Hashem Azary was employed as a banking adviser with the NAB. He claims that despite meeting performance targets his manager Mr Adhami subjected him to increasing pressure to meet unrealistic targets, bullied and intimidated him, and then directed him to accept a lower level position or be subjected to "extended micro-management" with the threat of termination if his results did not improve. Azary has not worked since the April 2012 meeting at which he received the direction and has been under the care of a psychiatrist for much of the time. In May 2012 he claimed compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) for "Acute Anxiety Attacks/Depression".
The NAB disputed Azary's claim to suffer from a psychiatric condition and argued that even if he suffers from such condition his employment did not contribute to it to a significant degree. Going further, the NAB argued that even if Azary's employment contributed significantly to his condition, he did not suffer a compensable injury because it was the result, in whole or in part, of reasonable administrative action taken in a reasonable manner in respect of his employment.
The NAB called in contractors for covert surveillance.
The AAT states -
Mr Azary attended the four and a half days of the [AAT] hearing with his wife. Throughout the hearing, he displayed what some doctors noted in their consultations with him and describe as “regressive behaviour”: walking stooped with his hands clasped in front of him, rocking continually in his seat, avoiding eye contact and speaking in a somewhat child-like voice. Mr Azary gave evidence that his symptoms started within one or two days of his meeting with Mr Adhami on 20 April 2012. He said he was unable to control the rocking and it “never stops”.However -
Although he clearly found the hearing stressful at times, Mr Azary had no apparent difficulty answering questions, recalling details of events, or responding to matters asked of, or put to him, in evidence. The discrepancy between his physical presentation and his ability to respond to questions was considered significant by a number of medical witnesses whose evidence is considered below. Further, as we discuss below, Mr Azary’s appearance when under surveillance on four occasions was markedly different from his presentation at the hearing.The AAT refers to "surveillance evidence" -
Surveillance of Mr Azary was carried out by Adroit Business Advisers Pty Ltd on behalf of the respondent over seven days in September and October 2013, four days in February 2014 and two days in March 2014. He was filmed for a total of 16 minutes on four days when he was observed at home, or coming and going from his home. The investigator’s report and films are in evidence.
On 15 October 2013, Mr Azary was filmed for a total of four minutes outside a relative’s address in company with another man, whom he identified as his brother, and driving his car away from the address with his brother a passenger. The following day, he was filmed briefly walking to his letterbox and wheeling a rubbish bin inside the fence of his property while carrying his son.
On 18 February 2014, Mr Azary was filmed for a total of four minutes driving his son to day care in the morning. He was filmed picking his son up in the afternoon and shopping at a local shopping centre.
On 11 March 2014, he was filmed for a total of nearly seven minutes driving his wife and children to day care, taking his son into the centre, and from there driving his wife and daughter to McDonalds and then to the railway station. They caught the train to the city, returning some hours later when he drove his family to the day care centre and collected their son.
At all times while filmed, Mr Azary’s presentation bore no resemblance to how he presented at the Tribunal hearing: he was clean-shaven and appeared quite neatly dressed; he appeared to move about and walk normally, without any sign of stooping or clasping his hands; and while seated talking with his brother, he showed no sign of rocking behaviour.
Save for Dr Mustapha Alameddine, the DVD was made available to each of the doctors who gave evidence at the hearing. Their evidence is considered below.
Giving evidence, Mr Azary maintained he was unable to control the rocking but “sometimes it stops”. He claimed he was seen seated with his brother without rocking because he had just been driving with his seat belt on which helps stop the rocking. He said he stoops and clasps his hands when he is stressed or anxious.
Contrary to Mr Azary’s claim that he only drives the car in an emergency, he is seen driving his wife and his brother and could not satisfactorily explain what emergency prevented them from driving him on those occasions other than that he had to take his son to child care.The AAT considered evidence from Ms Al-Haddad, Azary's wife, who
Al-Haddad [Azary's wife] claims Mr Azary is “totally dependent” on her: she has to help him shower, shave and dress, and has to put his food out for him and encourage him to eat. He has little social interaction and is afraid of open spaces. He only drives under “extreme” circumstances. She says she first noticed him rocking a day or two after the meeting with Mr Adhami. It became worse until, about two weeks later, she urged him to see a doctor after he mentioned suicide.
Ms Al-Haddad was not shown the surveillance DVD but was asked about her husband’s physical presentation and driving. She said he rocks when under pressure but “occasionally” stops when he “takes his medication”. Asked if she could explain why he might be observed sitting without rocking, she said he could have just been driving and the seat belt would have helped. She was asked repeatedly about how often he walks stooped with his hands clasped but she would not say. Asked whether Mr Azary goes out alone, Ms Al-Haddad said sometimes he will take out the bins; if they go out together, he asks to go home after about 15 minutes. She said she can sometimes urge him to stay out for about 45 minutes. She could not recall an occasion when he managed to go out twice on the same day (as he was observed in her company on 18 February 2014).
Ms Al-Haddad maintained she drives if they are together and Mr Azary only drives in an emergency. Despite being pressed, she could not say how often emergencies happened. Asked about the occasions when he was observed driving on the DVD, she could not recall what the emergency was that meant he had to drive. When pressed, she said her daughter had a fever that lasted two days so he drove their son to child care; another time she had a headache and could not drive. Asked about him driving to the train station on 11 March 2014, she said they went to the embassy to complete the children’s citizenship applications. She could not explain why this was an emergency or why she could not drive.
Ms Al-Haddad’s evidence was not convincing. Even allowing for some misunderstanding due to interpretation (which was not evident), her responses were frequently evasive. Her explanations strongly suggested she had discussed the DVD overnight with Mr Azary and tailored her evidence accordingly. We find her evidence unreliable and we reject it.Consultant Dr O'Neill examined Azary in August 2013
Dr O’Neill took a detailed history from Mr Azary and administered a range of psychometric tests. Mr Azary’s scores were low enough to indicate a mild intellectual impairment. Dr O’Neill commented on the “significant discrepancy” between his reported pathology and his presentation and noted “he showed clarity of thought despite his rocking behaviours and complaints of impairments”. On the Structured Interview of Reported Symptoms test, considered the “gold-standard assessment of feigning”, Mr Azary’s overall response indicated “a likelihood of 81.8% of feigning mental disorder”.
Dr O’Neill reported: On multiple scales measuring feigning of mental disorder, he endorsed a high degree of exaggerated, unusual and extreme symptoms atypical of bona fides clients, but more typical of individuals asked to feign mental disorders in simulation research.The Tribunal comments that
We have considered carefully the evidence about the diagnosis of any psychiatric condition suffered by Mr Azary, bearing in mind especially that he has undergone ECT. That fact alone is not easily reconciled with the absence of any psychiatric disorder but nor is it evidence in itself of a psychiatric illness. ...
Drs Bell, Champion and Newlyn each saw Mr Azary only once. However, their unanimous conclusion, having seen the DVD, was that he has, and has had, no psychiatric disorder. Dr Newlyn changed his opinion completely, though not on the basis of the DVD alone.
Dr O’Neill suggested it was possible that Mr Azary’s cognitive functioning had been deteriorating in the year or so before meeting with Mr Adhami and Dr Bell also thought it possible (before seeing the DVD) that his deteriorating performance at work signalled the gradual development of a mental illness. If that is so, it could be open to us to find that Mr Azary suffered an aggravation of a pre-existing condition as a result of the meeting on 20 April 2012. However, we prefer the evidence of Drs Bell, Champion and Newlyn that Mr Azary does not, and has not, suffered from a psychiatric condition.
It seems extraordinary that any person would submit to ECT and anti-psychotic medication if not suffering from a psychiatric condition. On the evidence before us, however, we find Mr Azary has not suffered, and does not suffer, from a psychiatric disorder."
