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ZDHG and Comcare (Compensation) [2019] AATA 5028 (28 November 2019)

Last Updated: 29 November 2019

ZDHG and Comcare (Compensation) [2019] AATA 5028 (28 November 2019)

Division: GENERAL DIVISION

File Number: 2017/7018

Re: ZDHG

APPLICANT

And Comcare

RESPONDENT

DECISION

Tribunal: Mrs J C Kelly, Senior Member

Date: 28 November 2019

Place: Sydney

The reviewable decision is affirmed.

.............................[SGD]...........................................

Mrs J C Kelly, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Applicant employed by the Australian Federal Police –Applicant served in domestic and international deployments between 2007 and 2014 – Applicant accepted voluntary redundancy in August 2014 - whether Applicant suffers from PTSD which was significantly contributed to by employment with Australian Federal Police - consideration of contemporaneous evidence – Applicant’s medical evidence post voluntary redundancy fails to adequately consider contemporaneous evidence of the Applicant’s employment with Australian Federal Police – reviewable decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14

REASONS FOR DECISION


Mrs J C Kelly, Senior Member


28 November 2019

Reviewable decision

  1. On 14 August 2017 the Applicant completed a form seeking compensation for psychiatric injury caused by the nature and conditions of his employment with the Australian Federal Police (AFP) between 2007 and his voluntary redundancy (VR) taking effect on 29 August 2014. On 27 October 2017, Comcare (the Respondent) denied liability for post traumatic stress disorder (PTSD) That decision was affirmed on 23 November 2017. The Applicant has applied for review of the 23 November 2017 decision (the reviewable decision).
  2. On 13 August 2018, the Tribunal dismissed five related proceedings following written notification that the Applicant wanted to withdraw them.

The issues

  1. There is no dispute that the Applicant suffers from a mental ailment. Diagnoses differ.
  2. The Applicant’s position was that he suffers from PTSD which was contributed to, to a significant degree, by his employment by the AFP.
  3. The Respondent’s case is that the Applicant suffers from a different condition, major depressive disorder.
  4. On the final day of hearing, in written submission, the Applicant’s counsel had sought to broaden the argument to include any mental ailment, and not just PTSD. The Respondent had conceded that the Applicant suffered a mental ailment based on the claim for PTSD. The Applicant’s case was confined to the claim for PTSD.

The legislation

  1. The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).

Background

  1. The Applicant was born in 1963. He served in a state police force from 1998 to early 2007 when he joined the AFP. He served in the International Deployment Group (IDG). The deployments relevant to this decision were:
  2. The Applicant described traumatic incidents and conditions he had experienced during his service in south-east Asia, Australia, North Africa, and the Pacific, which he contended had caused his mental ailment.
  3. During the arrest of a violent offender in Australia in early 2009, the Applicant suffered physical injuries for which the Respondent accepted liability (the 2009 incident). The Respondent denied liability for PTSD as a result of that incident. The Applicant was attacked by dogs while restraining the offender.
  4. During his deployment in the Pacific in 2014, the Applicant claimed that he was grabbed on the buttock by a colleague on 22 March 2014 while in a group listening to a visiting dignitary’s speech (the 2014 incident). The Respondent accepted liability for adjustment reaction with anxious mood (unspecified) and later determined that the Applicant had no present entitlement to compensation under sections 16, 19 and 29 of the SRC Act. The Applicant complained about the toxic culture among his colleagues during that deployment.

The contemporaneous evidence from entry into the AFP until the offer of VR

  1. Following is a summary of the contemporaneous evidence from when the Applicant entered the AFP until he was offered VR on 5 May 2014.
  2. AFP Wellbeing Services provided records from 14 August 2007 to 31 August 2015 that included several psychological assessment forms, psychological debriefs and case notes.
  3. In the documents relating to the psychological debrief dated 14 September 2008, completed after his first deployment, the Applicant attributed “moderate stress” to behaviour of “other mbrs!!” and “separation from family and friends”. He categorised other stressors as causing “no stress” or “slight stress”. The psychologist recorded the Applicant’s motivation for deployment as:
    1. Joined to get to (Mediterranean country)
    2. Overseas work
    3. Premier police service
  4. The desire to be deployed to the Mediterranean country was repeated in the form, including that his family could go and his motivation for joining the police was seeing police deploy to that country when he was younger. Skills he considered had increased included “cultural appreciation – lots of nations involved”.
  5. The notes in relation to negatives of deployment listed:
    1. behaviour of others – cultural insensitivity!
      1. - inappropriate behaviour
    2. Inappropriate actions
    3. AFP hierarchy – DET 16
  6. The psychologist noted that the Applicant was quite disappointed at the behaviour of other contingent members and spent time talking about it but did not wish to give names or specific details. His wife had sought counselling but had not been contacted but the family was doing well. The Applicant had returned home every seven to eight weeks. He also repeated that the Applicant “would love to get (the Mediterranean country)”.
  7. The psychologist’s notes concluded:
Time taken today to allow his concerns with other mbrs to be expressed – as well as reviewed 2 personal incidents that he recalled. NAD now though.
  1. “NAD” is understood to be an abbreviation of “no abnormality detected”. One of the incidents referred to was the death of a small child from snakebite. The child was the same age as the Applicant’s son.
  2. A clinical note from the Applicant’s then general practitioner (GP) dated 16 September 2008 stated:
12/12 stint (in the south-east Asian country) arrived 4/7 ago
6/52 ago palpitations when low K+ ;had cardiac Ix – all neg ;short term Rx with b blocker /K+ ;also felt presyncopal at time similar presyncope today at restaurant – came here ;some feeling anxiety
Some vague GIT Sx -took giardia RX recently
poss anxiety discussed tho says (deployment) positive;
... ventilated poss anxiety – open to possibility –see pm
  1. The Applicant filled out a “Major Stressors” form following his deployment in Australia which ended in April 2009. He nominated that “dog, mob attack, mental person appreh” as a moderate stress. That incident occurred on 9 February 2009. He filled out an Incident Details form. In a “PCL-C” form, the Applicant indicated the dog attack and ticked the boxes indicating “a little bit” in response to questions about having repeated, disturbing memories, thoughts or images of a stressful experience from the past and avoiding thinking about or talking about a stressful experience. He also mentioned the dog attack on the “TSES-R” form in relation to exposure to contagious disease and being in danger of being injured and noted “have moved on”. In the psychology in confidence report, it was noted that the Applicant did not feel supported by the “ops manager” but appreciated contact from a psychologist. The Applicant’s physical injuries were recorded. Notes included:
Rehab process was hard
Did get cranky/frustrated
Disappointed AFP didn’t realise what happened or provide spt?!
Time taken discussing POE/CI and (operation) management or lack of
No acknowledgement/recognition/AFP support
  1. In February 2009, an IDG psychologist emailed the Applicant to touch base after hearing of the dog attack. The Applicant responded that he was soldiering on, had a lot of bruising, referred to his knee injury in detail, including advice he had received from a nurse.
  2. In March 2009, while at home recovering from his injuries, the Applicant was advised of another deployment beginning on 22 October 2009. He responded that he would not accept it:
As you are aware I have been in regular contact since October 2007 seeking an opportunity to serve in (the Mediterranean country) and have provided reasons for this. I have actually done everything but beg.
My family circumstances are paramount to me. I have three young children and have not seen much of them the last couple of years. ...
My wife supports my next deployment being (the Mediterranean country). ...
The selection process for (the Mediterranean country) and others baffles me. I am aware of two single junior members who I served with in (south-east Asia) being selected. One who stated he did not seek selection. Another member who is off on the next (Mediterranean country) deployment made very clear to me he did not want to go.
Could you please advise why my expression of interest for (the Mediterranean country) has been so summarily dismissed and ignored. I now know it has nothing to do with a members CV or Policing experience.
I complete my (2009 operation) deployment in August and again ask that I be considered for the November (Mediterranean country) deployment.
  1. Clinical notes from the medical practice he was attending in May to July 2009 show the following.
  2. The documentation in relation to his psychological condition following his deployment to North Africa included the following:
  3. The Applicant’s next deployment was for two weeks in early 2011 assisting in a major natural disaster overseas. The documents he filled out relating to psychological wellbeing indicated no adverse psychological responses. He indicated he did not experience any distressing memories, thoughts or images about any other major event that has happened. The psychologist recorded that initially “site/patrols” did impact on the Applicant and he had sad thoughts, especially as he has kids, and even got briefly a tear in his eye listening to international teams.
  4. The Applicant was deployed to the Mediterranean country from 15 May 2011 to 15 May 2012. The only negative reported to the psychologist after he returned was a foot injury which was “annoying but resolving”. He indicated that he found no event traumatic during that deployment. The psychologist noted:
  5. Clinical notes from the medical practice the Applicant attended when at home show that:
  6. The Applicant was cleared by a psychologist for deployment to the Pacific from 21 December 2013 for 52 weeks. He underwent a debrief after 12 weeks, signing a confidentiality and consent on 11 March 2014. He filled out a “Demands of this Deployment” form in which he indicated that there was “a lot of stress” from the behaviour of others “attitude” and from the threat of danger “ongoing”. He indicated that there was “moderate stress” from: risk of unauthorised discharge of weapons; risk of vehicle accidents; isolation from Australia; separation from family and friends “ongoing”; frustration generally “members inaction; the AFP lack of concern with deployed members; AFP hierarchy “didn’t care” and leadership and length of deployment “reward for effort”.
  7. In a “Recent Experiences” form, the Applicant indicated that he had been bothered “moderately" in the past few months by repeated disturbing memories, thoughts or images of a stressful experience from the past; by repeated, disturbing dreams of a stressful experience from the past; suddenly acting or feeling as if a stressful experience from the past was happening again as if you were reliving it and feeling very upset when something reminded you of a stressful experience from the past.
  8. The notes of the psychologist are difficult to decipher in parts. The Applicant found the deployment work deplorable but the living conditions fine. He was told “don’t like it leave”. The negatives of the deployment were the attitudes and prejudices. He was uncertain whether he would deploy again. He saw his next role in the “IDG; dog handling”. His long term plans were to stay in the IDG but he may opt out. He was not sure whether his family would support another deployment.
  9. The psychologist’s comments included:
  10. The Applicant blamed a colleague (C) who was behind him who had a smirk on his face for the 2014 incident. A couple of days later he complained to C about what happened and C replied “Oh you would love it.”
  11. The Applicant consulted a GP while on home leave between 15 April 2014 and 1 May 2014. There is no reference to any symptoms of a mental ailment in the clinical notes.
  12. The evidence, including the statement of C, shows that the Applicant’s son visited him on mission after the 2014 incident and before 5 May 2014.

Contemporaneous evidence from offer of VR until VR took effect

  1. A letter from the AFP to Comcare dated 4 November 2014 states that on 5 May 2014, the AFP requested expressions of interest for a limited number of VRs across the whole AFP workforce and that expressing an interest in a VR did not compel any individual to accept a redundancy nor did it compel the AFP to offer one.
  2. On 24 May 2014, AFP Wellbeing Services received an email from the Applicant requesting an interview. The interview was held on 11 June 2014. The following is based on the welfare officer’s (WO) file note of that date. The referral was about an alleged assault in the workplace. The Applicant reported that three people in mission had returned home who should have been handled differently. Management had let them down. He talked about approaching his then team leader about his racist comments to local police during the first month of the mission. He reported “general and ethnical (sic) problems” with some members of the mission. He does not have a lot of confidence in the mission leadership “due to the double standards” and has been trying to move on, including from the 2014 incident which he described. He said that when he jumped, the dignitary turned to look at him, as did another AFP member. It caused him significant embarrassment because of what happened and that it occurred in front of the dignitary. He recounted an exchange with the alleged culprit a few days later in front of another AFP member. When the Applicant said that he did not “like clowns pinching my arse”, the alleged culprit said “you like it, you love it”. The Applicant described another incident in an Australian territory where the alleged culprit behaved inappropriately and anecdotal reports of his sexist comments. The Applicant expressed concern about bringing up anything as it would not be dealt with properly, although he was finding it difficult to move on. The WO and the Applicant discussed options for reporting the matter. He was not comfortable with reporting through his team leader (TL1) or through CRAMS (Complaints Records and Management System) but consented to record/discuss with the Confidant Network (CN). The WO was very supportive of the Applicant. She contacted the CN and liaised with the Applicant about contacting the CN four times in June.
  3. On 24 June 2014, the Applicant consulted the same GP as in May 2014. The clinical notes state:
social r/v
- long discussion. complex work situation. physically/emotionally/mentally demanding
- works for AFP in peacekeeping/educational role in (Pacific country)
- workforce offered voluntary redundancy, pt considering option
  1. On 26 June 2014, the Applicant again consulted the GP. Her notes show that there was a social and mental health review and that the Applicant had decided to take VR. She repeated his current work circumstances as before and recorded:
ethical issues regard workplace morals/culture (sexism/racism/homophobia), in process of alerting senior officers to the fact
re-deployed ... this Sunday, looking forward to returning (no avoidance)
no hypervigilance (more so than job requires)
previous PTSD few years ago
– life threatening situation resulting in many physical injuries while on the job
– psychologist involved at time
feels mood currently is “very good” and “positive”
affect: reactive, congruent with mood
has started seeing psychologist betsy lilley prophylactically
- discussed value of this given change in work status and high pressure occuptation (sic)
plan:
referral psychologist
  1. In response to an email from the WO on 3 July 2014, the Applicant sent her an email in which he stated that he had been going through hell deciding on the VR offer and that it had helped a lot knowing that she was “genuinely providing support”.
  2. Later that day, the Applicant spoke to the WO. He told her that he was apprehensive about talking to the CN and had been thinking hard and discussing taking a VR. He discussed his shame and embarrassment about the 2014 incident and said that he had been avoiding C and cringes when he sees C.
  3. On 8 July 2014, the WO sent an email to a member of the CN. She wrote that the Applicant had decided to leave the organisation and advised that he felt comfortable reporting to his team leader.
  4. The following is based on diary notes of an AFP inspector (TL2) who was the team leader of C and C.
  5. On 9 July 2014, the Applicant approached TL2, told him about the incident, that he was shocked by it, and that when he spoke to C later, C did not take it seriously. The Applicant said that he wanted to sit down with TL2, C, and TL1.
  6. On 11 July 2014, the four men met. C did not recall grabbing the Applicant but said that if he had done such a thing it would only have been as a joke and in fun and if he did do it, which he could not remember at all, he gave the Applicant an unconditional apology. He and the Applicant shook hands. TL2 observed that it appeared to be an amicable parting and C left the room.
  7. TL1 and TL2 then had a conversation with the Applicant about his welfare. It appeared to TL2 that the Applicant was on the verge of tears. As the Applicant indicated that he wished to consider what, if anything, he wished to do about the incident, no further action was taken. He was advised if he wished to take action, the inspectors were obliged to act. He was advised about the reporting process.
  8. In his statement about the incident, C stated the following. He knew the Applicant from previous deployments and believed they had a good relationship. He recounted two conversations with the Applicant after the 2014 incident when the issue was not referred to and the Applicant appeared normal. There was an overt and obvious change in the Applicant’s behaviour for the four to six weeks leading up to the meeting on 11 July 2014.
  9. On 13 July 2014, the Applicant sent an email to the WO about the meeting on 11 July 2014 in which he said:
  10. TL2, who participated in the 11 July 2014 meeting, spoke to the Applicant on 21 July 2014 “predominantly as a welfare check”. The Applicant said that he was OK and did not wish to take any action in mission about the matter as he did not wish to risk being sent home as a result. When asked what he meant, the Applicant said that others had been sent home already. He became quite emotional and reiterated details of the incident and said that he could not watch the dignitary on television without thinking of the incident. He said that he was contemplating what action he might take on his return to Australia several weeks later when his VR became effective. Accordingly, no further action was taken. TL2 had concerns about the Applicant’s mental state and advised TL1 soon after. From that time, until he left the mission, it was noticeable that the Applicant refused to speak to or make eye contact with TL2 again.
  11. On 20 July 2014, the Applicant submitted his notification of cessation of employment which nominated 29 August 2014 as his last date of work.
  12. On 6 August 2014, the Applicant sent the WO an email in which he said he had two weeks to go and was struggling. He detailed his dissatisfaction with his “bosses” treatment of him, including TL2, and C grabbing another member’s genitals.
  13. On 13 August 2014, the WO made a file note about the Applicant’s request for assistance with early EOM. It repeated the Applicant’s dissatisfaction with management, including that there had been no acknowledgment that the 2014 incident had been a criminal offence and that he had advised that he was “experiencing triggers” every day.
  14. On 13 August 2014, the Applicant consulted a doctor in the city where his mission was located. The doctor’s records included:
Grieve and stress
Patient describes mood symptoms since last February (22/02/2014). Initial symptomatology after inappropriate behaviour from one of his colleagues. Since then he has been struggli (sic) .. episodes. Patient complains that after these episodes, he cannot feel relief or comfortable ongoing and he is not able to manage properly anymore.
...
Diagnosis: Moderate stress Episode.
  1. On the same day, the Applicant was approved to leave the mission early and was given a medical certificate for the period 14 August – 19 August 2014 before commencing “EA” recreation leave and his VR. The diagnosis given in the medical certificate was “Chronic stress episodes”. An email dated 13 August 2014 from the Office Manager in the Pacific country to HR-Advisory-Team-IDG stated that the week before, the Applicant had requested to bring forward his EOM to 19 August 2014.
  2. The Applicant returned to Australia on 14 August 2014.
  3. On 21 August 2014, the Applicant consulted a different GP in the same practice he had attended in May and June. The appointment was about establishing a mental health care plan “Anxiety”.
  4. The Applicant reported the 22 March 2014 incident to an AFP WHS advisor on 27 August 2014 at 07:36 am. He described the incident and wrote that he turned and saw the colleague look at him “with a big childish grin” and the incident caused him “extreme humiliation and stress”.
  5. The following is based on emails and file notes made by the WO.
  6. On 29 August 2014, the Applicant left a message and sent a text asking the WO to contact him “ASAP”. In his email, the Applicant wrote:
...
I have attached a copy of my incident report.
I have been struggling with the fact I am leaving today. I would love a stay of execution as such on the VR.
Even a week would be ideal to get my head in the right place and see the psychologist I mentioned to you and my GP which I have an apt with on Monday.
I also have Comcare forms to fill out and lodge which I will probably need assistance from (X) to complete with the right required info.
I touched base with the staff here at HR and they advised that (Y) was in charge of the VR team and he had mentioned Sep was the cut off for round 1.
I know it is a biggie but would it be possible to touch base with the VR team and see if a short extension was available to me due to the stress involved with dealing with this incident?
I will accept a rejection of request if it goes that way and take the VR but an extension would have given me a little more time to deal with the aftermath of returning from (the Pacific).
The incident did influence my decision to accept VR, and although will more than likely accept, I would just like to have those appts out of the way first and see their advice.
  1. The WO spoke to the person in charge of the VR team and advised the Applicant what he would have to do if he wished to withdraw his VR. If there were wellbeing reasons for the request, that would be considered. He would have to apply that day as it was his last day. If his request was approved he would not be offered another VR in the current process. A short extension was not possible as his last day was that day. The Applicant decided not to proceed and requested the WO to advise the person in charge of the VR team, which she did. She recorded:
(The Applicant) was unable to answer calls earlier because he was with the Sydney Office Manager for his farewell and this was an extremely positive experience in contrast to the (Pacific) Cmdr.
  1. The WO recorded that the Applicant’s wife was very supportive of the VR and if he was single he would not have requested the VR.

Post VR evidence

  1. On 16 September 2014, the Applicant consulted the same GP he had on 1 and 4 September 2014. On this occasion, the clinical notes recorded under the heading “Problem”:
qworkers (sic) compensation
- incident march 2014 of assault by fellow officer ...
- found this humiliating
- stress +++
- -hx PTSD
(see previous entries)
Plan
psychologist
of work 2 weeks
  1. In a letter dated 12 April 2016, that GP stated that she first reviewed the Applicant with symptoms consistent with PTSD “since September 2014”. She wrote that he also “meets the diagnosis of adjustment disorder with anxiety symptoms” and the “diagnosis (sic)” “are active to date”.
  2. The following information was provided in the Applicant’s claim for workers’ compensation received on 5 November 2014. The claim was for “anxiety (PTSD?)” which he first noticed on 22 March 2014 relating to the 2014 incident. He first sought treatment on 26 June 2014 from his general practitioner and was referred to Ms Betsy Lilley, psychologist, for treatment. He had had counselling. The Applicant stated that he had had similar symptoms, “PTSD”, “relating to violent arrest resulting in shoulder, knee surgery ... 2010”. He had been treated by Ms Lilley. The Applicant stated that “the offending members response and the failure of AFP leadership group to address, acknowledge and act on complaint” actually injured him.
  3. On 20 November 2014, Dr Sanders, general practitioner, saw the Applicant for a routine post-deployment medical examination. She was at a different practice in a different city from the other GPs referred to above. She noted in her referral letter that during examination, he was highly agitated, had intrusive thoughts, was dreaming and having flashbacks of incidents on deployment and was concerned that he had PTSD. She wrote:
I believe comcare have arranged a psychiatric appointment for him in December relating to a previous incident (claimed accepted) in 2010. He is now having more symptoms relating to his (Pacific) deployment this year.
  1. Dr Sanders noted that the Applicant was seeing a psychologist.
  2. On 15 December 2014, Dr Sanders referred the Applicant to Dr Brian White, psychiatrist, “for review” urgently. She had seen the Applicant “for a routine post-deployment medical”. She was concerned that he has PTSD and “is rapidly deteriorating”. She recorded his long history of work with the AFP, including multiple overseas deployments and his history of PTSD, diagnosed in 2010 by a psychologist, following the event in 2009. She noted the 2014 incident and that the Applicant felt unsupported by his boss:
Since returning he has had great difficulty re-integrating. He is having flashbacks, nightmares and difficulty sleeping. I referred him to his GP for further management and he tells me he has started medications,... He has symptoms of hyperarousal. He tells me he has suicidal thoughts but would not act on them because of the impact it would have on his family. (The Applicant) goes on to tell me that if he was alone then things would be different.
He has left the AFP and is working in NSW, separated from his family.
  1. Ms Lilley prepared a report dated 24 December 2014 in relation to a compensation claim setting out her treatment of the Applicant which included the following. His then GP referred the Applicant to her on 6 July 2009 with anxiety and depression plus post traumatic stress symptoms. She saw the Applicant weekly for seven sessions. He re-contacted her and attended on 26 April 2014 following an incident of reported sexual assault by a colleague in the Pacific deployment during the visit of a dignitary. After describing the 2009 incident, Ms Lilley wrote:
The task of securing the man pushed (the Applicant) to the limit of his physical capacity. He had never previously been confronted by doubts about his physical capacity in the line of work and this, together with the attacking dogs resulted in a significant post trauma reaction. He reported that his immediate superiors made light of the incident and his injuries and he was not granted leave for treatment until 2 weeks later.
  1. She recorded that the 2014 incident caused:
a startle response and acute embarrassment. He said that when he reported the incident he again found that the incident was minimized and no support was provided.
  1. Ms Lilley set out the symptoms the Applicant reported in 2009. Her opinion was that they were all diagnostic criteria for PTSD.
  2. The Applicant told her the following about the 2014 incident:
As a result of the current incident he reported feeling ‘empty and out of it’ struggles with anger management and sleeping and experiencing a loss of identity. ‘If I’m not a policeman, who am I?”
  1. She wrote that those symptoms are also included in the diagnostic criteria:
I am not aware of any pre-existing or underlying conditions suffered by (the Applicant) or predisposing factors. As reported to me (the Applicant) enjoyed reasonable health and very much enjoyed aspect and challenges of his career.
I believe the response to the sexual assault incident is an aggravation of the 2009 incident as the effects of trauma can be cumulative such that once such an episode has occurred there is a heightened risk of subsequent post traumatic reactions even to events that may have been handled in the past.
...
The Applicant) will need ongoing therapy for his post traumatic disorder, adjustment to civilian life, anxiety and depression.
I am happy to continue to see (the Applicant) and expect him to respond well to treatment. Depending on how quickly he finds new employment he may need as few as 6 appointments, but rather more if he is unsuccessful gaining work.
  1. The Respondent tendered Ms Lilley’s clinical notes for consultations on 22 October 2014, 5 November 2014 and 18 March 2015. The note apparently made on 5 November 2014, included:
Ruminating ++
Do best for family
...
Always wanted to do this, defines self x role
Should be leaving (with) pride but disappointed that it’s like this.
“That was me.” “It hurts to walk away.”
Feel empty (with)out it.
“Feel I’ve been robbed”.
  1. Comcare referred the Applicant to Dr Takyar, consultant psychiatrist who prepared a report dated 8 January 2015. It related to the claim for “anxiety/PTSD?” arising from the 2014 incident. During the assessment, the Applicant said that the 2009 incident was relevant, related it in detail and reported subsequently developing several months of various symptoms and being diagnosed with PTSD by a psychologist whom he saw roughly six times:
However, following this period, he was able to go on various deployments ...
  1. The Applicant also related the 2014 incident, including the inadequate response of his team leader:
(The Applicant) reported a change in his mental state “straight after” the incident and reported that his mental state was its worst point during the meeting in July 2014.
  1. The Applicant recounted his symptoms.
  2. In Dr Takyar’s opinion, the Applicant presented with a history of adjustment disorder with mixed anxiety and depressed mood, as per the DMS-IV-TR criteria. He noted the previous history of PTSD “though these symptoms appear to have resolved through treatment at the time”.
Clinically identifiable symptoms appeared to have occurred after the incident (in March 2014) and were worsened after a meeting in July 2014....
His condition is a new condition, unrelated to the previous post-traumatic stress disorder.
  1. Dr Takyar recommended that the Applicant continue to see a psychologist, should be referred for cognitive behavioural therapy, and that the antidepressant should continue at the same dosage.
  2. Dr Brian White, psychiatrist, first saw the Applicant on 7 February 2015 and again on 16 March 2015, and wrote to Dr Sanders after both appointments. He diagnosed chronic PTSD with associated anxiety and depression based on trauma and distress from the 2009 and 2014 experiences. He recommended that the Applicant continue to see Ms Lilley and adjusted the Applicant’s medication.
  3. On 4 March 2015, the Applicant told his GP that he was seeing the psychiatrist for review the next week and was keen to return to the police force at some stage but realised that it may not be possible depending on PTSD treatment/resolution.
  4. Associate Professor Paoletti, psychiatrist, saw the Applicant at the request of his solicitor and prepared a report dated 8 July 2015. The Applicant told the doctor:
  5. Associate Professor Paoletti’s opinion was that the Applicant suffers from PTSD with associated anxiety and depression to which his employment with the AFP was a significant contributing factor.
  6. On 1 August 2015, Dr Brian White sent a letter requesting admission for the Applicant for the PTSD programme at a private hospital:
More recently he was very distressed with experiences in (2009) and (2014). Some aspects of this were traumatic and others rather distressing. These have produced persistent anxiety and depression. I also consider that he has a chronic PTSD.
...
He continues to have intrusive distressing memories, particularly of a boy who died in (the 2007-2008 deployment). He still has recurrent nightmares about incidents in his police service.
  1. Dr Brian White saw the Applicant again on 18 March 2016 and wrote a report to the GP. He noted that the Applicant had quite severe and persistent anxiety. His primary diagnosis was chronic PTSD due to experiences in the AFP, the most salient being the 2009 incident. He noted that Comcare had not accepted PTSD but had accepted Adjustment Disorder with Anxiety, which he did not consider to be the primary condition, but accepted that the Applicant met the criteria for that condition:
due to stresses of his employment with the AFP. This was caused by traumatic and stressful experiences during his service as a policeman in the AFP.
...
The issue of the exact diagnosis is an obfuscation and a way of not accepting appropriate liability.
  1. Dr Brian White noted that the Applicant had lost two jobs in recent months due to his poor concentration, anxiety and agitation, had a casual job that was not sustainable, and was seeking other employment. He considered that he was unfit for any full time employment, but needed the income.
  2. On 16 May 2016 the Applicant had completed a form claiming an injury of PTSD suffered in the 2009 incident. He nominated 22 March 2014 as the date he first noticed symptoms of the injury. On 8 June 2016 he signed a Workers Compensation Claim Form for PTSD caused by several incidents, “the most salient being on 9 February 2009”; he first noticed symptoms on 6 February 2009. These forms relate to proceedings 2016/5923 which were withdrawn.
  3. On 2 August 2016, Dr Brian White reported to the Applicant’s GP. He maintained his primary diagnosis of chronic PTSD due to experiences in the AFP; the Applicant also had adjustment disorder with anxiety.
  4. Dr Derek Lovell assessed the Applicant at the request of the Respondent on 9 August 2016 and wrote a report dated 25 August 2016. At that time, the Applicant had finished a two-month position that he disliked due to pressure and the work demands being too fast paced. He had commenced restricted work delivering bread and process serving upon his GP’s advice. Dr Lovell recorded a history including the 2009 and 2014 incidents, treatment by Ms Lilley after 2009 and her comment in her report dated 24 December 2014 that he had responded well to treatment and was able to return to work.
  5. Dr Lovell reported that the Applicant returned to Australia on leave in April/May 2014 and spoke to his wife about his unhappiness with the workplace culture. She suggested that it was “doing his head in” and that he should get out, however he went back. On his return, he was offered a VR, could not see the conflict resolving, and accepted it. Subsequently, he wished to revoke the VR as he “knew he had made a mistake leaving”, and that upon leaving the AFP, he lost the sense of who he was and still believes that he is nothing without his former work role as he used it to define himself.
  6. Dr Lovell recorded that the Applicant felt anxious when a co-worker at the state government department was attacked by pig dogs. He wished to get into investigations with a private firm and took a job in security but felt it was too much.
  7. Dr Lovell recorded the Applicant’s psychological complaints of interrupted sleep, dreams which he cannot remember, variable energy levels, irritability towards authority figures, and snappy if there are tight deadlines, more easily flustered and less organised, anxious in crowds, awakes feeling disappointed in himself and feels ashamed of not being who he was previously, i.e., an AFP officer. He feels humiliated by the loss of work role. At times he is vague in his concentration. He panicked the night before when he received a renewal notice with the expiry date which he thought had the wrong month. He feels anxious around vicious dogs. He intervened in a domestic dispute at McDonald’s but felt distressed after doing so.
  8. The Applicant was receiving counselling from Ms Lilley, attending Dr Brian White once a month, and taking medication.
  9. Dr Lovell reviewed filed records including reports of Dr Brian White and Dr Takyar, and the following:
  10. Dr Lovell disagreed with Ms Lilley’s opinion that the 2014 incident aggravated his 2009 symptoms of trauma. In his opinion, the Applicant’s current symptoms were a result of loss of role identity. He accepted that the Applicant fulfilled the criteria for PSTD after the 2009 incident and recorded that the Applicant attended counselling after suffering a panic attack, was vague as to the duration of his symptoms, but recovered and subsequently had a number of overseas deployments and functioned well without need for further treatment.
  11. Dr Lovell disagreed with the diagnoses of Dr Takyar and Dr Brian White. In his opinion, the major stress was the Applicant’s decision to leave the AFP and take VR, and the loss of job role which had been a way of maintaining his identity and self-esteem. The Applicant wished to rescind the VR. It seemed likely that the Applicant had developed major depression as a result of this loss. He had had difficulties establishing a vocational path. There were symptoms of anxiety which are comorbid which do not represent PTSD; there is phobic avoidance of dogs, and:
His mental state shows no avoidance about talking in great detail about both incidents and is not consistent with a presentation of (PTSD).
  1. Dr Brian White wrote a report dated 31 August 2016 at the request of the Applicant’s then solicitor. He saw the Applicant on 1 August 2016. He maintained his primary diagnosis of chronic PTSD due to experiences in the AFP and Adjustment Disorder with Anxiety. He recorded symptoms including poor, restless sleep, hitting out, waking soaked in sweat, distressing nightmares the content of which he cannot recall within a short period of time, difficulty maintaining activities of daily living and recurrent thoughts of suicide, although no active plans. The Applicant was “struggling and trying to maintain some employment but he is still very erratic. He has poor concentration, is forgetful and irritable and gets into arguments with people”.
  2. Dr Brian White recommended that he continue to see Ms Lilley and needed more regular follow up with a psychiatrist nearer to where he lived. He recommended adjustment to his medication and, in the longer term, a specific PTSD inpatient programme.
  3. Dr Victoria Kim, consultant psychiatrist began treating the Applicant. Her first report is to the GP and dated 10 October 2016. She recorded a seven year history of a number of mood and anxiety symptoms indicative of PTSD and a number of incidents, including that of 2009. The Applicant complained of lack of support after each incident and that he was not in a good frame of mind to make a right decision in 2014 when he took VR. He reported feeling let down by the culture in the job with the NSW Government. He tried two other jobs. Dr Kim commented:
It sounds like his ongoing hyper vigilance, marked cognitive impairment and difficulty managing his emotions stopped him from performing well at work. A number of failures in the recent job trials seems to have severely impacted on his self-confidence too.
  1. Dr Kim noted that the Applicant described feeling very proud of working as a police officer and serving his country and was very keen to go back to a meaningful job. She could sense his frustration about his inability to do so. She diagnosed PTSD. They discussed the Applicant doing a three week inpatient psycho-education program about traumas, PTSD, and coping strategies.
  2. On 21 October 2016 Dr Kim saw the Applicant again and sent a report of that date to his GP and a copy to Comcare. He presented very distressed, bursting into tears and breaking down a couple of time. He said that a former colleague from the south-east Asia deployment had suicided. He could mirror himself in a lot of what his colleague went through.
We had a lengthy discussion on what he was going through at the time of his voluntary redundancy. He states that he didn’t know what he struggled with was post-traumatic stress disorder and he thought that he didn’t want to go on sick leave at the time although the doctor who he saw was concerned about his mental state then.
  1. Dr Kim reviewed the Applicant on three occasions in November 2016. Dr Kim reported to the GP and Comcare that the Applicant presented scattered and incoherent on 3 November 2016, having presented the previous day in crisis, and told her that he was not coping due to panic attacks. He was trying to provide financially for his family over Christmas but the job made him extremely anxious, frustrated and angry. By 10 November 2016 the Applicant was ‘a bit more settled’. Dr Kim described that his symptoms had significantly impacted on his social functioning and relationship with his family. The Applicant was apprehensive about the conciliation with Comcare on 16 November 2016. On 23 November 2016, Dr Kim noted that the Applicant going into fight or flight mode by any perceived danger is a hallmark of PTSD. The Applicant had been isolating himself. She recommended an inpatient PTSD program, followed up by outpatient trauma focused work.
  2. The Applicant saw  Dr Gregory White , consultant psychiatrist on 24 November 2016 at the request of his solicitors. The doctor prepared a report the same day. When asked the reason for attending, the Applicant said:
It’s about someone not listening to us about PTSD.. I’ve had it since 2009 ...
  1. The Applicant provided a history of then being deployed to North Africa, of not being himself, being fragile, having nightmares and taking VR because of the 2014 incident.
Since 2014, (the Applicant) had been “a mess ... I hadn’t been well at any stage since 2009, and I haven’t been well since”.
  1.  Dr Gregory White  said that the Applicant described symptoms of PTSD and anxiety and depression and acknowledged that he had been known for longstanding tendencies to orderliness and perfectionism. The Applicant denied significant long-term anxiety, instability of mood, impulsivity, antisocial behaviour, anger management, problems with self-esteem issues.
  2.  Dr Gregory White  diagnosed (1) PTSD and (2) adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder. In his opinion, the main contributing circumstance to the Applicant’s conditions were the 2009 incident, other traumatic events during deployments and the 2014 incident. His diagnosis (2) was for practical purposes the same as adjustment reaction with anxious mood albeit with the additional acknowledgment of low mood.
  3.  Dr Gregory White  agreed with the opinions of treating psychiatrist, Dr Brian White. He criticised Dr Lovell’s opinion on the following grounds:
  4. On 12 December 2016 the Respondent decided that the Applicant had no present entitlement to compensation in respect of adjustment reaction with anxious mood, which was affirmed on reconsideration on 24 January 2017.
  5. Dr Kim reviewed the applicant on 27 January 2017, 3 February 2017 and 19 May 2017, during this period Dr Kim recorded that the Applicant:
  6. Associate Professor Michael Robertson wrote a report dated 23 August 2017 at the request of the Applicant’s solicitor, having assessed the Applicant on 21 August 2017. He had been provided with reports from Dr Brian White, Dr Takyar,  Dr Gregory White , Ms Lilley and Dr Lovell. He wrote a further report dated 25 August 2017 in response to questions from the solicitor. Relevantly, he confirmed how the AFP service contributed to a significant degree to the development of the psychological condition.
  7. The Applicant told Associate Professor Robertson about incidents during his service in the state police force and AFP deployments. In addition to the deployments set out at the beginning of this decision, the Applicant said that after 2009, he worked briefly on an island where he was affronted by the “reprehensible government policy” towards asylum seekers. He was tasked with overseeing deportation and subduing riots. On another deployment, the bulk of his work was the retrieval of the remains of victims of a natural disaster. His mental state was buffeted by “the destruction and death”. His canonical memory was of a bulldozer driver who was profoundly distressed upon discovering a body in the rubble. During his deployment in the Mediterranean country, his duties were challenging because of the “pettiness” of police officers in that country.
  8. Associate Professor Robertson’s opinion was that:
  9. In the 23 August 2017 report, Associate Professor Robertson wrote that the cause of the Applicant’s psychological condition was that throughout the course of his service with the AFP, he has been subject to a store of a traumatic stress dating from his initial service in south-east Asia although he reported that he found his period of service in the Pacific (2014) to be the most psychologically toxic. When asked to confirm explicitly that AFP service had contributed to a significant degree to the development of the Applicant’s psychological condition(s), Associate Professor Robertson wrote in his 25 August 2017 report:
(The Applicant’s) service with the AFP represented the vast majority of traumatic stress incidence of relevance to his subsequent mental health problems. Moreover, (the Applicant) only endorsed psychiatric symptoms and demonstrated concomitant impairment of social, occupational and interpersonal functioning during his service with the AFP, in 2009 when it appeared that surgery had precipitated the symptoms.
  1. Associate Professor Robertson’s premise was that the Applicant’s PTSD evolved gradually over a course of many years and therefore there should be some liability apportioned to pre-AFP service, “even though he reports that he did not experience psychological distress at the time he served there”.
  2. On 14 November 2017, Dr Kim reviewed the Applicant and reported to the Applicant’s GP. He had presented calmer and brighter and was hoping to do the inpatient program. He had been in fortnightly contact with Ms Lilley. He had still not taken the medication prescribed for nightmares and flashbacks. He was seeking a medical certificate so he could start a new job. Dr Kim was concerned about inadequate treatment for PTSD.
  3. On 20 November 2017, Ms Lilley prepared a report at the request of the Applicant’s solicitor. The Applicant had re-contacted her in August 2017 due to his continuing distress related to the denial of his claim for PTSD which he believed was because his statement “if I’m not a police officer, what am I?” being misinterpreted and taken out of context by Dr Lovell. She set out detail about her contact in 2009. Her note of the 10 July 2009 appointment was: “Dissociation? but he showed significant symptoms of PTSD.” She wrote that that was the first traumatic incident for which the Applicant had sought help but not his first experience. She quoted Associate Professor Robertson’s “comprehensive” history of trauma exposure and explanation of the cumulative effect of trauma “such that no further explanation is needed here”. She agreed with his opinion. She observed that PTSD is more often managed than resolved completely and can reappear as a result of further exposure to trauma. She believed the 2014 incident and no support from “Command” resulted in the resurgence of PTSD.
  4. Dr Lovell prepared a supplementary report dated 21 February 2018 at the request of Respondent, having been provided with a large volume of documentation which he considered. In his opinion, the Applicant’s symptoms on 9 August 2016 were not of sufficient severity to meet the criteria for PTSD. He commented that the Applicant’s presentation to Dr Kim was quite different from how he presented to Dr Lovell. Similarly, the Applicant’s reports to  Dr Gregory White  of flashbacks twice a week, nightmares involving dogs, startling easily, and being hyper alert were not evident when Dr Lovell saw the Applicant. He agreed with  Dr Gregory White  that individuals react in a myriad of ways but it is usual for PTSD sufferers to avoid talking about traumatic events. He noted that  Dr Gregory White  maintained that the Applicant had not recovered from the 2009 incident. Dr Lovell commented that he had functioned effectively in the workplace, noting Ms Lilley’s opinion in her letter of 1 October 2009 that:
(the Applicant) appears to have made a very good recovery from his traumatic episode at work. He reported no further flashbacks or nightmares and appears not to be overanxious or depressed. (He) reported that he is enjoying life, has a good perspective on work/family priorities and a good understanding of the dangers inherent in his work.
  1. Dr Lovell detailed the symptoms the Applicant provided to Associate Professor Robertson and noted the doctor’s statement that it is possible that the disparities between various independent examinations speak to the fluctuating nature of his PTSD symptoms which have become more pervasive and consistent. Dr Lovell continued:
It also may be possible that given the difficulties he has had in finding employment and his problems adapting to life outside the AFP and his anger regarding not being accepted back that he has focused on symptoms of posttraumatic stress disorder.
  1. In response to Associate Professor Robertson’s comments that Dr Lovell had dismissed the significance of PTSD and over-interpreted the absence of emotional distress at the time of interview which is explicable in terms of dissociative symptoms, Dr Lovell said that there was no history of dissociation.
I believe it is also explicable on the basis of major depression rather than posttraumatic stress disorder.
  1. Dr Lovell prepared a report for the Respondent dated 2 August 2018. It included the following information. He had seen the Applicant the previous day. The Applicant had not worked since April 2017. He had been discharged from a three-week phase one of a PTSD inpatient course on 27 June 2018. The Applicant focused on his 2014 deployment and again indicated that he should not have accepted VR. In a brief report dated 17 October 2018, Dr Lovell corrected a typographical error in relation to VR.
  2. Later in the 2 August 2018 report, Dr Lovell recorded that the Applicant said he does not like police, whom he sees as incompetent, and he had “pined for the AFP” after he left, misses it, but cannot do it. He considered that prior to his 2014 deployment, people looked up to and respected him. He was fit and competent. In addition to the 2014 incident and toxic culture among his colleagues, the Applicant talked about traumatic events including murders, rapes and threats. He recounted his post VR employment history. He related his current psychological complaints.
  3. Dr Lovell’s diagnosis was:
He suffers from a partially treated major depression and an adjustment disorder with anxiety and depressed mood occurring on a background of narcissistic personality traits.
He has been diagnosed with suffering from a (PTSD) and undergone very significant treatment for this condition which has shaped his presentation.
  1. Dr Lovell recommended that his medication be changed to an SNRI (Serotonin–norepinephrine reuptake inhibitor) antidepressant and that he be treated for major depressive disorder. He remained of the view that there was no significant contribution from earlier postings. In his opinion, the most significant contributing difficulties were with the colleague involved in the 2014 incident. The Applicant developed an adjustment disorder. It is likely that when excluded from the group he developed depressive symptoms. He had not altered his earlier opinion.
  2. Dr Lovell observed that the Applicant’s anger has increased with the denial of his claim and ongoing litigation.
  3. Associate Professor Robertson saw the Applicant again on 24 October 2018 and wrote a report dated 25 October 2018. The Applicant reported that:
  4. Associate Professor Robertson reported the Applicant’s physical conditions. On that occasion, the Applicant was dishevelled, unshaven and wore dirty clothes. Associate Professor Robertson’s diagnosis was that the Applicant suffers chronic PTSD with prominent dissociative symptoms as described in the previous consultation. He stated that there were some depressive symptoms, although PTSD is the primary disorder.
  5. He disagreed with Dr Lovell’s assessment of the Applicant’s narcissism and accepted that “there is a modicum of depressive symptoms evident”. He considered that Dr Lovell had minimised the degree of disturbance arising from PTSD disorder, which Dr Lovell appears to cast as “either a form of contagion from fellow patients or the influence of treating clinicians, or abnormal illness behaviour reinforced by treatment”. Associate Professor Robertson pointed to the inconsistency between Dr Lovell’s re-assessment of the Applicant’s presentation and the observations of other assessments, and in particular a series of observations by clinicians in the course of his treatment. He did comment:
This seems to be an instance of reasonable minds differing.
  1. In his opinion, there was partial attribution to the Applicant’s service in the state police force but the majority to his AFP service.
  2. Dr Kim reviewed the Applicant on an urgent basis on 11 December 2018. He was shocked by the suicide of a former colleague a few days before. He was not sure if he could focus on the inpatient program that he was to be admitted to the day before. He reported that he had suffered a panic attack on the way to the appointment after helping an elderly man who was very unwell. Dr Kim wrote that that was a good example of his current state and how his PTSD has impacted on his functioning. She strongly disagreed with Dr Lovell’s comment about narcissistic personality traits. In her opinion, the Applicant meets the full diagnostic criteria for PTSD and associated depression and high level of anxiety in the context of his AFP service and lack of support there.

Consideration

  1. The overwhelming body of post VR medical evidence supports a finding that the appropriate diagnosis is PTSD and that it was caused by the various traumatic incidents the Applicant reported had occurred while on various deployments, including in 2009. Associate Professor Robertson, who supported that opinion, gave oral evidence. He maintained his opinion.
  2. That evidence fails to adequately consider the contemporaneous evidence from the Applicant’s first deployment until his VR took effect.
  3. Ms Lilley’s evidence was that he recovered from the 2009 PTSD symptoms. He worked thereafter without further symptoms, including on several overseas deployments. He consulted Ms Lilley in 2014 after the 2014 incident and in relation to the offer of VR, which suggests that if he had needed professional psychological assistance after 2009 he would have sought it, and he found making the VR decision very difficult. He also sought the assistance of his GP in relation to making that decision, which reinforces the latter finding. He tried to withdraw his acceptance of VR and has repeatedly stated in various ways that he regretted his decision. He has said if he had been single he would not have accepted VR.
  4. The evidence shows that Applicant’s work as a policeman was his identity. He had worked as a policeman at the state and federal levels for 16 years. He held the AFP in very high regard and was very proud to serve as a member. Serving in the Mediterranean country was his reason for joining. Achieving that goal was his most satisfying deployment.
  5. The evidence shows that the Applicant had long standing grievances about:
  6. He expressed those grievances in relation to the pre-March 2014 experiences on deployment in the Pacific and the 2014 incident.
  7. The pre-VR evidence shows that the Applicant’s family was paramount. His son had suffered problems at least from the North African deployment, and more seriously in 2013 before the Pacific deployment, when the Applicant also suffered physical health issues which caused him stress.
  8. The Applicant was very conscious of the impact of his deployments on his family. He had a longstanding concern about his physical ageing and health in relation his work. He had thought about not taking further deployments or opting out, from March 2014.
  9. Although the Applicant’s evidence is to the effect that it was his treatment during the 2014 deployment that caused him to take VR, the evidence shows that there were a number of considerations which led the Applicant to make that decision.
  10. The only contemporaneous evidence of the Applicant reporting the 2014 incident before the offer of VR was made on 5 May 2014, is Ms Lilley’s statement in her 24 December 2014 report, that he contacted her and attended on 26 April 2014 following an incident of reported sexual assault by a colleague in the Pacific during the dignitary’s visit. The only clinical notes from her practice in evidence were dated 22 October 2014, 5 November 2014 and 18 March 2015.
  11. The next indication of the Applicant’s concern about the 2014 incident is his request to AFP Wellbeing Services on 24 May 2014, after the offer of VR. During the interview on 11 June 2014, the term “sexual” assault was not referred to. He described significant embarrassment.
  12. He then went through “hell” considering whether to accept VR, consulting his GP at the end of June, and according to the Applicant’s evidence, he had the same conversation with Ms Lilley. He said that he asked to speak to her to decide what to do.
  13. The GP’s clinical note of 26 June 2014 shows that he had decided to accept VR by that date. He had accepted by 8 July 2014. After that, he approached the inspector about the 2014 incident and the 11 July 2014 meeting took place. The evidence of one of the inspectors is that both inspectors/team leaders were concerned about the Applicant’s mental health after that meeting.
  14. His struggle and dissatisfaction thereafter until his VR took effect are summarised above under the heading “Contemporaneous evidence from offer of VR until VR took effect”. The Applicant’s recitation of the 2014 incident evolved over time from inappropriate conduct causing him embarrassment and humiliation, to an assault, a criminal offence, and finally, a sexual assault.
  15. In her letter dated 12 April 2016, in the context of a compensation claim, his GP stated that she first reviewed the Applicant with symptoms consistent with PTSD since September 2014, which was after he had decided to make a compensation claim, as he advised the WO on 29 August 2014. Notably, in the clinical note made by another GP in the same practice on 26 June 2014 are the comments that there was no avoidance, he was looking forward to returning (to the Pacific), and no hypervigilance, and felt his mood was “very good” and “positive”. Those comments are inconsistent with the Applicant suffering PTSD at that time. It is also relevant that he was seeing his psychologist then “prophylactically”, that is, preventatively, which indicates that he was not suffering from a mental ailment.
  16. The Applicant has been reflecting on his career in the AFP since the offer of VR on 5 May 2014 and his decision to accept VR and then through the lens of multiple compensation claims focussing on PTSD since around September 2014. He is entrenched in his belief that he suffers from PTSD which has been reinforced by the treating doctors, his psychologist, and doctors who have assessed him for medico-legal purposes. To the extent that his evidence was inconsistent with the contemporaneous evidence until he left the AFP at the end of August 2014, the Tribunal does not accept it. Thereafter, the Applicant was unwell, aggrieved, and increasingly angry and frustrated by the processes relating to his multiple compensation claims..
  17. The submission that the Applicant took VR because he was already sick is not accepted. His mental health deteriorated after the offer of VR was made and then accepted. That he was repatriated early from the Pacific on 14 August 2014 is consistent with him facing the reality of his decision that he was leaving the AFP, which he tried to change on 29 August 2014.
  18. Counsel for the Applicant argued that the lack of medical records to corroborate the Applicant’s symptoms between 2010 and 2013 was explained by the Applicant being on international postings during that period and that Dr Lovell conceded that the patient is sometimes the last to know that they are mentally ill. Counsel also referred to the Applicant’s evidence about “getting back on the horse” for every posting and that the events during his Pacific posting was when “pretty much the tub overflowed”.
  19. Counsel for the Applicant argued that it was common ground that the Applicant was genuine and honest. The Tribunal accepts that the Applicant genuinely believes that he has PTSD, is aggrieved with the AFP and he does suffer from a mental ailment.
  20. Of the medical opinions in evidence, Dr Lovell’s consideration best reflects the facts of the Applicant’s case. Dr Lovell gave oral evidence and maintained his opinions.
  21. The Tribunal has had the benefit of much more evidence than any of the practitioners who have considered the Applicant’s condition. It has also had the benefit of legal argument and time to consider the matter.
  22. As Dr Lovell said, while the Applicant witnessed traumatic events during his service which could have caused PTSD, they did not. There is no evidence that the Applicant suffered from PTSD prior to the dog attack. Ms Lilley’s evidence in her December 2014 report was that he responded well to treatment and was able to return to work. Dr Lovell referred also to a letter from Ms Lilley dated 1 October 2009 in which she wrote that he had recovered. The lack of reports or records of mental health issues until 2014, apart from in relation to personal issues, support a conclusion that the Applicant’s employment with the AFP was not impacting adversely on his mental health from 2009 to 2014. His most satisfying deployment in the Mediterranean country occurred during that period. Ms Lilley’s clinical notes and report of 24 December 2014 did not reflect the history later recorded by other practitioners, including Associate Professor Robertson, of the impact on the Applicant of a number of traumatic incidents during several deployments.
  23. Dr Takyar’s opinion that the Applicant’s condition was a new condition, unrelated to his previous PTSD, supports a finding that the Applicant was not suffering from PTSD after his 2014 deployment.
  24. The Tribunal does not accept the diagnosis of PTSD. The Applicant is not entitled to compensation under s 14 of the SRC Act for PTSD as a result of “the nature and conditions of his employment with the AFP” from 2007 to 2014, namely a number of alleged traumatic incidents while on various deployments abroad and within in Australia.

Decision

  1. For the above reasons, the reviewable decision is affirmed.

I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member.

...................................[SGD].....................................
Associate

Dated: 28 November 2019

Date(s) of hearing:
11 February 2019, 11 & 12 April 2019
Counsel for the Applicant:
Mr J Mrsic
Solicitors for the Applicant:
Ms A Nair, Carroll & O'Dea Lawyers
Counsel for the Respondent:
Mr M Snell
Solicitors for the Respondent:
Mr A Ghaleb, Lehmann Snell Lawyers

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