issue is not even mentioned in the Tribunal's reasons. Furthermore, why, for example, was the uncertainty about whether Dr Jones had Dr Pakula's clinical notes for 15 November 2013 and 23 January 2014 significant given among other things that:
(a) Dr Jones, in recounting the applicant's history in his report dated 30 April 2018, in any event accepted that Dr Pakula's notes up to 1 November 2013 showed the applicant was "still depressed. She was tremulous and ruminating about her financial situation" (AB Part C, tab 12.2.1 at p. 83 [5.1(b)]); and
(b) Dr Jones reached his opinion on the basis that despite her "established history" of anxiety, depression and other problems, she had shown reasonable resilience, entered the workforce and was enjoying her work (AB Part C, tab 12.2.1 at p. 89 [15.1])?
Again, such questions are left to bare speculation.
95 It follows that the reasons of the Tribunal fail to disclose the actual path of reasoning by which it arrived at its conclusions and lack sufficient detail to enable the Court on judicial review to determine whether the conclusion is affected by any error of law. As such, the decision on the application in matter no 2018/0353 affirming the determination dated 11 October 2017 must be set aside on the ground of error of law in line with the authorities earlier referred to at [36] and [37] above. In those circumstances, the remaining questions of law with respect to matter no 2018/0353 do not arise and indeed it is highly questionable whether they could be sensibly addressed where the reasons for decision are so deficient.