Thompson and Comcare (Compensation) [2019] AATA 714 (16 April 2019)

6 April 2017 until 4 April 2018 (at which point the Applicant would have to submit a fresh medical certificate).

The Applicant disputes the determination on the basis that he contends that he should not be required to provide yearly medical certificates and the incapacity determination should have been open-ended.

2 and 3. 2017/3274 and 2017/3275 - application of the formula in s 20 of the SRC Act - incapacity period 23 June 2017 to 4 April 2018

The Applicant seeks review of a decision of the Respondent dated 5 June 2017 which affirmed two determinations dated 24 May 2017:

(a) The first determination dated 24 May 2017 was that the Applicant's weekly rate of compensation would be reduced on 23 June 2017 in an amount equal to the increase that he had received in his superannuation pension (in accordance with the formula in s 20 of the SRC Act).

(b) The second determination dated 24 May 2017 determined the specific rates of compensation that would be paid from 23 June 2017 to 4 April 2018, reflecting the reduction (of $5.02 per week resulting from the increase in superannuation payable) which had been determined in the previous letter.

The Applicant disputes that the application of the formula in s 20 of the SRC Act results in his weekly rate of compensation being decreased in an amount equal to the increase in his superannuation pension.

4. 2017/4819 - calculation of normal weekly earnings (NWE) and inclusion of allowances - incapacity period 1 July 2017 to 4 April 2018

The Applicant seeks review of a decision of the Respondent dated 11 August 2017 which affirmed a determination dated 5 July 2017 which determined the Applicant's entitlement to compensation under s 20 of the SRC Act for the period 1 July 2017 to 4 April 2018.

The Applicant sought review of the decision on the basis that he contends that the following components were not included in the calculation of his NWE (2018/4819, T13):

(a) Shoe allowance;

(b) Wharf allowance;

(c) Overtime;

(d) Superannuation contributions;

(e) Annual leave loading; and

(f) Extra duty meal allowances.

5. 2017/5404 - calculation of normal weekly earnings (NWE) as at 17 February 2011

The Applicant seeks review of a decision of the Respondent dated 16 August 2017 which refused to review a determination dated 28 November 2012 on the basis that the request for review had been lodged five years out of time.

6. 2017/7134 - no present liability decision, Back Injury

The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which reconsidered (on own motion) a determination dated 5 July 2017 and determined that the Respondent was not presently liable to pay compensation pursuant to s 20 of the SRC Act in relation to 'Intervertebral disc disorder - lumbar region' in 2005 and an 'aggravation of lumbar sprain (bilateral)' in 2011 (Back Injury).

7. 2017/7135 - no present liability decision, Psychological Injury

The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which affirmed a determination dated 27 October 2017 which had found that the Applicant had no entitlement to compensation pursuant to s 16 of the SRC Act for medical treatment obtained in relation to 'adjustment reaction with anxious mood' in 2012 (Psychological Injury).

8. 2017/7136 - permanent impairment resulting from the Injuries

The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which affirmed a determination dated 10 October 2017 that had found that the Applicant had no entitlement to permanent impairment compensation pursuant to s 24 of the SRC Act in relation to the Back Injury and the Psychological Injury (together referred to as the Injuries).

The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which affirmed a decision dated 4 October 2017 which had found that the Applicant was not entitled to compensation pursuant to s 16 of the SRC Act for the cost of a three month gym membership as it was not considered to be reasonable treatment obtained in relation to the Injuries.

10. 2018/2754 - new ailment, aggravation of the Psychological Injury

On 22 February 2018 the Applicant lodged a new claim for an aggravation of the Psychological Injury. The Applicant seeks review of a decision of the Respondent dated 18 May 2018 which affirmed a decision dated 1 May 2018 to deny liability for the claimed aggravation said to have been sustained on or around 21 July 2014.

1. The Applicant was born in July 1967. He has an agricultural science degree from university and was employed by the Department of Agriculture, Fisheries and Forestry (DA) as a Biosecurity Officer/Quarantine Officer (APS Level 4).
2. The Applicant says that on 17 February 2011, while undertaking an inspection of bulk fertilizer in the course of his employment, he suffered pain in his lower back. The Applicant describes the inspection process undertaken by him on that day as involving him passing samples of fertilizer through a sieve taken from five random points from each of 36 shipping containers. This required him to squat 180 times and then stand and lift the sieve containing 0.4 kilograms of fertilizer from ground level to waist height.
3. He reported back soreness to his supervisor Mr Ballantyne the following day,

18 February 2011. 4. On 9 September 2011 Dr Akinyemi issued a 'workers' compensation first medical certificate' which described the issue as 'back injury: muscular' (2017/7134 et al., T6). The certificate records the Applicant's description of how the injury occurred as 'repetitive bending at work'. 5. On 16 February 2012 the Applicant was examined by Dr J L Pearce (specialist physician in occupational and rehabilitation medicine) for a fitness for duty assessment. Dr Pearce's report, dated 20 February 2012, recorded that the Back Injury dated back to February 2011 and that the Applicant was at the time of his examination redeployed on light duties (2017/7134 et al., T7). Dr Pearce classified the injury as a 'soft tissue-type injury of his lower back' 'mild in severity' and remarked that it had been 'under-treated''. No imaging had been performed at that stage. 6. On 22 April 2012 the Applicant signed a claim form for workers' compensation (2017/7134 et al., T8). He described the injury as 'lower back pain' and recorded that the injury had occurred on 11 February 2011. 7. On 19 June 2012 a delegate of the Respondent made a determination refusing liability under s 14 of the SRC Act to pay compensation to the Applicant for 'sprain of unspecified back site'. 8. On 26 September 2012, upon reconsideration, the Respondent determined to accept liability for 'aggravation of lumbar sprain sustained on 17 February 2011'.

1. By a determination dated 28 November 2012 the Respondent calculated the Applicant's normal weekly earnings (NWE) to be $1,281.39 (2017/5404, T4). No amounts of allowances or overtime were included in that calculation.
2. On 10 August 2017 the Applicant requested a reconsideration of the determination dated 28 November 2012 (2017/5404, T7). On 16 August 2017 the Respondent refused the Applicant an extension of time within which to request a review of the determination dated 28 November 2012 (2017/5404, T8). On 9 September 2017 the Applicant lodged an Application for review in the Tribunal for review of that decision (2017/5404, T2). This is application 2017/5404.

1. By a determination dated 5 July 2017 (2017/4819, T12) the Respondent calculated the Applicant's incapacity entitlements pursuant to s 20 of the SRC Act. The Applicant's NWE was determined by the Respondent to be $1,307.02.
2. The Applicant requested a reconsideration of that determination (2017/4819, T13) and by a decision dated 11 August 2017 the Respondent affirmed the determination of

5 July 2017 (2017/4819, T18). On 12 August 2017 the Applicant lodged an application for review in the Tribunal for review of that decision (2017/4819, T2). That application is application 2017/4819. A review on own motion decision contained within the reviewable decision dated 21 November 2017 revoked the determination dated 5 July 2017 (see [21] below) (2017/7134 et al., T57).

1. By a determination set out in a letter dated 24 May 2017 (the first letter) the Respondent determined the Applicant's entitlement to incapacity payments for the period 18 May 2017 to 4 April 2018 (2017/3274, T6). The Respondent's calculations of the Applicant's entitlements over that period were set out in a table in the first letter. On the same date the Respondent sent another letter to the Applicant (the second letter) advising that it had determined that the Applicant's weekly rate of compensation would be reduced from 23 June 2017 onwards to take into account a superannuation payment increase of 1% effective from that date (2017/3274, T7). That change to the weekly rate of compensation to reflect the increase in the superannuation payments to be received by the Applicant was already reflected in the table in the first letter.
2. By emails sent by the Applicant on 25 May 2017 the Applicant requested reviews of the determinations set out in the first letter and the second letter (2017/3274, T8). By a decision dated 5 June 2017 both determinations dated 24 May 2017 were affirmed (2017/3274, T10). By an application for review dated 6 June 2017 the Applicant requested that the Tribunal review that decision to affirm the two determinations of 25 May 2017 (2017/3274, T2). This application was given application numbers 2017/3274 and 2017/3275.

1. By a determination dated 12 April 2017 the Respondent determined the Applicant's entitlement to incapacity payments for the period from 6 April 2017 to 4 April 2018 (2017/3262, T13). The Applicant requested a review of that determination on 11 May 2017 (2017/3262, T21). By a decision dated 2 June 2017 the determination dated 12 April 2017 was affirmed (2017/3262, T24). The Applicant lodged an application for review in respect of that determination in the Tribunal on 3 June 2017 (2017/3262, T2). This is application 2017/3262.

1. On 4 October 2017 liability was denied by the Respondent under s 16 of the SRC Act with respect to a three month gym membership submitted by the Applicant (2017/7134 et al., T27).
2. On 10 October 2017 the Respondent determined that it was not liable to compensate the Applicant pursuant to ss 24 and 27 of the SRC Act for permanent impairment arising from the Injuries (2017/7134 et al., T32).
3. On 27 October 2017 the Respondent determined that it had no present liability to compensate the Applicant under s 16 of the SRC Act with respect to the Psychological Injury (2017/7134 et al., T43).
4. By a decision dated 21 November 2017 the determinations dated 4, 10 and

27 October 2017 were affirmed (the review officer also undertook a review of own motion with respect to the determination dated 5 July 2017 as outlined above) (2017/7134 et al., T57). By an application for review dated 2 December 2017 the Applicant sought review by the Tribunal of the decision dated 21 November 2017 (2017/7134 et al., T2). Each decision in the reviewable decision was allocated a separate Application number and they are applications 2017/7134, 2017/7135, 2017/7136 and 2017/7137.

1. On 22 February 2018 the Applicant lodged a claim for compensation for a 'psychological injury' (2018/2754, T6). The Applicant claimed that it was an aggravation of the existing psychological ailment from which he was then suffering. By a determination dated

1 May 2018 that claim was denied (2018/2754, T15). The Applicant requested a review of that determination and by a decision dated 18 May 2018 the determination was affirmed (2018/2754, T19). The Applicant lodged an application for review of that reviewable decision in the Tribunal on 20 May 2018 (2018/2754, T2). That application is application 2018/2754.

1. Section 14(1) of the SRC Act sets out the Respondent's general liability to pay compensation and provides that:

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(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. Section 19 of the SRC Act provides that the Respondent is liable to pay compensation to an employee who is incapacitated for work as a result of an injury. That section sets out the formula for calculating the amount of compensation to which a relevant employee is entitled. Section 19 of the SRC Act, in part, provides that:

(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

AE is the greater of the following amounts:

(a) the amount per week (if any) that the employee is able to earn in suitable employment;

(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

NWE is the amount of the employee's normal weekly earnings.

1. Section 20 of the SRC Act provides:
   1. Compensation for injuries resulting in incapacity where employee is in receipt of a superannuation pension

(1) Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:

(a) the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and

(b) the employee receives a pension under a superannuation scheme as a result of the employee's retirement.

(2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.

(3) The amount of compensation is the amount worked out using this formula:

amount of compensation means the amount of compensation that would have been payable to the employee for a week if:

(a) section 19, other than subsection 19(6), had applied to the employee; and

(b) in the case of an employee who was not a member of the Defence Force immediately before retirement-the week were a week referred to in subsection 19(3).

(4) In using the formula in subsection (3) to calculate an amount of compensation for an employee who retired before the day on which item 22 of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 commenced, use "SC" instead of "5% of the employee's normal weekly earnings". For this purpose:

SC means the amount of superannuation contributions that the employee would have been required to pay in that week if he or she were still contributing to the superannuation scheme.

1. Section 4 of the SRC Act defines 'medical treatment' to mean:
   • (a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
   • (b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
   • (c) dental treatment by, or under the supervision of, a legally qualified dentist; or
   • (d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
   • (e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
   • (f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
   • (g) treatment and maintenance as a patient at a hospital; or
   • (h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
   • (i) any other form of treatment that is prescribed for the purposes of this definition.
2. 'Injury' is defined in s 5A(1) of the SRC Act as follows:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

1. 'Disease' is defined in s 5B of the SRC Act as follows:

(a) an ailment suffered by an employee; or

(b) an aggravation of such an ailment;

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

(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a) the duration of the employment;

(b) the nature of, and particular tasks involved in, the employment;

(c) any predisposition of the employee to the ailment or aggravation;

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee's health.

This subsection does not limit the matters that may be taken into account.

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

1. 'Ailment' is defined in s 4(1) of the SRC Act as follows:

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

1. The Respondent identifies the issues to be determined by the Tribunal in these matters as follows (Respondent's outline of submissions, para. 15):
   • (a) from what, if any, lower back condition does the Applicant presently suffer?
   • (b) is that condition properly understood as an 'Injury' or a 'Disease' for the purposes of the SRC Act?
   • (c) if it is properly described as an Injury, has the Applicant ceased to suffer from that Injury?
   • (d) does the Applicant continue to suffer the Psychological Injury?
   • (e) if so, does the Psychological Injury continue to be significantly contributed to by the Applicant's employment by the Commonwealth?
   • (f) whether the impairment arising from both the physical and Psychological Injuries are permanent such that they are likely to continue indefinitely?
   • (g) if so, whether the degree of permanent impairment is at least 10% WPI by reference to the Guide to the Assessment of the Degree of Permanent Impairment (Comcare, Edition 2.1, 1 December 2011) (the Guide)?
   • (h) whether the Applicant suffers a new 'ailment', being an 'aggravation of major depressive disorder, recurrent episode' that was significantly contributed to by his employment by the Commonwealth?
   • (i) should the Tribunal extend the time for review of the initial determination dated

8 November 2012 and if so, was the Applicant's NWE correctly calculated as at the date of injury. This involves considering: * (i) does the Tribunal have jurisdiction to review the decision dated

16 August 2017? * (ii) if so, should the Tribunal, standing in the shoes of the review officer, grant the extension of time? * (iii) if so, was the Applicant's NWE correctly calculated in the determination of

(j) have the Applicant's entitlements to compensation for incapacity for work been correctly calculated, pursuant to s 20 of the SRC Act for the period 6 April 2017 to 4 April 2018? This involves considering:

• (i) what is the effect of the increase in the Applicant's superannuation pension?

• (ii) should shoe allowance, wharf allowance, overtime, superannuation contributions, annual leave loading and extra duty meal allowance be included in a calculation of the Applicant's NWE?

(k) is the Applicant required to produce further medical evidence to support a claim for incapacity payments extending beyond 4 April 2018?

(l) with respect to the Application under s 16 of the SRC Act for a three month gym membership:

• (i) whether the gym membership treatment falls within the meaning of 'medical treatment' under the SRC Act which necessarily requires consideration of whether it is 'therapeutic treatment'
• (ii) if so, whether it is obtained 'in relation to' the Injury; and
• (iii) whether it is treatment that was reasonable for the Applicant to obtain in the circumstances?

1. The Applicant, while identifying a number of additional issues and using slightly different language to that used by the Respondent, in substance, identifies the same issues identified by the Respondent.
2. In additional to the substantive issues raised by the parties, the Respondent also raises a jurisdictional issue in relation to one of the applications. That issue is dealt with separately below.

1. The applications were heard on 8 and 9 October 2018. The Applicant represented himself with the assistance of his wife. The Respondent was represented by Ms Slack.
2. Evidence was given at the hearing by the following witnesses:
   • (a) the Applicant;
   • (b) Dr Stephen Proud;
   • (c) Mr Philip Hardcastle; and
   • (d) Dr Lawrence Terace.
3. The following documents were admitted into evidence:
   • (a) Applicant's Statement of Facts, Issues and Contentions with attachments received 12 September 2018 (Exhibit A1);
   • (b) Email to Dr Terace from the Applicant and his wife dated 24, 29 and

30 September and 11 October 2018 (Exhibit A2); * (c) Email from the Applicant to the Tribunal with attachments one to seven dated

4 February 2018 (Exhibit A3); * (d) Applicant's Statement of Facts, Issues and Contentions received

18 December 2017 with attachments (Exhibit A4); * (e) Applicant's response to the report of Dr Terace dated 10 October 2017 (Exhibit A5); * (f) T-documents for application 2016/1589 (Exhibit A6) * (g) Applicant's bundle of documents (Marked for Identification as Exhibit A7); * (h) Respondent's Statements of Facts, Issues and Contentions dated 9 November 2017 and 17 August 2018 (Exhibit R1); * (i) Report of Dr Terace dated 15 September 2017 and Supplementary Report of Dr Terace dated 21 September 2018. This also includes the letters of Instruction and Curriculum Vitae of Dr Lawrence Terace (Exhibit R2); * (j) Briefing letter to and report of Dr Hardcastle dated 22 May 2018 with attachments (Exhibit R3); * (k) Briefing Letter to and report of Dr Hardcastle dated 4 July 2018 (Exhibit R4); * (l) Tribunal Documents for all matters heard (Exhibit R5); * (m) Letter of instruction to Tandara Medical Centre dated 16 May 2012 (Exhibit R6); * (n) Clinical Framework for the Delivery of Health Services (Victorian Work Cover Authority) (Exhibit R7); * (o) Applicant's Permanent Impairment Claim Form dated 3 April 2017 (Exhibit R8); and * (p) 2011 Payslips for the Applicant (Exhibit R9). 4. The following submissions were provided by the parties after the hearing: * (a) Respondent's outline of submissions filed 23 October 2018; * (b) Applicant's submissions filed 20 November 2018; * (c) Respondent's reply filed 23 November 2018; and * (d) Applicant's response to the Respondent's reply filed 23 November 2018.

1. As set out above, there are ten separate applications lodged over the period from June 2017 to May 2018. They fall into several categories and the Tribunal's decision in some of the applications will be impacted by the decisions in others. For instance, if the Tribunal makes certain findings as to whether there is any liability, there will be no need to consider the applications which deal only with the calculation of the rate or amount of entitlement if the Tribunal finds there is no liability.
2. I will deal with the applications in the order that the parties addressed them in their submissions made after the hearing.

2017/7134 - no present liability decision, Back Injury

1. The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which reconsidered (on own motion) a determination dated 5 July 2017 and determined that the Respondent was not presently liable to pay compensation pursuant to s 20 of the SRC Act in relation to the Back Injury - 'Intervertebral disc disorder - lumbar region' in 2005 and an 'aggravation of lumbar sprain (bilateral)' in 2011 (2017/7134 et al., T57).

1. As noted above, the Respondent raised a potential jurisdictional issue in relation to this application in its outline of submissions filed after the hearing.
2. In summary the potential jurisdictional issue identified by the Respondent (Respondent's outline of submissions, paras. 16-21) is as follows:
   • (a) The medical certificate issued to the Applicant by his general practitioner on

31 May 2017 certificated the Applicant as unfit for work from 31 May 2017 to

31 August 2018 (2017/3262, T26 at 98-99). * (b) On 5 July 2017 the Respondent determined that the Applicant was entitled to incapacity payments and calculated the amount payable pursuant to s 20 of the SRC Act (2017/7134 et al., T12). * (c) On 27 July 2017 the Applicant requested a review of that determination (2017/4819, T13). The determination was affirmed in a reviewable decision dated 11 August 2017 (2017/4819, T18). That is, it was determined that the Applicant continued to be entitled to compensation payments calculated in accordance with the Respondent's determination of 5 July 2017. * (d) On 12 August 2017 the Applicant lodged an application in the Tribunal for review of the reviewable decision of 11 August 2017 (2017/4819, T2). * (e) By the review on own motion decision contained within the reviewable decision dated 21 November 2017 (2017/7134 et al., T57), the Respondent revoked the determination dated 5 July 2017. By that determination on own motion the Respondent determined that the Applicant was not entitled to any incapacity payments under s 20 of the SRC Act. * (f) Section 26 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) relevantly provides:

(1) Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:

(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.

(2) A reference in subsection (1) to the alteration of a decision is a reference to:

(c) the setting aside of a decision and the making of a decision in substitution for the decision set aside.

(g) Section 4(12) of the SRC Act defines 'proceeding' as:

(12) A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the Administrative Appeals Tribunal for review of that decision.

(h) Because the Respondent did not review the reviewable decision of

11 August 2017 in the reviewable decision dated 21 November 2017, and only reviewed a determination, it was entitled to make the review of own motion decision, even though an application for review had been lodged in the Tribunal with respect to a separate reviewable decision arising from the same 5 July 2017 determination. Accordingly, the Respondent has not acted without power and the Tribunal has jurisdiction to consider both matters: Warren De Courcy Brown and Comcare [1997] AATA 528.

1. The Applicant makes no submissions on this issue. The Tribunal agrees with the Respondent's analysis of the operation and interaction of the SRC Act and the AAT Act. The prohibition under s 26 of the AAT Act on the decision-maker altering its decision the subject of an application to the Tribunal does not apply to the 21 November 2017 reconsideration on own motion of the 5 July 2017 determination. As the Respondent submits, the prohibition in s 26 of the AAT Act is against altering the decision which is the subject of an application. The decision of 21 November 2017 did not alter, or purport to alter, the 11 August 2017 decision the subject of the application 2017/4819 lodged by the Applicant on 12 August 2017. Rather the 21 November 2017 decision 'reconsidered', pursuant to s 62 of the SRC Act, the determination made by the Respondent on

5 July 2017. That reconsideration on own motion pursuant to s 62(1) of the SRC Act was a separate reviewable decision for the purposes of s 64 of the SRC Act. That separate reviewable decision is the decision review of which is sought in application 2017/7137. 2. The Respondent was not prohibited by s 26 of the AAT Act to act within its powers in making the reconsideration on 21 November 2017. I find that the Tribunal has jurisdiction to review the decisions the subject of applications 2017/4819 and 2017/7137.

Does the Applicant suffer from a lower back injury?

1. The parties identify the issues in this application slightly differently.
2. The Applicant says that the issues are:
   • (a) Does the Applicant suffer from a work related back injury dated 17 February 2011?
   • (b) What is the correct injury classification for the back injury the Applicant is diagnosed with?
   • (c) Does the Applicant continue to suffer from a work related back injury suffered on 17 February 2011?
3. The Respondent identifies the issues relevant to this application as (Respondent's outline of submissions, paras. 15):

1. What lower back condition, if any, does the Applicant presently suffer from? 2. Is that condition properly understood as an 'Injury' or a 'Disease' as those terms are used in the SRC Act?

1. If it is properly described as an Injury, has the Applicant ceased to suffer from that Injury?
2. While the thrust of both statements of issues are very similar, I think that the Respondent's identification of the issues more correctly identifies the questions that the Tribunal will have to answer.
3. The factual circumstances surrounding the Applicant incurring the back injury are not in dispute. Liability for the Applicant's back condition was accepted by the Respondent in September 2012 as 'aggravation of lumbar sprain sustained on 17 February 2011.' Payments were made under various provisions of the SRC Act thereafter in respect of the injury.
4. The fundamental dispute between the parties is that the Applicant asserts that he still suffers from the lower back injury suffered on 17 February 2011 (Applicant's submissions para. 48). The Respondent argues that 'on the balance of probabilities, the Applicant has ceased to suffer from the work related Injury and that what ails him presently is the degenerative condition' (Respondent's outline of submissions para. 38) or 'in the alternative, that the correct and preferable decision is to determine that the Applicant continues to suffer from the physical Injury but is fit to return to pre-injury hours in a role that does not include repetitive lifting of more than 10kg, repetitive forward bending, sitting and standing or driving over rough terrain' (Respondent's outline of submissions para. 46).

1. The Applicant points to the following evidence to support his claim (Applicant's closing submissions for 2017/7134):
   • (a) letter from the People Strategies Manager (Australian Quarantine and Inspection Service) dated 14 February 2012 (2017/7134 et al. T2/48-49) which states:

In February 2011 Leon suffered a low back injury (L 2-4) whilst conducting a bulk fertiliser inspection. Leon attended his General Practitioner and was diagnosed with a low back injury (muscular) and since this time has had regular treatment including physiotherapy. Leon's latest Medical Certificate indicated that his condition persists and that he needed to avoid repetitive bending/lifting and avoid repetitive use of the affected part.

Since Leon's injury he has continued to work and we have worked with Leon in restricting the tasks which appear to aggravate his injury (i.e. machinery inspections, bulk fertiliser inspections, tailgate inspections and personal unpacks.)

(b) Workers' compensation claim submitted on 30 April 2012.

(c) On 26 September 2012 workers' compensation approved for 'aggravation of lumbar sprain'.

(d) The MRI report of Perth Radiological Clinic dated 17 October 2012 (2017/7134 et al., T12/95) states:

L4/5: There is disc desiccation and posterior annular fissuring. This is associated with diffuse disc bulge. This indents the ventral aspect of the thecal sac but does not impinge upon the forming L5 nerve roots or the exiting L4 nerve roots at this level. Mild facet arthropathy is noted bilaterally at this level.

It is also stated in the report at the comments section at the bottom of the same page: 'Mild degenerative changes are noted at L3/4 and L4/5 disc with shallow disc bulges not causing canal stenosis or nerve root impingement.'

(e) The Applicant contends that the medical documentation supports that the injury sustained by the Applicant on 17 February 2011 was as a result of trauma due to the repetitive bending and lifting over a long period of time carrying out fertiliser inspections. The Respondent does not dispute that agreeing that the lower back condition 'is properly described as an "injury simpliciter" within the meaning of

s 5A(1)(b) of the Act' (Respondent's closing submissions para. 35).

(f) Report of Dr Shetty dated 9 July 2013 (2017/7134 et al., T14/100) wherein Dr Shetty is asked the question: 'Is/was the aggravation suffered by Mr Thompson related to: his/her employment as a Quarantine Officer?' and Dr Shetty's answer was: 'Yes, Mr Thompson reported back pain following the reported incident.' Then at 1(c) the question was asked of Dr Shetty: 'Is/was the aggravation suffered by Mr Thompson related to: a pre-existing, congenital, constitutional or under-lying condition?' In his answer Dr Shetty states: 'There is no pre-existing condition to account for his back pain.' In answer to the question at 1(e): 'Is/was the aggravation suffered by Mr Thompson related to: underlying degeneration as part of the natural aging process?' Dr Shetty states: 'There are [sic] no significant degeneration.'

(g) In a report dated 17 December 2013 the causal link between the Applicant's employment and the Injury was indicated by Dr John Bell, orthopaedic surgeon, (2017/7134 at al., T17/112 at point 5). Dr Bell states '[t]he low back pain problems suffered by Mr Thompson do appear significantly related to his injury at work which occurred on 17 February 2011. There are no other obvious causes.'

(h) In a supplementary report of Dr John Bell dated 29 April 2014 (2017/7134 et al., T18/117), Dr Bell outlined Facet Joint Arthropathy as 'in addition to my major diagnosis of soft tissue injury of lumbosacral spine region in February 2011.' He also states '[a]s outlined by the title given above, it was an injury caused by trauma.' Dr Bell also stated:

If it were not for the injury on 17 February 2011, then he would likely not continue to suffer with the soft tissue injury of his low back region.

I believe the relationship of his continuing low back pain is significantly related to the original injury that occurred at work on 17 February 2011 ... (2017/7134 et al., T18/118).

(i) The report of Dr Geoffrey Graham dated 18 February 2016 (2017/3262, T6/40) states:

Mr Thompson gives a history suggestive of minor degenerative change in his low back and this would appear to be consistent with the reported radiological findings and the minimal findings on clinical examination. I would recommend that he avoid repetitive bending and lifting, heavy lifting especially from a low level or work with a constantly bent back.

(j) Dr Phillip Hardcastle states in the report dated 22 May 2018 (R3):

... This does support that the current symptoms he is having do still relate to that particular injury date at work where he was involved with repetitive activities.

In that report Dr Hardcastle, in answer to the question of whether the Applicant continues to suffer from the effects of a 2005 injury and/or an 'aggravation of a lumbar sprain (bilateral)' with a date of injury 17 February 2011, says 'In my opinion he has fully recovered from the injury of 9 November 2005 and that he has had an injury of 17 February 2011 which is continuing to give symptoms' (R4, page 7).

(k) In that same report (R4/8) Dr Hardcastle also commented that:

He does have evidence of transitional vertebra. However, the pain that he reports from my clinical assessment is around the L4 level which is above where the congenital anomaly is. Certainly I could not identify any sacroiliac pain from my assessment so I do not consider he has evidence to support a Bertolotti's syndrome, despite the presence of transitional vertebra.

There are pre-existing degenerative changes in the facet joint at the L3/4 level and disc bulging consistent with degeneration which would be considered pre-existing. From my assessment it is likely that these were aggravated as a result of this work.

(l) Dr Clem McCormick in his report dated 4 July 2018, part of Dr Hardcastle's report of 4 July 2018 (R4), having reviewed both the reports of the MRI scan dated

17 October 2012 and CT scan dated 22 June 2018, states: 'Considering the 6 year interval between the scans, and comparing different modalities, I consider that the rate of progression is not rapid and the changes between the studies are mild...' He further states: 'Overall I do not consider any new pathology has developed between the studies.'

(m) The Applicant also cites the following passages from Dr Hardcastle's 22 May 2018 report (R3):

1. The history is one where he is doing some repetitive bending and appears to have had a strain in his lower back in the mid-line regions (spinous processes), around the L4 level. I note that from my review of the medical documents when he was initially reviewed by Dr Pearce, that the tenderness was in that same area of the back (Dr J L Pearce report, 20 February 2012) which certainly supports his ongoing symptoms being still related to that area of pain where he has previously not had any symptoms from. This does support that the current symptoms he is having do relate to that particular injury date at work where he was involved in repetitive activities.
2. I would consider that given he was asymptomatic before the nature of the work duties undertaken on that day, that the aggravation was significant to a pre-existing degenerative condition...
3. There are pre-existing degenerative changes at both levels which appear to have been aggravated to a significant extent as a result of the reported injury.

1. The Applicant also refers the following reports for descriptions of the symptoms he suffers and the activities and circumstances which activate the symptoms:
   • (a) Report of Dr John Bell dated 17 December 2013 (2017/7134 et al., T17/109) which states:

... The low back pain is usually dull when resting. It is sore after gymnasium activities. Cold weather and coughing does not bother the low back. He gets spasms on occasions. It goes up and down the low back with periods of improving and periods of worsening. He tries to keep a baseline of what he can do. Carrying his youngest child makes his back very sore. Also, standing for any length of time makes it sore... He finds that starting a mower or a generator gets very sore if it does not start quickly. He cannot trampoline with his children much.

(b) Dr Sandra Gongora's report dated 2 August 2017 (2017/7134 et al., T22/164-165) which states that:

... He reports that standing is tolerated for 45 minutes, he avoids most movements of his back like bending, twisting and lifting, carrying a backpack can make him go in agony after a while, even carrying his camera to take his kids photos could be a trigger for his back pain. However, he feels well running up to 1km and swimming... Mr Thompson reports that driving is ok as his position will be kept neutral, however in a passenger seat on a bumpy road and a few turns could be a cause of soreness.

(c) In paragraphs 39 to 42 of his submissions the Applicant refers to various reports/comments/opinions from exercise physiologists, as well as his own evidence, as to which exercises and exercise programs best suited the Applicant to avoid aggravation of his back condition and which activities caused aggravation of symptoms.

1. The Applicant also went into some detail of the gym activities and programs that he has undertaken and his ability to handle these (Applicant's closing submissions for 2017/7134 para. 39-42).
2. The Applicant submits that:

(a) ...that there is no evidence of a significant degenerative condition, but rather mild age related degeneration that was within normal range, asymptomatic and showing little if any progression. The pain suffered by the applicant from the original injury on 17th February 2011 as shown in all medical reports is consistent with the injury described as a diffuse disc bulge and annular fissure and any pain suffered by the applicant is a result of the original injury dated 17 February 2011. The level and type of activity that cause the applicant pain have remained the same since the injury date in 2011 until the current date and has not got any worse, this supports the applicants' statement that it is the back the injury causing pain symptoms and not any degeneration (Applicant's closing submissions for 2017/7134 para. 26);

(b) ...All the medical reports up to this point have described any degeneration as being mild, minor and asymptomatic prior to the injury. All the existing medical evidence gives the statement that any pain experienced by the applicant related to the injury date and related to the bulging disc and annular fissure at L4/5 which was a product of the trauma activity on the 17 February 2011. Nowhere in the written medical evidence is there any mention of the applicant suffering from significant degeneration or "severe arthritis". The applicant strongly disagrees with the diagnosis of severe arthritis and submits that this statement given in verbal evidence should be disregarded in favour of the existing medical findings in writing that are available to this tribunal. (Applicant's closing submissions for 2017/7134 para. 43);

(c) The applicant submits that medical evidence would show that other new activities would start to cause pain as well over time if Dr Hardcastle's evidence regarding the progression of degeneration were to be accurate. The applicant has shown that this is not the case. In fact as Dr Clem McCormick (Refer page 3 paragraph 3-4 of the attachment 4 to the applicants statement of issues facts and contentions which is the supplementary report of Dr Hardcastle dated 4 July 2018) states "...changes between the studies are mild...Overall I do not consider any new pathology has developed." This statement supports the applicant's evidence that the mild, minor and asymptomatic degeneration has not progressed, not gotten worse and has not overtaken the original injury. (Applicant's closing submissions for 2017/7134 para. 45); and

(d) ...As the medical evidence shows no progression of the degeneration and it continues to be mild it cannot be found that the degeneration has taken over from the original injury and is now the cause of the applicants' ongoing pain and the applicant submits that the trauma activity resulting in injury is still the primary cause of back pain. Dr Hardcastle in his verbal testimony on the witness stand made the statement that "The work performed by the applicant over the many years of his employment would have contributed to degeneration of his lumbar spine. (Applicant's closing submissions for 2017/7134 para. 47).

1. The Respondent identifies the following evidence as relevant (Respondent's Outline of Submissions paras. 27-34):
   • (a) The initial examining doctors described the injury as follows: Dr Akinyemi described the injury as 'back injury: muscular'; Dr Pearce described it as 'soft tissue-type injury of his lower back'. An x-ray performed on 25 May 2012 revealed mild spondylosis L2/3, L3/4, L4/5 (2017/7134 et al., T9/ 90). Partial sacralisation of L5. An MRI performed on 17 October 2012 revealed mild degenerative changes at L3/4, L4/5 (2017/7134 et al., T12/ 95). Dr Devasish Roy was requested by the Respondent by letter dated 16 May 2012 to provide a report. Dr Roy's response to one question was: 'Muscular spasm - pain side of spine, no neurological symptoms or signs' (2017/7134 et al., T10/91).
   • (b) Dr Shetty, the Applicant's then general practitioner, provided a report to the Respondent dated 9 July 2013 (2017/7134 et al., T14). Dr Shetty noted that he first discussed the back injury with the Applicant in detail on 8 October 2012. Dr Shetty's diagnosis was 'lower back strain or mechanical low back pain'. In response to a question about pre-existing conditions, Dr Shetty responded: 'There is no pre-existing condition to account for his back pain'. (The Respondent points out that it is unlikely that Dr Shetty had access to the X-Ray done in May 2012 as that was sent to Dr Roy's practice, not Dr Shetty's). Dr Wong, who examined the Applicant on 24 September 2013, considered that the Applicant was suffering from 'mechanical back pain' (2017/7134 et al., T15).
   • (c) The Applicant was reviewed by orthopaedic surgeon Dr John Bell on

12 December 2013. The doctor produced a report dated 17 December 2013 (2017/7314 et al., T17). Dr Bell concluded: 'In summary, [the Applicant] strained his low back when reaching forward taking the 2kg samples for sieving in February 2011 and he has had continuing low back pain problems ever since.' Dr Bell classified the injury as 'soft tissue injury lumbosacral spine region in February 2011'. In response to a question about whether the condition was related to a pre-existing or constitutional condition, or the natural progression of an underlying condition, the doctor responded: 'The low back pain problems suffered by [the Applicant] do appear significantly related to his injury at work which occurred on

17 February 2011. There are no other obvious causes.' Dr Bell clarified in a supplementary report dated 29 April 2014 (2017/7134 et al., T18) that 'it was an injury caused by trauma' and confirmed that the Applicant continued to suffer from the soft tissue injury sustained in February 2011. * (d) Dr Geoffrey Graham, occupation physician, provided a report dated

18 February 2016 (2017/3262, T6). Dr Graham, contrary to the other examining doctors, diagnosed the Applicant's condition as 'minor degenerative change in the low lumbar spine'. * (e) Dr Sandra Gongora, occupational physician, examined the Applicant on

24 July 2017, and produced a report dated 2 August 2017 (2017/7134 et al., T22). Dr Gongora noted that the Applicant reported pain at a level of usually 1/10, but that could reach 10/10. The doctor concluded that the Applicant 'suffered from a work related injury to his lower back from which he never completely recovered.' Dr Gongora was asked about whether the condition was related to his employment or a pre-existing condition, the natural progression of an underlying condition. In response, Dr Gongora concluded that the Applicant's current physical condition was triggered by the work-related incident reported in February 2011, but said that the imaging investigations revealed anatomical changes which may have made full and complete recovery difficult. Dr Gongora then remarked that: 'The transitional vertebrae or Bertolotti's syndrome is commonly the cause of back pain which occurs due to lumbosacral transitional vertebrae (LSTV). It is a congenital conditional but is not usually symptomatic until late twenties or early thirties.'

Dr Gongora did not express, at least not clearly, any conclusion that Bertolotti's syndrome was the cause of the condition. However, in response to another question, Dr Gongora concluded: 'In [the Applicant's] case there is an underlying anatomical/structural change. It is very difficult to isolate the effects of his anatomical changes, the effects of the injury and the depression/anxiety he has been diagnosed with.' * (f) In his report dated 22 May 2018 Dr Hardcastle opined that:

...when [the Applicant] was initially reviewed by Dr Pearce, that tenderness was in the same area of the back (Dr J L Pearce report, 20 February 2012) which certainly supports his ongoing symptoms being still related to that area of pain where he has previously had not any symptoms from. This does support that the current symptoms he is having still do relate to that particular injury date at work where he was involved with the repetitive activities.'

Dr Hardcastle described the condition variously as: '...a combination of mechanical inflammatory low back pain from mid to lower lumbar region without neural compression' and '...a strain type injury, most likely to the intervertebral disc in the mid-lumbar spine at L3/4 and L4/5'.

(g) In response to a question about the contribution of the Applicant's employment to the condition, Dr Hardcastle opined: '...given he was asymptomatic before the nature of the work duties undertaken on that day, that the aggravation was significant to a pre-existing degenerative condition...' Dr Hardcastle disagreed with Dr Gongora's conclusion that the Applicant suffered from Bertolotti's syndrome. However, he did conclude that there were degenerative changes in the facet joint at L3/4 and disk bulging consistent with degenerative, but that these were likely aggravated to a significant extent as a result of his work.

(h) As to the effect of the degeneration, Dr Hardcastle concluded that: 'I am not of the opinion at this stage that the symptoms have overtaken the effects of the lumbar pre-existing condition.' Similarly, in response to a question about whether the effects were still suffered, he remarked: '...taking into account he was asymptomatic before and accepting his veracity, then with the work precipitating the degenerative condition it still would be considered related to the work injury'.

Dr Hardcastle suggested that if a further CT scan revealed instability, it may be concluded that the pre-existing condition had overtaken the effects of the work injury, but there was insufficient evidence to say. Dr Hardcastle did not alter his opinion in a supplementary report dated 4 July 2018 after reviewing a CT scan performed on 22 June 2018.

1. The Respondent submits that, having regard to the available evidence, the Respondent accepts that the Applicant's back condition is properly described as an 'injury simpliciter' within the meaning of s 5A(1)(b) of the SRC Act, and not a disease within the meaning of s 5A(1)(a) of the SRC Act (Respondent's Outline of Submissions para. 35). The Respondent submits, however, that the Injury must be seen in the context of the active degeneration that was present in the Applicant's spine at the time he suffered from the Injury and at the present time.
2. The Respondent identifies the activities that the Applicant describes that he is able to undertake (Respondent's Outline of Submissions para. 36). These include the following:

1. Does one of three types of cardiovascular exercise: rides a bike for 20-30 mins; walks on treadmill for 20-30 mins; or uses an elliptical machine for 5 mins.
2. Performs the following exercises on the 'machines':
   1. On knees uses a machine where he rotates and pulls the rope down and across body;
   2. Seated, stationary row;
   3. Reverse sit sups on a machine;
   4. Bench press with free weights with the a bar that weighs 15kg and sometimes he adds 5kg of weight to each side (25kg in total);
   5. Arm curls with the dumbells - 3-4kg each.

1. He then performs a floor routine that involves:
   1. Strengthening his abdominal muscles by performing single leg raises on back - alternate one arm up one leg down;
   2. Lying on back, legs straight and simultaneously raised off the ground;
   3. Planking;
   4. Sitting on an exercise ball, lift one leg up and then other leg up.

1. He then spends 20 minutes sitting in the sauna then 20 minutes in the spa where he may stretch his hamstrings.

1. Whipper snippers;
2. Mows - he has a push mower that has to pull start. To get it to work, he pulls it 8-10 times in one go;
3. He plants tree cuttings.

1. The Respondent notes that the Applicant's evidence was that the Applicant could not wear a backpack because it hurt his back and could no longer jump on the trampoline as he had been able to do.
2. The Respondent noted that during his evidence the Applicant had remained seated for over three hours from 10.52am to 2.05pm.
3. The Respondent refers to Dr Hardcastle's evidence in relation to the CT scans at the hearing which showed 'he had advanced degeneration in the facet joints in the back and they are likely to give more symptoms' and it is 'becoming more likely that the degeneration has become the cause of the symptoms' (Respondent's Outline of Submissions para. 37). The Respondent submits that in response to all of the questions posed by the Applicant about what was causing his pain, Dr Hardcastle responded by referring to the degenerative condition. Further, according to the Respondent,

Dr Hardcastle explained that there was 'nothing in the radiological evidence which we would say made a structural difference.' 4. It is the case that at the hearing Dr Hardcastle was consistent in his responses to the Applicant that, in his view, his back issues were now caused by degenerative changes rather than the injury of 17 February 2011. The following extract from Dr Hardcastle's evidence at the hearing goes to that point and also to the submission that the Applicant makes at paragraphs [53(c)] and [53(d)] above:

[APPLICANT]: And my job as a quarantine officer is to sample the fertiliser for weed seeds, because the fertiliser goes straight onto the farming property. We're - we're required per container to take five sample lots per container?

[DR HARDCASTLE]: Yes. No, I've read all that.

[APPLICANT]: So my question is, is doing that activity on that day, would that have aggravated any condition that I - I - - -?

[DR HARDCASTLE]: Yes, that could easily - and that's what I've said, is that - I've said there has been an aggravation of the pre-existing degenerative condition as a result of those work activities. That's what I've said. And then I've said that under normal circumstances, you would expect over a period of three months that in a lot of people that would settle down, but in you, it has been more protracted, the recovery, than normal, but still in that group where they do have protracted recovery. But there's no definitive pathology on the original MRI scan. There's no radiological thing there that has resulted from that that we would say, look, that has made a structural difference to your spine outside of the normal degeneration. We accept that it has caused a strain and swelling and it has caused pain, and that pain has been protracted for a long period, and it's because by doing those activities you got such a bad aggravation that we're suggesting that by going back to the type of work that you're doing, that there are some restrictions put on you so that that doesn't happen again.

[APPLICANT]: So on 17 February there was an aggravation of - of some degeneration, knowing (indistinct) 44-year-old person. That degeneration - did that accelerate the degeneration that occurred? For example, if I did not 40 participate in that activity on that day, I concede that I might have it but I might not have the loading pain that I suffer from today, or would be -?

[DR HARDCASTLE]: - you know, the thing you've got to appreciate there to is that there are a number of different factors, and one is your own body fitness, which it seems like you've been able to maintain well, which is a good, positive factor. The degenerative process does continue on. You know, we're not - we're not getting any younger, is the things. And when you do have an aggravation of doing other things while that aggravation is healing, other areas can start giving problems, and so that's why we try to - the - nowadays, we're looking when we're treating people with more acute problems, with - we try to get them into the water and do hydrotherapy and keep them active and keep them - and not resting them, like it used to be. It used to be the - the main treatment initially. Now we're looking more at activity, but activity within limitations. But you've had - you've had an injury there. I've said that in the report, that that injury has continued, and that it has caused some limitations, but it - it - but it hasn't stopped your capacity for physical work and doing work with restrictions, and that's just something that has happened at that point in time that has precipitated - but probably with the type of work that you were doing, at some stage you were going to get - start getting more mechanical problems in your back.

(Transcript at 128-9.)

1. The principal medical evidence in this matter is that of Dr Hardcastle. This is not a case where we have two competing sets of medical evidence. While there is a fairly extensive history of medical examination and some diagnoses, it is not a case where the doctors have drawn different material conclusions as to the Applicant's current medical condition.
2. Much of the Applicant's case seemed to be trying to establish that there was a work injury in February 2011. That is not disputed. The undisputed chronology is that there was: an injury simpliciter suffered at work on 17 February 2011; a first medical certificate for a back injury issued by Dr Akinyemi in September 2011; an examination undertaken by

Dr Pearce on February 2012; a workers' compensation claim submitted by the Applicant in April 2012 and acceptance of liability by the Respondent for the back injury in September 2012. After that date the Applicant received payments under various provisions of the SRC Act. The issue is whether the Applicant still suffers from that injury and, if he does, whether he is fit to return to his pre-injury work. 3. The most recent report, in fact the only report that could be considered to be addressing the Applicant's current condition, is that of Dr Hardcastle of 22 May 2018 supplemented by his report dated 4 July 2018. The Applicant submits that Dr Hardcastle's evidence at the hearing conflicted with his original report and is 'inconsistent with any other medical report in regards to the applicant's back injury' (Applicant's submissions for 2017/7134 para. 43). That is not the case. There is, from the MRIs and other reports, evidence that there is degenerative change in the Applicant's spine as there is in most people of the Applicant's age according to Dr Hardcastle. Further, as noted above, the other reports on which the Applicant relies do not talk to his current condition. Dr Hardcastle's reports do. 4. Dr Hardcastle's reports were and his oral evidence was thorough and consistent. The best explanation of the effect of Dr Hardcastle's opinion is set out in the exchange that he had with the Applicant in cross-examination quoted at [60] above. As is often the case with medical opinions, they are just that, an opinion of the individual. They are not, or at least should not be, absolute statements of certain fact. 5. What the Tribunal has to do is to make its own decision based on the best evidence available and come to the correct and preferable decision based on that evidence (see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21, 28 [41] per Perry J (White and Wigney JJ agreeing); Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60). In the present case, the best, most current evidence from someone with requisite qualifications, is the evidence of Dr Hardcastle, both in his reports and his evidence at the hearing. Contrary to the Applicant's submission, Dr Hardcastle's views are not contradicted by, or even inconsistent with, the opinions expressed by other doctors in earlier reports or certificates. In any event, none of these other doctors was called to give evidence. 6. What then do Dr Hardcastle's reports and his evidence at the hearing relevantly indicate? In his report dated 22 May 2018 (R3) Dr Hardcastle advised:

Do you consider that the applicant continues to suffer from 'intervertebral disc disorder - lumbar region' with a date of injury of 9 November 2005; and/or 'aggravation of lumbar sprain (bilateral)' with a date of injury of

17 February 2011 (the lumbar condition)?

In my opinion he has fully recovered from the injury of 9 November 2005 and that he has had an injury of 17 February 2011 which is continuing to give symptoms.

1. In relation to the critical issue, the issue on which the Respondent based its reconsideration of no present liability, Dr Hardcastle in that same report says as follows:

Have the effects of a pre-existing or non-work-related condition overtaken the effects of the lumbar condition?

This is always a difficult question to answer but it has to be accepted that he continued to work in a light duties capacity following the injury with persistent symptoms and maintained a reasonable level of activity in this period. I am not of the opinion at this stage that the symptoms have overtaken the effects of the lumbar pre-existing condition, accepting his veracity in relation to the information that has been provided.

1. Unfortunately the meaning of the answer to the last question is not altogether clear. It was accepted for many years by the Respondent that the Applicant's injury of

17 February 2011 had caused the symptoms and the issue now, as the Tribunal understands the Respondent's case, is whether the degeneration of the spine has now overtaken the accepted injury as being the cause of the Applicant's present symptoms. If that understanding is correct, then it is odd to speak in terms of the 'symptoms', presumably the symptoms of the accepted injury, 'overtaking the effects' of the pre-existing lumbar degeneration, or the continued development of that degenerative condition. I would have thought that the issue would be whether the effects, the pre-existing degenerative condition had now overtaken the injury of February 2011 as the cause of the symptoms, not vice-versa. 2. Some clarification was, however, provided in the evidence of Dr Hardcastle at the hearing:

[MS SLACK]: Thank you, Doctor. I was also wondering about whether that evidence impacted on your view about whether it was the strain or the work incident that occurred in 2011 or the degenerative condition?

[DR HARDCASTLE]: Correct. Well, I would be of the opinion that given the period of time since the work injury and looking at the radiology, that it is more now becoming related to the underlying pre-existing condition and that he is, you know, he is showing good signs of improvement from that aggravation of 2011 as he did from the previous one of 2005 and that it is now the clinical picture - unless there has been a change in the symptoms because you have only provided the information on his activities that yes, there has been objective improvement there and probably getting close to getting back to the pre-injury situation - or pre-aggravation situation taking into account that, you know, there's radiological normal degenerative features in his spine that as we get older give problems.

[MS SLACK]: So they would be the cause of the symptoms?

[DR HARDCASTLE]: It's becoming more likely that these are getting to be the cause of the symptoms

[MS SLACK]: And just objectively, you are a spinal surgeon. Based on the history that you took and the evidence that Mr Thompson gave yesterday, how debilitating on the grand scheme of things is Mr Thompson's back condition?

[DR HARDCASTLE]: Well, from my clinical assessment there was no evidence of a constant - what shall we say - there's no evidence of a major inflammatory problem or cancer or infection. He has more mechanical pain and it appears to be more discogenic and appears to be coming from the (indistinct) facet in origin but as I said in that report, you need to do diagnostic injections before you can say whether it is disc or facet, as I was teaching the students this morning that disc pain is normally worse when you bend forward and facet pain when you bend back, that there is an overlap and it's not sort of 100 per cent, there are differences but certainly he's got - on the latest CT scan he's got quite - on the scan he has got quite advanced degeneration in the facet joints at the back and they are likely to give symptoms - ongoing symptoms. The good thing is that he is able to do that amount of activity in the gym that you're talking about when, you know, in relation to the degeneration that's there, it's good for him because if he sat around and didn't do anything he would just freeze up regardless of the injury, he would be a lot worse off.

[MS SLACK]: And on that, does the evidence that you've heard this morning have any impact on your opinion on the restrictions that you've referred to in your report on Mr Thompson's ability to work?

[DR HARDCASTLE]: The general restrictions, he could lift heavier weights on an intermittent basis but I still wouldn't recommend on a repetitive basis and again with lifting, lifting is a sort of a term but it's where the lifting is, if he has got to reach in to a compartment to get small amounts of something and lift, you know, 10 kilograms or five kilograms and do it 100 times in a day I'd be a bit cautious about that but he could certainly - you know, he could certainly lift heavier weights on a non-repetitive basis and he could still - you know, he could, using good technique he could probably manage up to the 10 kilogram weights on a sort of repetitive basis as long as they are not away from his body and putting an extra stress on. Because it's not even - it's not related to his injury per se, the lifting, it's as we 10 get older our discs get weaker and or facet joints get more arthritis and if we're lifting heavier weights repetitively away from our body we're putting a lot of extra stress on our body, so it's not - and because we're older - and because he's older, one has got to modify his, you know, his heavy physical activities that he could do 20 years ago but now because of the joint are worn and the discs are showing signs of degeneration, they are more susceptible to tears if incorrect techniques are used.

[MS SLACK]: And Mr Thompson said in his evidence yesterday that when he was doing suitable duties he was working in an office, at a desk, but sometimes he would have to do what he called "site inspections" so he'd just go and look at a truck and say, "Is that a truck? Yes, it's a truck" or "Is that something? Yes, it's something" - not actually physically inspecting it. Based on the information that has been provided this morning and the history you took in your report, is that something that he would be capable of doing?

[DR HARDCASTLE]: Yes, and I'd encourage more visits to trucks, you know, the more up and about and walking because I learned in my medical training that bed rest was rehabilitation for the grave and you know, long periods of sitting is not the best thing, it's been recommended that we get up and move now a lot more regularly.

(Transcript at 121-122.)

1. Based on the evidence, in particular the evidence of Dr Hardcastle, I am, on the balance of probabilities, satisfied that the Applicant's current symptoms are caused by the development of his degenerative spinal condition and that the injury of 17 February 2011 is no longer the cause of his symptoms. He no longer suffers from the injury of

17 February 2011 for the purposes of the SRC Act. 2. I am, in any event, also of the view that based on the evidence of the Applicant's physical mobility and capabilities, that, even if the Applicant did continue to suffer from the injury, he is fit to return to pre-injury hours in a role that does not include repetitive lifting of more than ten kilograms, repetitive forward bending, sitting and standing or driving over rough terrain (see report of Dr Hardcastle dated 22 May 2018, R3/7). 3. Accordingly, the Tribunal affirms the reviewable decision of 21 November 2017 which reconsidered, on own motion, the Respondent's determination dated 5 July 2017 and determined that the Respondent was not presently liable to pay compensation in relation to the Back Injury.

2017/7135 - no present liability decision, Psychological Injury

1. The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which affirmed a determination dated 27 October 2017 which had found that the Applicant had no entitlement to compensation pursuant to s 16 of the SRC Act for medical treatment obtained in relation to 'adjustment reaction with anxious mood' in 2012.

1. The Respondent identifies the issues (Respondent's submissions para. 15) relevant to this application as being:
   • (a) Does the Applicant continue to suffer the Psychological Injury?
   • (b) If so, does the Psychological Injury continue to be significantly contributed to by the Applicant's employment by the Commonwealth?
2. The Applicant identifies the issues (Applicant's submissions for 2017/7135) as:
   • (a) Does the Applicant continue to suffer from the psychological injury dated

3 September 2012? * (b) Is the Applicants' psychological injury contributed to by symptoms of his existing physical injury and conditions of his employment? 3. While the two expressions of the issues are slightly different, their effect is the same given the definition of the term 'Psychological Injury' (see [1] above) used by the Respondent.

Does the Applicant suffer from the psychological injury?

1. As indicated in the Applicant's statement of issues (see [75] above) the claimed psychological injury relevant to this application is that of 3 September 2012 (the 2012 Psychological Injury). There is a separate claim for a psychological injury, being an aggravation, with a claimed date of injury of 12 November 2014 (the 2014 Psychological Injury). That claimed injury is the subject of application 2018/2754 and is dealt with later in this decision.
2. The factual and medical background relevant to the 2012 Psychological Injury are set out in the decision of the Tribunal in Thompson and Comcare (2014) 141 ALD 478, 479 - 490 (Thompson and Comcare) at [3]-[26] (2017/7135, T19). Rather than reproduce that factual and medical background in this decision, the Tribunal adopts those paragraphs.
3. The Tribunal decided in Thompson and Comcare that the Respondent was liable to pay compensation in respect of 'adjustment disorder with depressed and anxious mood'. In those proceedings the Respondent had contended that the Applicant's mental ailment was caused by his dispute with the Respondent regarding his claim for compensation for his back injury and that it was not contributed to, to a significant degree, by his employment. The Tribunal held, at [43], that:

... It may be that the applicant's dissatisfaction with the respondent's initial rejection of his [back injury] compensation claim, together with his dissatisfaction regarding his work duties and unco-operative managers ... were the major causal factors relating to the contraction of his mental ailment on 3 September 2012, but, in the Tribunal's opinion ... the applicant's ongoing work-related back pain was also a factor which contributed to his contracting the mental ailment. Furthermore ... the Tribunal is satisfied ... that the applicant's ongoing work-related back pain contributed, to a significant degree ..., to the mental ailment...

1. The Respondent summarises the question in the present application to be, in essence, whether the Applicant's work related back pain, found in Thompson and Comcare to be a factor contributing to the Applicant's 2012 Psychological Injury, continues to be so, or whether the ongoing cause is something else. The Respondent contends that it is something else, namely, his ongoing interactions with the Respondent and the claims management process. The Applicant's position is that he still suffers from the 2012 Psychological Injury and that it is still an ailment or an aggravation of an ailment contributed to, to a significant degree, by his employment.

1. The Applicant identifies relevant medical and other evidence as follows:
   • (a) various reports relating to the Applicant's back pain, including the report of

Dr Shetty dated 9 July 2013 (2017/7134 et al., T14) reporting that '[b]y this time his back pain can be classified as Chronic low back pain'; * (b) certificate of Dr Tim Taulke-Johnson (R2, 439) dated 14 April 2014 stating 'Mr Leon Thompson has a medical condition of chronic pain. Counselling will definitely be of benefit to him and it should be continued'; * (c) report of Dr Johnathon Spear dated 6 June 2014 stating (R2, 593):

My diagnoses according to DSM-IV is as follows, AXIS I: Pain Disorder... It may be appropriate to recommend a further six sessions with a clinical psychologist for advice on pain management and anxiety management;

(d) consultation of Dr Ben Lee dated 12 November 2014 stating (R2, 665): '[i]t was decided that pt's back pain and mental health issues needed to be managed well first before return-to-work can be considered. Back pain being managed well, to continue gym work' and WorkCover WA - Progress Certificate of Capacity dated 12 November 2011: 'Diagnosis Adjustment disorder, Anxiety/Depression, Back Pain';

(e) letter from Dr Ben Lee dated 25 September 2014 stating (R2, 707): 'I confirm that his depression and back pain are causing his on-going incapacity';

(f) consultation notes of Dr Ben Lee dated 29 October 2015 stating (R2, 669): '[s]till having back pain. Not restricting his ADLs, but is present during most of his activities';

(g) certificate of Dr Ben Lee dated 19 February 2016 stating (R2, 723): 'Diagnosis Adjustment disorder Anxiety/Depression Chronic low back pain';

(h) consultation notes of Dr Ben Lee dated 26 April 2016 which note (R2, 673-674): 'Wife encouraged pt to do some work at church, pruning roses. Back pain exacerbated at the end of his work';

(i) report of Dr Gongora dated 2 August 2017 which states (2017/7134 et al., T22/168): '[i]n my opinion the symptoms of depression play an important role on his chronic back pain'; and

(j) consultation notes of Dr Ben Lee dated 1 November 2017 which state (R2): 'I agree that pt's depression is likely to be contributed by his back pain and work-related issues...'

1. Having referred to the above medical reports and notes, the Applicant argues as follows (Applicant's submissions in 2017/7135):
   • (a) Australian Pain Management Association defines chronic pain in the following way:

Pain is said to be chronic if it persists beyond the normal healing time of about three months. 'Chronic' simply means ongoing and doesn't tell us much about the severity or quality of the pain.

(b) Australian Pain Management Association documentation states that:

Ongoing pain can heighten emotional responses and it is common for people to experience increases in levels of: anxiety, irritability, frustration, depression, anger and guilt. Vicious cycles are created, whereby elevations in emotional states can also exacerbate pain. Pain can interfere with sleep, activity levels, roles and responsibilities, work, relationships, socialising, recreation and finances.

(c) Under the terms of the SRC Act and in line with the published guidelines for management of rehabilitation, the role of the Respondent is to 'review rehabilitation determinations issued by Commonwealth authorities' (namely my employer the DA). The role of the employer, however, is to 'take all reasonably practicable steps to provide an injured employee with suitable employment or to assist the employee to find such employment'. The Applicant says that:

When I refer to Comcare or another external agency in a complaint, I am actually referring to things I found they are supposed to do in relation to my employer the Department of Agriculture as part of the Delegated role that agency (such as Comcare) performs on behalf of my employer. Deputy President Hotop in his decision in 2014 found that Comcare 'stood in the shoes of my employer in delivery of a function delegated by the employer'; in this finding it was shown that this delegated responsibility formed part of my employment. The applicant relies upon this employment relationship in this submission (Applicant's submissions 2017/7135 para. 15).

(d) The Applicant submits that reference to the Enterprise Bargaining Award (EBA) for his former employer, the DA, is relevant in determining the employment relationship to the Workers' Compensation and Rehabilitation process based on

s 99.2 (n) of that award.

(e) The applicant identifies 33 pieces of legislation which, he submits, apply to his employment with his former employer. They are (but not limited to):

1. Administrative Decisions (Judicial Review) Act 1977;
2. Age Discrimination Act 2004;
3. Defence Reserve Service (Protection) Act 2001;
4. Disability Discrimination Act 1992;
5. Fair Work Act 2009;
6. Fair Work (Transitional Provisions and Consequential Amendments) Act 2009;
7. Financial Management and Accountability Act 1997;
8. Freedom Of Information Act 1982;
9. Long Service Leave (Commonwealth Employees) Act 1976;
10. Maternity Leave (Commonwealth Employees) Act 1973;
11. Occupational Health & Safety Act 1991;
12. Public Employment (Consequential and Transitional) Amendment Act 1999;
13. Public Service Act 1999;
14. Safety, Rehabilitation and Compensation Act 1988;
15. Sex Discrimination Act 1984;
16. Superannuation Act 1976;
17. Superannuation Act 1990;
18. Superannuation Act 2005;
19. Superannuation (Consequential Amendments) Act 2005;
20. Superannuation Benefits (Supervisory Mechanisms) Act 1990;
21. Superannuation Guarantee (Administration) Act 1992;
22. Superannuation Productivity Benefit Act 1988; and
23. Veteran's Entitlements Act 1986

... At no time in training or in any workplace documentation has the applicant ever been told or advised that the above were optional or did not apply to him and as such; any outcomes that are derived from or stem from those obligations and expectations of employment must be found to be an [sic] part of that employment. In this instance the applicant refers the Tribunal to the Safety, Rehabilitation and Compensation Act 1988 at (n) above.

(f) The Applicant refers to the decision in Thompson and Comcare and quotes the Tribunal's decision at [43] that:

...in the Tribunal's opinion, having regards to Dr Proud's evidence and Dr Shetty's referral letter of 3 September 2012 (Dr Prouds' evidence is at PT19 page 128 point 14), the applicant's ongoing work-related back pain was also a factor which contributed to his contracting that mental ailment. Furthermore, on the basis of Dr Proud's abovementioned evidence (see PT19 pp 140-147), the Tribunal is satisfied, and finds, that the applicant's ongoing work-related back pain contributed, to a significant degree (as defined in S 5B(3) of the SRC Act), to the mental ailment suffered by him on 3 September 2012.

(g) At paragraph 19 of his submissions (for 2017/7135) the Applicant argues that research shows that chronic pain can lead to psychological conditions including depression. He also asserts that depression lowers a person's frustration tolerance, a person's ability to handle problems without getting upset. The Applicant argues that depression similarly lowers a person's ability to deal with chronic pain.

While amongst the volumes of material provided by the Applicant there may be authority for these submissions by the Applicant (they are not identified in the Applicant's submissions), it is likely that the Respondent would not contest the thrust of the assertions made. Where these propositions made by the Applicant lead, however, is the point of contention.

(h) Having made the above submissions, the Applicant at paragraph 20 of his submissions (for 2017/7135), refers to him being sent home, unfit for work, immediately upon the publication of the Tribunal's decision Thompson and Comcare on 23 July 2014. He was, he says, sent home 'on miscellaneous leave with full pay under the public service act despite the fact that a Graduated return to work program was in place and I certified [sic] fit for work by my GP'.

(i) Following this, the Applicant says that he emailed his employer saying that he did not understand why he had been sent home and 'cited concerns for my psychological health if I was denied the right to work'. He says that his employer did not change its position 'so I lodged a claim with Comcare complaining about being sent home as a breach of my Graduated Return to Work Program and complaining that no one was carrying out the decision of the AAT (17 July 2014)' (Applicant's submissions for 2017/7135 para. 21).

(j) In paragraphs 22 onwards of his submissions the Applicant details various disputes that he had with his employer and the Respondent about return to work programmes, directions by his employer for him to return to work and dealings with the Merit Protection Commissioner's office. These appear to have been in the period from July 2014 after the publication of the decision in Thompson and Comcare.

(k) A Psychological Treatment Report dated 11 August 2014 from Counsellor Dr Delma Jessup stated:

Presenting Issues - Reported feeling depressed due to work unresolved related issues. Feeling that he is not valued and ignored at work. Anxious and stress about work situation. Diagnostic Impression 296.31 Major Depressive Disorder, 300.02 Generalised Anxiety Disorder.

(l) Certificate from Dr Pepulani dated 10 September 2014 states 'Patient Perceives Bullying at workplace'.

(m) The Applicant claims that in September 2014 his employer the DA sacked a psychologist who was his rehabilitation provider and replaced the psychologist with a physician. He claims that psychological condition was not to be included, presumably at the direction of the employer, in any return to work program. He says that he complained about this decision and was told that the decision on who to appoint was at the sole discretion of the employer and that he would have no input (Applicant's submissions for 2017/7135 para. 29).

(n) On 1 October 2014 the Applicant received an email from a Consultant Occupational Therapist which said '...as an Occupational Therapist my role is to guide your rehabilitation and return to work purely for your physical injury as this is the compensable claim.' In relation to that email the Applicant submits (para. 30):

This confirmation given almost three months after approval of my psychological injury by the AAT, serves to prove that my employer did not acknowledge or accept my psychological injury as a compensable claim despite the AAT finding and was not making adjustments in relation to this injury.

(o) The 3 October 2014 Psychological Treatment Report of Dr Delma Jessup recorded:

Presenting Issues - Reported feeling depressed due to work unresolved related issues. Feeling that he is not valued and ignored at work. Anxious and stress about work situation. Diagnostic Impression 296.31 Major Depressive Disorder, 300.02 Generalised Anxiety Disorder.

(p) The Applicant says that there was a meeting held on 12 November 2014 with Ken Field (DA), Maryanne Alchin (DA), Michael Chidzley (PeopleSense) and the Applicant and his wife. On the same day following this meeting the Applicant and his wife met at a GP's office with Dr B Lee (GP), Gillian Yee (Treating Psychologist) and Maryanne Alchin (DA). He says that the decision was made at this second meeting that he was totally unfit for work with that to be reviewed in February 2015. It was decided that no Graduated Return to Work Program would be put in place (Applicant's submissions for 2017/7135 para. 32).

(q) Following that the Applicant lodged an application in the Tribunal for review of his employer's decision not to have a graduated return to work program in place for him (Application 2016/1589). The Tribunal notes that the application was dismissed under s 42A(4) of the AAT Act as the decision in question was not a reviewable decision under the SRC Act or otherwise reviewable by the Tribunal.

(r) The Applicant says that on 9 December 2014 PeopleSense resigned as his rehabilitation provider because it was their view that there was no prospect that he was going to return to work (Applicant's submission for 2017/7135 para. 34).

(s) The Applicant says that on 12 January 2015 the DA cancelled his rehabilitation program. He says that he appealed this decision by DA but that the Respondent upheld the DA's decision (reconsideration reference number 46435925) finding that '...it was reasonable for your employer to close your rehabilitation program...' (Applicant's submission for 2017/7135 para. 35).

(t) The Applicant says that early January 2015 DA contacted his psychologist and his GP, Dr Lee, and requested that they certify him unfit to return to work (Applicant's submission for 2017/7135 para. 36).

(u) The Applicant says that on 17 June 2015 he attended a face-to-face meeting with the Acting Director of the Injury Management Unit for the DA, a DA Case Manager and his wife to seek a resolution to ongoing issues with DA. The meeting was held at the offices of the Department of Immigration. He says that the DA informed him that they did not want him to return to work for the DA and if he was found fit for work then they would be seeking to have him transferred to another agency (Applicant's submission for 2017/7135 para. 37).

The Applicant submits that this decision by the DA was not an appropriate resolution 'because it made the relationship with his employer even more strenuous and untenable and suggested that there is no intention by them to find a solution' (Applicant's submission for 2017/7135 para. 37).

(v) The Applicant says that at the meeting he asked Peter Bignell if the DA intended to follow the published guidelines on the Respondent's website in regard to mental health. He says that Mr Bignell's response (he does not say exactly what Mr Bignell said) gave him cause to form the view that the DA had taken the decision not to follow any published guidelines or policies in the management of his cases. He says further that at that meeting his wife presented a list of questions and issues of concern that he had raised numerous times with DA staff and Mr Bignell gave a verbal guarantee to her to respond in writing to these questions. He says that by the end of the week they had received no response (Applicant's submission for 2017/7135 para. 38).

(w) On 22 September 2015 the Applicant applied for permanent retirement (Applicant's SIFC, para. 3(D)(s)). He says that at that time he first started enquiring about permanent impairment (Applicant's submission for 2017/7135 para. 39). The Applicant was retired on invalidity grounds on 19 January 2017 (Applicant's SFIC, para. 3E).

(x) The Applicant made a formal complaint to the Merit Protection Office regarding corporate governance of the DA in managing his workplace injuries under the WHS and Public Service Acts. He says that the complaint was never resolved and he was later advised by the Merit Protection Office that it ceased when permanent invalidity retirement was approved (Applicant's submission for 2017/7135 para. 42).

(y) A report was prepared by Dr Proud dated 3 August 2016. Dr Proud's diagnosis (2017/3262, T7 at 47) was that the Applicant:

...is suffering from a Major Depressive Disorder, moderate to marked severity, chronic DSM-5 criteria.

He also suffers from Generalised Anxiety Disorder, moderate to marked severity, chronic, DSM-5 criteria.

(z) The 10 October 2016 email from the Respondent to DA (2017/3262, T9) relating to the Applicant's application for invalidity retirement stating:

We have assessed the information on file regarding the claimant and the evidence supports a finding that Comcare should support the application for invalidity retirement, at this time.

...given incapacity due to his compensable psychological condition; the ability of Mr Thompson to secure and sustain employment is not realistic. It is also acknowledged that rehabilitation attempts as per the return to work hierarchy have not been exhausted, that is redeployment: however again due to the restrictions imposed by his psychological condition this option is not viable.

(aa) The Applicant then refers to various incidents from early 2017 onwards where he says that DA did not provide information to the Respondent such as changes to an EBA (July 2017), refused to answer emails or talk to him on the phone (June - August 2017) and where the Respondent had refused to investigate pay increases (July 2017).

(bb) The Applicant also says that in October 2017 his wife complained to the Respondent and to Dr Terace about the omission in his report of key facts and documents provided to him '_and in regards to errors and misrepresentations in his repor_t - she invited Dr Terace to review his decision; providing copies of all the omitted documents- no response was ever received' (Applicant's submissions 217/7135 para. 49).

1. The Applicant, in effect, submits that the Tribunal should not accept the opinion of Dr Terace. The Applicant refers to evidence of Dr Proud which he says is inconsistent with the opinion of Dr Terace. In relation to their respective evidence, the Applicant makes the following submissions:
   • (a) Dr Terace's report as cited in the Respondent's statement regarding 'constitutional vulnerability is always relevant to the development and the maintenance of Major Depressive Disorder.' The Applicant contends that this statement is the personal opinion of Dr Terace and unrelated to any medical diagnosis (Applicant's submissions 2017/7135 para. 50). The Applicant submits that the evidence of Dr Terace during cross-examination was to the effect that reference to 'constitutional vulnerability and inherent temperament' in his report was intended to represent a natural and usual state existent in everybody 'we all have this'. This, the Applicant submits, shows that it is not intended to be read in isolation as a medical diagnosis of the Applicant and cannot be taken as a 'significant factor' in this case (Applicant's submissions for 2017/7135 para. 51).
   • (b) The Applicant submits that the oral evidence of Dr Proud (when asked whether Major Depression was 'always' a result of constitutional vulnerability and inherent temperament), stated that there were many causes including 'genetic, medical, chronic pain, life stress, grief, bipolar mood disorder and drugs or alcohol addiction', and that he further stated that in order to determine a person's constitutional vulnerability and inherent temperament it would be necessary to 'find a family history of a depressional (sic) illness, a past history of depression and to confirm that there were no other signs of life event triggers.' The Applicant submits that none of these was found by Dr Proud or by Dr Terace in their examinations (Applicant's submissions for 2017/7135 para. 52).

The above is not quite what Dr Proud said in evidence which was, relevantly, as follows:

[MRS THOMPSON]: ...Do you consider that adjustment reaction with major - and major depression, to be the same disease under DSM classifications?

[DR PROUD]: They are different diseases but very similar. So major depression versus an adjustment disorder with depression, effectively it's the same disorder. There's only a technical difference, so they are both subsets of depression.

[MRS THOMPSON]: ...is it always the case that chronic depressive symptoms over six months must be because of a diagnosis of constitutional vulnerability and inherent temperament? Are you - - -?

[MRS THOMPSON]: No. And the second part to that question: are you aware of any other potential causes of chronic long-term depression?

[DR PROUD]: There are many causes, such as constitutional, genetic, such as medical diseases, such as chronic pain, such as life stressors, such as grief, subset of bipolar disorder, secondary to drug or alcohol. So there's millions of causes, yes.

[MRS THOMPSON]: ...what testing, knowledge and experience of a patient would be required to make a diagnosis of a constitutional vulnerability and/or inherent temperament? Is this testing reliable and accurate in an IME examination setting, in your experience?

[DR PROUD]: Okay. So one would need to know if there was a family history of depression, for example. If there's a family history of depression, then there's more likely to be what you're calling the constitutional element. And if there's a past history of depression, then it's likely to be constitutional, provided there have not been significant life events such as trauma or childhood disadvantage, that have caused the trauma. Does that explain it?

(c) The Applicant submits that it is highly unlikely that Dr Terace was able to form a complete view of the inherent temperament and constitutional medical history of the Applicant as a whole based on the short interview with the Applicant. The Applicant says that none of the factors causing constitutional vulnerability outlined by Dr Proud was disclosed or attributed to the Applicant by Dr Terace in his report or in his verbal evidence. The Applicant says that only a set list of questions and incomplete documentary information that confirmed the Respondent's perception of what the issues were was made available to Dr Terace prior to examination; for example, the AAT finding from 2014 was not provided (Applicant's submissions for 2017/7135 paras. 53-54).

(d) The Applicant says that he took documents to the appointment with Dr Terace, however:

... in Dr Terace's evidence when asked by the applicant about this material provided by him at the appointment, Dr Terace could not even recall whether any documents had been brought to the examination; this fact proves that Dr Terace did not consider the applicant's position in his findings. These incomplete set of facts relied on by Dr Terace would limit his ability to form a complete view based on all the facts - the applicant submits that this would lead the Doctor to make decisions based upon a confirmation bias formed by leading and incomplete information provided to him. (Applicant's submissions for 2017/7135 para. 54)

(e) The Applicant refers to answers given by Dr Terace in cross-examination relating to 'psycho-social stressors'. Although paraphrased in the Applicant's submissions (Applicant's submissions for 2017/7135 para. 56), the question and answer were as follows:

[MR THOMPSON]: Okay. I was trying to resolve issues, but they were not answered or addressed. I was pursuing returning to work, but they sent me home. Is this likely to be a psychosocial stressor?

[DR TERACE]: Yes, sir. That would be reasonable at that time. I think most people would be distressed by that.

(f) Dr Terace was asked in his evidence to consider the opinion of Dr Proud that the Applicant arguing with people is attributable to his 'intractable behaviour' which was part of the Applicant's condition. In response Dr Terace said that he would not attribute anger or irritability to depression stating that 'these behaviours are not symptoms of a major depressive disorder' (Applicant's submissions for 2017/7135 para. 57).

(g) The Applicant points to DSM-5[1] which, as part of the analysis of Major Depressive Disorder, says '[m]any individuals report or exhibit increased irritability (e.g., persistent anger, a tendency to respond to events with angry outbursts or blaming others, and exaggerated sense of frustration over minor matters)' and that in the diagnostic criteria in DSM-5 for Generalised Anxiety Disorder 'irritability' is included.

(h) The Applicant submits that:

...the findings of Dr Proud in this matter to the tribunal based on the above. When asked Dr Proud stated that the likely impact of work incidents described by the applicant (trauma / stressor events) was that "it would be very common to suffer symptoms of depression, to feel helplessness, to loose trust and to be argumentative." It was the further evidence of Dr Proud that adjustment reaction disorder and depression while being the same kind of illness; depression is a worsening of that diagnosis with time and intractability. (Applicant's submissions for 2017/7135 para. 59).

the diagnostic criteria and features found in DSM 5 and the evidence of Dr Proud show that the evidence cited by Dr Terace (that some other diagnosis may be relevant due to symptoms of anger and irritability); cannot be supported in evidence and cannot be taken into consideration in this case (Applicant's submissions for 2017/7135 para. 59).

...the applicants' submission that he suffered a work injury on 17 February 2011. This injury did not heal and resulted in the applicant suffering from chronic pain. At the AAT hearing in 2014, Deputy President Hotop found that this chronic pain was a significant factor in causing his depression. Deputy President Hotop also found that the other contributing factor was the view of the applicant that the relationship with his employer the Department of Agriculture was one of an uncooperative and unsupportive management. The applicant submits that he was required to have contact with the Department of Agriculture during between July 2014 and February 2017 due to the nature of his ongoing claims. Further the applicant submits that pain symptoms are ongoing and therefore this continued chronic pain is still a significant contributor to his diagnosis of depression.

(Applicant's submissions for 2017/7135 para. 64.)

1. The Respondent summarises its case as follows (Respondent's Outline of Submissions, paras. 47-48):
   • (a) The Tribunal decided in Thompson and Comcare that the Respondent was liable to pay compensation in respect of 'adjustment disorder with depressed and anxious mood.' The contention was advanced before that Tribunal that the Applicant's mental ailment was caused by his dispute with the Respondent regarding his claim for compensation for his back injury and that it was not contributed to, to a significant degree, by his employment. The Tribunal in Thompson and Comcare held, at [43], that:

...[i]t may be that the applicant's dissatisfaction with the respondent's initial rejection of his [back injury] compensation claim, together with his dissatisfaction regarding his work duties and uncooperative managers ... were the major causal factors relating to the contraction of his mental ailment on 3 September 2012, but, in the Tribunal's opinion ... the applicant's ongoing work-related back pain was also a factor which contributed to his contracting the mental ailment. Furthermore ... the Tribunal is satisfied ... that the applicant's ongoing work-related back pain contributed, to a significant degree, to the mental ailment...

(b) According to the Respondent, in essence the question is whether the work related back pain continues to contribute to a significant degree to his mental ailment, or whether the ongoing cause is something else. The Respondent contends that since the date of the reviewable decision, 21 November 2017, it is something else; namely, his ongoing interactions with the Respondent and the claims management process.

(c) The Respondent points to Prain v Comcare [2017] FCAFC 143 (Prain) wherein, according to the Respondent:

...the Federal Court confirmed that for the Applicant to continue to suffer from an Injury for the purposes of any of the payment provisions of the SRC Act (ss. 16, 19, 20 21, [sic] 21A, 24, 27, 29), the causative threshold provided for in the definition of Disease must continue to be met. Therefore, in order for liability to continue, the Applicant's lower back condition must continue to contribute, to a significant degree, to his psychiatric condition.

(d) The Respondent dismisses the Applicant's reliance on HSDR and Comcare [2017] AATA 779 on the basis that what was said by the Tribunal in that matter at [40]-[44] was 'not relevant as it was made prior to the Full Federal Court's decision in Prain which the Tribunal is bound to follow'.

1. The Tribunal does not accept the Respondent's argument that because the Applicant's psychological condition was found by Deputy President Hotop in 2014 to be contributed to, to the required degree, by the Applicant's then ongoing work-related back pain, amongst other things, '...in order for liability to continue, the Applicant's lower back condition must continue to contribute, to a significant degree, to his psychiatric condition'. That argument is, with respect, non-sequitur and in fact falls foul of the test arising out of the Full Court's decision in Prain to which the Respondent refers. Looking at the Applicant's claimed psychiatric condition as a disease suffered by the Applicant rather than an injury simpliciter under s 5A(1)(b) of the SRC Act, the test for the purposes of

s 5B(1) of the SRC Act is whether the ailment suffered by the Applicant was contributed to, to a significant degree, by the Applicant's employment by the Commonwealth. To equate that test to simply considering the one issue, namely, whether the Applicant still suffers from the work-related back pain that Deputy President Hotop found had contributed to the necessary degree to the Applicant's mental ailment, is erroneous. As the Full Court set out in Prain, the test to be applied, assuming that the Applicant does suffer from the claimed mental ailment, is whether that condition is, at this time, contributed to, to a significant degree, by the Applicant's employment. 2. In any event, the above test proposed by the Respondent in its submissions is not the one relied on, or at least relied on solely, by the Respondent. The Respondent sets out in paragraphs 49 (Respondent's Outline of Submissions) onwards the evidence which it says establishes that the Applicant's present mental state is not contributed to, to a significant degree, by the Applicant's employment. That is the appropriate test. The Respondent points to the following evidence: * (a) Dr Terace (report dated 15 September 2017) concluded that the Applicant suffered from major depressive disorder, mild to moderate, and relatively chronic (2017/7134 et al., T24/200). * (b) Dr Terace expressed the view that '...in my opinion, the present mental state is predominantly not caused by any workplace events including the events of the Date of Injury 17 February 2011, or any claims of subsequent mistreatment in the workplace' (2017/7134 et al., T24/179). Dr Terace then remarked that '[i]t may only be argued that if his ongoing and present chronic pain is the product of the Department of Agriculture as per the Date of Injury 17 February 2011, then there is a lesser contribution from his chronic pain to his psychiatric disorder, but the predominant cause of his present mental state is probably related to other factors' (2017/7134 et al., T24/201). * (c) Dr Terace also expressed the view that the Applicant's declining medication and the failure of aggressive treatment have been significant factors in causing and maintaining his major depressive disorder (2017/7134 et al., T24/201-202). The other contributing factors were anxieties about his economic future, financial concerns and dissatisfaction with the Comcare process (Respondent's Outline of Submissions para. 51). * (d) The critical passage of Dr Terace's report appears to be on page 29 of the report (2017/7134 et al., T24/204), is as follows:

In my opinion, in this case, the prolongation of his psychiatric disorder is probably explained by the following factors:

1. Constitutional vulnerability and inherent temperament.
2. The entrenchment in the sick role and the pursuit of invalidity and the granting of retirement.
3. The pursuit of a Permanent Impairment score for legal reasons.
4. Other non-work related psychosocial stressors including his fears for his economic future, financial concerns and his dissatisfaction with the Comcare process.

There would only be ongoing significant contribution from the workplace if his chronic pain is a product of his workplace accident.

Even then, other non-work related factors are probably predominant in causation of his present mental state...

(e) Dr Terace (2017/7134 et at., T24/205) expressed the opinion that 'It may only be argued that there is a significant, but lesser contribution from employment if his chronic pain remains a product of employment...'

(f) Dr Terace was then asked to prepare a supplementary report. That report was produced on 20 September 2018 (R2, pages 38-39). Relevantly, Dr Terace stated that:

... Even if the other matters appear to be the predominant causes of his mental state, at least at the time when I examined Mr Thompson, then the issue of chronic pain arising from the physical injury which is said to be related to employment (although this is a matter outside of my area of expertise) also needs to be considered, and in my former report dated 15 September 2017 I concluded that it was a lesser, but contributing factor.

I confirm my view that the predominant cause of Mr Thompson's present mental state is probably related to other factors.

I also did state in my previous substantive report that I considered that there was probably a lesser contribution from his chronic pain to his psychiatric disorder even if the cause of his mental state was predominated by other factors.

Furthermore, in my opinion, Mr Thompson's Major Depressive Disorder probably would have resolved earlier in the absence of his perception of the administrative conduct of the process since the cessation of employment in 2014, and other understandable pragmatic concerns on the balance of probabilities.

In my previous report dated 15 September 2017 I had assumed that significance in causation meant that which is not insignificant.

If, however, you propose that significant means something that is substantially more than material, then this causes me to question and reconsider my use of the term causal significance as it pertains to causal contribution relating to Mr Thompson's pain and associated physical injury.

This means that if, based on those assumptions, Mr Thompson's pain is not something that is substantially more than material, then I would be caused to conclude, only on that basis, that the contribution of the chronic pain, as described by the experts you referred to (assuming that this is correct, and that this represents the preponderance of medical opinion about this matter), then, on that basis, logically, I would probably find that the contribution of the pain is probably not substantially more than material, but rather that the Mental State is maintained and propagated by other factors.

(g) Later in his supplementary report, Dr Terace stated (R2, page 43-44):

After the cessation of employment, he then appeared to describe the distressing perceptions of the conduct of the administrative processes surrounding his claim pertaining to Comcare, as well as understandable pragmatic concerns, which drove the causation of his mental state in my opinion.

In the present, it is very clear that his distress pertaining to the administrative/Comcare process is substantially contributing and driving his mental state, as are understandable pragmatic concerns - which require resolution to facilitate his recovery.

(h) Dr Terace explained, after being told of the evidence the Applicant gave to the Tribunal, in his oral evidence that the exercise and level activity that he engages in 'it's commendable and it's consistent with the notion of a - it does not exclude a major depressive disorder, but it's not consistent with one that is severe or profound' (Transcript at 144).

1. Dr Terace in his evidence at the hearing went on to say:

But secondly, it does have relevance to the issue of - of the significance of the pain and its relationship to the mental state. In my first report I opined that - that it was likely that the acute pain relating to the initial injury that Mr Thompson suffered precipitated and contributed towards the contraction of his psychiatric disorder back in 2011/2012, in combination with his perception of mistreatment. In my most recent report I reviewed all the data that was available and noted that the recurring motive, in fact the predominant complaints referred to Mr Thompson's perception that he was mistreated in a variety of ways in terms of the conduct of the administration of this process, and there was little relevance to the issue of pain.

So I opined that my conclusion about the relationship of the pain, assuming that it was the product of employment, to the present mental state, relied upon the significance of the pain, which relied upon the findings of the experts in physical medicine, and that if the pain and disability was chronic, if it was substantially more than material, then on that basis it would be reasonably argued that it probably continues to contribute to the present mental state, although the predominant causation of the mental state appears to relate to other matters, as demonstrated in a plethora of notes provided. But if that is the evidence, if the pain and disability is not substantially more than material, if that has been concluded by the experts in physical medicine, then I'm reliant upon that information, and need to stipulate the assumptions in the chain of reasoning, which would be that I would then not find the pain associated with physical disability to be significantly contributory to the present mental state. (Transcript at 144.)

But it is reasonable to conclude that those matters caused you [the Applicant] distress, and therefore propagated the condition itself over time. So, what I was trying to demonstrate was that the psychosocial stressors which were burdening upon you were, in fact, driving your disorder. Whereas, major depressive disorders generally resolve as a function of time, and that's showing the population evidence.

So, major depressive disorders generally recover as a function of time, such that if you look at the data carefully across all populations, what we see is this: firstly, that they are very common, secondly, that most of them will resolve quickly. In fact, 40 per cent will recover within three months in the absence of treatment. We call that the placebo response. 50 per cent will achieve significant recovery at three months, 50 to 80 per cent by one year and, as you continue in time, 88 to 95 per cent have gone into remission or achieved significant recovery by five years. Because the human brain has the capacity to heal and to recover from major depressive disorders. And when they don't recover, the question is always why. And the data suggests that the reason that they don't recover in some people is, firstly, the absence of treatment may be one, although they often recover spontaneously anyway. The second is psychosocial stressors that are pressing upon that person, which continue to drive the mental state, such that whatever precipitated the major depressive disorder becomes far less relevant with increasing time in terms of causation. And the disorder is propagated and perpetuated by the ongoing stressors upon that patient, such that it is reasonable to conclude that Mr Thompson described and has also reiterated in the medical notes, psychological notes, psychiatric reports and the emails, that he was distressed by the conduct of the process and beyond employment, when he was compelled to leave in July 2014, the various disputes relating to the management of him in terms of, I think, firstly rehabilitation, but then the need to apply for retirement and the various disputes with Comcare and with the administrating bodies that are described in the various notes, mentioned in the medical notes, psychological notes, psychiatric reports and certainly in the email correspondence that I viewed. And that's what I was trying to express.

(Transcript at 151-152.)

(b) The Respondent says that Dr Terace's view is consistent with the Applicant's contemporaneous reporting revealed in the clinical records as follows:

• (i) a consultation record of 19 February 2016 noted that the Applicant '...feels that department is not owning up to bullying him and this is significantly affecting his mental health' (2018/2754, T20/97-8).
• (ii) an email dated 3 June 2016 on Dr Lee's file from the Applicant to Comcare and Dr Lee (R2, 958) stated 'For the last 6/8 certificates [i.e. medical certificates] I have actually listed you [a Comcare officer] as an issue on the certificate...'
• (iii) a consultation note of Dr Lee on 27 June 2016 (2018/2754, T20/104):

Pt feels that Department of Agriculture have found that the medical reports by the different health professionals were "frivolous and vexatious". States that this is contributing to his depression and anxiety.

(iv) email from Applicant to the Tribunal dated 27 March 2017 '...re aggravation of medical condition by Ash Burgess and district registrar of AAT'.

(v) a consultation note with Dr Lee on 31 May 2017 (2018/2754, T20/108):

Current relationship with Comcare is "at the lowest of the lowest". Having continued arguments re certificates. Comcare have arranged for further independent assessments ... WC certificates need to be continued until his retirement age of 65 years ... As a result of above, pt's depression has worsened

(vi) email from Applicant to Comcare and the Tribunal dated 29 April 2018:

As part of having Major Depression and General Anxiety, one of the aggrivating [sic] factors for me is the feeling that the published and publically available...guidelines, principles and procedures are not being properly adhered to... (2018/2754, T14).

(vii) email from Applicant to Comcare dated 1 May 2018 (2018/2754, T16/76):

'It is an AGGRAVATION of that condition caused by mitigating factors related to the mis-management of my workers [sic] compensation case and ongoing treatment of me by the Public Service agencies charged with the duty of care to manage my case. Any impact of workers [sic] compensation is an aggravation caused by my employment because the access to workers [sic] compensation in itself implies a work related injury...'

(viii) Dr Terace himself provided a comprehensive summary of other documents that supported his conclusion that Comcare and the claim's management process were what is now the predominant contributing factor to the psychological condition.

1. The Respondent further submits as follows (Respondent's Outline of Submissions):
   1. In cross examination, the Applicant stated that all of the emails and clinical notes that referred to him expressing/displaying psychological symptoms in connection with Comcare were accurate representations of how he was feeling at the time of those consultations/letters.
   2. It is clear as outlined by Dr Terace, that what has propagated the Applicant's psychological condition over time has evolved. While it was originally contributed to by his physical Injury, the relevance of that condition in his psychological presentation has depleted to the extent that it can no longer be considered to be a significant contributing factor for the reasons outlined by Dr Hardcastle (i.e. the pain the Applicant experiences with the activities described emanates from the degenerative condition) and, in any event, his pain is not so significant that it substantially restricts his level of activity (i.e. he continues to go to the gym, he bounces on a trampoline with his children, etc.) Further, the Applicant's self-reported levels of back injury have been generally low. For example:

1. The Applicant reported to Dr Graham in February 2016 that [2017/3262; T6/37]: Pain generally at level of 1 - 2 / 10; may experience sharper pains or increased ache. 2. The Applicant reported to Dr Gongora in August 2017 that [2017/7134-7; T22/161]: Feels pain every night; usually 1/10 (although he could feel pain up to 10/10).

1. The Applicant completed an assessment for Dr Hardcastle in which he rated his pain at 1/10. 3. The Applicant relies on the opinion provided by Dr Stephen Proud, psychiatrist. However, Dr Proud last examined the Applicant on 1 July 2016; prior to the decisions being made to cease liability for the psychological condition. It was clear from cross-examination of Dr Proud that he had not been provided with any of the T-documents or documents produced under summons. Accordingly, his report does not take into account all of the available evidence. Therefore, Dr Proud's report is of little, if any, assistance to the Tribunal with respect to this issue. 4. Comcare recognises that the Applicant does continue to suffer from a psychological ailment. However, since the Applicant was invalidity retired on 19 January 2017, Comcare contends that what has significantly contributed to that condition has been the Comcare claims process, according to the opinion expressed by Dr Terace.

1. Both parties identify the first issue as being whether or not the Applicant suffers from the mental ailment or disorder. The Tribunal understands the Applicant to argue that the mental injury in this application is an injury as defined in s 5A(1)(a) of the SRC Act, namely, a disease as defined in s 5B(1) of the SRC Act rather than an 'injury (other than a disease)' under s 5A(1)(b) of the SRC Act. That is certainly the basis upon which the claim the subject of Thompson and Comcare and the decision of the Tribunal in that case proceeded (see Thompson and Comcare, [37]).
2. It is also the basis upon which the arguments of the parties in this application proceeded. The parties identified the relevant issue to be, if the Applicant suffers from the mental condition claimed, whether that mental condition is, '...significantly contributed to by the Applicant's employment by the Commonwealth' (Respondent's statement of the issue, (see [74] above)) and, as identified by the Applicant, '...is the Applicant's psychological injury contributed to by symptoms of his existing physical injury and conditions of his employment?' (see [75] above). Both parties use the language of s 5B(1) of the SRC Act, the contribution of the Applicant's employment to the mental ailment, to describe the applicable issue.

Does the Applicant suffer from the psychological injury dated 3 September 2012?

1. Both parties couch this element in slightly more restricted terms than the relevant provisions of the SRC Act. Both parties refer to 'the psychological injury', in the Applicant's case adding 'dated 3 September 2012'. The SRC Act speaks in terms of 'an injury' (e.g. ss 14, 16, 19 and 20). The general test therefore in deciding whether any liability arises under s 14 of the SRC Act generally, or under the other sections for specific liabilities, is whether the employee suffers from an injury that is work-related to the required extent, not necessarily a particular injury. In the majority of cases there is only one injury so the issue does not arise.
2. In the present case, while the Applicant specifically identifies the mental injury for which this claim is made as being the injury dated 3 September 2012, much of the evidence led by the Applicant in the written statements and submissions as well as at the hearing related to events after 3 September 2012. In particular the Applicant goes into detail about meetings with the Department leading up to and after the handing down of the decision in Thompson and Comcare on 17 July 2014 and the DA's handling, or he would say mishandling, of his return to work program following that meeting as well as various interactions with Comcare representatives (see Applicant's submissions in 2017/7135 paras. 20-49).
3. In considering this claim the Tribunal is mindful of the fact that there is a potentially inconsistent claim made in application 2018/2754 - Aggravation of psychological condition with a date of injury of 12 November 2014. The claim for this injury was made for the first time on 22 February 2018 and asserts that the injury, which the Applicant describes as 'an aggravation of this work-related injury', apparently occurred at a meeting that he had with DA on 12 November 2014. Application 2018/2754 is dealt with below. The difficulty that these two claims cause is that the answer to the question that both parties say applies to application 2017/7135, namely 'does the Applicant continue to suffer from the psychological injury dated 3 September 2012?', potentially affects the Applicant's claim in application 2018/2754 wherein he claims that he suffers from a fresh injury suffered in 2014, albeit apparently an aggravation of the 2012 psychiatric injury. In effect the claims are, and the Tribunal will treat them as being, in the alternative. Much, if not most, of the psychiatric evidence is relevant to both applications.
4. The Respondent submits that s 5B(1) of the SRC Act requires 'a direct relationship between ailment and employment' (Respondent's Outline of Submissions para. 62). The Respondent cites Dowsett J, with whom Spender J agreed, in John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; (2010) 185 FCR 566 (John Holland v Robertson) at [66] where his Honour, in considering the use of 'employment' in s 8(10) of the SRC Act, said:

... However, in my view, guidance is to be found in other sections of the Act. In s 4 the term "place of work" is defined as including "any place at which an employee is required to attend for the purpose of carrying out the duties of his or her employment". This definition suggests that the term "employment" encompasses the duties which an employee is engaged to perform. The term "injury" is defined in s 5A. The word means, inter alia, "an injury suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment". A similar formula is used in defining "aggravation" of an injury and, in s 5B, in defining the term "disease". If the Act contemplates a connection between an injury or disease and the employee's employment, then it must be possible to determine the ambit of such employment, and whether the circumstances in which the injury arose were within that ambit. This suggests a focus on what was done rather than upon trade, calling or any system of classification.

1. His Honour summarised his conclusions at [73] of John Holland v Robertson by saying:

Although none of this is definitive, it seems to be more consistent with the purpose of the Act to treat the word "employment", when used in the Act, as describing rather more than a trade, calling or classification of employees. The Act is very much concerned with conditions in which employees work and their terms of engagement, rather than how they may be classified.

1. The Respondent also refers to the High Court decision in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch) in which Kitto J (with whom Taylor and Owen JJ agreed) considered an analogous expression in the Workers' Compensation Act 1926-1960 (NSW), by which compensation was payable 'where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration', and stated at 632-633:

[Else-Mitchell J's analysis] treats the word 'employment' in the definition [of injury] as something distinct both from the fact of the employment of the worker and from any consequence of the employment and confines it (if I understand the notion correctly) to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work. With all respect, I think that to take this view is to refine upon the word too much and by so doing to miss what the definition is manifestly intending to say. Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of fact by saying simply that the employment was a contributing factor to the aggravation etc [acceleration, exacerbation or deterioration]. It is in that sense that I should understand the language of the definition.

... When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.

1. Based on those statements, the Respondent contends (Respondent's Outline of Submissions para. 67) that:

It is apparent from these pronouncements that to be considered "employment" as that word is used in s 5B(1), the "disease" must have been suffered while the Applicant was "in the performance of his duties" or was significantly contributed to by "some characteristic of the work performed or the conditions in which it was performed".

1. Based on the principles emerging from that case, and the cases that have applied it, the Respondent submits that the compensation process is an example of what is an incident of the employment relationship yet, anxiety and distress occasioned by the compensation process is not a compensable injury: see Australian Telecommunications Commission v Tzikas [1985] FCA 385; (1986) 5 AAR 173 (Tzikas). That is so because the compensation process, although an incident of the employment relationship, is too remote from the employee's employment by the Commonwealth.
2. The Full Court of the Federal Court (Davies, Beaumont and Burchett JJ) in Kirkpatrick v Commonwealth of Australia [1985] FCA 440; (1985) 9 FCR 36 (Kirkpatrick) at 40-41, stated:

In Australian Telecommunications Commission v Tzikas, (unreported, Full Court, Smithers, Sweeney and Woodward JJ, 12 August 1985) the joint judgment of Sweeney and Woodward JJ contains some observations concerning a claim for compensation for further aggravation of neurosis by, inter alia, resentment towards the employer alleged to have resulted "first, from the actual (that is, original) aggravation and acceleration of the illness, then, from the loss of her previous income, and finally from the delays which occurred as the result of the procedures which were needed in order for her to obtain compensation". It was a case in which it was accepted that an aggravation had originally occurred by reason of excessive noise in the workplace, but payments of compensation had been terminated on the basis that the aggravation was spent. The tribunal restored the payments, and upon appeal the Full Court referred the matter back for reconsideration, as Sweeney and Woodward JJ put it:

"to determine whether the continuing resentment of the respondent about the first aggravation and acceleration of her disease is in fact causally related to her former employment and, if so, whether it is playing such a part in her present state of health that it can properly and fairly be said to be contributing to a current aggravation or acceleration of her disease and not merely providing a focus for that disease".

"There is, of course, an important difference between, on the one hand, the sequelae making a sick mind sicker and thus perhaps contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity. Since it tended to refer interchangeably to the sequelae contributing to the illness and contributing to the incapacity, we think it is likely that the distinction that we have referred to was not always borne in mind by the Tribunal."

1. In Dunstan and Comcare [2012] AATA 567 (Dunstan and Comcare) Deputy President Forgie observed:

247. The majority of the Full Court, Sweeney and Woodward JJ, identified two flaws in this passage of the Tribunal's reasons. The first related to whether employment by the Commonwealth was still a contributing factor to any relevant aggravation or acceleration of Ms Tzikas's disease bearing in mind that its former aggravation or acceleration had resulted from noise and stress. The Tribunal was required to consider whether the factors it had listed were truly the results or consequences of that former aggravation and acceleration or the manifestations or results of her underlying disease. Their Honours went on to consider the four factors identified by the Tribunal:

"... The first three factors listed flow not from the respondent's employment with Telecom, but from her cessation of that work; they are not affected in any way by the nature of her former work, but arise simply from the fact of previous employment operating on a person of her temperament, background and family circumstances. The fact that she feels her status has decreased as a result of lower earnings, but she finds not working congenial, and enjoys the increased attention from her family, can hardly be said to flow from, or have been contributed to by, her employment by the Commonwealth. This issue of causation was simply not considered by the Tribunal, which assumed a causal connection because these things flowed, in a medical sense, from the cessation of work, which was in turn contributed to bite [sic] employment factors.

The fourth factor listed by the Tribunal is more difficult to resolve than the others. In our opinion, the resentment of a sick mind, directed towards former conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s 29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier."

1. In Prain and Comcare [2016] AATA 459 (Prain and Comcare) Deputy President Humphries made the following observations:
   1. In determining whether resentment towards Comcare or the Canberra Hospital in relation to the conduct of litigation seeking compensation can weigh as a compensable factor, it is important to identify the true source of the resentment. Reactions - or indeed overreactions - to events in the workplace, if they are properly regarded as sequelae of an applicant's employment, are part and parcel of the original injury, but it is well established that anger and frustration towards a respondent in resolving a legal claim for that injury is not. The Federal Court in Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at 195 noted:

In our opinion, the resentment of a sick mind, directed towards formed conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s 29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are remote from the employment as the other factors, such as relief at not having to work, dealt with earlier. ...

1. In Plumb and Comcare [2004] AATA 999 the Tribunal considered a workers [sic] compensation claim for a condition based partly on a non-work-related disorder and partly on anger towards Comcare. The medical evidence suggested that:

...Mr Plumb's employment was the initial contributing factor to the anxiety disorder. However since that time the causative factor had become Mr Plumb's involvement in the proceedings, and the Department's approach to those proceedings.

The Tribunal also noted a need for vindication and justification. It went on to find that the contribution to his condition made by the stress of the litigation afforded Mr Plumb no basis for compensation.

1. As noted above, there are two primary medical reports upon which the parties rely. The Applicant relies on Dr Proud's report dated 3 August 2016 (2017/3262, T7). As the Respondent points out, Dr Proud last examined the Applicant on 1 July 2016 and at that time, and apparently up to the time of his cross-examination at the hearing, had not been provided with the T documents or the documents produced under summons in the proceedings. At best, therefore, Dr Proud could give evidence as to the Applicant's mental condition as at 1 July 2016.
2. Dr Terace, on whose report the Respondent relies, assessed the Applicant on

21 August 2017 to prepare his report dated 15 September 2017 (2017/7134 et al., T24). Dr Terace also provided a supplementary report dated 20 September 2018 (R2) having been provided with and reviewed further documents. These documents comprised over 1000 pages and included communications, including communications from the Applicant after the date of Dr Terace's assessment of the Applicant in August 2017. 3. The substance of Dr Terace's two reports which are relevant to this application are set out in [87] above. I accept the opinion of Dr Terace as set out in those reports and insofar as there is inconsistency between the report of Dr Proud and Dr Terace, the Tribunal prefers the evidence of Dr Terace. That is not a criticism of Dr Proud but rather a product of the fact that Dr Terace has examined the Applicant more recently and had the benefit of very considerable further documentary evidence at the time of his second report. 4. Based on the evidence of Dr Terace and on the cross-examination of the Applicant in relation to the stressors that the Applicant has been exposed to since the Applicant ceased to be engaged in work with DA, the Tribunal is not satisfied that any mental ailment that the Applicant may now suffer from is contributed to, to a significant degree, by the Applicant's employment with DA. In reaching this conclusion the Tribunal has applied the principles enunciated in John Holland Group v Robertson and Semlitch (see [95]-[98] above) and applied in Tzikas as explained and applied in Kirkpatrick (see [101] above) and by the Tribunals in Dunstan and Comcare and Prain and Comcare (see [102]-[103] above). 5. Accordingly, the Tribunal affirms the decision of the Respondent dated 21 November 2017 which affirmed a determination dated 27 October 2017 which had found that the Applicant had no entitlement to compensation pursuant to s 16 of the SRC Act for medical treatment obtained in relation to the psychological injury 'adjustment reaction with anxious mood' dated 3 September 2012.

1. The Applicant seeks review of a decision of the Respondent dated 21 November 2017 (2017/7134 et al., T57) which affirmed a determination dated 10 October 2017 (2017/7134 et al., T32) that had found that the Applicant had no entitlement to permanent impairment compensation pursuant to s 24 of the SRC Act in relation to the Back Injury and the Psychological Injury.
2. Section 24 of the SRC Act relevantly provides:

(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

1. Like the other sections in Part II of the SRC Act, liability under s 24 relies on the existence of a relevant injury as defined in s 5A(1). In the present case the relevant injuries on which the Applicant relies are the injuries the subject of applications 2017/7134 (Back Injury) and 2017/7135 (Psychological Injury). Given the Tribunal's findings in relation to the Back Injury (see [72] above) and the Psychological Injury (see [108] above) the Applicant's claim for permanent impairment based on those two injuries must fail.
2. Independently of the Tribunal's findings in relation to applications 2017/7134 and 2017/7135, the Tribunal would have affirmed the decision of the Respondent dated

21 November 2017. In relation to the Back Injury the Applicant has not provided any evidence which would displace Dr Hardcastle's assessment of the whole of person incapacity (WPI) at less than 10%. Section 24(7) of the SRC Act provides that where the degree of impairment is less than 10% and the impairment is other than a hearing loss, compensation is not payable. Dr Hardcastle's assessment of the degree of impairment in his report dated 22 May 2018 (R3 at page 13 of 14) was 5%. 3. At the hearing Dr Hardcastle was asked about the guide that he had used in making the assessment of the WPI. In his report he had referred to Table 9.6 of the Comcare Guides. At the hearing it was put to Dr Hardcastle by the Respondent's counsel that Table 9.6 relates to a different area of the spine than the lumbar spine. The lumbar spine is covered in Table 9.17. Then asked whether he had had an opportunity to evaluate the appropriateness of the Table that he had used, Dr Hardcastle said:

We have, we we've - at next shelf we've been looking through for the old guides to find out because there is a Comcare guide that I remember we used and I think it's an older one and we just can't find them, the girls couldn't find them but certainly on the revised ones - or the other one, it's the lumbar spine and it's - - -

...

Yes, he is [Table] 9.17 and he comes under either the nought per cent or the 8 per cent. At the time of my assessment I would have moved more to the 8 per cent but if he has improved in terms of his functional capacity and overall generally, then looking at these he would be more getting closer to the nought per cent from the physical aspect. It's go here, "Clinical history and examination compatible with a specific injuries and yes, findings include significant muscle guardian spasm" - well he doesn't have that. "Asymmetric loss of movement" no, he doesn't have that. "Non- verifiable radicular complaints". No, he doesn't have that. "Define complaints or radicular pain without objective findings". No, he doesn't have that. "No alternation of the structural integrity and no significant radiculopathy" and he certainly doesn't have that. So it could potentially fit there but if we look at nought, there's no significant clinical findings, no observed muscle guarding or spasm, no documented neurological impairment. Well he doesn't have really any of those apart from the clinical findings of local tenderness so he does - but he doesn't have muscle guarding spasm and no neurologic involvement, so he does fit two out of the three - or three out of the four in the nought but there's still one there that you would consider putting him in the eight and when I saw him I would be considering the eight. It would still be an opinion and I'd be basing my opinion on his motivation and the fact that he has been working there for a long period and, you know, he's got a good work record.

(Transcript at 122-123.)

1. In relation to the Psychological Injury, Dr Terace assessed the Applicant's impairment at 10% in his report dated 15 September 2017 (2017/7134 et al., T24/215). He affirmed this assessment in his report dated 20 September 2018 (R2 at page 40). He also considered that the Applicant's impairment was not permanent in that further treatment may achieve some recovery (R2 at page 39).
2. The Applicant relies on the medical evidence of Dr Gongora's report dated 2 August 2017 (2017/7134 et al., T22). While Dr Gongora assessed the Applicant's impairment in relation to his lumbar spine condition at 5%, she stated (2017/7134 et al., T22/171) 'Mr Thompson [sic] impairment is related to his mental condition, I am not qualified to provide comments in this regard'.
3. The Tribunal accepts the evidence of Dr Terace that, for the purposes of assessing permanent impairment, the Applicant's mental ailment is not permanent. Given the above, the Applicant's impairment, even if it was caused by a work-related injury, does not reach the threshold of 10% under s 24(7) of the SRC Act. The Tribunal also notes that the approach suggested by the Applicant in paragraph 34 of his submissions that the percentage impairment that he claims for the Physical Injury (8%) be added to the percentage impairment that he claims for the Psychological Injury (10%) to achieve a total impairment of 18%. That approach is erroneous: see Comcare v Bozicevic (1997) 74 FCR 260; 144 ALR 132; Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535; Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38; (2009) 240 CLR 28, 43. Percentage impairments to different parts of the body cannot be added up to come to a total figure of impairment.
4. For the above reasons the Tribunal affirms the decision of the Respondent dated

21 November 2017 which affirmed a determination dated 10 October 2017 that had found that the Applicant had no entitlement to permanent impairment compensation pursuant to s 24 of the SRC Act in relation to the Back Injury and the Psychological Injury.

2018/2754 - New ailment, aggravation of the Psychological Injury

1. On 22 February 2018 the Applicant lodged a new claim for an aggravation of the Psychological Injury. The Applicant seeks review of a decision of the Respondent dated 18 May 2018 (2018/2754, T19) which affirmed a decision dated 1 May 2018 (2018/2754, T15) to deny liability for the claimed aggravation said to have been sustained on or around 21 July 2014.
2. On the first day of the hearing the Applicant had sought to hand up a spreadsheet setting out a large range of types of documents including letters from medical practitioners, emails, and various correspondence with Comcare personnel extending from October 2013 to November 2017. The Tribunal asked the Applicant whether the documents referred to in the spreadsheet were otherwise in evidence through the volumes of

T-documents, submissions and statements admitted into evidence. The Applicant advised that 'Most of the documents don't appear in the T documents'. He further confirmed that they were not documents that had been summonsed (Transcript at 17). The matter was left on the basis that the list would not be admitted into evidence at that time and that the Applicant would provide the documents identified in the spreadsheet prior to the commencement of the hearing the following day. 3. At the commencement of the hearing the following day the Respondent's counsel made the following observation:

[MS SLACK]: I received it ten minutes ago, so I haven't had an opportunity to review all of these documents. The problem is that the provision of these documents at late notice indicates a shift in the Applicant's case that wasn't clear on material that had previously been provided. If it was always the Applicant's case that he suffered from an aggravation that was only and directly relevant to being told to go off work by his employer in July 2014, then there would have been scope for the Respondent to rely on the reasonable administrative action section, because that, in my submission, on its base seems to be an administrative action directed at the Applicant's employment.

...

[MS SLACK]: What was raised in the Applicant's statement of facts, issues and contentions was a much broader claim, in my submission, and one that it more cascaded from that action, and it was really the management of the return to work plan and the Comcare claim.

(Transcript at 95.)

1. The Tribunal agrees with counsel's observation that the way that the Applicant's claim unfolded at the hearing was broader than had been indicated in the claim made by the Applicant in February 2018 and which was the subject of the decision in application 2018/2754. The Applicant made the workers' compensation claim on 22 February 2018 (2018/2754, T6). That claim form identifies the date that he fist sought treatment in relation to that injury as 21 July 2014.
2. The above change of claim is reflected in the Applicant's submissions wherein he identifies the issue as being '[d]id the Applicant have an aggravation of a psychological injury with a date of injury of 12 November 2014?' That is not the claim for compensation that the Applicant lodged.
3. In relation to the 'expanded' claim, what has emerged is that the Applicant's claim now seems to be much broader. The Applicant explained it as follows:

[MR THOMPSON]: We actually haven't actually specified an aggravation date. I have actually hinted that yesterday, so was it 21 July or was it 12 November 2014, Deputy President. When we were waiting on you to make a decision on the aggravation date under there, so - which I don't know. (Transcript at 96.)

1. Counsel for the Respondent responded to that comment with 'Therein lies the problem'. The Tribunal agrees. Not surprisingly the Respondent had constructed its case and sought the opinion of Dr Terace on the basis of a claimed aggravation of a mental injury on or about 21 July 2014 based on the claim as submitted by the Applicant. The specific question asked of Dr Terace to which he responded in his 20 September 2018 report was whether in his view 'the applicant suffered an aggravation of the major depressive disorder condition on or about 21 July 2014 (2018/2754, T6/27) as claimed by the applicant' (R2 at page 43). Document T6 was the Applicant's workers' compensation claim form.
2. It was also pointed out by counsel for the Respondent that:

...In effect, the aggravation claim is entirely hypothetical until you get to November 2017 last year. Comcare's case in response to the aggravation is that you had a psych condition. We accept that you had a psych condition all the way up until November 2017. There are a lot of contributory factors that were happening. The Tribunal determined that it was secondary to the back.

...

Liability continued as a secondary psych claim up until November 2017. Prior to that, Mr Thompson had been terminated on an invalidity ground. Every one of his concerns after that was related to Comcare and a Comcare process, because he was not dealing with your employer.

...

We say that any aggravation during the period from July 2014 to November 2017 is really quite hypothetical, because there is no medical evidence to establish that there was an aggravation, and even if there was, there was already a claim for a psychological condition that had been accepted.

(Transcript at 98-99.)

1. The comments by the Respondent's counsel are correct and justified. The end result of the discussion of claim 2018/2754 at the hearing is that it is clear that the Respondent did not know, through no fault on its part, the case that the Applicant apparently now seeks to run.
2. The Respondent in its submissions suggests that the Tribunal should make an assessment of whether there is medical evidence to support this 'expanded' claim for aggravation and if the Tribunal is satisfied that there is medical evidence to support the claim, sever this application from the other nine and adjourn the hearing for the Respondent to be given the opportunity to put on evidence to respond to the Applicant's claim as it now appears to be made. With the change of the Tribunal's assessment being to determine whether there is generally evidence, not just whether there is medical evidence, to support the Applicant's claim as now made, the Tribunal agrees with that approach.
3. Dealing firstly with whether there is any medical evidence to support an aggravation of a mental injury on 12 November 2014, the answer is that there is not. The only medical evidence, excluding GP conferral notes put forward by the Applicant, that could be relevant to this claim is Dr Proud's report of 3 August 2016 (2017/3262, T7). There is no reference in Dr Proud's report, based on Dr Proud's examination of the Applicant on

1 July 2016, to any aggravation of a mental condition on 12 November 2014 or

21 July 2014. It may be that that is because an aggravation of a mental condition on either date was not, at that point, an issue because the Respondent still accepted the mental injury and did so up until November 2017. Dr Proud's report dealt only with whether the Applicant still suffered from the accepted mental injury. Dr Proud's view, as at

3 August 2016 was that he did, as was the Respondent's view. 4. The Tribunal notes that in his report Dr Proud does state that :

Effectively Mr Thompson has chronic, resistant, psychiatric conditions; namely Major Depression and Generalised Anxiety Disorder. It has been complicated by at least a two or three year history of fractious, argumentative, querulous engagements with his employer and rehabilitation providers that have complicated that attempt.

1. Dr Proud was called to give evidence at the hearing by the Applicant, however, was not asked any questions about his opinion on whether the Applicant suffered an aggravation of a mental injury on 12 November 2014 or even 21 July 2014 (Transcript at 81-87).
2. There is reference in a number of the clinical notes from the Applicant's treating GP after the date of Dr Proud's August 2016 report. The last information that the Applicant refers to which could be remotely treated as medical evidence of the Applicant's condition is his GP Dr Lee's surgery consultation record of a conferral on 1 November 2017 (R2/684) which relevantly recorded:

Pt had another independent medical examination by Dr Terace, who felt that pt had adopted a sick role in pursuing permanent retirement.

Pt has lodged an appeal, a/w outcome.

Pt will also pursue regular Psychiatric Rx

I agree that pt's depression is likely to be contributed by his back pain and work related issues, but given the medico-legal history with involvement of multiple Psychiatrists, I feel that writing this formally to Comcare is beyond the scope of my duties.

Pt will return for review in 2 weeks.

1. Although not referred to by the Applicant in his submissions, there is also a record of a conferral with Dr Lee on 2 March 2018 which continues to diagnose depression and relevantly notes:

Needs new WC form filled.

...

Pt states that his diagnosis of depression is being disputed

Currently undergoing court process.

Pt expects ruling to be given by May/June.

...

Has not proceeded with Psychiatric Rx, as patient has several IME's being arranged and has an on-going court case.

1. Dr Terace was cross-examined on the issue of an aggravation of a mental condition on

21 November 2014. After being provided in cross-examination with a copy of the Applicant's wife's minutes of a meeting on 21 November 2014 with the case manager from DA, the Applicant's GP and his psychologist and some other documents the following exchanges took place:

[MR THOMPSON]: - - - 2014, on the - my next meeting with my employer occurred on 12 November 2014. Have you read the minutes or received the minutes of meeting for that meeting with Ken Field, the director of people services, Maryanne Altran, then with my GP.

...

[MR THOMPSON]: ... So we don't need a conclusion. The question to that is, is that I was there, I was participating - yes, you would have had the medical certificate for that meeting where Dr Benjamin Lee declared me medically unfit to return to work on that first date.

...

[MR THOMPSON]: Did you sight it? So that's the first time that my GP certified me unfit to participate in a graduated return to work program?

[DR TERACE]: That's what it appears to be, yes.

[MR THOMPSON]: Okay. Between July 2014 and November 2014 - - -

[DR TERACE]: - - - in my opinion, representative of the interaction between constitution, which the major depressive disorder and, in fact, any mental state always represents interaction between constitution. And, in this case, the driving factors, which were your perceptions of distress, and my understanding initially was that your perceptions of distress related to the initial pain and the initial perceived mismanagement of your case. And then when you were compelled to leave in July 2014, that you were then compelled to pursue invalidity and there were various other disagreements, of which whether you were justified or not is not my determination. But it is reasonable to conclude that those matters caused you distress, and therefore propagated the condition itself over time. So, what I was trying to demonstrate was that the psychosocial stressors which were burdening upon you were, in fact, driving your disorder. Whereas, major depressive disorders generally resolve as a function of time, and that's showing the population evidence.

1. Thereafter the cross-examination of Dr Terace, or at least the answers provided by Dr Terace, were to the effect, as he had said in his reports, that a range of stressor were causing the Applicant's mental condition. Dr Terace was still of the view that:

...I can only state that my understanding was that I believe this process and the components of this process along the way, and your perception of them, have been distressing to you and have been destructive, in that they have propagated your major depressive disorder, such that it would be reasonable to conclude that your distress relating to this process, itself, is presently contributing to your present mental state and driving your mental state. And that's also expressed in the email correspondence that I reviewed, which I'm not certain of the - I understand the author to have been Ms Thompson, and I may or may not be correct about that. But, assuming the information that is correct, then it demonstrates that this is a stressful process to you. And that is not unnatural. It is entirely normal to be distressed by a process of this nature. So, the point I'm trying to make is that the mental state is dynamic, the driving causes of a major depressive disorder are dynamic and change over time, that the precipitant of a major depressive disorder five years ago isn't necessarily the same as the propagating and perpetuating factors of that disorder over time. In fact, they are often very different for the reason I stated, that most major depressive disorders will recover with time and or with treatment, unless they are propagated by other factors. And common factors are various psychosocial stressors that are perceived by the suffering patient in that regard. So, with respect to your question as to who mistreated you, I can't answer that. That's an industrial and legal determination. I can only conclude that, at that time, that would have been distressing to you and that would not be unreasonable.

(Transcript at 156.)

1. The cross-examination of Dr Terace did not return to the specific question of whether there had been an aggravation of a mental injury on 21 November 2014.
2. The Tribunal is satisfied that there is no medical evidence to support this claim of an aggravation of a mental injury on 12 November 2014 or any other date.
3. The Applicant identifies the evidence to support this claim in his closing submissions as follows:
   1. The applicant submits that ongoing issues with his employer the Department of Agriculture were the cause of being found unfit for work dated 12 November 2014 and had a detrimental impact on his psychological injury and affected any recovery.
   2. In evidence of his submission, the applicant relies on actions as given in documentation provided under MFIA7 being 91 documents collated and provided to the tribunal. These documents collated and described by the applicant's wife evidence and support the applicants submission to this tribunal and show that issues reported by him and questions raised by the applicant to his employer the Department of Agriculture were not addressed by his employer (despite other parties incorrect allegations that they were resolved). There is no documentation available to the applicant that gives any answer or resolution to any of the following:

1. An explanation as to why he was found unfit by the DA for work despite a doctor's diagnosis that he was fit for work and participating in a graduated return to work program; 2. Failure by the DA to identify who is the Department of Agriculture delegate available to me under the SRC Act.

1. No answer as to whether it was legal under the SRC Act for the DA to order the applicant to return to work without an approved Graduated Return to Work Program in place.

1. A failure by the DA to conform to regulations published on the DA website regarding the management of mental health in the workplace. 2. Failure by the DA to follow Comcare guidelines on handling mental health in the workplace. 3. Failure by the DA to appoint and provide access to a Workplace Health and Safety representative to assist me. 4. Failure by the DA to offer grievance resolution or to appoint a Grievance Resolution officer to me.; 5. Failure by DA staff to answer questions posed to them by me. 6. Failure by the DA to protect me from isolating and bullying behaviours by other DA staff despite formal complaints being lodged by me. 7. Failure by the DA to provide access to a Rehabilitation Provider. 8. Failure by the DA to intervene and review actions of other agencies entrusted to perform duties on behalf of the DA despite concerns raised by me.

1. Failure by the DA to recognise and diagnosed [sic] mental illness based solely on the grounds of whether or not it was approved and compensable.

1. Failure by the DA to discuss my concerns with me directly or take steps to resolve my issues. 2. Refusal by the Department of Agriculture to request review or correction on medical reports identified by me to be incomplete, inaccurate and misleading under the Privacy Act. 3. DA staff continuously ignoring medical advice and reports from my GP and other specialists. 4. Failure by the DA to permit me to present my own documentation and questions to independent medical examiners or to ask my own questions during IME examination. 5. Failure by the DA to instruct IME specialists to answer questions posed by me during examination. 6. Failure by DA staff to offer any apology for actions they were fully aware had a detrimental psychological impact on me. 7. Being sent home on miscellaneous leave by DA staff with full pay with no explanation as to why; a lack of access to his worksite to retrieve his personal effects; 8. DA Case Manager causing his psychologist to find him unfit for work without proper medical consultation with the applicant; 9. Actions by the DA causing the applicant to be found unfit for work in November 2014

1. DA staffs' ongoing refusal to communicate changes to Comcare

1. The provision of incomplete and inaccurate information to Comcare in calculation of payments by DA staff. 3. The applicant submits that these actions as described at point 20 above by his employer should be considered in light of the detrimental impact on his ability to focus on a recovery in that they create an exacerbated trauma and trigger response (or psycho-social stressor which is the phrase referred to by Dr Terace in his evidence). Over time, the impact of the trauma / stressor acts as a trigger, causing a negative reaction every time a similar situation arises. This is shown in the applicants having demonstrated a heightened sensitivity to any perceptions of conflict. The impact of this is that it causes him stress and anxiety every single time he encounters conflict and builds on perceptions of 'one rule for them and another for me'. This stress response is a result of the learned trigger and then impacts on any interactions with other Public Sector agencies (based on how he feels in relation to previous outcomes when complaints or perceived breaches were not investigated). This ongoing impact creates a sense of trauma that limits recovery and causes the applicant to retain symptoms of psychological injury despite his separation from his employer in January 2017.
2. A significant portion of the Applicant's closing submissions dealt with legal argument, citing numerous authorities, some of which are referred to in the Tribunal's reasons above, and another significant portion of the Applicant's closing submissions consist of the Applicant's interpretation of DSM-5. While the Applicant's comments on DSM-5 may be accurate at a general level, his purported diagnoses based on DSM-5 are not the view of a person qualified to make these diagnoses and insofar as the Applicant's interpretation of DSM-5 as applied to his case differ from those of Dr Terace, the Tribunal accepts the views of Dr Terace.
3. In any event, as the Applicant expresses his views about how DSM-5 applies, they do not specifically address the critical point of this application, namely, whether there was an aggravation of a mental condition on 12 November 2014 or 21 July 2014.
4. The Tribunal is satisfied that there is no evidence, particularly medical evidence to support this claim. The Applicant's case seems to be limited to general argument about stressors causing mental illness. That is not in dispute. The Tribunal needs more than speculation and self-diagnosis by the Applicant.
5. The Tribunal affirms the decision of the Respondent dated 18 May 2018 which affirmed a decision dated 1 May 2018 to deny liability for the claimed aggravation said to have been sustained on or around 21 July 2014. Insofar as the Applicant has apparently changed his claim to there being an aggravation on 12 November 2014, that claim too must fail.

2017/5404 - calculation of normal weekly earnings (NWE) as at 17 February 2011

1. The Applicant seeks review of a decision of the Respondent dated 16 August 2017 (2017/5404, T8) which refused to review a determination dated 28 November 2012 (2017/5404, T4) on the basis that the request for review had been lodged five years out of time.
2. In his submissions the Applicant identifies the issues as being:
   • was the Applicant provided with enough information to allow him to be known that the normal weekly earnings calculations were wrong?
   • should the calculation of normal weekly earnings be reviewed with a date of injury of 17 February 2011.
3. The Respondent in its submissions identifies the issues as being:

Should the Tribunal extend the time for review of the initial determination dated 28 November 2012 and if so, was the Applicant's NWE correctly calculated as at the date of injury. This will require consideration of the following sub-issues:

(i) Does the Tribunal have jurisdiction to review the decision dated 16 August 2017?

(ii) If so, should the Tribunal, standing in the shoes of the review officer, grant the extension of time?

(iii) If so, was the Applicant's NWE correctly calculated in the determination of 8 November 2012?

1. The Tribunal considers that the Respondent's statement of the issues correctly identifies the issues for determination by the Tribunal. Whether or not the Applicant was provided with enough information to determine whether the calculations set out in the letter of

28 November 2012 were correct, or when the Applicant may have come by such information, may be relevant to one aspect of this claim, namely whether there is a valid explanation for the Applicant's four and a half year delay in making a request for a review, but it is not the primary issue. The primary issue is whether the Tribunal should extend the time for the review. 2. The basis of the Applicant's claim is set out in the application lodged with the Tribunal, (2017/5404, T2/9-10). In summary, the Applicant says that he was suffering mental and physical impairments at the time that the determination was made in November 2012 and 'had no understanding of just how sick [he] was'. He says, presumably by way of explanation for the delay in seeking a redetermination, that:

I had no coping skills or ability to process what was going on. Just getting up and attending work and trying to live an everyday life from one day to the next was an extreme struggle.

Also at the time I had received some letters regarding dates that had been approved or not approved and when I had tried to appeal some of these I was told that they were a normal part of the process and not something that I needed to appeal. Given this I had no idea what I was supposed to be following and processing and what was just for my information.

1. He says that '[t]he determination dated 28 November 2012 contains information that has changed greatly since that time'. He identifies what he claims to be changes in the description of his lumbar injury and his psychological diagnoses over the time since the injury/injuries. It is not clear to the Tribunal how that fact, even if it is accepted, affects the calculation of normal hours and NWE set out in the letter of 28 November 2012. That is not explained by the Applicant.
2. The Applicant in his application (2017/5404, T2/9) says that in the period prior to his injury on 17 February 2011 he was entitled to holiday time away from work, he says that there was an industrial dispute and that he was transferred from his normal duties during the period leading up to November 2012. He asserts that:

It is clearly evident to me that the payroll from DA has not provided all of the information to Comcare. Comcare's decisions are based on incomplete information and facts have now changed. This means that they are not made in full and proper consideration of all of the facts and must be reviewed and changed in light of new evidence and facts that were previously withheld or ignored.

1. Section 62(3) of the SRC Act requires, amongst other things, any request for reconsideration of a determination to be made 'within 30 days after the day on which the determination first came to the notice of the person making the request'. The Applicant does not identify the date on which the determination of 28 November 2012 first came to his notice, however, the Tribunal accepts that it was at or around the date of the determination, namely after 28 November 2012. The Tribunal does not understand the Applicant to contend otherwise.
2. As a preliminary issue the Respondent had raised the question of whether the Tribunal has jurisdiction to review the Respondent's decision of 16 August 2017 which refused to review a determination dated 28 November 2012. Pursuant to s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth) reference to a 'decision' includes:
   • (a) making, suspending, revoking or refusing to make an order or determination; ...
3. The Respondent points out that this provision was sufficient for the Tribunal in Leslie John Burt and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] AATA 302 at [3] to find that it had jurisdiction to review a decision by a review officer to refuse to conduct a review. The Tribunal finds that it does have jurisdiction to review the Respondent's decision not to reconsider the determination dated 28 November 2012, in effect not to grant an extension of time to request the reconsideration under s 62(3) of the SRC Act because the Applicant did not file a request for reconsideration within 30 days after the day on which the determination first came to the notice of the Applicant.
4. The question, therefore, for the Tribunal is whether the Tribunal, standing in the Respondent's shoes, ought to grant an extension of time for submitting the request to the Respondent on or about 28 November 2012 (when the 30 day period prescribed in s 62(3) of the SRC Act expired) to 10 August 2017.
5. In terms of the matters that the Tribunal is to have regard to in determining whether the extension of time ought to be granted, the Respondent refers to the following comments of Northrop J in Comcare v John Lewis Willems [1996] FCA 1586:

In coming to its decision Comcare, properly, should have regard (i) to the cause of, and the explanation for, the delay in submitting the request; (ii) to Mr Willems' conduct in this; and (iii) to the consequences to Comcare of the delay and of Mr Willems' conduct. But what, in my view, it could not do in evaluating the significance of delay in the matter was to have regard either to Mr Willems' conduct subsequent to the request being submitted or to its consequences for Comcare, unless the effect of that conduct was such as to defer, falsify or nullify the request submitted - and I here refer to later conduct which would amount to the legal abandonment or withdrawal of the request, which would give rise to an estoppel or which revealed the request to be a fraudulent one. The time of submitting the request, in other words, temporally fixed the delay that was relevant for the purposes of determining whether an extension should be granted.

This is not to say that there may not be other reasons which could make it entirely proper to look beyond the period of delay. It has, for example, often been acknowledged that the merits of the substantive request are a relevant consideration when a determination is being made on the extension question: see Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305...

1. In Hunter Valley Developments v Cohen (1984) 3 FCR 344 Wilcox J outlined a number of guiding principles concerning applications to extend time limits under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Those principles were considered in relation to the SRC Act by President O'Conner J in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 and more recently by Edmonds J in Duong v Australian Postal Corporation [2005] FCA 991 at [17] in which the relevant principles were summarized as follows:

(1) Prima facie, proceedings should be commenced within the prescribed period and an applicant for extension must show 'an acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time;

(2) Any action taken by the applicant, other than by making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he consents the finality of the decision (who has not 'rested on his rights') and a case where the decision-maker was allowed to believe that the matter was finally concluded.

(3) Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.

(4) However, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.

(5) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

(6) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion.

1. While it is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given, such an explanation will normally be given as a relevant matter to be considered: Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441.
2. In Sullivan and Military Rehabilitation and Compensation Commission [2007] AATA 1337 Deputy President Hack at [5] also referred to the decision of Hill J in Brown v Commissioner of Taxation (1999) 99 ATC 4516 wherein, at p 4525, His Honour said, 'An extension should be granted where the justice of the case requires it.'
3. The correct approach in assessing whether an extension of time ought to be granted is to ensure that all factors relevant to a particular case are weighed together in reaching a decision: Zizza v Federal Commissioner of Taxation (1999) 55 ALD 51 per Katz J; see also Lucic v Nolan (1982) 45 ALR 411 at 416. A thorough and helpful review of the authorities is set out in Deputy President Forgie's decision in DHLD and Executive Director, Social Security Appeals Tribunal (2010) 115 ALD 566; [2010] AATA 377.
4. As noted above, the Applicant does not identify when the letter of 28 November 2012 first came to his notice, however, the Tribunal accepts that it was shortly after that date and therefore the Applicant's delay in seeking a redetermination is around four years and eight months. That is, on any criterion, a very long delay in light of the requirement of s 62(3) of the SRC Act that requests for reconsideration are to be made within 30 days.
5. As noted above, in his application lodged in the Tribunal, the Applicant asserts that around that time he had received various correspondence and determinations from the Respondent or DA and that he 'had no idea what [he] was supposed to be following and processing and what was just for [his] information'.
6. As the Respondent points out, the determination of 28 November 2012 itself advised 'Enclosed is an information sheet titled, What do I do if I disagree with a determination or a reviewable decision made by Comcare? It outlines your rights and obligations if you disagree with a determination or decision that Comcare has made.' That attached document advised that the Applicant had two options if he disagreed with the determination: in-house facilitation or request a reconsideration. Under the request a reconsideration heading it stated (2017/5404, T4/15):

To request a reconsideration of the determination you must submit a Request for reconsideration form, found on Comcare's website, within 30 days of receiving Comcare's initial determination...Please ensure you submit all new information and evidence when you submit your request for reconsideration as there is limited opportunity to do this later. If you can't make your request to Comcare within 30 days you must apply to the Reconsiderations team for an extension of time.

1. As the Respondent also points out in its submissions, the Applicant confirmed in cross-examination that he would have read the determination when he received it and should thus be taken to have read that advice. The Tribunal does not accept that the Applicant would not have been aware of the need to request a redetermination within 30 days of receipt of the determination dated 28 November 2012.
2. The Tribunal also notes that there was no medical evidence provided by the Applicant to support his claims that around November 2012 and onwards his medical condition was such that he would not have been able to understand the clear statement in the determination of 28 November 2012 that, if he disputed the determination, he had to seek a redetermination within 30 days.
3. The second basis upon which the Applicant apparently seeks to explain his delay of nearly five years in seeking a redetermination is that it was only when he received information under Freedom of Information (FOI) legislation that he realised that the determination of 28 November 2012 was incorrect. The Applicant's argument in this regard is far from clear. The Applicant does not identify what the incorrect or incomplete information that he claims was provided by the DA to the Respondent that caused the Respondent's calculations in the determination of 28 November 2012 to be wrong or how the information that he received under FOI legislation identified that. In his application lodged in the Tribunal the Applicant refers to various things which the Tribunal assumes the Applicant says should have been taken in to account by the Respondent in the determination of 28 November 2012 such as allowance for overtime, entitlement to holiday for the birth of his son, the industrial dispute in Fremantle and the dispute over wharf allowance. These were all matters within the Applicant's knowledge at the time of his receipt of the 28 November 2012 determination. The determination sets out the hours per week on which the calculation was based as well as the weekly rate. Insofar as the Applicant apparently argues that there was an under-allowance for hours in the calculation, the number of hours upon which the 28 November 2012 determination was based are apparent on the face of the determination as is the rate of pay used.
4. The Tribunal does not accept that it was not until information was received under FOI that the Applicant would have been able to determine that he disagreed with the determination of 28 November 2012.

1. In relation to prejudice to the Respondent in the Applicant's delay in seeking a redetermination, the Respondent does not identify any particular prejudice other than the type of prejudice referred to by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551 which is 'where there is delay the whole quality of justice deteriorates'. The Respondent also cites the general rule enunciated by the High Court in that case that limitation periods are to be applied and 'the general rule; an extension provision is an exception to it'. The Tribunal accepts the importance of both of those principles.

Fairness as between the applicants and other persons otherwise in a like position

1. The Respondent submits that the public interest and the interest of those employees who comply with the prescribed time limits, are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit the granting of an extension of time. Granting the extension of time in this case would be unfair to other Applicants who have pursued their right to review within the prescribed period. The Tribunal agrees.

1. In relation to the merits of the review of the determination of 28 November 2012, the Applicant has not provided any particulars as to how and why he says that the determination of 28 November 2012 is wrong. While his application makes assertions of changes in diagnoses, factors that were apparently not taken into account in calculating the entitlements set out in the letter of 28 November 2012, he does not say how these factors affect the determination or how the determination is wrong. On the case presented by the Applicant the Tribunal is left to speculate. The merit of the Applicant's claim is not apparent.
2. Taking all of the above factors into account the Tribunal does not find that the Applicant has made out a case for the granting of an extension of time of nearly five years to have the determination of 28 November 2012 reconsidered under s 62(3) of the SRC Act. Further, for the reasons set out above, even if the Tribunal were minded to grant an extension of time for the reconsideration of the Respondent's determination of

28 November 2012, the Applicant has failed to establish, on the balance of probabilities, why the 28 November 2012 determination is wrong and what the determination should have been or should be upon reconsideration. 3. The Tribunal accordingly affirms the decision of the Respondent dated 16 August 2017 which refused to review a determination dated 28 November 2012.

2017/3274 and 2017/3275 - application of the formula in s 20 of the SRC Act - incapacity period 23 June 2017 to 4 April 2018

1. The Applicant seeks review of a decision of the Respondent dated 5 June 2017 which affirmed two determinations dated 24 May 2017:
   • (a) The first determination which was affirmed in the Respondent's letter dated

24 May 2017 was the determination that the Applicant's weekly rate of compensation would be reduced on 23 June 2017 in an amount equal to the increase that he had received in his superannuation pension increase (in accordance with the formula in s 20 of the SRC Act) (2017/3274, T7) (2017/3274). * (b) The second determination dated 24 May 2017 which affirmed the determination of the specific rates of compensation that would be paid from 23 June 2017 to

4 April 2018, reflecting the reduction (of $5.02 per week resulting from the increase in superannuation payable) which had been determined in the previous letter (2017/3274, T6) (2017/3275).

1. In his closing submissions the Applicant says of application 2017/3274:

The applicant, giving respect to the expertise of Legal Counsel for the respondent on this matter gave his undertaking at the Tribunal hearing on Tuesday 9th October 2018 that he would not pursue his application under 2017/3274 based on her legal interpretation that the calculations were legally correct and there was little chance of success on this claim. An undertaking was given that this would be further addressed in her submissions. Despite no further evidence to support the respondent Counsel's view on this matter being offered in the Respondent's submission, the applicant will still accept the veracity of her findings during the hearing on this matter and withdraws further claim under 2017/3274.

1. The Tribunal takes this to be the Applicant no longer pursuing this application. The Tribunal would have, in any event, found that the Respondent's application of the formula in s 20 of the SRC Act was correct and that the reduction in the amount of compensation payable under the SRC Act to reflect the increase in the Applicant's superannuation payments was in accordance with the SRC Act.
2. The Tribunal therefore affirms the decision of the Respondent dated 5 June 2017 which affirmed the determination which was set out in the Respondent's letter dated

24 May 2017 notifying the Applicant that his weekly rate of compensation would be reduced on 23 June 2016 in an amount equal to the increase that he had received in his superannuation pension increase (in accordance with the formula in s 20 of the SRC Act).

1. In his closing submissions the Applicant says of application 2017/3275:

The applicant, giving respect to the expertise of Legal Counsel for the respondent on this matter gave his undertaking at the Tribunal hearing on Tuesday 9th October 2018 that he would not pursue his application under 2017/3275 based on her legal interpretation that the calculations were legally correct and there was little chance of success on this claim. An undertaking was given that this would be further addressed in her submissions. Despite no further evidence to support the respondent Counsel's view on this matter being offered in the Respondent's submission, the applicant will still accept the veracity of her findings during the hearing on this matter and withdraws further claim under 2017/3275.

1. The Tribunal takes this to be the Applicant no longer pursuing this application. The Tribunal would have, in any event, found that the Respondent's application of the formula in s 20 of the SRC Act was correct and that the reduction in the amount of compensation payable under the SRC Act to reflect the increase in the Applicant's superannuation payments was in accordance with the SRC Act.
2. The Tribunal therefore affirms the decision of the Respondent dated 5 June 2017 which affirmed the determination dated 24 May 2017 which determined the specific rates of compensation that would be paid from 23 June 2017 to 4 April 2018, reflecting the reduction of $5.02 per week resulting from the increase in superannuation payable.

2017/4819 - calculation of normal weekly earnings (NWE) and inclusion of allowances - incapacity period 1 July 2017 to 4 April 2018

1. The Applicant seeks review of a decision of the Respondent dated 11 August 2017 (2017/4819, T18) which affirmed a determination dated 5 July 2017 which determined the Applicant's entitlement to compensation under s 20 of the SRC Act for the period

1 July 2017 to 4 April 2018 (2017/4819, T12). 2. The Applicant sought review of the decision on the basis that he contends that the following components were not included in the calculation of his NWE:

1. In the Applicant's opening submissions, the Applicant confirmed that he no longer pressed the Application as it relates to shoe allowance, superannuation contributions, annual leave loading and extra duty meal allowance. The following exchange took place on the first day of the hearing:

[MS SLACK]: I think that's in 2017/4819, and just so I'm clear, because a lot of prep will go into this otherwise. So there's shoe allowance, wharf allowance, overtime, superannuation, annual leave loading, extra meal allowance. Just to confirm, is it only wharf allowance and overtime, is that what you said?

[MR THOMPSON]: That's what my statement of facts say.

1. Accordingly, the only issues that were agitated at the hearing were whether wharf allowance and overtime should be included in the calculation of the Applicant's NWE.
2. The above position is reflected in the Applicant's closing submissions in which he advised has position as being:
   1. The applicant gave his undertaking at the Tribunal hearing on Tuesday 9th October 2018 that he would not pursue his application under 2017/4819 for Shoe Allowance, Superannuation Contributions, Annual Leave Loading and Extra Duty Meal Allowance and withdraws claim for these under application 2017/4819.
3. However, in his closing submissions the Applicant identifies the issues relevant to this application as being:
   • Is the applicant entitled to receive the pay increase awarded to Department of Agriculture staff dated 26 July 2017 as part of the calculation of his normal weekly earnings?
   • Is the applicant entitled to have overtime allowance included in the calculation of his normal weekly earnings?
   • Is the applicant entitled to have wharf allowance included in the calculation of his normal weekly earnings?
4. The Tribunal refers to the first of the above bullet points. The Applicant has sought to add this element to this claim after the hearing. The Applicant's relevant SIFC identified the elements of this particular application as being:

1. Was the applicant earning or entitled to earn overtime or wharf allowance on the 17 February 2011 and/or the 3 September 2012 (dates of injury) and were these entitlements included in the calculation of normal weekly earnings (NWE).

1. The Tribunal notes that even the heading for this application in the Applicant's closing submissions is "2017/4819 Overtime Allowance & Wharf Allowance payable for the period 1/7/2017 to 4/4/2018". There is no reference to adjustments to take into account changes to award rates.
2. Whether the calculation of NWE under s 8 of the SRC Act should include for any increases in award rates because of s 8(6) of the SRC Act, in particular s 8(6)(c), may be a legitimate question, however, it was not part of the reviewable decision, was not raised by the Applicant's request for a review in his email of 27 July 2017, was not part of the claim as made by the Applicant in this application and was, accordingly, not addressed by the Respondent.
3. Accordingly, even if the Tribunal were of the view that it had jurisdiction to consider this late-added element of the application notwithstanding that it was not a matter raised in the original determination, the Applicant's request for reconsideration or the reviewable decision of 11 August 2017, it would be inappropriate for the Tribunal to make any decision on this element given the Applicant's statements in his SIFC and at the commencement of the hearing and given the fact that the Respondent has not been given the opportunity to answer this element of the claim.
4. Section 8(1) of the SRC Act relevantly provides:

(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:

NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;

RP is the employee's average hourly ordinary time rate of pay during that period; and

A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.

(2) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:

NH is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and

OR is the employee's average hourly overtime rate of pay during that period.

1. The Respondent in its closing submissions contends as follows:
   1. The Applicant initially contended that his overtime should be calculated on the basis of the hours of overtime he worked in the 12 months prior to his injury. However, in his oral evidence he referred to it needing to be averaged over a 3 year period. In an Annexure to his undated Statement of Facts, Issues and Contentions the Applicant has detailed all of the overtime he worked in the period from 2 April 2009 to 16 March 2011.
   2. To succeed, the Applicant would first need to convince the Tribunal that the relevant period should be extended from the two weeks prior to 17 February 2011 that his NWE was based on and, why the relevant period should be three years in length. The Applicant has provided no basis to justify doing so other than that it would allow him to demonstrate that some overtime was paid to him. That is not a sound reason and rather, indicates that the overtime worked by the Applicant was not regular or frequent and was rather, sporadic. Even in the 12 months prior to the date of the physical Injury that is apparent. That does not constitute overtime worked "on a regular basis". Irregular overtime is not included in the calculation of NWE: Comcare v Pires (2005) FCA 747.
2. The Tribunal agrees with the Respondent's submissions. The Respondent in making the calculation of the Applicant's normal weekly earnings at the time of his injury, which the Tribunal considers to be 17 February 2011 for the purposes of this application, applied the normal practice of having regard to a two week period leading up to that date. While it may have been the case that over a much longer period before the injury, the Applicant appears to argue somewhere between 12 months and three years, he may have at times worked additional overtime, that is not the normal period accepted as being the appropriate period for the calculation and may not be indicative of what he was actually earning at the time of the injury. As was noted in McDonald v Department of Defence [1999] FCA 882 in which the Federal Court held that 'the starting point for the calculation of an employee's normal weekly earnings is what he was paid in the two weeks before the injury'. Nothing that the Applicant put before the Tribunal would indicate that the two weeks leading up to the injury would 'not fairly represent the weekly rate at which the employee was being paid ... before the injury' (s 8(5) of the SRC Act) for there to be an exercise of the discretion under s 8(5) to calculate that figure on the basis of a longer period.
3. The Tribunal accordingly affirms the decision of the Respondent dated 11 August 2017 which affirmed a determination dated 5 July 2017 which determined the Applicant's entitlement to compensation under s 20 of the SRC Act for the period 1 July 2017 to

4 April 2018. 4. In relation to the Applicant's claim for a wharf allowance to be included in his NWE calculation, the Respondent cites page 55 of the Enterprise Bargain Agreement

2011-2014 which was included in the material provided by the Applicant as part of his SIFC which provides:

58.1 Wharf Allowance recognizes the ongoing aspect of the climatic and other environmental conditions, rather than infrequent attendance in an external environment. To be eligible for this allowance, being permanently based means the employee's usual place of work for a minimum period of a fortnight. Cessation of payment would also align with the last full period of attendance (i.e. fortnight rather than part thereof). The activities to which the allowance will apply will be

(d) timber/machinery inspections undertaken outside.

58.2 Other than the above activities, employees are excluded if performing activities at depots within a port environment.

58.3 The Secretary will approve a payment of an annual allowance, to eligible employees of $1000 per annum. The allowance will be paid on a pro rata basis each fortnight.

1. As the Respondent points out, the Applicant was located in the 'WA Regional Office' from 3 September 2009 to 31 July 2013. The Applicant contends that he 'was paid Wharf allowance between 04 January 2012 until 29 February 2012, this was suspended as I was on a temporary transfer to the regional office but my substantive position remained at Fremantle Cargo...I was assigned back to Fremantle shipping for which I was entitled to wharf allowance prior to my psychological injury on 3/09/2012...on the 3/09/2012 my substantive position was located at Fremantle Cargo of which I would have been receiving wharf allowance anyway' (2017/5404, T2/9). There is no evidence to substantiate the Applicant's contention that his substantive position was at Fremantle Cargo. Rather, his employee profile refers to his substantive position as being located at the WA Regional Office (2017/4819, T26/74). Further, there is no documentary evidence to establish that he 'would have been receiving wharf allowance anyway'. The Applicant's oral evidence was that others at Fremantle Cargo were receiving Wharf allowance but no documentary evidence to substantiate that claim, or that their circumstances are the same as those as the Applicant, has been provided. Further, as the Tribunal understands the Applicant's duties at the relevant time, the Applicant was not undertaking the duties described in the EBA as being covered by the wharf allowance.
2. The Respondent also notes that an email dated 18 August 2017 from DA (2017/4819, T23) identifies the periods for which the Applicant was paid wharf allowance. It shows that the Applicant was paid one hour of wharf allowance on only each of the following dates:
   • (a) 4 January 2012;
   • (b) 18 January 2012;
   • (c) 1 February 2012;
   • (d) 15 February 2012; and
   • (e) 29 February 2012.
3. None of these dates fall within the two week relevant period prior to either date of the Injury (17 February 2011 or 3 September 2012). Even if the relevant period were extended to 12 weeks, the period would not include the dates on which the Applicant was paid wharf allowance.
4. On the basis of the above it is the Tribunal's view that it was correct not to include any wharf allowance in the calculation of the Applicant's NWE.
5. The Tribunal therefore affirms the decision of the Respondent dated 11 August 2017 which affirmed a determination dated 5 July 2017 to determine the Applicant's entitlement to compensation under s 20 of the SRC Act for the period 1 July 2017 to 4 April 2018.

2017/3262 - requirement to provide medical certificates - incapacity period 6 April 2017 to 4 April 2018

1. The Applicant seeks review of a decision of the Respondent dated 2 June 2017 (2017/3262, T24) affirming a determination dated 12 April 2017 (2017/3262, T13) which found that the Respondent was liable to pay incapacity compensation to the Applicant pursuant to s 20 of SRC Act from 6 April 2017 until 4 April 2018 (at which point the Applicant would have to submit a fresh medical certificate).
2. The Applicant disputes the determination on the basis that he contends that he should not be required to provide yearly medical certificates and the incapacity determination should have been open-ended.
3. The reviewable decision of 2 June 2017, in the Tribunal's view, correctly sets out the relevant facts and the standard practice which reflects the legislation. In particular the Tribunal refers to the following passages of the reviewable decision:

You contend that the determination under review contradicts the medical certificates from Dr Lee and the evidence of Dr Proud regarding invalidity retirement.

The determination under review accepted liability to pay compensation to you for incapacity for the period 6 April 2017 to 4 April 2018. The evidence underpinning this determination was the medical evidence of Dr Lees that certified you totally unfit to work for this period. I note that Dr Proud also considered you were unfit for work. Therefore, the determination is completely in line with the medical evidence rather than contrary to it as you have suggested.

You further contended that the determination "set limits to my permanent invalidity". This contention is erroneous. Your invalidity retirement is a separate matter to your workers' compensation claim and is managed under different legislation (Superannuation Act 1990 and Public Sector Superannuation Scheme Trust Deed) by a different body, namely the Commonwealth Superannuation Corporation (CSC). Any determination made in relation to your compensation claim under the SRC Act has no bearing on your entitlements to receive invalidity benefits under the Public Sector Superannuation Scheme Trust Deed and vice versa.

The determination dated 12 April 2017 did not decline liability to continue to pay compensation for incapacity beyond the dates specified. Nor did the determination seek to place a limit on your entitlements to incapacity. It merely accepted liability for incapacity for a specified period of time, which was supported by the medical evidence available to the delegate at the time Placing a date up to which liability is accepted does not operate as a bar to future entitlements.

...

I note that liability for incapacity beyond the 4 April 2018 is to be determined by the delegate in subsequent determinations and will be subject to medical evidence available at that time.

You stated that there was nowhere in the SRC Act which supports the view that ongoing medical evidence is required in the case of permanent invalidity retirement. Whilst this is technically correct, I note that section 54(2)(b) of the SRC Act states that a claim for compensation (except for section 16 or 17) shall be made by giving the relevant authority a certificate by a legally qualified medical practitioner and section 54(b)(3) states that where a claim Is riot accompanied by a certificate of the kind referred to in paragraph 2(b), the claim shall be taken not to have been made until such a certificate is given to that authority. Such claims for compensation include those made pursuant to section 20 of the SRC Act.

It is important to note that one of Comcare's core functions is to make determinations accurately in relation to claims under the SRC Act and it is reasonable for Comcare to request or require medical evidence from time to time in order to assist them carry out their function of making accurate determinations under the SRC Act

As stated above though, any requirement or request for you to provide ongoing medical evidence is not a determination under the SRC Act and is therefore not reviewable.

1. What the Applicant seeks is dispensation from providing medical certificates for further periods. As the Respondent stated in the reviewable decision, no 'determination' can be made to require the Applicant to provide medical certificates. Rather, it is the method by which liability for incapacity payments is established by the Applicant. Further, it is in many cases, including the present case, the method by which a claim for compensation for the purposes of the Respondent having any liability under s 54(1) of the SRC Act is made (see Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 at [30]). Often, where liability has been accepted under s 14 of the SRC Act, the 'claim for compensation' under ss 16, 19 or 20 of the SRC Act, for the purposes of liability arising under s 54(1) of the SRC Act, is the provision of a medical certificate confirming incapacity for a specified period. That, quite sensibly and correctly, is taken as a 'claim for compensation' under the relevant section of the SRC Act for the specified period. Where that procedure has been followed, once that specified period comes to an end there is no relevant 'claim for compensation' for the purposes of s 54(1) so in order for liability to arise, a fresh claim, potentially in the form of a medical certificate certifying incapacity for a further period, is submitted (See Weston and Cleanaway [2018] AATA 3740). That is all that the Respondent is requiring in this case.
2. The Applicant contends that the reports of Dr Lee dated 24 November 2016, the report of Dr Proud dated 21 November 2016 and the 'medical examination report for invalidity retirement dated 1 July 2016' have the effect of certifying him as totally incapacitated for work from 17 February 2017 to 8 July 2034 (when the Applicant would have retired) and, therefore, he is not required to provide further medical certificates to demonstrate his incapacity for work during this period. That is not the case.
3. The Tribunal also notes Deputy President Hotop's finding in Vittiglia and John Holland Group [2013] AATA 492 at [29] to the effect that a medical certificate can only attest to the Applicant's capacity for work as at the date it was produced. The justification for that is plain; ailments change over time.
4. The position adopted by the Respondent as outlined in the reviewable decision is correct.
5. The Tribunal affirms the decision of the Respondent dated 2 June 2017 (2017/3262, T24) affirming a determination dated 12 April 2017 (2017/3262, T13) which found that the Respondent was liable to pay incapacity compensation to the Applicant pursuant to s 20 of SRC Act from 6 April 2017 until 4 April 2018 (at which point the Applicant would have to submit a fresh medical certificate).

1. The Applicant seeks review of a decision of the Respondent dated 21 November 2017 (2017/7134 et al., T57) which affirmed a decision dated 4 October 2017 (2017/7134 et al., T27) which found that the Applicant was not entitled to compensation pursuant to s 16 of the SRC Act for the cost of a three month gym membership as it was not considered to be reasonable treatment obtained in relation to the Injuries.
2. 'Medical treatment', as it is defined in s 4 of the SRC Act, includes 'therapeutic treatment obtained at the direction of a legally qualified medical practitioner' or 'therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be'.
3. The Respondent does not dispute that a gym membership can constitute therapeutic treatment that results in pain reduction for his back condition, if that gym membership facilitates a structured, supervised, targeted program (Respondent's outline of submissions, para 135).
4. However, as identified by the Respondent, the Applicant has not made it clear in respect of which condition (physical or psychological) the gym membership is sought. Irrespective, the Respondent contends that the gym membership cannot be considered to be 'medical treatment in relation to' either the physical or psychological condition. The Applicant's claim is for a three month gym membership rather than a specific, professionally structured gym program.
5. A significant issue that the Applicant faces in this claim is the lack of any medical evidence to support the therapeutic value of the gym membership vis a vis either of the injuries and therefore whether the claim for gym membership is 'treatment that is reasonable in the circumstances' for the purposes of s 16 of the SRC Act. The Applicant described the exercises that he undertakes or would undertake as being for the purposes of strengthening his core and the muscles 'around that area' in reply to the Tribunal's question of 'is that tailored regime specifically aimed at avoiding - your injury was an L4/5, wasn't it? (Transcript at 30)
6. With respect to what constitutes 'reasonable', Gray J in Re Jorgensen and Commonwealth [1990] AATA 129; (1990) 23 ALD 321, 325 opined that:

...The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation.

1. Stone J confirmed in Comcare Australia v Rope [2004] FCA 540; (2004) 135 FCR 443, 448 (Rope) that 'the reference in s 16(1) to treatment being "reasonable to obtain in the circumstances" is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis...' In Comcare v Holt [2007] FCA 405; (2007) 94 ALD 576, 581 [25], Mansfield J followed the decision of Stone J in Rope and agreed that the costs/benefit analysis is appropriate.
2. Deputy President Humphries and Member Hughson observed in Topping and Comcare (Compensation) [2015] AATA 525 at [38]:

Naturally, this equation of fact vs benefit entails consideration of how much good is actually delivered to an applicant, and it is obvious that there must be an element of objectivity in this to weigh against the cost of that good. This will be a particularly critical analysis where, as is conceded in this case, the treatment obtained and being obtained by Ms Topping has not, and probably will not, ameliorate the course of her underlying psychological condition.

1. Deputy President Constance provided guidance on how to undertake this task in the matter of Alamos and Comcare [2014] AATA 629 where he stated at [23]: '[i]n considering this requirement, it is necessary to consider all of the circumstances, and not only the beneficial effects experienced by Mrs Alamos.' Then, at [24] DP Constance provided the following non-exhaustive list of factors which may be relevant considerations in the circumstances:
   • the benefit of the treatment to the injured worker;
   • the long-term effect of the treatment;
   • whether the treatment is likely to cure the injury or significantly reduce its effects;
   • whether the treatment maintains the status quo;
   • the cost of ongoing treatment.
2. Relevant to the Applicant's particular circumstances, given that he has previously been compensated for a gym membership, Senior Member Tavoularis in Blackwell and Comcare [2017] AATA 1357 highlighted the 'notion of shifting reasonableness':

What was initially reasonable treatment may become unreasonable long-term treatment. This long-term perspective is particularly important when one considers the potential long-term dependency of applicants upon treatments that were only ever meant to be temporary...

1. As was noted by the Tribunal in Stitt and Comcare [2018] AATA 3092 at [87]:

As the authorities cited above establish, what was once accepted as reasonable treatment may, over time and as circumstances change and new treatments become available, no longer be reasonable.

1. In cross-examination the Applicant explained that while he had been given the exercise program that he follows by exercise physiologists (none of whose names he could remember), it had been over four years since those programs were given to him (Transcript at 52-53). Further, he performs the exercises alone, without instruction or supervision and using the spa and the sauna were not recommendations made by the exercise physiologist. The majority of the exercises that the Applicant performs at the gym may have been recommended by an exercise physiologist at an early point in time but do not need to be performed in a gym (particularly the cardiovascular activities and the floor exercises). Further, as the Applicant's program has not been reviewed in over four years, the Tribunal cannot be satisfied that the exercises the Applicant is performing as described by the Applicant at the hearing are still appropriate.
2. With respect to the psychological condition, Dr Terace stated in his supplementary report that:
   1. In my personal opinion, a regular exercise program aimed at maintaining both physical and mental fitness should be recommended by medical practitioners including psychiatrists, but I accept that I do not have sufficient scientific evidence to support that it is of evidence-based value to the treatment of Major Depressive Disorders to the standard of scientific proof.
   2. I am aware that there is a relative paucity of randomised controlled studies to support the treatment value of the gym membership/exercise program in the treatment of a Major Depressive Disorder, even if I personally believe that exercise benefits most individuals, both physically and psychologically.
   3. I thus do not have sufficient scientific evidence to argue that exercise is an evidence-based or empirically based treatment for Major Depressive Disorder or any other psychiatric disorder on that basis.
   4. Not only is there a relative poverty of randomised-controlled research to empirically support its specific treatment value in the treatment of Major Depressive Disorders, but I am also not aware of good methodologically sound meta-analysis reviewing randomised-controlled studies to confirm its scientifically established value, despite my personal position.
3. In his report of 15 September 2017 (2017/7134 et al., T24/179), Dr Terace expressed the view that the Applicant is "probably entrenched in a sick role and chronic illness behaviour". In his supplementary report, Dr Terace stated that, his reference to 'entrenchment in the sick role' he was referring to 'my impression that Mr Thompson is trapped in a vicious cycle of complex illness behaviour, but that the natural process of pursuing permanent invalidity appears to be very distressing given his complaints about the conduct of the process, regardless of whether his perceptions are real or imagined.'

1. The Respondent submits (paragraph 139 of closing submissions) that:

The Applicant has not obtained any evidence that casts doubt on Dr Terace's opinion in this regard. Accordingly, while exercise may be an appropriate recommendation in a general sense, there is no basis in medicine for it being "reasonable treatment in relation to" the Applicant's psychological condition. Therefore, liability does not arise in respect of the claimed gym membership.

1. Dr Hardcastle's evidence in relation to the benefit of a gym program so far as the Applicant's back condition, putting aside the issue of whether the Applicant's back condition is still work-related, was that while he generally supported physical activity, especially as a person ages, a gym program is:

not therapeutic, it's a matter of maintaining and keeping your degenerate spine mobile and functional without overdoing it. I do see a lot of people in the gym overdoing things and presenting with other injuries and gym-based complications but it is - as I say, that's a matter of 45 person al preference but it is not therapeutic it's more - it's therapeutic in some situations when you first have an injury but then it reaches a point where it becomes maintenance and that maintenance can be done with a home gym program, at the gym or doing your own gardening and general activities, housework and various - you know, various other activities.

(Transcript at 123).

1. Dr Hardcastle did not consider that the exercises that the Applicant was performing were specifically targeted at the Applicant's lower back condition. Further, Dr Hardcastle stated in his report dated 22 May 2018 that "[h]e does require some medical treatment of ongoing exercises which are best done on a self-managed basis..." There is no indication that the Applicant needs to perform the physical exercises at a gym and cannot perform them at his home.
2. The medical certificate dated 31 May 2017 issued by Dr Lee (2017/3262, T25/92-93) stated that the exercise is to 'improve pain and function to lower back' and 'improve depression'. He suggested that the gym membership was necessary because the Applicant does not have a pool or a spa at home. However, the Applicant did not give evidence of swimming and no reference is made to why spa use is an appropriate means of treating either condition. Similar comments were made in Dr Lee's reports of

5 September 2017 (2017/7134 et al., T23) and 4 October 2017 (2017/7134 et al., T26). It appears as though Dr Lee sought a further opinion from Dr Memon in relation to whether an ongoing gym program would be beneficial to the Applicant's mental health (R2/884) although no reply report appears to have been received. 3. The Applicant has not put forward any evidence that counters Dr Terace's or Dr Hardcastle's opinions. While exercise may be an appropriate recommendation in a general sense, in Dr Terace's view, there is not sufficient scientific evidence for it being 'reasonable treatment in relation to' the Applicant's diagnosed psychological condition. 4. Dr Lee, in July 2013, recommended that the Applicant continue 'exercise in gym for further 3 months, after which at home' suggesting that it was always intended to be a transient measure and that appropriate exercises could be undertaken at home (2017/7134 et al., T14). In that regard Dr Lee's view is consistent with that expressed by Dr Hardcastle in his report of 22 May 2018 (see [222] above). 5. Accordingly, the Tribunal finds that, based on the evidence as presented by the parties, there is insufficient evidence for the Tribunal to find that the claimed gym membership was or is, in the circumstances, reasonable for the purposes of s 16 of the SRC Act. Accordingly, liability does not arise in respect of the claimed gym membership. 6. For the reasons set out above, the Tribunal affirms the decision of the Respondent dated 21 November 2017 (2017/7134 et al., T57) which affirmed a decision dated

4 October 2017 (2017/7134 et al., T27) which found that the Applicant was not entitled to compensation pursuant to s 16 of the SRC Act for the cost of a three month gym membership.

1. The Tribunal affirms the reviewable decision of 21 November 2017 which reconsidered, on own motion, the Respondent's determination dated 5 July 2017 and determined that the Respondent was not presently liable to pay compensation in relation to the Back Injury.

1. The Tribunal affirms the decision of the Respondent dated 21 November 2017 which affirmed a determination dated 27 October 2017 which had found that the Applicant had no entitlement to compensation pursuant to s 16 of the SRC Act for medical treatment obtained in relation to the psychological injury 'adjustment reaction with anxious mood' dated 3 September 2012.

1. The Tribunal affirms the decision of the Respondent dated 21 November 2017 which affirmed a determination dated 10 October 2017 that had found that the Applicant had no entitlement to permanent impairment compensation pursuant to s 24 of the SRC Act in relation to the Back Injury and the Psychological Injury.

1. The Tribunal affirms the decision of the Respondent dated 18 May 2018 which affirmed a decision dated 1 May 2018 to deny liability for the claimed aggravation said to have been sustained on or around 21 July 2014. Insofar as the Applicant has apparently changed his claim to there being an aggravation on 12 November 2014, that claim too must fail.

1. The Tribunal affirms the decision of the Respondent dated 16 August 2017 which refused to review a determination dated 28 November 2012.

1. The Tribunal affirms the decision of the Respondent dated 5 June 2017 which affirmed the determination which was set out in the Respondent's letter dated 24 May 2017 notifying the Applicant that his weekly rate of compensation would be reduced on 23 June 2016 in an amount equal to the increase that he had received in his superannuation pension increase (in accordance with the formula in s 20 of the SRC Act).

1. The Tribunal affirms the decision of the Respondent dated 5 June 2017 which affirmed the determination dated 24 May 2017 which determined the specific rates of compensation that would be paid from 23 June 2017 to 4 April 2018, reflecting the reduction of $5.02 per week resulting from the increase in superannuation payable.

1. The Tribunal affirms the decision of the Respondent dated 11 August 2017 which affirmed a determination dated 5 July 2017 to determine the Applicant's entitlement to compensation under s 20 of the SRC Act for the period 1 July 2017 to 4 April 2018.

1. The Tribunal affirms the decision of the Respondent dated 2 June 2017 affirming a determination dated 12 April 2017 which found that the Respondent was liable to pay incapacity compensation to the Applicant pursuant to s 20 of SRC Act from 6 April 2017 until 4 April 2018 (at which point the Applicant would have to submit a fresh medical certificate).

1. The Tribunal affirms the decision of the Respondent dated 21 November 2017 which affirmed a decision dated 4 October 2017 which found that the Applicant was not entitled to compensation pursuant to s 16 of the SRC Act for the cost of a three month gym membership.

1. The Tribunal affirms the decisions under review.

I certify that the preceding 238 (two hundred and thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[sgd].....................................................................

[1] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edition, American Psychiatric Association Publishing, 2013)