AX03A and Comcare [2003] AATA 22 (14 January 2003)

Last Updated: 6 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 22

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/254

) No A2001/459

GENERAL ADMINISTRATIVE DIVISION	)
	Re	AX03A

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Mr M J Sassella, Senior Member

Date 14 January 2003

Place Canberra

Decision

The decisions under review are affirmed. The applicant is entitled to no costs associated with the applications.

...............................................

Senior Member

ORDER TO AMEND WRITTEN DECISION [2003] AATA 22

Tribunal Mr M J Sassella, Senior Member

Date 16 January 2003

Place Canberra

WHEREAS:

1. The Tribunal released a written decision in this matter, dated 14 January 2003;

2. It has come to the Tribunal's attention that there was a date error in the decision; and

3. The Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act 1975.

NOW THE TRIBUNAL THEREFORE ORDERS

1. That paragraph 91 of the decision reads as follows:

"The tribunal therefore finds that, by the date of the primary decision relevant to application A2001/254, 5 March 2001, the effects of any injury had ceased. The tribunal finds as a consequence that, by 9 March 2001, Comcare was not liable to pay compensation to the applicant under s 14(1) of the Act, as there was no longer any injury causing any incapacity or impairment."

2. That paragraph 93 of the decision reads as follows:

"The tribunal has found that the respondent's decision that the effects of any injury to the applicant stemming from her employment had ceased by 9 March 2001 was the correct or preferable decision and that, as a consequence, the respondent's decision to refuse the applicant's claim for a payment in respect of permanent impairment was the correct or preferable decision. As both of these decisions of the tribunal were unfavourable to the applicant she does not qualify for any costs associated with the applications."

...............[Sgd].........................

Mr M J Sassella

Senior Member

CATCHWORDS

WOKERS' COMPENSATION - anxiety reaction - depressive disorder - whether effects of employment-related disease had ceased - whether employee suffers permanent impairment - whether permanent impairment sounds in compensation

Administrative Decisions (Judicial Review) Act 1977

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("ailment", "disease", "impairment", "injury", "permanent"), 14(1), 24(1)

Casarotto v Australian Postal Corporation (1989) 86 ALR 399

Denison-Smith and Comcare, Re (2000) 64 ALD 180

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

REASONS FOR DECISION

14 January 2003

Mr M J Sassella, Senior Member

APPLICATIONS

1. Application A2001/254[1] is an application by AX03A ("the applicant"), born 10 August 1949, for review by the Administrative Appeals Tribunal ("the tribunal") of a decision by Comcare review officer dated 25 May 2001 (ex TD1/T145). The review officer affirmed a primary decision dated 5 March 2001 (T133). The decision under review involved Comcare ("the respondent") cancelling the applicant's compensation for an episode of reactive depression and anxiety.

2. Application A2001/459[2] is an application by the applicant to the tribunal for review of a decision of a Comcare review officer dated 27 September 2001 (ex TD2/T152) affirming a primary decision dated 3 September 2001 (ex TD2/T149) in which the respondent rejected the applicant's claim for a payment in respect of an alleged permanent impairment in the form of impaired mental focus and concentration and memory, and in respect of slow responses and learning (ex TD2/T147).

HEARING

3. The tribunal convened a hearing in this matter in Canberra which ran for five days between 23 and 29 October 2002. The applicant represented herself. Ms E Ford of counsel represented the respondent. The tribunal heard oral evidence from the applicant, Mr R Nelson, Ms W Powles, Ms D English, Mr A Melican, Ms M Speirs, Dr H V Veness (a psychiatrist) and Dr L Welberry (general practitioner). The tribunal took into evidence and marked the following documents as exhibits:

Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T146) provided by the respondent for application A2001/254.

Exhibit TD2 - Section 37 Statement and associated documents (exhibits T147 - T156) provided by the respondent for application A2001/459.

Exhibit A1 - Papers provided by applicant.

Exhibit A2 - Report by Mr T Sutton, psychologist, 8 May 2000.

Exhibit A3 - Applicant's submission on Professor Goldney's report, undated.

Exhibit A4 - Record of meeting involving Ms M Speirs written by Ms G Allison, 29 March 1995.

Exhibit A5 - File note by Ms M Speirs, dated approximately September 1997.

Exhibit A6 - Record of meeting involving the applicant written by Ms G Allison, 23 March 1995.

Exhibit R1 - Respondent's amended statement of facts and contentions, 3 September 2002.

Exhibit R2 - Report by R D Goldney, Professor of Psychiatry, 28 November 2001.

Exhibit R3 - Report by Professor Goldney, 6 March 2002.

Exhibit R4 - Outline of evidence of Mr A Melican.

Exhibit R5 - Outline of evidence of Ms M Speirs.

Exhibit R6 - Outline of evidence of Ms D English.

Exhibit R7 - Clinical notes of Ms P Williams, psychologist.

Exhibit R8 - Record of meeting involving Mr B Thomas written by Ms G Allison, 28 March 1995.

Exhibit R9 - Record of meeting involving Ms S Hunt written by Ms G Allison, 28 March 1995.

Exhibit R10 - Clinical notes from Davidson Trahaire.

Exhibit R11 - Applicant's recreation leave records.

Exhibit R12 - Clinical notes of Drs Welberry and Warren.

Exhibit R13 - Report by Dr J A Scanlon, psychiatrist, 6 July 1995.

Exhibit R14 - Record of meeting involving Ms D English written by Ms G Allison, 3 April 1995.

Exhibit R15 - Record of meeting involving Mr B Thomas written by Ms G Allison, 28 March 1995.

Exhibit R16 - Document by Mr A Melican, 10 April 1995.

Exhibit R17 - Extracts from diary of Ms M Speirs.

Exhibit R18 - Letter dated 5 March 1996 from Mr N Viney, Manager, OH&S, Australian Taxation Office ("the ATO"), to Comcare.

Exhibit R19 - Comcare determination, 22 December 1994.

Exhibit R20 - Applicant's sick leave records.

4. At the applicant's request the tribunal made the following confidentiality direction in accordance with s 35(2)(aa) of the Administrative Appeals Tribunal Act 1975[3]:

The tribunal prohibits the publication of the name of the applicant in these proceedings.

CHRONOLOGY

5. In applications such as these where a considerable period has elapsed between the events allegedly causing the onset of a disease or injury and the need to make a decision it is generally useful to set out the chronology as it appears from the evidence as a summary to which later reference can be made. Much of this has been drawn from the oral evidence. Where elements of the chronology come from documents these are referred to. The respondent's counsel presented a chronology drawn from the documentation and the respondent's files that was not an exhibit. Some of the detail below emanates from that document.

6. The applicant joined the Australian Public Service on 17 April 1990, apparently in Adelaide and working for the ATO. Her early work history was apparently very satisfactory, as witness Mr R Nelson, who worked with AX03A for three or four months in 1991 attested. Witness Ms W Powles, who worked with AX03A for a little less than a year to mid-1993 also offered a similar assessment.

7. The applicant told the tribunal that she had a good working history. She had been flexible and saw projects through to conclusion.

8. The Child Support Agency ("the CSA") was for a long time administered as part of the ATO. It is now part of the portfolio of Family and Community Services. AX03A was assigned to the CSA at one stage between 1990 and 1994 to handle telephone inquiries and complaints. She did this for about three months.

9. At some time in 1993 AX03A was again brought into the CSA to assist in the implementation of new legislation establishing the Child Support Review Officer scheme. She was transferred from Adelaide to Canberra as of 8 July 1993 (ex A1/24), although remaining on the Adelaide establishment, to prepare the "national procedures".. This work involved an amount of travel. She progressed in Canberra to working on a submission to a Parliamentary committee inquiring into the child support scheme. She also continued her work on procedures and liaison with the Commonwealth Ombudsman's office. AX03A was an Administrative Service Officer ("ASO") 4 acting on higher duties as an ASO 6.

10. By about January 1994 AX03A applied for promotion to an ASO 5 position as a business analyst in the CSA. This was a computer-based job. It involved no client contact. AX03A did not enjoy the work. She was underemployed.

11. In about January 1994 AX03A invested $40,000 to $42,000 in a half share of Lou Lou's Bar and Restaurant in Canberra. She was in partnership with Mr P Bashi.

12. Soon after this, in about February 1994, the Child Support Help Program was being implemented under the leadership of Ms D English. Ms English is currently a director in the ATO, a position just below Senior Executive Service level. AX03A was enlisted to assist in this implementation. Again she acted as an ASO 6. It was expected that she would hold an ASO 6 position indefinitely. The job was to be advertised for permanent filling.

13. While engaged in this work AX03A got the Child Support Registrar's Advisory Panel up and running. This consisted of a group of independent experts who offered advice to the Child Support Registrar who, at that time, was the Commissioner of Taxation. A Deputy Child Support Registrar's Advisory Panel was also established. Deputy Child Support Registrars were scattered around Australia.

14. In July 1994 Lou Lou's Bar and Restaurant was destroyed by fire. There was $50,000 damage, however AX03A was covered for her investment in the property.

15. While also engaged in the above activities AX03A assisted in the formation of a new entity in the CSA, the Client Relations Officer ("CRO"). In evidence reference was made to Client Relations Managers at various points. It emerged that they are the one and same thing. AX03A prepared an initiatives paper on CROs. She arranged for the establishment of the positions. She was then engaged in organising a national conference for CROs. The aim was to establish a "national focus" amongst the CROs. AX03A prepared an agenda for the conference. AX03A said that she would have liked to become a CRO at ASO 6 or Senior Officer Grade ("SOG") C level.

16. In August 1994 Anthony Melican arrived in the area as an ASO 6 acting as a SOG C. He was new to CSA work and AX03A assisted him to get to know the area and its clients. The applicant was also doing some access and equity work with ATO staff.

17. On 13 October 1994 Mr Melican discussed with AX03A whether the CRO conference should be cancelled. Mr Melican and Ms English favoured cancellation. AX03A did not. The Second Commissioner of Taxation was approached to confirm whether cancellation should occur.

18. On 14 October 1994 AX03A consulted her doctor, Dr Warren, about an ear problem. She thought she may have perforated an eardrum. On the same day the Second Commissioner of Taxation agreed that the CRO conference was to be cancelled. Those involved, including the applicant, were notified at 6.00 pm.

19. On 17 October 1994 AX03A saw Mr Melican and told him that she wished to attend the family law conference in Adelaide and to attend to some family issues while in Adelaide. The conference sessions to be attended by AX03A were due to commence the next day, however AX03A was unfit for air travel because of her ear problem. She was unwell and on antibiotics until Wednesday 19 October 1994. She told Mr Melican that she wanted to attend the Adelaide conference on only the Friday (21 October 1994). She proposed staying the weekend in Adelaide and seeing the Adelaide access and equity officer on the next Monday, 24 October 1994. This related to access and equity client profiling. AX03A had begun working on a similar issue in Canberra and the Adelaide officer was some way ahead of Canberra in this work. She was to claim travel allowance for only the Friday and Monday. This would allow her to attend another meeting in Canberra on Thursday 20 October 1994 involving the Client Satisfaction Survey Working Party, a meeting she particularly wanted to attend. She had originally intended asking whether she could return from Adelaide just for this meeting on the Thursday had she attended the full Adelaide conference. There was no response.

20. On 18 October 1994 AX03A saw a counsellor as part of the CSA's Employee Assistance Scheme (ACT) ("EASACT") at the CSA's expense. She contacted Mr Melican later that day and put to him her proposals regarding attendance at the Adelaide conference, the client satisfaction survey meeting and a meeting in Adelaide with the access and equity officer. Mr Melican responded that evening and said he would not approve the trip to Adelaide. He and his director (Ms English) felt that the expenditure would not stand up to scrutiny if later investigated, presumably by a Senate Estimates Committee or by the audit office.

21. On 19 October 1994 the applicant took recreation leave.

22. On 20 October 1994 the applicant drove to Adelaide to attend the last day of the conference, stay the weekend and see the access and equity officer on the next Monday (24 October 1994) (ex A1/71). She sought recreation leave to cover this period. Mr Melican made clear that she was not attending the conference as a delegate of the ATO or CSA. She did not see the access and equity officer. She also missed the client satisfaction survey meeting.

23. On 25 October 1994 AX03A returned to work in Canberra. She saw the personnel section about lodging a grievance. She saw Ms English who gave her the reasons for refusal of permission to attend the Adelaide conference. She did not accept these reasons (ex TD1/T14/57).

24. On 26 October 1994 Mr Melican saw AX03A and asked that she organise some specialist group forums for the CROs. AX03A refused unless she was given better reasons than had been previously offered to explain the cancellation of the CRO conference. On the same day AX03A saw Davidson Trahaire for counselling under the EASACT scheme. She said she wished not to work with Mr Melican (ex R10).

25. On 27 October 1994 AX03A prepared a statement of issues (ex A1/67ff) and gave it to Ms English and Mr K Noonan, the senior executive Branch Head. She told the tribunal that she thought she would be moved from Mr Melican's area. On the same day Mr Melican requested that AX03A meet with him at 1.30 pm in a closed room to get closure on some issues. By this time AX03A was refusing to speak to Mr Melican and was refusing his requests. AX03A said that she wanted to bring a support person to the meeting. She thought the meeting was related to performance appraisal. Mr Melican said that he would want the same opportunity. That meeting did not proceed.

26. On 28 October 1994, before 9.00 am, Mr Melican called AX03A to his work station where he dictated instructions to her regarding what she was to do. Notes of that discussion are at ex A1/75-79. These show that a number of matters were addressed:

* AX03A was to submit flex sheets (work times each day) weekly.

* AX03A was to do work to organise a forum for deputy registrars and portfolio directors from each region and the Customer Support Team ("CST") comprising Ms English and Mr Melican "at this stage".. This was to occur by 25 November 1994. It was to run for one day. The venue could be Melbourne or Canberra. The forum was to gain agreement on national child support priorities and on communication lines for portfolio directors and deputy registrars for regional directions projects. The CST role was to be clarified and agreement reached on CST support for regional customer support outcomes.

* AX03A was to draft a minute for deputy registrars and portfolio directors, clearing it with Mr Melican before sending it. This was due by that afternoon.

* AX03A was to draft another newsletter by close of business Wednesday (ie five days later). This was for CROs.

AX03A told the tribunal she could not comprehend what Mr Melican was telling her. He dictated instructions. She wrote. She said she was "disintegrating". She said to herself that she could not "do this any more". Mr Melican had a conference phone discussion with others at 9.00 am. At 11.30 am AX03A saw personnel and was referred to a doctor to see if she was "stressed". She did not return to work at any time soon after that.

27. On 1 November 1994 AX03A lodged with the CSA a compensation claim (ex TD1/T7). The injury was described as:

"Stress reaction brought on by supervisor behaving like a dictator, taking me off various work projects, telling me I had to be his `secretary' for another conference (after his last attempt at organising a conference failed) and asking me to complete an unrealistic amount of work by 4.30 pm."

This claim went missing until December 1994. AX03A was referred for an opinion by a psychologist, Mr R Schlesinger who reported on 18 December 1994 (ex TD1/T9). On 22 December 1994 the respondent determined that AX03A was to receive compensation (ex R19). Liability was accepted for reactive depression and anxiety and incapacity payments were paid from 31 October 1994 to 9 December 1994, with the possibility of continued payments.

28. On 9 November 1994 AX03A again saw EASACT counsellors.

29. On 15 November 1994 AX03A sought from the CSA a statement of reasons under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") for the decision to rescind approval for AX03A to attend the Adelaide conference and complete a work assignment in Adelaide (ex A1/82).

30. On 20 February 1995 AX03A lodged a grievance in respect of her treatment by Mr Melican on 28 October 1994 (ex TD1/T14). On 5 June 1995 a report was presented by the officer who investigated the grievance (ex TD1/T14). The report concluded that:

"Mr Melican's handling of the meeting with [AX03A] on 28 October 1994 was inappropriate in that he reacted to the stress of the situation, and took on an adversarial role. Mr Melican has stated at interview, that in hindsight, he should have given more consideration to the known stressful factors in [AX03A's] life. He also stated that he had intended to handle the meeting in a more caring manner...."

31. Not much occurs after that, except for visits to doctors and resultant medical reports, until Christmas in 1997 when AX03A embarked on a return to work program. This ran from January 1998 until June 1999. Problems were encountered and recorded as it progressed. The program ceased when it appeared that the CSA could not provide a work environment suitable to AX03A's requirements. These were (ex TD1/T79) a dedicated work station, a consistent, preferably female, supervisor, clearly defined duties within AX03A's knowledge base, no direct work with angry or aggressive clients and no strict deadlines. The CSA's greatest difficulty was providing a dedicated work station "because of the structure of their organization" (ex TD1/T80). In oral evidence AX03A attributed the cessation of the return to work at the CSA to the CSA's failure to offer her an ongoing position and suggestions that were made there that she be retired on invalidity.

32. A return to work was later negotiated with the Women's Electoral Lobby. She lasted here only a couple of weeks. AX03A saw this as a very disorganised office. She assisted in a fund-raising book launch.

LEGAL PRINCIPLES

33. In order to qualify for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act")[4] AX03A must have suffered an injury as defined in s 4(1) of the Act:

injury means:

(a) a disease suffered by an employee; or

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

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

employment;

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

34. In AX03A's case her claim for reactive depression and anxiety was accepted. This was and is a disease. It must therefore be an injury in the nature of a compensable disease as defined in s 4(1) of the Act if AX03A is to receive compensation:

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

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

35. Section 4(1) of the Act defines an ailment as:

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

36. So far as compensation for permanent impairment is concerned, for compensation to be paid there must be an impairment as defined in s 4(1) of the Act:

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;

37. Such impairment must be permanent, as defined in s 4(1), ie it must be "likely to continue indefinitely". In accordance with s 24(1) of the Act, to be compensable, a permanent impairment must result from an injury (as defined in the Act) to the employee.

38. It was the respondent's case that the applicant suffers from a depressive illness. The issue was what had caused it. It was accepted that AX03A has a 10% permanent impairment but the issue in that context was whether that was the result of an injury as defined in the Act.

39. On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Corporation (1989) 86 ALR 399, 412-413:

"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression `onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.

"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:

`Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:

"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."

"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."

40. In plain terms this means that there is a practical onus on Comcare in these proceedings. Comcare had accepted that AX03A sustained an injury in accordance with the Act. It then decided that the effects of that injury had ceased. As Comcare acted to affect the status quo position, which had been operative for over six years, it is, in a practical sense, necessary for the tribunal to find itself satisfied that Comcare's cease effects decision was the correct or preferable decision in the circumstances as now known to the tribunal if the decisions under review are to be affirmed by the tribunal.

41. The primary decision that the effects had ceased was made on the following bases (ex TD1/T133):

* Dr Y Skinner, a psychiatrist, had reported (ex TD1/T103) that the incident involving Mr Melican on 28 October 1994 may have caused some distress but AX03A would have recovered from that but for her involvement in activities and groups that caused her to become introspective and make changes in her thinking and life style.

* Dr Skinner's view that AX03A's condition was due to an underlying personality disorder aggravated by her focus on memories of alleged childhood abuse and life style issues.

* Dr Skinner's view that any contribution from employment had ceased and AX03A's condition as at 11 August 2000 was unrelated to her employment.

* Disturbing memories of AX03A's childhood, allegedly refreshed as a result of her confrontation with Mr Melican, appeared from Dr Welberry's report of 22 January 1997 (ex TD1/T45) not to have emerged until January 1995, some two months after the Melican incident.

42. The delegate wrote, "I have no doubt that you did have an episode of stress in connection with your employment, however I am not satisfied that your current condition relates to the incident in October 1994".

43. The review officer in her reasons for the reviewable decision (ex TD1/T145) took a similar approach. She wrote, "Whilst I do not dispute that the employee suffered an episode of anxiety and stress following the altercation with her supervisor in 1994, I am not satisfied that the effects of that compensable condition continue, that is that her current condition is no longer attributable to the incident in 1994". She accepted Dr Skinner's opinion that the condition from which AX03A was suffering was related to her underlying personality.

THE APPLICANT'S CASE

44. The applicant's case was based on a number of events, mainly included in the earlier chronology, and the effects she considered these had on her psychological health. The alleged events raised in oral argument[5] by the applicant were:

* When Mr Melican joined the area in which AX03A worked she ceased receiving by email certain circular and other information she had previously received and forwarded to CROs. Apparently this material was directed instead to Mr Melican who did not pass it on. When she raised the issue with Mr Melican he invited her to access his email system directly, a suggestion AX03A found disquieting. She did not like the idea of rifling through another person's email.

* Cancellation of the CRO conference very close to the date when it was due to commence. AX03A had liaised with a number of interstate attendees who had had to make special arrangements for child care, etc. It was embarrassing to her, and disrupting for them, to hear from AX03A that the conference had been cancelled. AX03A considered that she had been told that the conference was cancelled for political reasons. She said that she was unaware of these political reasons and this compromised her in explaining the cancellation to affected persons. She saw the cancellation as reflecting adversely on the work she had done in organising the conference but was unable to identify where her efforts had been deficient.

* An office move whereby the CSA was shifting from Canberra suburb, Bruce, to Belconnen. The date of this move has always been unclear to the tribunal. However, AX03A presented it as occurring at about the same time as the cancellation of the conference and in the week prior to the family law conference, although when pressed she was uncertain that this was the case. AX03A habitually took flex leave on every second Friday. On one of these Fridays the area was to be packed ready for removalists to convey staff members' personal and official effects to Belconnen over the weekend. The work area expected this to be complete by Friday lunchtime. They were given the Friday afternoon off work and had arranged a barbecue lunch for which all had paid money. AX03A completed her packing on the Thursday afternoon and intended having the Friday off on flex leave. She had not contributed for the lunch. Mr Melican, however, is said to have revoked the flex leave and required AX03A to attend work on the Friday. He is said to have told AX03A that if she did not report for work it would appear to be because the operational area did not receive its desired seating allocation at Belconnen. He was said to have said that if AX03A did not report to work on the Friday it would count against her. AX03A took this as a threat.

* Mr Melican's revocation of his approval for AX03A to attend the Adelaide family law conference.

* The discussion AX03A had with Mr Melican on 28 October 1994 which led her to understand that she was taken off projects she was then doing and had been removed from the CST. That conversation caused her also to believe that Mr Melican was unhappy with her work performance and had not followed correct procedures if that were so. AX03A felt that requiring her to submit weekly flex sheets was a questioning of her integrity over flex leave.

* Once AX03A left work on 28 October 1994 there was no further communication with her from her workplace.

* AX03A had seen several senior officers about the problems she had with Mr Melican but nothing eventuated to resolve the issues.

* The requirement that AX03A repeat to numerous people the stressful events that had occurred at the CSA in October 1994 caused an escalation in her symptoms notably by the end of January 1995.

* An alleged delay in resolution of AX03A's compensation claim meant that the chance for a quick resolution of the matter was lost.

45. AX03A then said that these events brought the following consequences:

* Mr Melican's actions in allegedly cutting AX03A out of the information chain, and management's failure to address the issue, caused AX03A to feel threatened in her work tasks and career which she regarded as closely tied to her identity.

* Mr Melican's alleged removal of AX03A from the CST and the cessation of her projects by Mr Melican caused her sufficient stress for her to lodge a claim for stress leave.

* The tribunal has already noted AX03A's view that repetition of her account of events in 1994-1995 escalated her symptoms.

* In 1994-1995 AX03A found her brain "not functioning" and she could not do what she had previously been able to do.

* The stress reaction to the events of October 1994 was possibly worse than might be expected because a deprived childhood meant she was more vulnerable to stress than other people.

* Cancellation of the CRO conference had a profound effect on AX03A. She was committed to the conference as a response to the needs of the CROs. She was not included in the decision to cancel the conference. AX03A said that, by ignoring her input to the decision, her contribution was devalued in the team. She felt she was shut out because she could not be trusted with the truth. Her sense of self was eroded. Her sense of failure prevented her from starting on anything new. She could not start organising another conference or the proposed forums because she felt she had failed in the organisation of the cancelled conference but did not know how and why she had failed. She feared failing a second time.

* With the events of 28 October 1994 AX03A "lost hope of being considered a valued and respected worker and disintegrated into extreme stress". AX03A was confused, unable to think clearly or understand what was said to her.

* The workplace incident on 28 October 1994 caused the onset of severe depression. The depression was bad in November and December 1994 and may have worsened in January 1995. She said that the "unresolved severe work stress resulted in [her] needing therapy for" post-traumatic stress disorder and the post-traumatic stress disorder resulted in intrusive issues of childhood abuse which had not disturbed her before the incident in 1994. She said on 29 October 2002:

"In summary, my pre-existing personality structure may have been vulnerable to attack due to childhood issues, but it was not fragmented. I was not regressed and I was not depressed, prior to October 1994. It was the incident with Anthony that triggered the deep depression which worsened because of a lack of any quick resolution."

THE RESPONDENT'S CASE

46. The respondent's case was presented in the alternative.. It was submitted that AX03A suffered no injury in the workplace and that her psychiatric condition developed after she left the workplace. Alternatively, if the condition did develop in the workplace it was because AX03A had been denied a benefit and there would be no "injury" in accordance with the definition of "injury" in s 4(1) of the Act. Implicit in these submissions was the suggestion that Comcare should never have admitted liability in December 1994. However, there was said to be no intention to recover any compensation previously paid, should the respondent succeed in these proceedings.

47. The respondent argued that there were signs from early 1994 that AX03A was becoming unhappy in her work or was developing a depressive illness. The respondent pointed to the amount of leave taken before October 1994 (ex R11, R20):

* April 1994: 7 days sick leave and 9 days recreation leave.

* June 1994: 6 days sick leave.

* July 1994: 4 days recreation leave and 12 days recreation leave.

* August 1994: 2 days miscellaneous leave and 3 days recreation leave.

48. The respondent pointed to clinical notes from Dr Welberry, Dr Warren and Davidson Trahaire.

49. From Dr Welberry (ex R12) on 7 June 1994 it is clear that AX03A had problems with pre-menstrual tension ("PMT") with mention made of irritability, anger and anxiety. On 28 June 1994 Dr J Warren (ex R12), a general practitioner, was told by AX03A that she had experienced five to seven days of pre-menstrual depression and irritability. She had "actually broken (in rage) a lot of things in her house a couple of months ago so feels needs to do something".

50. From Davidson Trahaire (ex R10) the applicant was reporting on 19 October 1994 that the burning down of Lou Lou's in July 1994 had perpetuated frustration at work. She was feeling lost and unsatisfied at work. The notes stated that other issues surfaced, eg a decision on her home in Adelaide. AX03A was said to be feeling unmotivated and not giving as much at work, especially since January 1994. She was feeling lost and less focussed in life. She had recently moved offices and was "unhappy with this". It was resolved that AX03A would try and go to the Adelaide conference and try and make decisions regarding her home "this weekend"..

51. The respondent referred also to evidence from Mr B Thomas who was in control of the "legislative change" project in the CSA in 1994. He provided a statement as part of the grievance process in 1995 (ex R8). Among other things he said that AX03A had been unhappy with the direction the legislative change team was taking prior to Mr Melican joining the team. The problem was said to be that the applicant's thoughts were not consistent with those of senior management. She did not think the team was sufficiently oriented to client service. Because of her dissatisfaction with the direction, the applicant had applied for a job at Woden Valley Hospital. Mr Thomas said that the applicant had been confident of being appointed to the position at the hospital and when this did not eventuate she was extremely disappointed.

52. Psychologist Paula Zohn assessed the applicant between 10 and 19 December 1994 for an initial needs assessment connected with the claim for work-related stress. On 20 December 1994 Ms Zohn provided a report (ex A1/30) in which, among other things, she wrote that, while AX03A stated that the onset of her work-related stress did not occur until October 1994, the condition was quite critical and suggested a heightened level of stress for a longer period of time. She said that the changes and isolation imposed on AX03A in relocating to Canberra might have contributed to her present condition.

53. The respondent argued that AX03A had previously handled stressful positions and that her reactions to the cancellation of the CRO conference and the revocation of approval to attend the Adelaide conference were indicative of a developing illness or dissatisfaction with the workplace.

54. The respondent commended to the tribunal such contemporaneous documentary evidence as preferable to the applicant's evidence in which she presented all of her problems as work-related when there was evidence of several pre-existing personal stresses. These were:

* The loss by fire of her bar and restaurant business in July 1994.

* Stresses related to the applicant's relationship with Mr Bashi. Ms Ford, for the respondent, described this as a de facto relationship. She was understood to be supporting Mr Bashi financially while he sought to requalify as a doctor (oral evidence from Mr Melican). AX03A's children were understood to disapprove of this arrangement (per Ms S Hunt, ex R9).

* Financial pressures. In ex R8 Mr Thomas referred to AX03A's quest to maximise the rate of her housing allowance during 1994. He spoke of the applicant having "financial concerns". Dr J Nathar (a psychiatrist) took a history in April 1995 from the applicant in which she said that she had some financial difficulties with a mortgage to pay in Adelaide and rent to pay in Canberra (ex TD1/T11). Reference has been made already to AX03A's intention to see to issues relating to her house while in Adelaide for the family law conference.

55. The respondent suggested that these stresses could have impacted on a vulnerability apparent since the time of certain psychiatric admissions involving AX03A in the late 1970s.

56. The respondent then proceeded to construct a case for there being no employment injury because of the impact of AX03A's failure to obtain an employment benefit. Ms Ford submitted that the operative work event was not the cancellation of the CRO conference. It was the revocation of approval for the trip to Adelaide. Ms Ford cited "eight grounds ... upon which [she] submit[ted] that the operative event was the Adelaide conference". These, as presented by Ms Ford, were:

(a) In the document AX03A wrote on or about 26 October 1994 (ex A1/67) a depth of feeling at not being allowed to attend the Adelaide conference was revealed. This was in accord with evidence from Mr Melican that he saw a change in the relationship he had with the applicant on 19 October 1994 when he told her of that decision. At ex A1/72 it was clear that AX03A had by 26 October resolved that she did not want to work with Mr Melican any longer.

(b) The request for reasons under the ADJR Act (ex A1/82) applied only to the reasons for cancellation of the Adelaide approval.

(c) When AX03A saw psychologist Richard Schlesinger in December 1994 she referred him to the ADJR request for information about her problem (ex TD1/T9).

(d) When AX03A saw Davidson Trahaire on 9 November 1994 (ex R10) she said that she intended not returning to work until the "original issue ... SOGSC [sic] trying to stop [AX03A] from attending conference" was addressed. There was nothing about the cancellation of the CRO conference and only a very slight and vague reference to the disagreement with Mr Melican on 28 October 1994. This was equally true of the Davidson Trahaire notes from AX03A's consultations on 19 and 26 October 1994.

(e) When AX03A returned from Adelaide to work on 25 October 1994 she immediately sought advice on lodging a grievance.

(f) AX03A's cross-examination of Mr Melican related to the revocation of approval of the Adelaide conference. She did not raise the meeting between them that occurred on 28 October 1994.

(g) When AX03A saw Dr Warren on 31 October 1994 Dr Warren quoted her as saying that she wanted "to go on stress leave on Comcare" (ex R12). While she mentioned to Dr Warren the cancellation of the CRO conference, she cited the revocation of the Adelaide conference approval as the cause of her seeing Davidson Trahaire. There was no mention of AX03A's meeting with Mr Melican on 28 October 1994. Ms Ford saw the reference to going on stress leave as a Comcare case as AX03A's solution to her problem of avoiding working again with Mr Melican.

(h) Psychologist Paula Zohn's report (ex A1/30) dated 20 December 1994 recorded the applicant referring to both the cancellation of the CRO conference and the revocation of the Adelaide approval. However, she did not refer in any meaningful sense to the meeting with Mr Melican on 28 October 1994 and identified the start of the decline in her relationship with Mr Melican as following the Adelaide event.

(i) [Ms Ford actually cited nine grounds for the proposition that it was the Adelaide conference controversy that was the source of the problems between AX03A and Mr Melican.] The final ground stems from clinical notes by Ms P Williams (ex R7) dated 2 February 1995 in which AX03A described Mr Melican as obstructionist. There was criticism of Mr Melican but nothing about the meeting on 28 October 1994 or about cancellation of the CRO conference.

57. Ms Ford observed that AX03A became very angry with Mr Melican when he refused to allow her to attend the Adelaide conference at CSA expense. She pointed to the following actions by AX03A in that regard:

* She sought advice about lodging a grievance.

* She wrote a memorandum to senior management (ex A1/67) in which she said, among other things, that she no longer wished to work with Mr Melican (ibid 72).

* She saw Davidson Trahaire on 26 October 1994 and 9 November 1994 (ex R10) and told them she intended lodging a grievance with a view to be free of working with Mr Melican. Later she said that she did not intend returning to work until the revocation of approval to attend the family law conference was addressed.

* She saw Dr Welberry on 11 November 1994 (ex R12) and told Dr Welberry that she felt she could not work with Mr Melican.

* On 15 November 1994 AX03A lodged a request for reasons for the decision to revoke approval for attendance at the family law conference (ex A1/82).

58. Ms Ford submitted that, although the applicant was angry as at 31 October 1994, she was not suffering an injury or disease within the meaning of the Act. In cross-examination on 23 October 2002 the applicant stated that if Ms English had told her on 31 October 1994 that Mr Melican had been moved from the area she would have returned to work there. She had continued her activities outside work such as gym classes and studying Arabic. Psychologist Ms P Gray recorded (ex TD1/T70/182) that the applicant said she was not "defeated" when she left work in October 1994. She believed the situation could be worked out. She said she had wanted a "good result". She wanted to return to work.

59. The applicant said that her condition deteriorated into depression as she began to feel abandoned by her colleagues and as she did not find work elsewhere. Ms Ford submitted that the depressive disorder had its onset in December 1994 when she was prescribed Prozac on either 7 or 17 December (ex R12).

60. Ms Ford submitted that the development of a disease during an absence from the workplace, because AX03A did not receive an offer of work where Mr Melican was not her supervisor, was not compensable. First, this is because the disease did not arise out of what the applicant was employed to do. Ms Ford cited Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641-642 as authority. The relevant passage was from the single judgment by Windeyer J:

"I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment ? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. 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. In this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs. The incident directed, or re-directed, her hypochondriacal attention to her abdominal muscles. But said the appellant, all that it did was to focus her existing delusional tendencies in a particular way : it was a cause of her condition only in the sense that it acted as a precipitant. That may be true : nevertheless, Doctor Ellard agreed that `something obviously happened in December to her to cause a change in her way of life'.."

61. Second, the applicant had failed to obtain a benefit in connection with her employment and so any consequence of that failure was not an injury in accordance with the definition of "injury" in the Act.

62. Ms Ford finalised by submitting that the applicant did not suffer an injury or disease within the meaning of the Act as a result of her employment. Her depressive illness manifested weeks after the applicant left her employment and for reasons unrelated to the work she had been employed to do, or the conditions in which it was performed. So far as permanent impairment was concerned, the impairment did not result from an injury within the meaning of the Act.

THE OTHER EVIDENCE

63. Thus far the tribunal emphasis has been on the applicant's own evidence and that drawn from certain documents relied on by the respondent. The tribunal heard from seven witnesses. Mr R Nelson had worked with the applicant for three or four months in 1991 and had much positive to say about her effectiveness and approach to her work.

64. Ms W Powles works for the CSA in Perth. She worked with the applicant in 1992 through to mid-1993. Her impressions of the applicant's work were also very favourable.

65. Ms D English provided information on the reasons for the cancellation of the CRO conference and revocation of approval to attend the family law conference. Ms English was on leave in July and August 1994 when the CSA executive was established. This consisted of Regional Deputy Registrars in the CSA's branch offices. When Ms English returned from leave it was obvious that, because of the new regional approach in the CSA, there was a missing link in the structure of the proposed CRO conference. This was the link between the national client service approach, headed by Ms English, and the regional approach directed by CSA SES officers scattered around the country. It was decided that it was necessary to work on getting the approaches unified before a conference such as that planned could go ahead. There was a need to hold forums that would provide issues to be fed into the CSA's planning for the next year. It was decided that these forums would be held and the applicant was asked to organise them. Ms English was at pains to emphasise that there was no defect in the applicant's performance that led to the decision to cancel the conference. Ms English recalled a meeting attended by herself, AX03A, Mr Melican and a conference facilitator, Mr Ron West at which the problems concerning the conference getting the go-ahead were ventilated. The purport of this evidence was that AX03A should have understood the reasons for the cancellation. The tribunal notes, however, that AX03A told the tribunal that she did not attend that meeting.

66. As regards the family law conference, it was considered that the cost involved in sending the applicant to a conference for only the final day in her own home town could not be justified if the matter were raised at a Senate Estimates Committee.

67. In cross-examination AX03A established that by February 1996 Ms English was on record as not keen to see AX03A return to work in her section.

68. Mr A Melican gave evidence. He considered that he had explained to AX03A the reasons for cancelling the CRO conference. He was surprised if the applicant was hesitant to ask questions if she did not understand the reasons or disagreed with them. He always found her forthright and ready to question. He considered that he and the applicant had a good work relationship until the Adelaide conference issue arose. He agreed that the cancellation of the CRO conference affected his relationship with AX03A adversely but he felt they had got through that. He had seen the Adelaide conference as the bigger issue.

69. Mr Melican had suggested that he and AX03A meet on 27 October to reconcile differences and talk issues through. He agreed that the meeting was cancelled because of AX03A's wish to involve a third party. He conceded at the tribunal hearing that it would have been preferable if he had proceeded with the meeting regardless.

70. Mr Melican called the applicant to his work station on 28 October 1994. He wanted to clarify what needed to be done to organise the required meetings and to be directive. He was conscious that it was "two weeks since the [CRO] conference had been cancelled".. Mr Melican said that he did not raise his voice to AX03A at that meeting. He did not lose his temper or use bad language. He conceded that he was blunt and terse. He recalled that AX03A became distressed, cried and left. He said he regretted that outcome.

71. Mr Melican had not intended to convey that AX03A was no longer a member of the CST when he spoke to her on 28 October 1994.

72. Mr Melican in cross-examination agreed that AX03A's private life did not interfere with her work.

73. Ms M Speirs worked in CSA personnel when AX03A had her difficulties. Ms Speirs had referred to mediations to try and resolve the issues. Mention was made of these in ex R5. AX03A was involved only late in the piece. Mr Noonan, the CSA branch head, had been trying to get mediation going between the applicant and others. The witness recollected that Mr Noonan was keen to see mediation. Ms English was on leave and not involved. Mr Melican had a positive attitude. AX03A was absent on sick leave.

74. Ms Speirs recalled some delay in the processing of the applicant's compensation claim flowing from a delayed supervisor's report.

75. Ms Speirs was reported in ex R5 as saying that return to work was attempted "heaps of times" in AX03A's case but she could not explain the basis for this in her evidence. She was also reported to understand that the applicant had to work with no male closer than 20 metres from her. She could not recall where this information came from but it could have been at a preliminary meeting on return to work. In ex TD1/T98/255 reference is made to AX03A having to work with "no male workers nearby".

76. In cross-examination AX03A accused the witness of vindictiveness in her statements. Ms Speirs denied this and said she was only saying what occurred as she recalls it.

77. Dr Welberry gave evidence. She discussed PMT in the main and saw the applicant's symptoms as typical.

78. Dr H V Veness (the psychiatrist) had provided four reports (ex TD1/T89, T90, T104 and T143). He first saw the applicant early in 2000. He had accepted the history she gave which emphasised the cancellation of the CRO conference as the primary cause of her problems. He was inclined to minimise the evidence of AX03A's admissions to mental hospitals in the 1970s. He said admission to such hospitals was common then where an individual had any sort of coping problem.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

79. The tribunal accepted the evidence from AX03A and other witnesses that AX03A was for many years a most valuable worker in the ATO and the CSA. Indeed, even in 1994 when there is considerable evidence adverted to above in paragraphs 47-53 that matters were beginning to go wrong for AX03A, Mr Melican found her to be a good worker. The tribunal readily accepted the applicant's own evidence that she had long been a keen and flexible worker. Her presentation at the hearing was impressive especially for a person unused to such legal proceedings.

80. The tribunal sees considerable force in Ms Ford's argument that AX03A's actions after the revocation of approval of the Adelaide conference and the effects of that revocation emanated from disappointment at failure to obtain a benefit in employment and were, therefore, not compensable. However, in the tribunal's view, much depends on the findings appropriate to the cancellation of the CRO conference. Ms Ford argued that this had little impact on AX03A. Her actions in protest related almost exclusively to the cancellation of the Adelaide conference approval. AX03A responded to this argument during the hearing in terms to be addressed below. Regardless of AX03A's response at the hearing, there is evidence that in the period between the cancellation of the CRO conference and Mr Melican's encounter with AX03A on 28 October 1994 her work, or work attitude, previously very satisfactory, had become unsatisfactory. That was why Mr Melican conducted the session on 28 October 1994 in the way he did.

81. Ms Ford also relied on evidence that AX03A was upset and depressed by a number of events, disappointments and health issues during 1994 and argued that these, rather than events at work, were responsible for AX03A's anxiety and depression. Again, the tribunal sees quite some force in this argument but the tribunal is aware that s 4(1) of the Act, in relation to a disease, requires only that the employee's employment contributed in a material degree to the employee's ailment or its aggravation. Thus, even if the factors extraneous to AX03A's employment were a cause of her anxiety and depression, her employment could still have contributed in a material degree to the ailment.

82. AX03A's most prejudicial evidence was her answer in cross-examination in which she said that she would have returned to work soon after 28 October 1994 if she did not have to work with Mr Melican. Ms Ford understandably presented this as evidence that AX03A was fit for work at that time. This would mean that Comcare was not liable to pay compensation to AX03A. Section 14(1) of the Act is the basic provision that establishes when an injury may be compensable under the Act. Section 14(1) reads:

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. (Tribunal's underlining)

83. The tribunal notes the following evidence regarding the impact on the applicant of the cancellation of the CRO conference and her meeting with Mr Melican on 28 October 1994, the crucial matter as she saw it:

* In the document prepared on 27 October 1994 for senior officers (ex A1/67) AX03A said that he was "quite distressed" when the CRO conference was cancelled. She said she was "further distressed" when contacted by people affected by the conference cancellation.

* AX03A's compensation claim on 1 November 1994 (ex TD1/T7) referred to the cancellation of the CRO conference and aspects of her meeting with Mr Melican as two of the factors leading to her "stress reaction" (ex TD1/T7/16). Ms English noted mention of cancellation of the CRO conference in an accident report of uncertain date (ex TD1/T8/23).

* On 18 December 1994 psychologist Richard Schlesinger provided a report (ex TD1/T9) favourable to the applicant's case. However, it was based on a history from AX03A that concentrated on the revocation of permission to attend the Adelaide conference.

* On 20 December 1994 Ms Zohn's report (ex A1/30) recorded that AX03A attributed the onset of her work-related stress to incidents surrounding the organisation of a conference to be held in Canberra in October 1994. At short notice the conference was cancelled. AX03A had to field complaints from intending delegates. She did not know the full reason for the cancellation and was embarrassed in dealing with the delegates. "She outlined other events and confused communications with her supervisor which occurred in respect to her proposed attendance at a conference to be held in Adelaide at around the same time".. It is fair to say that there is some contemporaneous evidence in this document suggesting that the cancellation of the CRO conference was a cause of any depressive condition. There was nothing in this report concerning AX03A's meeting with Mr Melican.

* On 28 April 1995 Dr J Nathar saw the applicant (ex TD1/T11). He took a history in which reference was made to the cancellation of the CRO conference. However, the tenor of references to that cancellation - it was offered only as an example of an increasingly unhappy work situation - did not suggest that it was a cause of a depressive condition. Indeed, Dr Nathar diagnosed generalised anxiety disorder with panic agoraphobic type symptoms and reactive depression. He saw a personality disorder with passive aggressive features. He did not detect an underlying psychiatric condition that was aggravated by employment factors. AX03A was not reported as having told Dr Nathar anything about the meeting with Mr Melican on 28 October 1994. Dr Nathar thought that was the day of AX03A's earache.

* On 4 June 1995 AX03A wrote to the respondent (ex TD1/T13) when asked to show cause why her compensation should not be stopped that the injury she "suffered at work was to be treated like a child by my supervisor when he had made a number of poor judgements in regard to his own work. He took out his aggression on me and took me off all my work assignments and told me I was no longer part of the client service team. ... He refused to have the meeting with an independent witness present".. This referred to events that occurred between 26 and 28 October 1994 and not to the cancellation of the CRO conference and there was no mention of the meeting with Mr Melican on 28 October 1994.

84. The tribunal does not see much purpose in assessing the contemporaneous evidence from the later period. The further in time that the evidence is from the date of the relevant events the more likely it is to be unreliable. The tribunal has not replicated the earlier material cited by Ms Ford (see paragraph 56 above) indicating that it was only following the Adelaide conference controversy that matters worsened for AX03A. Ms Ford, of course, in paragraph 59 above, pressed that the depressive disorder had its onset only in December 1994.

85. AX03A responded to Ms Ford's submissions. Her response included the following matters not previously raised, or not raised in the same way by the applicant:

* The incident with Mr Melican on 28 October 1994 was the event that produced her breakdown.

* Cancellation of the CRO conference had a "profound effect" on AX03A. It was her project before Mr Melican joined the section. It was necessary for the CROs.

* She was not included in the meeting involving the CRO conference facilitator, Mr West. Had she been her views might have been heard. Her input was ignored.

* She was frustrated by Mr Melican's delay in informing her of the outcome of her request to go to the Adelaide conference for a single day.

* She mentioned the impact of the cancellation of the CRO conference on her when she consulted Davidson Trahaire, even though it is not in their notes.

* She had referred to the Adelaide conference as the crucial event rather than the CRO conference because it was "easier to face the anger around an event where [she had] behaved badly than to face the underlying fear around an event over which [she] had no control".

* She pursued the reasons for revocation of the approval to attend the Adelaide conference because it was the "safest" thing to pursue. The CRO conference was too painful to pursue. She could not see why she had been shut out and why her work with CROs had been a failure. She did not understand why she had been ejected from the CST.

* She thought it safe to assume that she was not going to be told anything more about the reason for cancellation of the CRO conference so she focussed on the Adelaide conference issue.

* Her private life did not impinge on her work life. She took leave due to her to attend to the aftermath of the fire at Lou Lou's. She recovered her investment in the restaurant. She remained friendly with Mr Bashi.

* She said that she worked well with Mr Melican up until about 18 October 1994.

* The workplace incident on 28 October 1994 caused a severe onset of depression. It only grew worse in later months.

86. From AX03A's own evidence she accepted that her working relationship with Mr Melican was effective until 18 October 1994, the day when he told her that she could not attend the Adelaide conference on behalf of the CSA. Her evidence was also that the precipitating cause of her depression was the meeting with Mr Melican on 28 October 1994. As with the issue of the cancellation of the CRO conference, there was little or no reference to the meeting with Mr Melican on 28 October 1994 in AX03A's sessions with counsellors, psychologists and doctors.

87. The tribunal finds from this that the most likely scenario was that the revocation of the applicant's approval to attend the family law conference in Adelaide was the first employment-related incident that upset the applicant sufficiently to affect in a deleterious way her relationship with Mr Melican. The tribunal relies for this finding on the applicant's own evidence that the working relationship with Mr Melican broke down only on 18 October 1994 and that it was the altercation with him on 28 October 1994 that was most traumatic. The tribunal was, in the light of this evidence, and the material in paragraphs 56 and 83 above, not inclined to accept the applicant's evidence that the cancellation of the CRO conference was as devastating as the applicant suggested. The tribunal finds, for reasons set out below, that the applicant did not suffer from a depressive disorder at this time.

88. The tribunal finds, however, that the applicant suffered from a stress reaction by at least 31 October 1994, if not earlier, at least in part because of her dealings at work with Mr Melican. The tribunal relies on the contemporaneous clinical notes of Dr Warren (ex R12). However, the tribunal finds that this stress reaction ceased soon after 31 October 1994. The tribunal relies on Dr Warren's medical certificate dated 31 October 1994 (ex TD1/T6) where Dr Warren certified AX03A as unfit for work only until 11 November 1994. The tribunal relies also on AX03A's own evidence that she would have returned to work in November if offered a job away from Mr Melican. Dr Welberry appears from ex R12 to have provided a subsequent medical certificate excusing AX03A from work. However, the certificate was absent from ex TD1 and the clinical notes suggest it was given in response to AX03A's reports that she could not work with Mr Melican.

89. By 25 November 1994 Dr Welberry was certifying AX03A as unfit for work, apparently because she was "depressed" (ex R12). By 29 November 1994 Davidson Trahaire heard from AX03A that she was feeling relatively better and was looking for a new job. By 7 December 1994 Dr Welberry saw AX03A as "very depressed" and she prescribed Prozac. The desirability of a return to work was discussed.

90. The tribunal finds that it can be confident that the applicant's depressive disorder had its onset no earlier than late November or early December 1994 on the basis of this evidence. The tribunal finds that that condition, if associated at all with employment, stemmed from AX03A's disappointment in failing to obtain a benefit from the CSA. Such a benefit would have been either the removal of Mr Melican from the operational area or the location of the applicant in a different operational area in the CSA. As already noted, an injury in the form of a disease suffered as a result of failure by an employee to obtain a benefit in connection with her employment is not a compensable injury under the Act (s 4(1), definition of "injury").

91. The tribunal therefore finds that, by the date of the primary decision relevant to application A2001/254, 5 March 2001, the effects of any injury had ceased. The tribunal finds as a consequence that, by 5 March 2001, Comcare was not liable to pay compensation to the applicant under s 14(1) of the Act, as there was no longer any injury causing any incapacity or impairment.

92. The tribunal finds, in relation to application A2001/459, that the applicant does not qualify for payment of compensation for permanent impairment under s 24 of the Act because such a payment cannot be made where there is no liability under s 14(1) of the Act (Re Denison-Smith and Comcare (2000) 64 ALD 180).

CONCLUSION

93. The tribunal has found that the respondent's decision that the effects of any injury to the applicant stemming from her employment had ceased by 5 March 2001 was the correct or preferable decision and that, as a consequence, the respondent's decision to refuse the applicant's claim for a payment in respect of permanent impairment was the correct or preferable decision. As both of these decisions of the tribunal were unfavourable to the applicant she does not qualify for any costs associated with the applications.

DECISIONS

94. The decisions under review are affirmed. The applicant is entitled to no costs associated with the applications.

I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

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

Associate

Dates of hearing 23, 24, 25, 28 and 29 October 2002

Date of decision 14 January 2003

Counsel for the applicant Self-represented

Counsel for the respondent Ms E Ford

Solicitor for the respondent Sparke Helmore Solicitors

[1] The Section 37 Statement and associated documents for this application are ex TD1.

[2] The Section 37 Statement and associated documents for this application are ex TD2.

[3] http://www.austlii.edu.au/au/legis/cth/consol_act/aata1975323/.

[4] http://www.austlii.edu.au/au/legis/cth/consol_act/sraca1988368/.

[5] The tribunal wishes to emphasise that the material in paragraphs 44 and 45 reproduce the applicant's views. They are not factual findings or necessarily endorsed as accurate by the tribunal. The tribunal's assessment will appear in the findings on material questions of fact below.