Federal Court of Australia

McEwan v Comcare [2023] FCA 447

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the costs of the respondent to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, James McEwan, appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed the Reviewable Decision made by Comcare rejecting his claim for “depressive disorder and generalised anxiety disorder” pursuant to s 14 of the Safety Rehabilitation & Compensation Act 1988 (Cth) (SRC Act). This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

2    A supplementary notice of appeal dated 24 October 2022 identified five grounds, with only grounds 1, 2 and 5 now being relied on (those grounds being interrelated). The grounds now relied on were not raised in the original notice of appeal.

3    For the reasons below, the appeal is dismissed.

Relevant legislative provisions

4    Given the nature of the applicant’s submissions, it is helpful at the outset to refer to the relevant provisions.

5    Section 14 of the SRC Act relevantly provides as follows:

14    Compensation for injuries

(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.

…

6    Section 5A of the SRC Act relevantly provides as follows:

5A    Definition of injury

(1)    In this Act:

injury means:

(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.

…

7    For the purposes of applying s 5A(1)(a), the definition of the word “disease” is provided by s 5B of the Act in the following terms:

5B    Definition of disease

(1)    In this Act:

disease means:

(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.

(3)    In this Act:

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

8    For the purposes of applying ss 5A, 5B and 14, the following definitions from s 4(1) are relevant:

4    Interpretation

(1)    In this Act, unless the contrary intention appears:

…

aggravation includes acceleration or recurrence.

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

…

Tribunal decision

9    On 17 January 2020, the applicant claimed workers’ compensation for “depression caused by systemic bullying that … [led him] … to try suicide”. By a determination dated 23 March 2020, Comcare denied liability on the basis that, inter alia, the applicant’s “employment did not significantly contribute” to his psychological condition. That determination was affirmed by a Review Officer on 8 February 2021: see McEwan and Comcare (Compensation) [2022] AATA 1586 (Tribunal’s reasons) at [2]-[5].

10    The applicant sought review of the decision dated 8 February 2021 by the Tribunal.

11    The Tribunal said that the first issue for determination was whether, during his employment, Mr McEwan suffered a psychological “ailment” for the purposes of s 5B of the SRC Act: see Tribunal’s reasons at [12]. The applicant had submitted that the injury he had suffered for the purposes of the SRC Act was “major depressive disorder and generalised anxiety disorder” (MDDA): see Tribunal’s reasons at [177]. It was said to gradually develop from 2015 and become symptomatic in April 2017, or alternatively, when he was admitted to the Mater Hospital Mental Health Unit (the Mater Hospital) in November 2018: see Tribunal’s reasons at [178].

12    In support of his claim, the applicant relied on the assessments and opinions of Drs Takyar and Saker: see Tribunal’s reasons at [179], and [153]-[174]. Both psychiatrists concluded that the applicant’s MDDA was causally related to persistent bullying and harassment he had experienced during his employment: see Tribunal’s reasons at [182]. However, the evidence of Drs Takyar and Saker supporting the applicant’s claim was found to be “problematic in that it is not consistent with other evidence before the Tribunal”: see Tribunal’s reasons at [180]. Their conclusions assumed that the history provided by the applicant was accurate and reliable, which the Tribunal found to be an “unsound” assumption: see Tribunal’s reasons at [182]. Further, the Tribunal found that neither doctor fully addressed alternative causal factors. The validity of the diagnosis of MDDA being caused by the applicant’s employment was accordingly found to be “uncertain”: see Tribunal’s reasons at [183].

13    Further, in the applicant’s Patient Health Summary from the Mayfield Medical Centre, between January 2017 and October 2018, there was no evidence of a formal psychiatric assessment or significant impairment of the applicant’s social or occupational functioning: see Tribunal’s reasons at [184] and [104]. During the formal assessment of the applicant’s mental health during his three day admission to the Mater Hospital, “several personal and family stressors were identified including ‘stress and pressure – plus long hours’ at work, but there was no mention of ‘bullying and harassment’ in the workplace”: see Tribunal’s reasons at [185]-[186], and [121]-[127]. The applicant was discharged with a diagnosis of “adjustment disorder” with “no evidence of a major mood disorder”: see Tribunal’s reasons at [187] and [126].

14    After a comprehensive assessment, Dr Lee concluded that he was unable to provide a specific diagnosis “given the evidence of unreliable reporting”: see Tribunal’s reasons at [189]. In a supplementary report, Dr Lee confirmed his original opinion and opined that the applicant was “embellishing and exaggerating his symptoms and was not suffering from a condition outside the boundaries of normal mental functioning and behaviour”: see Tribunal’s reasons at [190]. Dr Lee did not resile from those opinions in oral evidence before the Tribunal: see Tribunal’s reasons at [191], and [128]-[152].

15    Accordingly, in relation to the first issue the Tribunal concluded as follows at [192]-[196]:

[192]    On consideration of the evidence set out above I am not persuaded that, during his employment with NBN and in in January 20, Mr McEwan suffered from a major depressive and generalised anxiety disorder’

[193]    However, I am satisfied that, in November 2018, Mr McEwan suffered an ‘adjustment disorder’ which can be considered to be an ‘ailment’ for the purposes of the SRC Act.

[194]    In reaching in my decision, I have preferred the evidence of the Mater Hospital Mental unit records and Dr Lee.

[195]    In my view the hospital records represent the first and only reliable assessment of Mr McEwan’s mental health during his employment with NBN.

[196]    Dr Lee, in his written and oral evidence, in my view, provided a comprehensive and persuasive assessment of Mr McEwan’s mental health issues which was consistent with the contemporaneous documentary evidence.

16    The Tribunal said that the second issue for determination was whether Mr McEwan’s “ailment” was contributed to, to a significant degree, by his employment and, therefore, a “disease” for the purposes of s 5B of the SRC Act: see Tribunal’s reasons at [13].

17    The applicant claimed that: since 2015 he had been subjected to persistent bullying and harassment during employment; and that had significantly contributed to his mental health issues: see Tribunal’s reasons at [198]. The claim was supported by the applicant’s own retrospective narrative (which was set out in detail in writing), the common theme of which was that some of his colleagues caused him to suffer so much stress that he was afraid to go to work: see Tribunal’s reasons at [199]-[201], and [14]-[21].

18    However, the Tribunal found that the applicant’s allegations and recollections were not corroborated by any other evidence: see Tribunal’s reasons at [202]-[204]. It concluded as follows at [205]-[213]:

[205]    The tenor of much of Mr McEwan’s evidence, in my view, was self-serving, exaggerated, and more suggestive of differences of opinion and disagreement rather than bullying or harassment. The evidence suggests that he considers himself as more capable than some of his colleagues, tends to get angry when his opinions are not followed and also does not acknowledge his own contribution to the incidents.

[206]    Furthermore, Mr McEwan’s evidence is almost entirely focussed on establishing his claim that workplace bullying, and harassment has been the cause of his mental health issues, with little acknowledgment of other stressors. In his oral evidence he was quite dismissive of the various personal and family stressors which have been clearly identified in the documentary evidence.

[207]    Relevantly, there is no mention of workplace bullying in the Mayfield Medical Centre records until 9 January 2020, one week before Mr McEwan lodged his compensation claim. At that consultation Dr Younis noted that Mr McEwan ‘thinks’ his depression was ‘due to workplace bullying’ which suggests he was trying to formulate his own diagnosis.

[208]    Furthermore, in the Mater Hospital Mental Health Unit records, although there is reference to pressure and stress at work with long hours, there is no mention of a history of persistent workplace bullying and harassment. However, personal and family issues were clearly identified as the predominant stressors that led to Mr McEwan’s hospital admission.

[209]    The original focus of Mr McEwan’s claim was clearly based on an allegation of workplace bullying and harassment, however, in the course of the hearing Mr McEwan’s counsel sought to establish an alternative claim and submitted that ‘it is entirely plausible that the kind of years and years of pressure would accumulate and cause stress’ and that this was a significant contributing factor to Mr McEwan’s psychiatric injury.

Conclusion

[210]    On consideration on the evidence as set out above I am not persuaded that Mr McEwan was subjected to persistent bullying and harassment during his employment with NBN.

[211]    I accept that during his employment with NBN there were occasions where there were differences of opinion, disagreements and some behaviour which caused Mr McEwan to experience some stress. However, I am not persuaded that these occasions contributed, to a significant degree, to Mr McEwan’s ‘ailment’.

[212]    I also accept that in the course of his employment Mr McEwan may have experienced periods of stress because of work pressure and working long hours, however, on the available evidence, I am not persuaded that this contributed to, to a significant degree, to his ailment.

[213]    On consideration of the evidence as set out above I am satisfied that Mr McEwan’s ‘ailment’ was not contributed to, to a significant degree, by his employment with NBN and, therefore, not a ‘disease’ for the purposes of section 5B of the SRC Act.

19    Accordingly, the decision under review was affirmed, with the Tribunal finding that Comcare was not liable to pay compensation pursuant to s 14 of the SRC Act: see Tribunal’s reasons at [214]-[215].

Grounds of appeal

20    The questions of law said to be raised were set out in the applicant’s written submissions as follows (footnotes omitted):

2.    Did the Tribunal fail to discharge its jurisdiction by failing to make a proper determination of “injury” for the purpose of s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act)?

3.    Did the Tribunal fail to discharge its jurisdiction by failing to make a proper determination of “disease” for the purpose of s 5B of the SRC Act?

4.    Did the Tribunal err at law by failing to consider aggravation of an underlying “injury” or “ailment” for the purpose of both s 5A and s 5B of the SRC Act respectively?

5.    The Tribunal found there was no “injury” under s 5A(1)(a) of the SRC Act on the basis the adjustment disorder was not a “disease”. Having made that finding, did the Tribunal fail in the exercise of its jurisdiction to then go on to consider whether there was an aggravation that would satisfy the statutory test?

21    As referred to above, the applicant now relies on grounds 1, 2 and 5 of the supplementary notice of appeal dated 24 October 2022.

22    Those grounds are as follows:

1.    The Tribunal erred in finding that the ailment was not contributed to, to a significant degree, by the Applicant's employment for the purposes of s 5B(1) of the SRC Act.

2.    The Tribunal failed to take relevant considerations into account and took irrelevant considerations into account in making the decision.

…

5.    The Tribunal should have found:

a.    the ailment (and or an aggravation of such ailment) was contributed to, to a significant degree, by the Applicant's employment for the purposes of s 5B(1) of the SRC Act;

b.    the Applicant (accordingly and or otherwise) suffered an injury for the purposes of s 5A(1) of the SRC Act; and

c.    the injury resulted in incapacity for work and or impairment for the purposes of s 14 of the SRC Act.

23    The grounds do not appear to directly correlate with the questions of law raised. As is apparent from the applicant’s submissions, the grounds as advanced turn on whether, on its findings and on the material before it, the Tribunal was required to consider the applicant’s case from the perspective of whether he had suffered an aggravation of either an injury or an ailment.

Submissions

24    The applicant’s argument, simply put, is that the Tribunal had the positive obligation to address: the substantive issues presented by the evidence in the case; and each element of ss 4, 5A(1) and 5B(1)-(2) of the SRC Act, and the consequential assessment of s 14, even if it was not raised by a party. More particularly, he submitted that, given the findings of the Tribunal, it was also legally required to consider whether an aggravation of an underlying injury or ailment had been established. Had s 5A(1)(c) been applied, an injury would have been established, and alternatively, had s 5B(1)(b) been applied, s 5A(1)(a) would have been established.

25    The applicant further explained in oral submissions that to make a determination under s 14 of the SRC Act, injury, disease and ailment had to be looked at by the Tribunal in all of their permutations. He submitted that there was an incomplete assessment by the Tribunal of the indicia in each of ss 5A and 5B.

26    The failure to apply ss 5A(1)(c) and 5B of the SRC Act was said to have deprived the applicant of a realistic possibility of a different outcome on the claim: citing, inter alia, Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [30]. The applicant submitted that the Tribunal should have applied those provisions given:

(a)    the inquisitorial nature of the Tribunal’s task (citing Ellison v Comcare [2022] FCA 95; (2022) 175 ALD 62 (Ellison) at [5], [103] and [116]);

(b)    the Tribunal’s duty to “be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities” (citing s 72(a) of the SRC Act);

(c)    the Tribunal’s obligation to discharge its core statutory function and exercise its statutorily conferred powers “reasonably” (citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [5] and [28]-[29]); and

(d)    there was no “intelligible justification” for failing to do so (citing Li at [76]).

27    The applicant submitted that establishing an injury under s 5A(1)(c) in this case turned on whether the accepted various “behaviour which caused … some stress” and “periods of stress because of work pressure and working long hours” (at [211]-[212] of the Tribunal’s reasons), constituted an aggravation of the underlying injury causing adjustment disorder. It was said that the Tribunal should have considered whether such workplace stress and interpersonal conflict did aggravate the adjustment disorder and that, on that basis, there was an injury. He submitted that scenario was readily available:

(a)    on the hospital admission notes (also referred to as the Mater Hospital records);

(b)    as the lay witness evidence called on behalf of the respondent was consistent with and corroborated, to a degree, the applicant’s case regarding his interpersonal conflict and heavy workload and work pressure causing injury;

(c)    as the Tribunal itself confirmed during the hearing “I don’t think there’s any question that the evidence demonstrates that Mr McEwan was stressed at work”, meaning there was an obligation to address the potential legal ramifications under the SRC Act;

(d)    as all of the medical evidence generally supported the claim, with the available medical evidence establishing that, for the purposes of s 5A(1)(c), if the mental injury did not arise in the course of work, the underlying psychological injury in the difficult family situation may well have been aggravated by the various “behaviour which caused … some stress” and “periods of stress because of work pressure and working long hours”: at [211]-[212] of the Tribunal’s reasons. That was with the exception of the evidence of Dr Lee, whose opinion the applicant submitted in a footnote “was based upon the true or false computer test … administered of his own volition. The volume of medical evidence contained no corroboration of Dr Lee’s suggestion of exaggeration. There was no explanation for the absence of such corroboration” (emphasis in original).

28    The applicant submitted that the evidence before the Tribunal set up a “very clear aggravation-type issue”, given that he had been diagnosed with an underlying anxiety and depression by his GP and psychologist (and had been managing those conditions). He relied on the Tribunal’s acceptance of the Mater Hospital notes as giving rise to the necessity to consider aggravation, and as indicating its acceptance of the reliability of the applicant’s history of anxiety and depression, and management of those conditions. The applicant also referred to emails between the applicant and his employer following his discharge from the Mater Hospital, as support for the proposition that work stress aggravated his condition. He also referred to internal emails between other employees discussing a complaint about him and how it was to be resolved.

29    The respondent conceded that Tribunal proceedings are inquisitorial in nature, but submitted that it is still the case that appeals from the Tribunal to this Court have to be able to point to a demonstrable error of law. Such appeals were said not to be an opportunity to seek to agitate a different case to that which was put before the Tribunal. Any Tribunal hearing was said to involve the joint assembly of the Tribunal, legal representatives, medical witnesses and lay witnesses, with it being incumbent upon the legal representatives to put their respective cases to the Tribunal: citing, inter alia, Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71.

30    The respondent submitted that in seeking to establish liability for an “aggravation” in the setting of workers’ compensation entitlements, three essential pieces of evidence have to be identified: first, the nature of the pre-existing non-work related psychiatric condition which is alleged to have been aggravated; second, what employment-related factors acted to aggravate that underlying condition; and third, expert medical evidence as to the existence of the aggravation of the underlying condition. It was submitted that these three elements will necessarily be established by a combination of both factual and expert medical evidence. The applicant’s submissions were said to fail to make clear how these essential elements can be established upon the evidence which was put before the Tribunal.

31    The respondent also emphasised the Tribunal’s findings including, as to the ailment, that: the Mater Hospital records clearly identified personal and family issues as the predominant stressors at the time of the applicant’s hospital admission; persistent workplace bullying and harassment were not mentioned in the Mater Hospital records; and occasions of differences of opinions, disagreements, “some behaviour” that caused the applicant “to experience some stress” and “periods of stress because of work pressure and working long hours”, did not contribute to it to a significant degree.

Consideration

32    There are a number of observations to be made about the applicant’s submissions.

33    First, the submissions now advanced as to aggravation, which are said to be obvious based on the medical records from the Mater Hospital, were not advanced by the applicant before the Tribunal. I do not accept the applicant’s submission that the primary case run below was that the applicant had suffered an injury, and that as a secondary position, the issue of aggravation was raised. No transcript references, or references to any submission to that effect were identified by the applicant. I do not accept that the extracts of the transcript referred to by the applicant include any such submission. Nor was it advanced in the applicant’s Statement of Facts, Issues and Contentions or his closing submissions in the Tribunal. Although I note that: in the respondent’s Statement of Facts, Issues and Contentions filed before the hearing, “[w]hether the applicant’s ailment or an aggravation of an ailment” was significantly contributed to by his employment was referred to as an issue, and answered in the negative without further expansion; and the reviewable decision dated 8 February 2021 listed as an issue whether the applicant had “sustained a condition, or an aggravation of a condition”, although aggravation was not subsequently addressed.

34    There was an alternate case advanced by the applicant in closing submissions before the Tribunal, that “years and years of work stress, work pressure, difficulties with design, constant deadlines and conflict between, on one hand deadlines and on the other hand quality” and stress from having a heavy workload and working long hours were a significant cause of his injury. That was not a case of aggravation, but a case where the nature of the applicant’s employment was advanced as an issue at a factually lesser level than that originally claimed. It covered the same period as the allegations as to bullying and harassment, that is “years and years” of such stress. However, this case as advanced, was inconsistent with the history the applicant gave to each of the medico-legal doctors and his claim, which was based on alleged bullying and harassment. It could only arise for consideration if the applicant’s primary case was not accepted. Nonetheless, the Tribunal considered and rejected this alternate claim: see, for example, Tribunal’s reasons at [209] and [212].

35    Second, it follows that the submissions now advanced are a different case to that put before the Tribunal. That, of itself, may not necessarily be fatal to this appeal. In Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 (Benjamin) at [47] the Full Court (Moore, Emmett and Allsop JJ) stated:

[47]    Proceedings before the tribunal sometimes give the appearance of being adversarial but, in substance, a review by the tribunal is inquisitorial. Each of the commission, the board and the tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the tribunal is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant: Grant v Repatriation Commission [1999] FCA 1629, 57 ALD 1 at [17]–[18] and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287.

36    That said, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration: Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 at [17]; Benjamin at [48]. As Gummow and Hayne JJ stated in Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187]:

[187]    … Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

37    Moreover, the nature of the case that a party chooses to run may impact on the evidence before the Tribunal. That case may also be reflective of the evidence chosen to be led before the Tribunal.

38    As to the nature of the proceedings before the Tribunal, the applicant relied on, inter alia, Ellison at [5] and [103]-[106], and Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 (Hannaford) at [57].

39    Ellison supports the conclusion that the nature of the proceedings is inquisitorial. There, the claimant had an accepted claim termed as a “lumbar sprain” which was referrable to a specific work event in 2009. In 2018, Comcare ceased compensation entitlements to the claimant because it said that any ongoing back symptoms suffered were not work related, but degenerative changes: see Ellison at [35]. On appeal, the claimant alleged that the Tribunal made an error of law in concluding that it did not have jurisdiction to decide whether he was entitled to workers’ compensation in respect of degenerative disease in his lower back which was contributed to, to a significant degree, by his physically demanding work for the Australian Customs Service (Customs) from 2002 to 2009, as distinct from the lower back injury he suffered in 2009: see Ellison at [4]. In that context, in the reconsideration application before Comcare and at the review level before the Tribunal, the claimant sought to submit that not only was his present back condition the result of the earlier accepted 2009 event, but additionally the nature and conditions of his physically demanding work from 2002 until 2009: see Ellison at [6].

40    Murphy J held that the Tribunal’s jurisdiction was not limited to only the injury notified in the claim form: see Ellison at [120].

41    His Honour concluded at [142]:

[142]    Taking those matters into account, in undertaking a review of the reconsideration decision and in exercising its inquisitorial role, I consider the Tribunal had jurisdiction to decide a claim that Mr Ellison was entitled to compensation for the Underlying Degenerative Disease which was contributed to, to a significant degree, by the work he performed for Customs between 2002 and 2009. The Tribunal’s approach does not show a broad, generous and practical approach to construing Mr Ellison’s notice of injury; nor does it take it account of the fact that medical diagnoses as to the nature and aetiology of Mr Ellison’s injury evolved over time, and the statutory scheme allows for progressive decision-making.

42    In doing so, His Honour observed at [143]-[144]:

[143]    The paramount consideration is whether Comcare was appropriately informed as to the nature of the claimed injury and its connection with the employment; and whether it was provided a fair opportunity to properly investigate that claim. As I have said, the materials before Comcare in the reconsideration application raised that claim. Comcare was on notice of it and had ample opportunity to properly investigate it. That it had notice of the claim is plain when one considers that, after Comcare gave notice of its intention to cease compensation payments and provided Mr Ellison with an opportunity to provide further medical evidence, Dr Sewell provided his December 2017 report to Comcare. That report expressly informed Comcare of Dr Sewell’s opinion that Mr Ellison was incapacitated for work by reason of spinal degeneration in his low back which was related both to the 2009 Workplace Incident and to his employment with Customs from 2002 to 2009. That report was plainly significant to the reconsideration application; and the review officer specifically referred to and briefly summarised it. That broader claim had been before Comcare in the reconsideration application, and the Tribunal had jurisdiction to consider and decide it.

[144]    Treating the broader claim as being properly before the Tribunal does no harm to the “orderly process of administration contemplated by the Act” (Abrahams at [16]). The orderly process of administration contemplates “progressive and evolving decision-making” in the light of subsequent events and circumstances: Hannaford at [57]. In the present case the subsequent circumstances are that, over time, the medical opinions relating to the nature and aetiology of Mr Ellison’s condition evolved. As I have said, Comcare had notice of those changes of medical opinion and had a fair opportunity to properly investigate the claims raised by them. In the circumstances of the present case, it is difficult to see what more Mr Ellison was realistically required to do to allow Comcare a proper opportunity to investigate his claim and for its orderly processing.

43    Although, as explained above, a review before the Tribunal is an inquisitorial proceeding, the factual context in which Ellison arose is different from this case. Not the least because in Ellison, it was the claimant’s case, as he advanced through the evidence presented, that medical opinions relating to his condition evolved over time. Further, there Comcare was on notice at the time it made the reconsideration decision that the claims were based on the workplace incident in 2009 and the physically demanding work the claimant undertook in the course of his employment with Customs from 2002 to 2009. In Ellison, the issue arose because the Tribunal had confined its consideration to what was in the claim form for compensation, being the incident in 2009. This is to be contrasted to this case. Here, it was not the applicant’s case in the Tribunal that medical opinions evolved over time. Nor was the case advanced on the appeal that which was contended below. There is no basis to contend, given the evidence relied on by the applicant, that the respondent was on notice of the case now advanced by the applicant. Nor did the approach of the Tribunal confine its consideration to the terms in the claim for compensation (namely, that the condition was depression caused by systemic bullying over five years). Indeed, the Tribunal considered the alternate case advanced in closing submissions by the applicant (that is, work stress and pressure) and a diagnosis of a condition different from that in the claim. This reflects that the Tribunal was cognisant of the nature of its role in the determining the issues before it.

44    The applicant also relied on Hannaford at [57] for the proposition that the SRC Act allows for progressive and evolving decision-making, which provides for adjustment or change in light of events or circumstances which may subsequently happen. In that paragraph, Conti J (Heerey and Dowsett JJ agreeing) stated:

[57]    … The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers’ compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability …

45    This was said to reinforce the point that the Tribunal should have been flexible enough to consider the alternative definitions of “injury” depending on the factual findings it made and the obvious legal consequences flowing from them. However, the context in which the statement in Hannaford was made is different to that before the Tribunal in this case. There was no change in light of events and circumstances which subsequently happened, as in Hannaford. Each case must turn on its facts. Indeed, the applicant’s submissions are premised on there being findings of the Tribunal and material before it which required it to consider the question of aggravation. Although the existence of such findings and material is in issue.

46    Third, the applicant’s written submissions challenge factual findings made by the Tribunal. This is an appeal on a question of law. There is no longer any ground of appeal challenging any of the Tribunal’s factual findings, or alleging that the findings were made with no evidentiary basis. Accordingly, the applicant’s submissions in support of the grounds of appeal must be considered in the context of the findings made by the Tribunal.

47    Those findings include that:

(a)    the Tribunal preferred the evidence of the Mater Hospital records and Dr Lee (see Tribunal’s reasons at [194]);

(b)    the Mater Hospital records represented the only reliable assessment of the applicant’s mental health during the time of his employment (see Tribunal’s reasons at [195]);

(c)    Dr Lee’s evidence provided a comprehensive and persuasive assessment of the applicant’s mental health issues (see Tribunal’s reasons at [196]);

(d)    in November 2018, the applicant suffered an adjustment disorder, which is an ailment for the purposes of the SRC Act (see Tribunal’s reasons at [193]);

(e)    the Tribunal was not persuaded that during his employment and in January 2020, the applicant suffered from a major depressive and generalised anxiety disorder (see Tribunal’s reasons at [192]);

(f)    the Mater Hospital records clearly identified personal and family issues as the predominant stressors which led to the applicant’s hospital admission (see Tribunal’s reasons at [208]);

(g)    persistent workplace bullying and harassment were not mentioned in the Mater Hospital records (see Tribunal’s reasons at [208]); and

(h)    occasions of differences of opinions, disagreements, “some behaviour” that caused the applicant “to experience some stress” and “periods of stress because of work pressure and working long hours”, did not contribute to his ailment to a significant degree (see Tribunal’s reasons at [211]-[213]).

48    I note also that, as referred to above, the Tribunal recorded at [178] of its reasons, that the applicant submitted:

…that his injury is “a mental disorder of gradual development” that began in 2015 but became symptomatic in April 2017 when he first attended his general practitioner for treatment of “low mood anxiety”. Alternatively, he submits that the “date of injury” is 25 November 2018 when he was admitted to the Mater Hospital Mental Health Unit.

49    The applicant did not take issue with the accuracy of that summary. As to the date of the ailment, the Tribunal concluded that it was suffered by the applicant “in November 2018”: see Tribunal’s reasons at [193]. I note that when asked during oral submissions on the appeal, the applicant submitted that the aggravation occurred “somewhere around 2018 and before his hospital admission”.

50    Fourth, there was no expert evidence before the Tribunal which opined that the applicant was suffering from an aggravation of a pre-existing injury or ailment. The applicant submitted on the appeal that: aspects of Dr Lee’s evidence gave rise to an “acknowledgement … of an underlying condition”; and the issue of aggravation was dealt with in an exchange during the cross-examination of Dr Saker. I do not accept those submissions as they are not based on an ordinary reading of the report and the transcript respectively. Rather, the applicant did not examine, or cross-examine any medical expert to suggest that he was suffering from an aggravation of a pre-existing injury or ailment. To the contrary, the evidence relied on by the applicant was that the injury or disease was 100 percent as a result of the workplace bullying and harassment which had been occurring for five years.

51    Fifth, the applicant’s submission as articulated at [27] above, which identifies four reasons that there was evidence of an aggravation of an injury, is not supported by a proper consideration of the evidence.

52    For example, the fourth proposition that since “all of the medical evidence generally supported the claim”, it follows that some sort of “underlying psychological injury in the difficult family situation may well have been aggravated” by various work stresses other than bullying and harassment. To the word “claim” is the footnote recited above at [25(d)] which excludes and criticises Dr Lee’s evidence. However, the Tribunal did accept the evidence of Dr Lee, and that is the basis on which this submission must be determined: see Tribunal’s reasons at [194], see also its summary of his evidence at [128]-[152]. Moreover, the Tribunal rejected the evidence of Drs Takyar and Saker on the basis of concerns with the applicant’s credit and reliability. Their opinions were expressed on the basis of the acceptance of the history provided by the applicant, and that was not accepted: see Tribunal’s reasons at [182]. I also note that, for example, Dr Saker gave evidence that the applicant’s condition was 100 percent attributable to workplace bullying and harassment: see Tribunal’s reasons at [173]. Accordingly, it is incorrect to characterise the medical evidence as generally supporting the applicant’s claim. Rather, the applicant’s submission does not address the evidence. Nor does the submission grapple with the Tribunal’s findings: see, for example, [47] above. Moreover, as explained above, no doctor who gave evidence before the Tribunal opined that there was an aggravation of a pre-existing injury or ailment. The proposition that “underlying psychological injury in the difficult family situation may well have been aggravated” by various work stresses other than bullying and harassment does not follow or arise from the evidence that was accepted by the Tribunal, and the findings it made.

53    As to the propositions at [25(b)] and [2725(c)] above, the Tribunal addressed these issues and made findings at [211]-[212] of its reasons, which are not challenged. Those findings do not support any suggestion of an aggravation of an injury or ailment.

54    Similarly, in respect to the proposition at [27(a)], the Mater Hospital records do not suggest an aggravation. The Tribunal found from them, that at the time the applicant suffered an adjustment disorder: see Tribunal’s reasons at [126], [187] and [193] (noting that it also relied on the evidence of Dr Lee). As previously explained, the Mater Hospital records do include a reference to work stress, pressure and long hours in the list of chronic stressors: see Tribunal’s reasons at [124]. However, as the Tribunal found at [208], “personal and family issues were clearly identified as the predominant stressors that led” to the applicant’s hospital admission. Further, the Tribunal concluded at [211]-[212] of its reasons that occasions of differences of opinions, disagreements and some behaviour that caused the applicant distress did not contribute to a significant degree to his ailment, nor did periods of stress because of work pressure and working long hours. The factual premises underlying the applicant’s submission, in the context of the unchallenged factual findings, are not established.

55    As noted above at [30], the respondent submitted that the applicant’s submissions fail to make clear how the elements essential to establishing liability for an “aggravation” can be established upon the evidence which was put before the Tribunal. In response, the applicant contended that: first, there was undeniable evidence of an underlying condition in the clinical records; second, the Tribunal found workplace stress; and third, the clinical records demonstrated aggravation of the applicant’s problems due to workplace stress, and there was expert evidence that workplace incidents (howsoever characterised) caused psychological upset. The bases identified in that submission suffer from the flaws identified in the preceding paragraphs. They also pay no attention to the factual findings of the Tribunal.

Conclusion

56    For the reasons given above, a proper consideration of the proceedings below reflects that the submissions as to aggravation now advanced on the appeal were not advanced below. The findings of the Tribunal, properly considered, do not found the applicant’s submissions on the appeal. The material identified and relied on by the applicant does not have regard to the Tribunal’s findings. Rather, his submissions fail to grapple with the factual findings of the Tribunal.

57    As the applicant accepted, the requirement for the Tribunal to consider the issue of aggravation must arise from the material. The applicant has not established that basis. Rather, the applicant is now seeking to advance a case different to that conducted below, and not supported by the evidence he chose to lead or any other material before the Tribunal (in light of its findings).

58    The applicant has not established any error by the Tribunal not considering the issue of aggravation of an underlying injury or ailment. It did not properly arise on the evidence, as found by the Tribunal.

59    Accordingly, the grounds of appeal relied on by the applicant are not established. The application is dismissed, with costs.

Associate:

Dated:    11 May 2023