2. file submissions, if any, in respect of orders for costs.

If no submissions are filed, the matter will be remitted to Comcare to calculate the amount of weekly compensation that is payable to Mr Kavas and Comcare will be ordered to pay Mr Kavas' reasonable costs in these proceedings, as agreed or taxed.

WORKERS COMPENSATION - compensable injuries - return to work program - continuing partial incapacity for work - failure to obtain substantive appointment to position performed under rehabilitation for an extended period - aggravation injury - multiple inter-operative causes of incapacity - evidentiary requirements to establish that an injury results in incapacity for work - commonsense - exclusions from the meaning of 'injury' not determinative - decisions set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 19, 40, 67

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; [2005] 221 CLR 568

Comcare v Eames [2008] FCA 422

Commonwealth of Australia v (K C) Smith [1989] FCA 189; (1989) 18 ALD 224

Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268

Hart v Comcare [2005] FCAFC 16

Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

March v E & MH Stramare Pty Ltd [1991] HCA 12; [1991] 171 CLR 506

McAuliffe v Comcare [2002] FCA 769

Re Sadek and Commonwealth of Australia (1988) 14 ALD 769

Rothwell v Caverswall Stone Co Ltd [1944] 2 All E.R. 350

Stapley v Gypsum Mines Ltd [1953] UKHL 4; (1953) AC 663

Trewin v Comcare (1998) 84 FCR 171

1. Alojzij Kavas drove buses. He injured his back and successfully claimed compensation. Despite treatment, he suffered debilitating chronic pain. He experienced an adverse psychological reaction and became anxious and depressed. He obtained treatment for these afflictions and was able to return to work. But he could not drive buses any more. His employer, the ACT Department of Territory and Municipal Services, provided rehabilitation and placed him in suitable employment positions, always on a temporary basis. This continued for a number of years. Mr Kavas applied for permanent appointment to one of the positions in which he was temporarily placed, but he was not successful. His symptoms flared. He claimed compensation for incapacity for successive periods thereafter. But Comcare rejected his claims. Four of these decisions are the subject of Mr Kavas' requests for review.
2. The issue is whether Mr Kavas is entitled to weekly compensation during the periods under claim.
3. During the hearing, the parties agreed that the issue before the Tribunal is confined to Mr Kavas' claims for weekly compensation under section 19 of the Act as a result of his accepted injuries. Having considered the terms of the decisions under review and the powers of the reconsideration decision-makers, that is correct. The issue of whether a fresh injury occurred on 6 January 2010 for which Comcare is liable has not presently been determined and no claim for any such injury has been made. Consideration of a fresh injury and the exclusionary provisions under section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in such circumstances is otiose.
4. Thus, it is necessary to address the following issues:
   • (a) Is the incapacity for work Mr Kavas suffered during the periods under claim a result of his previously accepted compensable injuries?
   • (b) What is the amount of weekly compensation that is payable, if any, during the periods under claim?

IS THE INCAPACITY FOR WORK MR KAVAS SUFFERED DURING THE PERIODS UNDER CLAIM A RESULT OF HIS PREVIOUSLY ACCEPTED COMPENSABLE INJURIES?

1. Mr Kavas says that the incapacity for work he suffered after 6 January 2010 is the result of his compensable physical and psychological injuries. He asserts that he suffered from chronic back pain, depression and anxiety prior to, on and after 6 January 2010. In his submission, for several years these conditions have followed a fluctuating course, where episodes of heightened symptoms are followed by periods in which symptoms diminish. Mr Kavas says that his symptoms of pain and depression reduced to some extent in the latter part of 2009, but his anxiety symptoms continued unabated. He says that his pain symptoms increased again in October 2009 and his depressive symptoms increased again in December 2009. He experienced further increases in symptoms in January 2010. In Mr Kavas' submission, the elevation of symptoms is part of the established episodic course of his accepted injuries.
2. Mr Kavas maintains that the events on 6 January 2010 were incidental to the ongoing effects of his injuries. He says that his failure to obtain a permanent appointment did not cause a fresh injury. In his submission, any increase in symptoms he experienced on or about 6 January 2010 was the product of his existing injuries.
3. Alternatively, if a fresh injury did occur, he asserts that any resulting increase in his psychological symptoms does not extinguish his ongoing entitlement of weekly compensation, as the incapacity he suffered on and after 7 January 2010 was as a result of his accepted injuries. Mr Kavas notes that on and before 6 January 2010, he was not working his full normal weekly hours prior to injury and he suffered an ongoing incapacity for work as a result of his accepted injuries. This, he says, continued throughout the periods under claim, to the present. At the very least, in Mr Kavas' submission, this establishes his ongoing entitlement to weekly compensation during the periods under claim.
4. Finally, Mr Kavas says that if a fresh injury arose on 6 January 2010, this injury is not excluded by his failure to obtain a permanent appointment to the position in which he had been temporarily placed. Mr Kavas asserts that any such fresh injury was not the result of reasonable administrative action undertaken in a reasonable manner in connection with his failure to obtain that appointment. In any event, no claim or determination has been made in respect of any fresh injury on 6 January 2010.
5. Comcare maintains that Mr Kavas was fit for full time work prior to 6 January 2010, but suffered from total incapacity for work thereafter. This sudden change in his fitness for work, in Comcare's submission, is not properly attributable to his previously accepted compensable injuries - the increased incapacity was a direct result of Mr Kavas being informed on 6 January 2010 of the outcome of the merit selection process in respect of the ASO3 position in which he had been temporarily placed. Comcare says that Mr Kavas aspired to the position, but he did not win it in the competitive merit selection process. Notice of this result, Comcare asserts, rendered Mr Kavas totally incapacitated for work, but it is a fresh cause of incapacity that is not compensable.
6. Comcare asserts that Mr Kavas suffered a new ailment or an aggravation of symptoms on 6 January 2010, when he was informed that he had not been successful in his application for substantive appointment to the position in which he had been temporarily placed. In Comcare's submission, the new ailment or aggravation of symptoms was significantly contributed to by Mr Kavas failing to obtain substantive appointment to the position for which he had applied, and it constitutes a fresh 'disease'. This disease, in Comcare's submission, was suffered as a result of Mr Kavas' failure to obtain a benefit in connection with his employment. In consequence, Comcare says that the disease is excluded from the meaning of 'injury' under section 5A of the Act. Comcare says that the incapacity for work Mr Kavas experienced after 6 January 2010 is the result of the new disease that arose on that day, in relation to which he is not entitled to compensation.
7. I do not agree.
8. Under sections 14 and 19 of the Act, an injured employee may be entitled to compensation if he or she suffers an incapacity for work 'as a result of' an 'injury'[1]. An 'injury' includes a 'disease'[2] or an 'aggravation'[3] of an injury or a disease, but it excludes a disease or an aggravation that results from 'reasonable administrative action taken in a reasonable manner'[4]. The term 'incapacity for work' is explicated in section 4(9). As can be seen, an incapacity suffered by an employee includes an incapacity to engage in any work or in work at the same level as the work in which the employee was engaged prior to injury. If it is established that, as a result of an injury, an employee is incapacitated for any work or for work at the same level as prior to the injury, the quantum of weekly compensation that is payable is to be determined under section 19. It should be noted that weekly compensation is payable in respect of an injury; the extent or degree of incapacity affects the amount of compensation that may be payable.
9. The central issue in these proceedings is one of causation - was the claimed incapacity for work suffered as a result of Mr Kavas' accepted injuries? The phrase "as a result of" is well understood in workers compensation law. It refers to a relationship of cause and effect in which emphasis is placed on effect, rather than the proximity of cause and effect[5]. While pointed, the causal relationship 'as a result of' is not exclusive or conditioned by adjectival singularity - it permits the conjunctival co-existence of multiple contributory causes. Applying this construction, one must assess the operative or effective causes of the incapacity under claim[6]. Clearly enough, in circumstances where multiple causes exist, the task of disentangling cause and effect may be difficult. While common sense should be applied[7], it is also necessary to consider the terms, scope and purposes of the applicable legislation, and to have regard to relevant expert evidence[8].
10. On this point, having regard to the oral and written submissions made by both parties, it appears to me that Comcare's case is raised on two limbs. Firstly, Mr Kavas did not suffer from an incapacity for work on or immediately before 6 January 2010 as a result of his accepted injuries. The incapacity he suffered on and after 7 January 2010 was the direct result of the events on 6 January 2010, when Mr Kavas was notified that his application for substantive appointment to the position in which he had been temporarily placed had not been successful. And secondly, the events on 6 January 2010 are sufficient to create an over-riding new cause of incapacity, an effective novus actus interveniens, that entirely displaced any then persisting incapacity that was as a result of Mr Kavas' accepted injuries.

1. To my mind, neither of these propositions is made out. Before addressing them, however, it is necessary to consider the facts.

1. There is no dispute, and the present evidence establishes, that Mr Kavas has two accepted compensable injuries: a physical injury to his back (displacement of intervertebral disc - lumbar, sciatica (left)) that is productive of chronic pain and a psychological injury (depressive disorder) with features of depression and anxiety. He claimed compensation in respect of these injuries on the basis of incapacity for work in consecutive periods from 7 January 2010 to 6 September 2011. Initially, his earlier claims were accepted, but later his employer applied for reconsideration and these claims were denied[9]. His subsequent claims were denied by primary and reconsideration decisions[10].
2. It is clearly established, however, that Mr Kavas suffered an ongoing incapacity for work as a result of his compensable injuries: he was not capable of returning to his previous employment as a bus driver, and his fitness for work was subject to medical restrictions. Having regard to section 4(9)(b) of the Act, I am reasonably satisfied that during all relevant periods under claim Mr Kavas suffered an incapacity to engage in work at the same level as prior to his 1999 injury.
3. There is no dispute that Mr Kavas suffered from injury-related depression and anxiety for many years prior to the events in his employment on 6 January 2010. In 2006, Dr Saboisky, a treating psychiatrist, diagnosed this as a major depressive disorder with a variety of significant symptoms, including anxiety[11]. In March 2010 Dr Saboisky confirmed this diagnosis[12], but in March 2011 the Doctor reported that Mr Kavas suffered from an "adjustment disorder with mixed features of depression, anxiety and anger as a direct result of missing out on a job that he had been acting in"[13]. This is a matter to which I will return. Dr Zsadanyi and Dr Bertucen, consultant psychiatrists, reported that Mr Kavas suffered from a Chronic Adjustment Disorder with depressed mood and anxiety, secondary to and closely following his physical injury in 1999. By definition[14], an adjustment disorder is a reactive condition in which specific stressors or events cause clinically significant psychological symptoms. On Dr Bertucen's evidence, the particular stressors that contributed to Mr Kavas' Disorder included "chronic pain, the awareness of physical incapacity, and subsequent impact that this incapacity has had on pursuit of his previous pastimes and hobbies, as well as the significant restriction of his choices for future employment"[15]. Having regard to the evidence of Dr Saboisky, Dr Zsadanyi, Dr Bertucen and Ms Bruce, Mr Kavas' treating psychologist, I am reasonably satisfied that the correct diagnosis of Mr Kavas' illness is Chronic Adjustment Disorder with depressed mood and anxiety. I am also reasonably satisfied that this Disorder arose soon after and as a result of Mr Kavas' back injury in 1999. It was as a result of his back injury that Mr Kavas also suffered from chronic and debilitating pain.
4. Although chronic in nature, the psychological and pain conditions have varied in intensity, from time to time. Furthermore, it appears likely that Mr Kavas' psychological and chronic pain symptoms are inter-operative to some degree and that the inter-operability may be bi-directional: the more intense the pain, the greater the psychological symptoms; and the more intense the psychological symptoms, the greater the experience of pain. The medical evidence does not clearly explain the causal relationship and inter-operability of Mr Kavas' symptoms, however. Nevertheless, it is very clear on the medical evidence that Mr Kavas suffered from these ailments before and after 6 January 2010, and they are of ongoing effect.
5. On the evidence of Dr Low, an occupational physician, Ms Bruce and Dr Sukumar, Mr Kavas' treating general practitioner, his injury-related depression was well managed and substantially in remission from July to December 2009. Throughout this period Mr Kavas was prescribed the anti-depressant medication, Cymbalta.
6. It appears that Mr Kavas' level of back pain reduced in July 2009, following treatment by Dr Speldewinde, but flared up "for no apparent reason" and rendered him unfit for work from 13 to 28 October 2009[16]. He resumed treatment with Lyrica (an analgesic medication) and was certified fit to resume modified duties on full hours[17]. I am reasonably satisfied that in 2009, and particularly from October of that year, Mr Kavas experienced chronic pain symptoms as a result of his 1999 injury that fluctuated in response to environmental factors and his anxiety and other psychological symptoms.
7. Mr Kavas experienced fluctuating symptoms of anxiety throughout this period in 2009[18]. In July 2009 Dr Low reported that "Mr Kavas' anxiety was worsened by his concern that he would be transferred to another supernumerary position if he did not get the ASO3 position in the Licencing Department"[19]. This proposition is supported by the evidence of Ms Bruce[20] and Hanneka Symonds, a rehabilitation consultant[21]. Clearly, on this evidence, uncertainty attaching to Mr Kavas' employment was operative in his psychological state from July 2009. It was not put that this state of affairs in July 2009 may have constituted a fresh cause of injury, and no such fresh injury has been claimed. Considering the evidence of Dr Bertucen, Dr Low and Ms Bruce, it is probable that Mr Kavas' symptoms in July 2009 were features of his existing disease at that time, and not a fresh aggravation type injury. I so find. It appears that in November 2009 Mr Kavas' level of anxiety was manageable, although Ms Bruce continued to provide cognitive behaviour therapy and counselling, especially in respect of strategies to alleviate panic attacks[22]. On Dr Bertucen's evidence concerning stressors underlying Mr Kavas' Chronic Adjustment Disorder, I am reasonably satisfied that the symptoms of anxiety Mr Kavas experienced during this period were attributable to his Chronic Adjustment Disorder injury. It appears to me that this injury affected Mr Kavas' perceptions in respect of his employment at this time, particularly in relation to stressors relating to serial temporary work placements that did not provide him with stable employment, such as he had previously enjoyed as a bus driver, and that were not a matter of his choice.
8. It appears that Mr Kavas has a history of temporary work placements in his employment following the injury in 1999. It is not necessary to list each of these in details for present purposes. In 2009 he participated in a rehabilitation and return to work program. Under this program he was provided with suitable employment on an extended but temporary basis, back-filling a temporarily vacant ASO3 position in the Licencing and Investigations Unit of his employing Department. The rehabilitation program came to an end on 28 September 2009. At this time Mr Kavas was working full time in his temporary placement in the ASO3 position, but not the full amount of his normal weekly hours prior to injury, and Tanya Tomlinson, his rehabilitation case manager, decided that rehabilitation was no longer required[23]. It appears that a competitive merit selection procedure to substantively fill the position commenced in October 2009[24]. Mr Kavas was an applicant. On Mr Kavas' evidence, his supervisor, Jo-Anne Bauer, encouraged him to apply for the position: she led him to believe that he may succeed in his application and she offered him a uniform. But, as I have said, Mr Kavas experienced significant anxiety about the prospect of being moved into another temporary placement. To my mind, it is very clear that the prospect of having to move, again, from his temporary placement in the Licencing and Investigations Unit into another temporary placement operated, adversely, on Mr Kavas' mental health from July 2009. He perceived the merit selection process as a threat to the stability of his employment. The effect of his perception was ameliorated to an extent, for a time, by his supervisor's encouraging words and actions. Ultimately, however, those encouragements increased Mr Kavas' sense of betrayal and failure.
9. Furthermore, from July 2009 Ms Bruce and Dr Low also encouraged Mr Kavas to make efforts to increase his hours of work in order to increase his prospects of winning substantive appointment to the position in which he was then employed. This he did; and from in or about September 2009 he managed to work full time hours in the position. His evidence and the evidence of Ms Bruce, is that he did so despite experiencing symptoms of pain and anxiety.
10. I note that even though Mr Kavas was working full hours in his temporary placement in the Licencing and Investigations Unit to 6 January 2010, the amount of his hours was less than his normal weekly hours prior to injury (36 hours 45 minutes per week, whereas his full time hours prior to injury in 1999 were 39 hours 5 minutes per week[25]). It does not follow, however, that Mr Kavas was not fit to work the additional hours; the additional hours were simply not available in the Licencing and Investigations position. This is a matter that goes to Mr Kavas' ongoing entitlement to weekly compensation under section 19 of the Act.
11. On Ms Bruce's evidence, Mr Kavas' depression relapsed in December 2009 as a result of work stresses[26]. Ms Bruce gave evidence that Mr Kavas telephoned her in an agitated state while she was on leave in late December 2009 - he was feeling depressed and distressed about his negative expectations in respect of his continuing employment. This aspect of her evidence was not seriously challenged. On her evidence it appears that Mr Kavas was offered a uniform for the ASO3 position in November 2009 which raised his hopes and expectations[27], but subsequently Mr Kavas formed the opinion that his co-workers were avoiding him and that his prospects as a "redeployee" were grim. He worked alone in the Licencing and Investigations Unit over the Christmas period. He perceived that he would not be appointed to the position and would be faced with uncertainty and other temporary placements in his future employment. On Dr Low's evidence, issues and perceptions of this kind caused his symptoms to flare in July 2009 and I accept that Mr Kavas' symptoms increased, again, in late December 2009 for similar reasons.
12. Comcare asserts that Ms Bruce was not a reliable witness and her evidence should not carry much weight as it was tainted by advocacy for Mr Kavas. Certainly there are concerns about the extent of production of Ms Bruce's records under summons. I do not accept, however, that her relationship with Mr Kavas was other than a therapeutic one. The boundary between treatment and advocacy may be difficult to locate in the therapeutic relationship between a psychologist and her patient, where treatment involves cognitive behaviour therapy and counselling, and those treatments involve discussion of strategies, including strategies in response to stressors. To my mind, in this context, advocacy on behalf of a patient requires more than simple clinical notations of circumstances or opinions, or recommendations for action - such as seeking a medical certificate from a doctor for example.
13. The assertion that Ms Bruce tailored her sworn evidence to better support Mr Kavas' claim, as an act of advocacy, is a serious one indeed. It suggests that Ms Bruce's sworn evidence was not truthful - that she deliberately omitted from her evidence matters she knew to be true and that she deliberately fabricated evidence that she knew to be untrue. The matters to which Comcare points in its written submissions, purportedly in support of such propositions, do not persuade me to any such conclusion. Apparent discrepancies and issues of memory may have other reasonable explanations, especially when one considers the effects of the passage of time since the particular events in 2009 and 2010. Ms Bruce's ability to recall the contents of a telephone conversation with Mr Kavas in December 2009, without contemporaneous notes, whereas her inability to recall the details of particular aspects of clinical consultations with Mr Kavas, with clinical notes, should not, too readily, be construed as tailoring her evidence. The proposition that Ms Bruce may recall a telephone conversation with a distressed patient while she was on holiday because of its intrusive or distressing quality is not difficult to accept. Similarly, it is not difficult to accept that, in a busy practice, Ms Bruce may not recall the particular details of each clinical consultation she had with Mr Kavas more than two years ago. Having carefully considered Ms Bruce's evidence, it appears to me that she exposed the true nature of her therapeutic relationship with Mr Kavas as his treating psychologist.
14. I do not accept Comcare's submission that the only logical conclusion is that Ms Bruce became involved in the Applicant's litigation and advocated on his behalf. To my mind, the logical conclusion to be drawn, and the correct conclusion, is that Ms Bruce developed a therapeutic relationship with Mr Kavas as his treating psychologist over a long period. In that context, Ms Bruce's treatment, in its various forms, was essentially discursive and supportive. Perhaps by its nature, psychological treatment is of that character. In any event, it is in that therapeutic frame that Ms Bruce's clinical notes must be considered - she discussed and noted the issues that were on Mr Kavas' mind at the time and over time she monitored the progress of Mr Kavas' psychological condition and the issues or stressors that affected his progress.
15. On 6 January 2010 Ms Bauer informed Mr Kavas of the result of the merit selection process - he was ranked second and the ASO3 position would be offered to the candidate ranked first. Mr Kavas was disappointed and upset - he left his workplace, taking some of his personal possessions with him. There is a dispute as to whether he intended to return.
16. On 7 January 2010 Dr Sukumar noted that Mr Kavas was "feeling depressed as he did not get the position" and certified that he was unfit for work for one month, to 8 February 2010[28]. On 4 February 2010, Dr Saboisky examined Mr Kavas and reported to Dr Sukumar that "When he [Mr Kavas] found out [that he missed out very narrowly on getting the job] his reaction was quite catastrophic. He felt overwhelmed, depressed, extremely worried and very hurt and angry about what happened. His sleep was very disturbed, he was crying excessively, he had severe head pain and developed reflux symptoms. His back and leg pain also became worse and you [Dr Sukumar] have re-introduced Lyrica"[29]. When this report is viewed in the context of the detailed evidence to which I have referred, it can be seen that Dr Sukumar reintroduced Lyrica in October 2009 and Mr Kavas experienced increasing psychological symptoms in December 2009. Nevertheless, by Mr Kavas' own account he experienced elevated symptoms as a result of the events on 6 January 2010. Dr Bertucen examined Mr Kavas on 22 April 2010 and reported that he suffered from a "Chronic Adjustment Disorder with Depressed Mood. The most recent depressive episode represents in my view a recent aggravation of this longstanding condition"[30] and "his depressive symptoms were significantly aggravated in early January 2010 by the news of the loss of his job"[31]. Dr Bertucen also reported that there were restrictions on Mr Kavas' employment as a result of his chronic back condition and he was psychologically fit for a graduated return to employment within those restrictions[32].
17. Thus it is established that on 6 January 2010, when Mr Kavas' fears in respect of the particular ASO3 position were realised, and his hopes of obtaining stable employment and a substantive appointment were dashed, his already increasing psychological symptoms intensified. Whether this intensification constitutes an aggravation injury for the purposes of the Act is not presently for me to decide.
18. Considering the evidence of Dr Low, Ms Bruce and Dr Bertucen, it is likely that Mr Kavas' Adjustment Disorder rendered him exquisitely sensitive to employment stressors of this kind - his awareness of physical incapacity and the restriction of his employment choices and prospects as a result of injury appear to have contributed to the chronic nature of his ongoing Adjustment Disorder. The temporary nature of his placement in the Licencing and Investigations Unit and the circumstances of the selection process to substantively fill the position in which he was temporarily placed, and his perceptions of those circumstances, appear to have contributed to the elevation of his psychological symptoms and the incapacity he suffered on 7 January 2010. So, too, did his failure to obtain substantive appointment and stable employment.

1. Turning to consider the first limb of Comcare's submissions, that Mr Kavas was not incapacitated for work on and immediately before 6 January 2010, the evidence of Dr Sukumar is very clear - on 30 November 2009 Mr Kavas was suffering from "1. Bilateral sciatic neuralgia from L4,L5 disc herniation. 2. Major depressive disorder secondary to chronic pain". These conditions are his accepted compensable injuries. Dr Sukumar certified that Mr Kavas required psychological treatment with Ms Bruce and he was "Fit for modified light office duties full time five days weekly from 1/12/09 to 27/02/10"[33]. As can be seen, even though Mr Kavas was fit for full time work, he was restricted to light duties.
2. There is no evidence that the incapacity for work Mr Kavas suffered on 30 November 2009 came to an end. Prior to his injuries, Mr Kavas was employed to work as a bus driver. During the periods under claim, Mr Kavas was not fit to resume that work. It follows that on 30 November 2009 and during the periods under claim Mr Kavas suffered an incapacity for work for the purposes of the Act: he had an incapacity to engage in work at the same level to that in which he was engaged prior to his injury. I am reasonably satisfied that this incapacity for work was as a result of his accepted injuries.
3. The evidence of Ms Bruce is that his condition became worse in December 2009. The evidence of Dr Low clearly establishes that the lack of stable employment was an operative factor in Mr Kavas' psychological presentation and the progress of his psychiatric disorder in July 2009[34]. This is consistent with Dr Saboisky's assessment on 8 February 2010[35] and Dr Bertucen's evidence that the identifiable stressors contributing to Mr Kavas' previously existing Adjustment Disorder included "the significant restriction of his choices for future employment"[36]. On this evidence it is probable that Mr Kavas did experience increasing psychological symptoms when he formed a negative perception about his prospects in respect of employment in December 2009. On the evidence of Dr Low and Ms Bruce it appears that a similar deterioration occurred in or about July 2009 in response to similar stimuli. On 7 January 2010 Dr Sukumar certified that Mr Kavas was suffering from "1. Major depressive disorder aggravated by work related injury and stress. 2. Chronic low back pain neuropathic type bilateral sciatic neuralgia" as a result of which he was "unfit to work from 07/01/10 to 08/02/10"[37].
4. On this evidence, I am reasonably satisfied that Mr Kavas did suffer an incapacity for work as a result of his accepted injuries on 6 January 2010.
5. Furthermore, as I have said, Mr Kavas was not working the full amount of his normal weekly hours prior to injury on or before 6 January 2010. I am reasonably satisfied that Mr Kavas struggled to achieve and then to maintain full time hours after September 2009 - his pain, anxiety and depressive symptoms were not static, and continued in varying degrees thereafter. These factors also indicate the presence of ongoing incapacity for work as a result of Mr Kavas' accepted injuries on and before 6 January 2010.
6. The first limb of Comcare's case is not made out.

1. As to Comcare's second proposition, that Mr Kavas' injury-related incapacity for work was entirely displaced by a new cause of incapacity on 6 January 2010, this, too, is not made out.
2. If an injury is an "effective and operative" cause of incapacity despite supervening events or subsequent injuries, the resulting incapacity may truly be said to result from the injury[38]. The words of du Parcq LJ in Rothwell v Caverswall Stone Co Ltd[39] are often cited, authoritatively, in cases such as this:

"an existing incapacity 'results from' the original injury if it follows, and is caused by, that injury, and may properly be held so to result even if some supervening cause has aggravated the effects of the original injury and prolonged the period of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though but for the original injury, there would have been no incapacity."[40]

That passage was applied in Re Sadek and Commonwealth of Australia[41], where it was said:

Before the novus actus will be regarded as the only cause of the incapacity, it must be shown that the incapacity which would have resulted from the injury has ceased to exist and that the incapacity which does exist has resulted from the new cause as the sole cause."[42]

1. It is well established law that it is not necessary for an incapacity to result solely from an injury before compensation is payable - "it is sufficient if the injury contributes in a material sense to the incapacity...If a compensable injury constitutes one of a number of factors or events each of which combine as links in a chain of causation terminating in a single condition amounting to total incapacity, that incapacity will be fully compensable, the injury being a contributing cause in a material sense"[43]. Considering sections 5B, 14 and 19, I do not accept the proposition that a substantial contribution, or a contribution to a significant degree, is required when deciding whether claimed incapacity is 'as a result of' a compensable injury. But this point, presently, is not determinative.
2. It is clear enough that Mr Kavas suffered a greater incapacity for work on 7 January 2010 than he did on 30 November 2009, particularly in respect of his psychological symptoms. I am reasonably satisfied that those symptoms were partly attributable to his already existing and compensable Chronic Adjustment Disorder. I note that Dr Saboisky diagnosed a fresh adjustment disorder as a result of the events on 6 January 2010. But I prefer the evidence of Dr Bertucen and Dr Zsadanyi that the adjustment disorder was established soon after Mr Kavas' back injury in 1999 and it was chronic in nature. I note that these Doctors agree that this Disorder was aggravated by the events on 6 January 2010. The preponderance of the medical evidence is that the symptoms of Mr Kavas' existing psychiatric disorder became worse in early January 2010 and contributed to the increase of his incapacity.
3. The causes of this change are multifaceted. Firstly, Mr Kavas' compensable injuries were of ongoing and operative effect, materially contributing to the incapacity on and after 7 January 2010. On the evidence of Dr Sukumar, Mr Kavas was affected by chronic pain that required ongoing treatment. I am satisfied that this was a material factor in Mr Kavas' incapacity on and after 7 January 2010.
4. Secondly, Mr Kavas' negative perceptions about his employment options and his anticipation of failure in his efforts to obtain stable employment, in the form of substantive appointment to the position in which he was temporarily placed, contributed to increase his symptoms in December 2009. I am reasonably satisfied that this factor also contributed to the incapacity Mr Kavas suffered on 7 January 2010. On the evidence of Dr Bertucen, this was a result of his accepted psychological injury. As I have said, Dr Bertucen reported that restriction of choices in his future employment was a stressor, an operative factor, in Mr Kavas' previously existing and compensable Adjustment Disorder.
5. Thirdly, it is also very clear that when Mr Kavas' negative expectations were realised on 6 January 2010 and he was informed by Ms Bauer that he had not won substantive appointment to the ASO3 position in the Licencing and Investigations Unit, this, too, contributed to the incapacity he suffered on 7 January 2010. But it is not established that this cause of incapacity operated to the exclusion of other relevant causes or that it was disentitling. I am satisfied that it was not.
6. Additionally, I am reasonably satisfied that Mr Kavas' previously existing incapacity for work did not come to an end and it was not overtaken by a new or supervening cause. Fairly read, Dr Sukumar's medical certificates on 30 November 2009 and 7 January 2010 reveal two causes of incapacity. The latter certificate on 7 January 2010 suggests that Mr Kavas' psychiatric condition was aggravated by work related injury and stress, but his back condition continued to affect him. This is consistent with the preponderance of the medical evidence and I so find.
7. It does not follow that the incapacity for work Mr Kavas suffered on and after 7 January 2010 during the periods under claim is appropriately attributed, solely, to the aggravation of his psychiatric condition on 6 January 2010. To do so would mean that the ongoing incapacity that he suffered as a result of his back injury and his psychiatric injury would be subsumed into a single cause of incapacity on that day and during the periods under claim. That is not consistent with the evidence concerning the symptoms and the incapacity for work Mr Kavas suffered over preceding weeks, months and years. And it is not consistent with the medical evidence concerning the periods under claim. The evidence of Mr Kavas' treating doctors and his psychologist is that his accepted injuries continued to cause symptoms and incapacity for work during the periods under claim despite the aggravation of psychological symptoms on 6 January 2010. That is compelling evidence and I accept it.
8. A consistent picture emerges from the evidence - the increase in symptoms Dr Sukumar noted on 7 January 2010 was not simply the product of an isolated event the previous day. Viewed in context, the events on 6 January 2010 confirmed the anticipatory anxieties Mr Kavas had been experiencing for many months, and conceivably years, in respect of the temporary nature of his employment placements during his extended rehabilitation and his efforts to return to meaningful, stable work. Those anticipatory anxieties were, I am satisfied, reactions to the stressors Dr Bertucen described that were integral to and operative features of his compensable Chronic Adjustment Disorder injury. It appears to me that the events on 6 January 2010 were a tipping point, or a last straw, for Mr Kavas. For the previous six months Mr Kavas attempted, with substantial success, to achieve and maintain full hours in the ASO3 position in which he had been placed (and to which he aspired), while struggling to manage ongoing symptoms of anxiety and pain. In December 2009 he perceived that his efforts were likely to be futile, and he became depressed again. On 6 January 2010, his negative perceptions were realised. The purpose that had motivated his efforts to manage his symptoms of pain, depression and anxiety, and to return to full hours, over the past months was removed and he succumbed to increasing symptoms and perceptions of hopeless failure, disappointment and aggrieved anger. The elevation of symptoms that commenced in December 2009 escalated and produced greater incapacity from 7 January 2010. The resulting incapacity is properly attributable to symptoms of his ongoing compensable injuries as well as to the events on 6 January 2010 and over preceding months in relation to the ASO3 merit selection process.
9. I do not accept Comcare's submission that Mr Kavas left his workplace on 6 January 2010 with the intention of not returning. The evidence, properly considered, suggests that was not the case, but he was rendered unfit to return. In any event, whether or not Mr Kavas intended to return to that workplace when he left on 6 January 2010 does not alter the fact that he was suffering from symptoms and an incapacity for work as a result of his accepted injuries at the time, and that the incapacity he suffered persisted, albeit to a greater extent.
10. I do not accept Comcare's submission that the incapacity for work Mr Kavas suffered on and after 7 January 2010 is solely or predominantly the result of a fresh 'disease' that is excluded by operation of section 5A. Comcare relies on Trewin v Comcare[44] and Comcare v Eames[45] when construing the exclusionary provisions of section 5A. Both these cases applied the Act as it stood prior to the amendments that came into effect in April 2007. The terms of exclusion in respect of an injury under section 4(1) of the Act prior to April 2007 are not applicable in the present circumstances. Those terms provide that a disease or aggravation that was the result of an employee's failure to obtain a promotion, transfer or benefit in connection with the particular employment is not an injury for the purposes of the Act. The present form of the legislation, however, does not exclude a disease or an aggravation simply because it is a result of any such failure - the exclusion applies in respect of anything reasonable done in connection with a failure of the requisite kind so long as this was undertaken in a reasonable manner. As can be seen, there are two tests of reasonableness. The first applies to the particular administrative action - 'anything reasonable done in connection with'. The second applies to the manner in which that administrative action was undertaken - 'taken in a reasonable manner'. If either test is not satisfied, the exclusion does not apply. If it is found that the disease or aggravation under claim was suffered as a result of one or more exclusionary factors, even though other factors in the employment may also have contributed to a significant degree, the claim must fail[46].
11. As I have said, these are matters that are not squarely before me to determine in this case. If Mr Kavas' failure to obtain stable employment, or substantive appointment, transfer or reclassification to the position in which he had been temporarily placed in the Licencing and Investigations Unit, significantly contributed to the ailment he suffered on 7 January 2010, it is conceivable that the resulting aggravation may be excluded as an injury under the Act. But, even if that is correct (and that is far from clear on the present evidence), it does not follow that Mr Kavas is not entitled to weekly compensation in respect of his already existing and persisting incapacity for work as a result of his accepted injuries.
12. At this point it is important to note that the exclusionary provisions of section 5A(1) apply in respect of a disease, injury or aggravation suffered as a result of certain contributory factors - the exclusionary provisions do not apply directly to incapacity for work and related claims for weekly compensation under section 19.
13. It follows that the second limb of Comcare's case is not made out and Mr Kavas' incapacity for work on 7 January 2010, in part at least, was as a result of his accepted injuries.
14. That being so, Mr Kavas is entitled to weekly compensation in respect of his accepted injuries on the basis of incapacity during the periods under claim and the decisions under review must be set aside. The weekly amount of compensation is to be determined under section 19 of the Act.

WHAT IS THE AMOUNT OF WEEKLY COMPENSATION FOR INCAPACITY TO WHICH MR KAVAS IS ENTITLED?

1. The amount of weekly compensation is to be calculated under section 19 of the Act. In effect, considering the periods under claim, the section 19 'NWE-AE' formula[47] and related calculus[48] requires the weekly amount Mr Kavas actually earned or was able to earn in suitable employment (the AE amount), having regard to the matters set out in section 19(4), to be deducted from his normal weekly earnings (the NWE amount) under section 8 (as adjusted under section 19(3)).
2. These are matters that have not squarely been addressed, about which the parties have not properly been heard. I indicated during the hearing that, if it was necessary to do so, opportunity would be given for that to occur. Accordingly, the parties will have 28 days in which to file agreed terms or submissions for orders in respect of the quantum of weekly compensation that may be payable in accordance with this decision.

1. The decisions under review must be set aside as Mr Kavas is entitled to weekly compensation in respect of his accepted injuries in the periods under claim from 7 January 2010 to 6 September 2011. Mr Kavas suffered an incapacity for work as a result of his accepted injuries throughout this period. The fact that he may have suffered an aggravation of the symptoms of his Chronic Adjustment Disorder injury and a consequent increase in the degree of that incapacity for work on 7 January 2010 is not disentitling - the new cause of incapacity did not displace or subsume the already persisting incapacity he suffered.
2. The amount of weekly compensation that is payable to Mr Kavas is yet to be determined and there is liberty to apply in that regard.
3. The matters are resolved in a manner that is favourable to Mr Kavas. The parties have not been heard as to orders for costs. Once again, there will be a period of 28 days in which submissions in respect of costs may be filed. If no submissions are filed, Comcare will be ordered to pay Mr Kavas' reasonable costs, as agreed or taxed.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

Signed: .....................................................................................

Dates of Hearing 27, 28 October and 15 November 2011

Solicitor for the Applicant Mr N. Gabbedy, Pappas, J. - Attorney

Solicitor for the Respondent Ms S. Dalliston, Sparke Helmore Lawyers

[1] Section 5A, Safety, Rehabilitation and Compensation Act 1988.

[2] Section 5B, Safety, Rehabilitation and Compensation Act 1988.

[3] Sections 5A and 5B, Safety, Rehabilitation and Compensation Act 1988.

[4] Section 5A, Safety, Rehabilitation and Compensation Act 1988.

[5] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; [2005] 221 CLR 568, per McHugh J at [38].

[6] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 - 464; Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6; McAuliffe v Comcare [2002] FCA 769 at [11] - [12].

[7] March v E & MH Stramare Pty Ltd [1991] HCA 12; [1991] 171 CLR 506, per Mason CJ at 515, per Deane J at 522 - 524 quoting Lord Reid in Stapley v Gypsum Mines Ltd [1953] UKHL 4; (1953) AC 663 at 681; Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 at 277.

[8] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; [2005] 221 CLR 568, per Gummow, Hayne and Heydon JJ at [96]-[99].

[11] Exhibit R1, report 27 June 2006, p1.

[12] Exhibit R1, report 31 March 2010, p2.

[13] Exhibit R1, report 8 March 2011, p1.

[14] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision. Washington, DC, American Psychiatric Association, 2000) at p. 679.

[16] Exhibit A6, clinical note dated 14 October 2009.

[17] T52 and T59; Exhibit A6, clinical notes dated 21 and 28 October 2009 refer.

[20] Oral evidence; T56 folio 113 and T88 folios 187-189.

[22] Exhibit A9, clinical note dated 20 November 2009.

[27] Exhibit A9, clinical note of 20 November 2009 refers.

[28] Exhibit A6, clinical note 7 January 2010; T64 folio 128.

[29] Exhibit R1, report 8 February 2010, p1.

[35] Exhibit R1, report 8 February 2010, p1.

[38] Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6; McAuliffe v Comcare [2002] FCA 769 at [11]- [12].

[39] [1944] 2 All E.R. 350.

[40] Rothwell v Caverswall Stone Co Ltd [1944] 2 All E.R. 350 at 365.

[41] (1988) 14 ALD 769.

[42] Re Sadek and Commonwealth of Australia (1988) 14 ALD 769 at 771.

[43] Commonwealth of Australia v (K C) Smith [1989] FCA 189; (1989) 18 ALD 224 at 226.

[44] (1998) 84 FCR 171 at 177.

[45] [2008] FCA 422.

[46] Hart v Comcare [2005] FCAFC 16 at [16]- [19].

[47] Section 19(2), Safety, Rehabilitation and Compensation Act 1988.

[48] Sections 19(2), (2A), (2B), (2C) and (3), Safety, Rehabilitation and Compensation Act 1988.