Applicant and Australian Offshore Solutions Pty Ltd (Compensation)
[2016] AATA 331
•20 May 2016
Applicant and Australian Offshore Solutions Pty Ltd (Compensation) [2016] AATA 331 (20 May 2016)
Division
GENERAL DIVISION
File Number(s)
2014/5074
Re
“Applicant”
APPLICANT
And
Australian Offshore Solutions Pty Ltd
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Brigadier AG Warner, MemberDate 20 May 2016 Place Perth The Tribunal affirms the decision under review.
..........[Sgd].............................................
Senior Member CR Walsh
CATCHWORDS
COMPENSATION – claim for seafarers compensation – whether claimed injury (stress and digestive disruption) arose out of applicant’s employment as an Integrated Rating with the respondent – whether sign-off incident on board the vessel caused the claimed injury – no causal connection between alleged injury and the applicant’s employment with the respondent – decision under review affirmed
LEGISLATION
Seafarers’ Rehabilitation and Compensation Act 1992 – s 3 – s 4(1) – s 9 – s 9(2)(b)(i) – s 66 – s 78
CASES
Charles R Davison and Co v M’Robb (1918) AC 304
Cutajar and Commonwealth (1985) 8 ALD N76
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
Nicholas and Norwest Shipping [2002] AATA 806 (13 September 2002)
Mendez v Telstra Corporation Limited (1998) (1998) 147 FLR 394Tarry v Warringah Shire Council (1974) WCR 1
REASONS FOR DECISION
Senior Member CR Walsh
Brigadier AG Warner, Member20 May 2016
INTRODUCTION
The Applicant seeks a review of a decision made by Australian Offshore Solutions Pty Ltd (AOS) on 18 September 2014 declining the Applicant’s claim for compensation under the Seafarers’ Rehabilitation and Compensation Act 1992 (SRCA) for injuries (namely “stress and digestive disruption”) allegedly sustained by the Applicant on 29 January 2014 whilst he was employed by AOS as an “Integrated Rating”, on a casual basis, on board the vessel Sapura Kencana Constructor.
FACTUAL & PROCEDURAL BACKGROUND
The Applicant was born on 11 November 1964. He is currently 51 years of age.
The Applicant entered into a Contract of Employment with AOS on 21 November 2013.
The Applicant was employed by AOS as an “Integrated Rating”, on a casual basis, on board the vessel Sapura Kencana Constructor in the period from 21 November 2013 to 26 December 2013.
The Applicant returned to work on board the vessel Sapura Kencana Constructor on 24 January 2014 and worked for 5 days.
The Applicant alleges that he suffered “stress and digestive disruption” on 29 January 2014, (5 days into his duties) when he was signed-off the Sapura Kencana Constructor by a Mr Ray Isted, a co-worker, when the vessel was laid up at Exmouth (Sign-off Incident). It is not in dispute that Mr Isted signed the Applicant’s signature in the ship’s log book on 29 January 2014. The Sign-off Incident is central to this application and is discussed in further detail below: refer to paragraphs 40-49.
On 11 February 2014, the Applicant reboarded the Sapura Kencana Constructor and resumed his duties. On 12 February 2014, he became ill with fever and vomiting and was flown off the vessel on 13 February 2014.
On 13 February 2014, the “Patient Contact Report” records the following:
Call out to Clinic @ 22.30 for patient with vomiting and gastic (sic.) discomfort.
On examination: 50 Y/O male c/o vomiting x3 over the past 2 hours. States that he has had similar episodes 2-3 month (sic.) back.
Vital signs are stable as above table entry. Suspected abdominal ulcers.
Discussed situation with Patient and captain. [Applicant] would like a second opinion ashore by his Doctor of joice (sic.).
Disembarkation to be organised by Captain in consultation with AOS. [emphasis added]
On 15 February 2014, Dr David Baker certified the Applicant as unfit for work from 15 February 2014 to 18 February 2014 due to the medical condition of “viral enteritis”.
On 18 February 2014, Dr Baker certified the Applicant as “recovered” and “fit to return to work”.
On 7 March 2014, the Applicant was offered work by AOS, but by email to AOS, dated 18 March 2014, the Applicant declined the offer, citing ill health as his reason. The Applicant also mentioned the Sign-off Incident (on 29 January 2014), stating:
also the fraud with my name being signed without (sic.) my knowledge. This cannot go unanswered. I thinking any person does not want to some other person signing there (sic.) name its not right its fraud. And I want an answer.
On 19 March 2014, Dr Eoin McDonnell certified the Applicant unfit for work from 16 March 2014 to 2 April 2014 due to a “medical condition”. The Sign-off Incident is referred to in Dr McDonnell’s clinical notes dated 19 March 2014.
On 31 March 2014, Dr McDonnell certified the Applicant unfit for work from 31 March 2014 to 18 April 2014 due to a “medical condition”.
On 15 April 2014, Dr McDonnell certified the Applicant unfit for work from 15 April 2014 to until 11 June 2014 due to:
stress and probably PTSD following an incident at work on a ship in January 2014 when his name was fraudulently signed in the ships log. [Emphasis added]
On 12 May 2014, the Applicant lodged a “Claim for Workers’ Compensation” under the SRCA with AOS (Workers’ Compensation Claim). In the Workers’ Compensation Claim, in response to the question “What is the nature of the injury or illness you are claiming for?" the Applicant answered “Stress and digestive system” and, in response to the question “What part(s) of your body were injured”, he answered “Brain and digestive system”.
On 8 July 2014, AOS made a determination declining the Applicant’s claim for seafarers’ compensation for his alleged injuries on the following bases:
1. there is no medical or factual evidence to suggest that [the Applicant] suffered a “stress and digestive disruption” injury during the course of [his] employment with [AOS];
2. we consider that there is no evidence to suggest [Applicant] employment with [AOS] caused, precipitated or aggravated [his] alleged stress or digestive disruption;
3. in the alternative, if [the Applicant] did suffer from an injury (which is disputed) there is no causal connection between [his] employment and the injury.
There is no medical evidence which clearly supports a work related digestive injury or psychiatric or psychological injury. (Determination)
On 6 July 2014, AOS requested that the Applicant attend a medical review with Dr Lawrence Terace, psychiatrist, on 15 July 2014, in accordance with s 66 of the SRCA. On 14 July 2014, Dr McDonnell certified that the Applicant was “unable to attend his appointment on the 15th July 2014” because he was “suffering from severe stress and anxiety”. The Applicant did not attend his appointment with Dr Terace on 15 July 2014.
On 21 July 2014, the Applicant requested a reconsideration of the Determination by AOS.
On 23 July 2014, AOS requested that the Applicant attend a rearranged medical review with Dr Terace on 5 August 2014, in accordance with s 66 of the SRCA. On 4 August 2014, Dr McDonnell certified that the Applicant was “unable to attend his appointment tomorrow on the 5th August 2014” because he was “suffering from severe anxiety”. The Applicant did not attend his appointment with Dr Terace on 5 August 2014.
On 8 September 2014, Comcare provided AOS with its response to a formal request by AOS, under s 78 of the SRCA, which recommended that the Determination be affirmed (Comcare Report). The Comcare Report states:
After having considered all the available evidence, based on the proximity of the event, it is my view that the employee suffered from viral enteritis. However, further information would be required to determine a causal connection and whether their employment “caused, precipitated or aggravated your alleged stress or digestive disruption”. Therefore the decision not to accept liability for the employee’s claim dated on 4 June 2014 was correct. [Emphasis added]
On 20 November 2014, AOS requested that the Applicant attend a medical review with either Dr Eileen Tay, Psychiatrist, on 15 December 2014 or with Dr Terace on 16 December 2014, in accordance with s 66 of the SRCA. The Applicant subsequently advised AOS that he would attend the appointment with Dr Tay on 15 December 2014. The Applicant failed to attend his appointment with Dr Tay on 15 December 2014.
On 18 September 2014, AOS affirmed the Determination on the same bases as set out in the Determination (Decision): refer to paragraph 16 above. However, as part of the Decision, AOS also made the following determination:
…..AOS has taken your non attendance on two occasions upon Dr Terace for a medical review into account and declines your claim for compensation in this reconsideration for this further ground.
Further, AOS determines that your rights to institute proceedings under the Act should be suspended until an examination takes place. [Emphasis added]
On 25 September 2014, the Applicant applied to the Tribunal for a review of the Decision.
On 23 February 2015, AOS affirmed the determination it made on 18 December 2014 (refer to paragraph 22 above) on the basis that the Applicant did not have a “reasonable excuse” for failing to attend the three medical appointments arranged by AOS on 15 July 2014, 5 August 2014 and 15 December 2014, pursuant to s 66 of the SRCA (Suspension Decision).
The Applicant subsequently applied to the Tribunal for a review of the Suspension Decision and, on 13 August 2015, Deputy President Kendall affirmed the Suspension Decision on the basis that the Applicant had not provided a “reasonable excuse” for failing to attend the three medical examinations concerned.
This application was heard over three days, on 30 and 31 March and 1 April 2016. The Applicant presented as proud of his family history in seafaring and of his own career as a seafarer, with his related achievements and qualifications. However, the Applicant was a very difficult applicant before the Tribunal. The Applicant repeatedly interrupted, objected, refused to answer questions and made inappropriate and disrespectful comments to the Members, AOS’s counsel and instructing solicitor and to AOS’s medical expert (Dr Eileen Tay), even continuing to do so after a formal warning by the Tribunal.
ISSUES
The relevant issues for consideration by the Tribunal in this application are whether:
(i)The Applicant suffered an “injury”;
(ii)The Applicant suffered an injury “arising out of” his employment with AOS on or about 29 January 2014 and/or on or about 12 February 2014;
(iii)there is any causal connection between the Applicant’s employment with AOS and the alleged “injury”;
(iv)The Applicant’s disability/incapacity, if any, was caused by a non-work related pre-existing condition; and
(v)The Applicant suffered any incapacity at all.
EVIDENCE
The documentary evidence before the Tribunal comprised:
·the “T Documents” (T1-T107, pp 1-548) (Exhibit 1);
·the “Respondent’s Statement of Facts, Issues and Contentions”, dated 30 October 2015 (Exhibit 2);
·a bundle of documents (67 pages), called “Applicant’s credentials” (Exhibit 3)
·an Australian Maritime Safety Authority (AMSA) “Medical Examination Report”, dated 28 October 2008 (Exhibit 4);
·two pages of “Logbook” (i.e. from the vessel Sapura Kencana Constructor), dated 11 February 2014 and 13 February 2014 (Exhibit 5);
·two medical reports by Dr Eileen Tay dated 18 November 2015 (Exhibit 6);
·a two page document from Western Australia Police website, titled “Effects of Fraud” and AMSA documents (Exhibit 7);
·medical evidence under cover of a letter from Jarman McKenna (AOS’ solicitors), dated 22 March 2016 (Exhibit 8);
·four Medical reports by Dr Jane Fitch dated 16 January 2015, 15 August 2015, 21 October 2015 and 18 March 2016 (Exhibit 9);
·the “Applicant’s Statements of Facts”, dated 8 February 2016 and 6 March 2016 (Exhibit 10); and
·a medical report by Dr Raj Sekon, dated 22 September 2014 (Exhibit 11).
Exhibit 1 contains the following Witness Statements:
· a Statement from the Applicant, dated 6 May 2014;
· the Witness Statement of Mr Ray Isted, dated 21 September 2015;
· the Witness Statement of Captain Trond Breivik, dated 23 September 2015;
· the Witness Statement of Mr John Morris, dated 5 October 2015; and
· the Witness Statement of Captain Trond Breivik, dated 9 October 2015.
In addition, oral evidence was given by the following people:
· The Applicant (in person),
· Dr Eileen Tay, Consultant Psychiatrist (in person);
· Dr Jane Fitch, Consultant Psychiatrist (in person);
· Dr Eoin McDonnell (by telephone);
· Mr Ray Isted (by telephone);
· Captain Trond Breivik (by telephone);
· Mr John Frewin (by telephone); and
· Mr John Morris (by telephone).
CONSIDERATION
Relevant law
The SRCA is an Act relating to rehabilitation and workers’ compensation for seafarers and certain other persons, and for related purposes.
Section 3 of the SRCA defines “injury” as follows:
“injury” means:
(a)a disease;
(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 anything 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. [Emphasis added]
Section 3 of the SRCA provides that “employee” has the meaning given by s 4 of the SRCA. Section 4(1) of the SRCA defines “employee” as follows:
“employee” means:
(a) a seafarer; or
(b) a trainee; or
(c)a person (other than a trainee) who, although ordinarily employed or engaged as a seafarer, is not so employed or engaged but is required under an award to attend at a Seafarers Engagement Centre for the purpose of registering availability for employment or engagement on a prescribed ship.
Section 9 of the SRCA provides:
Injury arising out of, or in the course of, employment
(1)This section does not limit the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment.
(2)An injury is also to be treated as having so arisen, for the purposes of this Act, if it happened:
(a)…………………….; or
(b) if the employee is a seafarer;
(i)while the employee was on board the prescribed ship on which he or she was employed or engaged; or
(ii)while the employee was temporarily absent from that ship during an ordinary recess in that employment and not at his or her place of residence.
It is not in dispute that at all material times the Applicant was employed by AOS as an “Integrated Rating”, on a casual basis, on the Sapura Kencana Constructor and that the Applicant was on board the Sapura Kencana Constructor at the time of the alleged injury on 29 January 2014, for the purposes of s 9(2)(b)(i) of the SRCA.
For liability for worker’s compensation to exist in the Applicant’s case, the Tribunal must be satisfied, on the balance of probabilities, that the Applicant sustained an “injury” that “arose out of, or in the course of” his employment with AOS.
“Arising out of” denotes a causal relationship between the injury and the employment, whereas “in the course of” denotes a temporal relationship between the injury and the employment. However, in the cases, there is much overlap between the two concepts.
In Charles R Davison and Co v M’Robb (1918) AC 304 Lord Finlay LC said (at 314):
“Arising out of the employment” obviously means arising out of the work which the man is employed to do and what is incident to it – in other words, out of his service. “In the course of his employment” must mean, similarly, in the course of the work which the man is employed to do, and what is incident to it – in other words, in the course of his service.[1][Emphasis added]
[1] See also Cutajar and Commonwealth (1985) 8 ALD N76; Tarry v Warringah Shire Council (1974) WCR 1 and Mendez v Telstra Corporation Limited (1998) 147 FLR 394.
The often adopted test for “in the course of” employment is set out by Dixon J in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133:
[T]he question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something he was reasonably required, expected or authorized to do in order to carry out his duties….
Sign-off Incident
The Applicant described the circumstances surrounding the Sign-off Incident, in a Statement, dated 6 May 2014, as follows:
· I commenced my shift at 6pm 28.01.2014 and completed the shift at 6.00am 29.01.2014.
· The vessel was to be laid up for a short period and I was told by the bridge that the boat to take men to shore would be arriving at 1.00pm.
· I went to my cabin to get some sleep at 7.00am.
· At 8.00am I was woken by my cabin mate who needed to clean out his belongings as he had injured his hand and was being taken off the vessel as early as possible. I then went back to sleep.
· At 9.30am approximately an engine room worker, Ray Istall (sic) burst into my cabin to wake me (this should be done by the watch mate, boson or cabin mate). He said “Wake up, here’s your particulars, You’ve been signed off”. (Particulars are left provided to the second mate in trust and should only be handled directly to the individual who those particulars belong to).
· I asked Ray how I could have been signed off and he responded “We wanted to save you the trip of going up to the bridge”.
· I proceeded to the bridge and looked at the sign out book. My signature had been signed fraudulently without my knowledge.
· There were multiple people manning the bridge at this time. I asked the whole room “Who signed my signature?”
· I got no response aside from being told to calm down, to which I responded “Calm down? You forged my signature. Who did it?” At this point I was feeling very fatigued and very stressed.
· I called The Captain over to show him the signature had been forged and he didn’t protest it.
· I asked again, “Who signed me off?”
· Ray Isted said “Me”.
· I said “What for?”
· Ray said “To save you the trip of coming up here”.
· I responded with in (sic.) surprise.
· I looked at the Captain and he just shrugged his shoulders and walked away.
· I went outside to take a telephone call, then went back inside the bridge. I signed my signature and wrote on the sign out book that the first signature located in the box was not mine and wrote that the one outside the box was mine.
· The Captain just shook his head.
· I then got off the vessel.
· For the period I was off the vessel I was concerned and unhappy about the incident before I left the vessel.
· I re-boarded the vessel on 11.02.2014 and wanted to take the issue up with the company Captain.
· On 12.02.2014 I became ill with fever and vomiting.
· My watch mate John Morris witnessed my illness and called the medic.
· I was provided with Sea Sickness pills.
· I was flown off the vessel on 13.02.2014 and put up at the Novotel in Learmouth and then flew home 11.30am 14.02.2014 and was still sick the following day
· 15.02.2014 I went to Port Kennedy Medical centre and saw Dr David Baker who told me I had viral enteritis. An though I was prescribed medication to fix the nausea, I was still incredibly stressed and I continued to suffer anxiety attacks and nausea.
The Applicant’s oral evidence before the Tribunal concerning the Sign-off Incident was, in summary, as follows:
· On the morning of 29 January 2014 the Applicant completed a 12 hour shift. He expected to be taken off the vessel by boat at 1:00 pm prior to flying home. He had breakfast, showered and went to bed in an attempt to get a couple of hours of sleep. He was then woken on three occasions – firstly by a fellow crew member collecting his belongings, secondly by the boson, and thirdly by Mr Isted;
· He saw his documents on the desk and thought something serious had transpired. He dressed and went to the bridge where he found that he had been signed-off. He protested loudly and asked who had signed his name, then telephoned the union to confirm that such action was unacceptable. Mr Isted then told the Applicant that he had signed him off ; and
· The Applicant returned to his cabin and called the captain to again protest. He then returned to the bridge and signed a protest signature and annotation in the sign-off log. When he later left the vessel he was in shock, fatigued and confused as a consequence of the forgery.
The Applicant drew the Tribunal’s attention to a document sourced from the Western Australia Police website on the effects of fraud (Exhibit 7). He submitted that having seen this document, he understood how the “forgery” caused his injury. The Tribunal notes the document but assigns it little weight in the current consideration because it seems to the Tribunal to be relevant to matters involving significant material loss or very serious impact on a person’s circumstances.
In his Statement, dated 6 May 2014, and in his oral evidence, the Applicant made it clear that he was aggrieved that he had been signed-off the Sapura Kencana Constructor by another person. He regarded that action as being illegal, contrary to established policy and procedures, and contrary to the normal conduct of seafarers. The Applicant repeatedly linked this “forgery” with his claimed injury and told the Tribunal “I’m here for the forgery”, “It’s the forgery, right” and “That’s why I’m here – claiming stress from the forgery”.
Mr Ray Isted’s recalls the Sign-off Incident differently. Mr Isted describes the circumstances surrounding the Sign-off Incident in his Witness Statement, dated 6 May 2014, as follows:
Circumstances of the incident
5.I recall that the applicant and I had worked a nightshift aboard the vessel “Supera Kencana Constructor” finishing at 6:00am on the morning of 29 January 2014.
6.At around 8:00am on 29 January 2014, several staff members aboard the ship were notified that they would need to depart the ship in 20 minutes time as the vessel was being down manned. We were anchored off Dampier at the time. I went up to the Bridge, signed myself off and signed off the applicant’s signature as a favour to him. We had been aboard the ship for six weeks and so I just assumed that the applicant would want to get off the ship as soon as possible and get back home. I grabbed my own passport and grabbed the applicant’s passport as well as it was right next to mine. This was to help the applicant so that he would not have to go all the way up the stairs to the Bridge to pick up his passport when we had only 20 minutes to get off the ship.
7.Although the general rule was for staff to sign the vessel articles log book off on the Bridge for themselves when arriving and departing the ship, there were a lot of stairs to get up to the bridge which held the log book and the passports and so it was not unusual for other staff to sign each other off. Most other staff considered it helpful when a co-worker would sign them off as it stopped them from having to walk up all the stairs to do so. There was no rule that the staff had to sign off the articles log book in the presence of the Captain or anybody else.
8.I went to give the applicant his passport and found him in the crew change room getting his gear at some stage after 8:00am. The applicant was not in his cabin at the time, and I did not wake him up as he has alleged. I am not sure if the applicant ever went to sleep at some stage between 6:00am and 8:00am. I gave the applicant his passport and told him that he had been signed off and we had to get off the ship shortly and then I left the room.
9.I also recall that there were no specific rules on who could wake other crew up if they were sleeping, but that did not apply here anyway as I found the applicant in the change room when I gave him his passport.
10.The applicant then went up to the Bridge and started going off, shouting about somebody signing his name off in the log book. I told the applicant that I had signed him off to help him out. Captain Breivik and the applicant had a look at the log book and Captain Breivik asked who had signed the applicant off. I told Captain Breivik that I had signed him off. Captain Breivik looked at the applicant and said something like, “what’s the problem mate, you are going home”.
11.The applicant seemed to make a scene out of nothing.
12.I said we were going home at that time because the contract out at sea had now finished and half the crew were being demobilised. That was a normal procedure when a job had ended. The crew which were demobilised were extra crew anyway, so once the job was over that was it, they were being sent home. Captain Breivik did not have any input into who was being sent home, the job was simply up so the extra staff were being demobilised. The Boson in-charge of that job would decide who was going home. [Emphasis added]
Mr Isted’s oral evidence in relation to the Sign-off Incident was, in summary, as follows:
· At around 8:00 am Mr Isted was told several staff members would need to depart the vessel in 20 minutes time. He signed himself off, and also signed-off the Applicant as a favour to him. Mr Isted did not wake the Applicant but found him in the crew change room where he gave him his passport and told him he had been signed-off; and
· The Applicant then went up to the bridge, shouting about someone signing him off. The Applicant and Captain Breivik looked at the log book and Mr Isted told the captain that he had signed-off the Applicant. The captain was not concerned. Mr Isted thought that: “The applicant seemed to make a scene out of nothing”.
Captain Trond Breivik, who was the Captain on board the Sapura Kencana Constructor at the time of the Sign-off Incident, describes the Sign-off Incident in his Witness Statement, dated 23 September 2015, as follows:
Circumstances of the Incident
5.Between January 2014 and February 2014, the vessel had a period between projects where there was no work available and therefore it was necessary to reduce the man power. The vessel was being manned down because there was not enough work to do. The company AOS would make the decision as to who would be sent home and that was not my decision and nor did l have any input into that decision.
6.On 29 January 2014, it was arranged for four integrated rating crew members to disembark the vessel. At that stage, the vessel had been located in Exmouth Gulf since 27 January 2014.
7.The four crew members (the applicant was one) who were scheduled to disembark the vessel, attended the bridge to sign off and receive their passport/ID. The vessel was registered in Panama and all the crew had to sign on/off in the official vessel crew log book.
8.I am aware that the applicant alleges that he was awoken three times around the night before 29 January 2014. However, I was not aware of that and not sure what could have caused it.
9.During the day of 29 January 2014, [Applicant] attended the bridge, starting shouting and looking very angry. I asked him what was wrong and he said that somebody had forged his signature in foe vessel crew log book. I went over to the chart table, looked in the vessel crew log book and saw that there was a signature in the applicant's column. By that time the applicant had gone outside to the bridge wing. I asked another crew member, integrated rating Ray Isted, if he knew what was going on and Ray replied "no problem, I will sort this out” and went outside to join the applicant
10.The applicant came inside the bridge again and said out loudly that he was happy to sign off the vessel now that he got confirmation with the union that he was getting so called "dead days” (when the crew travel between home and vessel they get paid for half their ordinary pay) while off the vessel. The applicant signed the book in the column where the captain is supposed to sign and said "now I'm officially signed off”. The applicant then left the bridge.
11.I never saw anyone sign the applicant's signature in the vessel log book. I asked Ray that day who had signed the log book and Ray said he did it and that he just did it to save foe applicant time as they had a plane to catch. Ray and the applicant seemed to get along well during the time they worked together and I cannot think of any reason why Ray would have had any malicious intent towards the applicant.
12.When the vessel crew would arrive on the vessel it was standard practice for them to sign on to the crew log book and hand in their passport. When they left the vessel to go home on leave it was standard practice for them to sign the log book in order to get their passport back. The log book would be signed in front of the logistic coordinator or the second in charge. However, that was not enforced that strictly and they would generally just sign it and hand in their passport.
13. The applicant embarked the vessel again on 11 February 2014.
14.During the morning of 13 February 2014, I think I was informed that the applicant had seen the medic during the night. However, I cannot recall the details of this as usually to be reported to me it would need to be serious. I am aware that the applicant has alleged that people were making fun of him after he was vomiting and had diarrhoea and soiled his pants. However, I do recall anything like this.
15.After talking to the medic it was decided that the applicant would be disembarked. The applicant also wanted to see a doctor of his choice since he had experienced similar symptoms In the past
16.The applicant was disembarked later that same day by the vessel "Lauren Hansen” in the Exmouth Gulf at 1932 hours. He was taken to Exmouth Marina, picked up by Onshore Logistic and taken to the Novotel awaiting his flight out the following day.
17.It did not worry me whether or not the worker was on the ship. I have been shown an SMS which the applicant alleges that Ray sent to him on 18 Match 2014 which stated that "the reason why / signed you off is because Trend (Captain) said he wants you off asap so I said would it help if I signed him off he said yes. Yes let's get rid of that fat cunt”. However, I deny ever telling Ray that I wanted to get rid of the applicant in any way. I recall the applicant being on night shift so he would start at 6.00pm and finish at 6.00am so I barely saw him at all. I have no idea why he would say I was trying to get rid of him as I thought we got along well.
18.There are no rules regarding who could wake another. There are no written procedures or rules on this. If one person is replacing another for a shift and they are late then the crew member waiting to be replaced would wake them up but that was about it. [Emphasis added]
Captain Breivik’s oral evidence in relation to the Sign-Off Incident was, in summary, as follows:
· During the day of 29 January 2014, the Applicant attended the bridge, starting shouting and looking very angry. I asked him what was wrong and he said that somebody had forged his signature in the vessel crew log book. I went over to the chart table, looked in the vessel crew log book and saw that there was a signature in the applicant’s column. By that time the applicant had gone outside to the bridge wing. I asked another crew member, integrated rating Ray Isted, if he knew what was going on and Ray replied “no problem, I will sort this out” and went outside to join the applicant;
· The applicant came inside the bridge again and said out loudly that he was happy to sign off the vessel now that he got confirmation with the union that he was getting so called “dead days” (when the crew travel between home and vessel they get paid for half their ordinary pay) while off the vessel. The applicant signed the book in the column where the captain is supposed to sign and said “now I’m officially off”. The applicant then left the bridge; and
· Mr Isted later told Captain Breivik that he had signed the log book to save the Applicant time as they had a plane to catch.
Mr John Morris, a watch keeper on board the Sapura Kencana Constructor at the time of the Sign-off Incident, describes the circumstances of the Sign-off Incident in his Witness Statement, dated 5 October 2015, as follows:
Circumstances of the incident
5.I recall that on or about 29 January 2014 (although I cannot recall the exact date) the applicant looked pretty crook for a day and I made him to go the medic. We are all a team on the ship so when I saw the applicant was sick I suggested he go to the medic to look after him. The applicant just looked generally crook, the way you do when you are sick, but he did not mention to me any particular reason he was sick. He did not mention anything to do with somebody forging his signature. I am not sure if he was crook for longer than one day, but the medic looked after him on the first day I had seen him being crook.
6.I had no personal involvement in the incident regarding the applicant's signature being signed in the log book and I am therefore unable to comment on this issue.
7.I can confirm that years ago the culture on ships was quite strict regarding the signing of articles (like a contract which covers procedurals, navigational laws, etc which needed to be signed at the beginning and end of a journey). We used to have to sign the articles in front of the captain before commencing work and could not start work until we had done so. However, over the years the culture has become more relaxed because it was not that practical to keep signing the articles in front of the captain who was needed in other areas. [Emphasis added]
Mr Glenn Frewin gave oral evidence by telephone to the Tribunal. The Applicant had told the Tribunal that Mr Frewin was a former police officer, but Mr Frewin advised that he was a master mariner. Mr Frewin confirmed that he was on the bridge of the Sapura Kencana Constructor at the time of the Sign-off Incident, but was not party to it. Mr Frewin also told the Tribunal that Captain Breivik was in command of the vessel during the period that he was on the bridge.
Other relevant evidence
In addition to the evidence concerning the Sign-off Incident, the following evidence is relevant to this application.
[Applicant] and Norwest Shipping [2002] AATA 806
The Tribunal’s earlier decision in [Applicant] and Norwest Shipping [2002] AATA 806 (13 September 2002) concerned the Applicant’s claim against Norwest Shipping for a psychological injury, namely an adjustment disorder, in 1998, whilst working as an “Integrated Rating” on board the MV Sina vessel when he was told by Norwest Shipping, whilst on long service leave, that another person had been employed in a permanent capacity in his position on the vessel.
The Reasons for Decision of the Tribunal in [Applicant] and Norwest Shipping record that:
· The Applicant was not upset when he was informed that a permanent IR had been engaged;
· The Applicant claimed to have been yelled at on two occasions and told he was “lazy” and had a “bad attitude” and constantly criticised for his work ethic and attitude when he returned to the vessel after his leave and was threatened with disciplinary charges when demanding a copy of the captains log book;
· the manager denied allegations of yelling at the Applicant;
· there was an incident in 1998 when a complaint was made against the Applicant due to a serious confrontation with the Chief Engineer and during the investigation the applicant displayed an aggressive and defiant demeanour to the captain and repeatedly interrupted the discussions;
· on 27 March 1999, the Applicant demanded a copy of the deck log book entry and when refused he swore at the captain and violently slammed the door;
· on 30 March 1999, the Applicant told the captain that he was suffering from stress caused by loss of sleep and anxiety and referred to the earlier incidents as contributing to his stress and believed that he was disliked on the Bessel and it was decided that it would be in the best interests of all concerned for the Applicant to be released from the vessel by mutual consent at the next port;
· on 2 April 1999, the Applicant objected to the relieving of his duties being “ by mutual consent” and preferred to leave the vessel having been declared unfit;
· The Applicant described intermittent chest pains over the past 6 months which he attributed to stressful situations;
· The Applicant reported intermittent retro-sternal chest discomfort every 3 to 4 months over the last 10 years;
· The Applicant reported experiencing severe and increasing anxiety related to occupational situations and domestic problems;
· The Applicant was taking Serepax;
· Dr Somers, physician, reported that The Applicant’s physical and mental conditions were such that he was never likely to work in the Maritime industry again;
· The Applicant had failed to participate in a vocational rehabilitation assessment;
· Dr Mustac, psychiatrist, referred to:
[Applicant] becoming threatening and offensive. I suspect the reason for this is because he is attempting to feign mental illness… I do not consider [Applicant] is genuinely suffering from any mental illness… I suspect that he has antisocial personality traits;
· on cross examination the Applicant, Dr Mustac, opined that the Applicant did not have a mental illness but that he “engaged in physical intimidatory and threatening behaviour” and chose to be aggressive when it suited him;
· Dr Febo, psychiatrist, reported that:
it was very difficult to obtain a history from [Applicant] in that he frequently became angry... my history did not support the presence of a major psychiatric disorder. Considering his level of anger, evident during the interview, it is possible that there are personality related issues that are having an impact on his presentation and that will adversely affect his ability to obtain and retain employment”; and
· Dr Terace, psychiatrist, reported that the Applicant’s current frustration and anger was within the bounds of normal mental functioning.
AMSA Medical Examination Report, dated 21 October 2010
The AMSA Medical Examination Report, dated 21 October 2010, in which the Applicant declared that he had not had anxiety or depression.
Rockingham Medical Centre medical records
The medical records from Rockingham Medical Centre confirm that on 4 August 2013, (some 5 months prior to the alleged injury) the Applicant was seen due to 3 days of vomiting, stress and insomnia and prescribed Maxalon (for nausea and vomiting) and Temazepam (for insomnia and anxiety) and reference was made to his mother having died recently.
Dial-a-doctor medical records
The Dial-a-doctor medical records which confirm that on 9 September 2013 the Applicant was seen due to chest pain (which the Applicant reported occurring when he was stressed).
AOS Application for Employment, dated 18 October 2013
The Applicant’s AOS “Application for employment” form, dated 18 October 2013, in which the Applicant stated that he did not have any medical conditions and was not taking any medication.
AOS Pre-employment Health Assessment Questionnaire, dated 6 November 2013
The Applicant’s AOS “Pre-employment Health Assessment Questionnaire” form, dated 6 November 2013, in which the Applicant stated that he had never had any mental health issues requiring medication or been referred to a psychologist or psychiatrist, or had depression or anxiety or insomnia.
Emails between the Applicant and AOS, dated 22 January 2014
Emails between the Applicant and AOS, dated 22 January 2014, (prior to boarding the Sapura Kencana Constructor) in which the Applicant was advised by AOS that the vessel would be down manned at the end of January 2014 “for a very short period” showing that the Applicant was aware of the situation.
Emails between the Applicant and AOS, dated 4 February 2014
Emails between the Applicant and AOS, dated 4 February 2014, in which the Applicant was advised that remobilisation would take place on 11 February 2014 and he confirmed that he was okay to return to the vessel.
AOS Incident Report & Investigation, dated 18 February 2014
On 18 February 2014, an “Incident Report & Investigation” form was completed by AOS which records that on 12 February 2014 the:
Ships Medic got called to the clinic at 23.30hrs. [The Applicant] had been vomiting 3 times over past 2 hours.
[The Applicant] informed Medic that he has had similar episodes 2-3 months back. Medic suspected abdominal ulcers. [The Applicant] would like a second opinion by a doctor of his choice.
[The Applicant] got sent to bed for rest and observation.
Emails between the Applicant and AOS, dated 18 March 2014
Emails between the Applicant and AOS, dated 18 March 2014, in which the Applicant informed AOS that he could not return to the vessel due to medication for viral enteritis making him drowsy and unable to operate machinery and the fraud with signing his name.
Port Kennedy General Practice medical records & oral evidence of Dr Eoin McDonnell
Medical records from the Port Kennedy General Practice show that:
· On 19 March 2014, Dr Eoin McDonnell certified the Applicant unfit for work from 19 March until 2 April 2014;
· On 31 March 2014, Dr McDonnell certified the Applicant unfit for work from 31 March 2014 until 18 April 2014, noting that he:
May need to consider MHCP and referral to psychologist, almost bordering on PTSD given recurrent intrusive thoughts about what happened to him; and
· On 15 April 2014, Dr McDonnell certified the Applicant unfit for work from 15 April 2014 to until 11 June 2014, noting that the Applicant:
Is suffering from stress and probably PTSD following an incident at work on a ship in January 2014 when his name was fraudulently signed in the ships log.
In his oral evidence at the hearing, Dr McDonnell told the Tribunal that in forming his opinion regarding the Applicant’s condition, he had necessarily accepted the Applicant’s information on face value. When presented with other evidence before the Tribunal, he accepted that there were deficiencies in that information.
In relation to the opinion of Dr Douglas that the Applicant does not suffer from PTSD (refer to paragraph 67 below), Dr McDonnell told the Tribunal that he accepted that Dr Douglas’ area of practice was far more specific and directed to the area of psychology than his. Dr McDonnell said that the Applicant’s personality could be quite brittle and that there could have been a clash of personalities. However, he was concerned that Dr Douglas had discounted any mental injury, and accordingly he had referred the Applicant to Dr Jane Fitch, Consultant Psychiatrist, for a psychiatric opinion.
Report on the AMSA’s investigation into the Applicant’s complaint, dated 30 June 2014
The report of Mr Allan Schwartz, General Manager, Ship Safety Division, AMSA, dated 30 June 2014 states:
I am writing to follow up from my telephone call to you of 11 June 2014 regarding your complaint made to the Australian Maritime Safety Authority (AMSA) on 24 April 2014. I understand that your complaint is that whilst employed as a casual employee of Australian Offshore Solutions (AOS) on board the vessel Sapura Kencana Constructor (IMO 5766931), which was engaged in offshore construction operations in January 2014, you were “signed off” in the vessel’s Crew Log Book when somebody else signed your name.
AMSA attended the vessel in Darwin on 20 May 2014 to investigate your complaint. The findings of the investigation were as follows:
…………
2.From the AMSA Surveyor’s investigation it was concluded that the person who signed in your place was doing so with the good intent of making sure your name had been signed before you departed the vessel, and that it was not a malicious act to ‘sign you off early’.
………..
In relation to the allegation of forgery, as previously advised, whilst AMSA does not condone this type of activity, it is not a matter within AMSA’s jurisdiction, and any allegations to this effect should be forwarded to the police if they remain of concern to you. [Emphasis added]
Medical report of Dr Bill Douglas, psychologist, dated 27 August 2014
Dr Bill Douglas, Clinical Psychologist, reviewed the Applicant on 27 August 2014, following a referral from Dr McDonnell. In his report, dated 27 August 2014, Dr Douglas states:
I have told [Applicant] that I don’t believe that firstly, he suffers from a Post Traumatic Stress Disorder as a result of this event [i.e. the Sign-on Incident] or indeed any other form of psychological injury. Secondly, I have told him that I don’t believe that any court would accept that this type of incident would cause any such injury.
I think that he has been developing a thought disorder at least over this last eight or nine months and it would seem to me that he has not only been paranoid, but also somewhat delusional. [Emphasis added]
Evidence of Dr Jane Fitch, Consultant Psychiatrist
In her medical report, dated 16 January 2015, Dr Jane Fitch, Clinical Psychiatrist, states:
I first saw [the Applicant] on November 12 2014. I have reviewed him again on November 26 2014 and more recently on January 12, 2015.
I have seen therefore assessed him on three occasions.
………..
Since February 2014, the Applicant has been preoccupied with the incident aboard the ship in which he alleges his name was forged by a co-worker. His trust in his world has been worsted. He has become very vexed about his identity and his safety as a result of this incident.
Since that time, and currently, the Applicant is psychiatrically unwell. He is depressed and anxious, fearing the worst…..
In her medical report, dated 21 October 2015, Dr Fitch states:
The Applicant was injured on January 29 2014. He was very perturbed when he realised he had been signed off as having disembarked the ship when he was actually asleep in his bunk. A co-worker had been instructed by a senior third party that [Applicant] name be signed off, which is against all safety procedures. [Applicant] experienced acute stress symptoms.
………..
When he was next rostered to work, he “felt crook”. He described intense nausea, diarrhoea, dizziness- consistent with acute anxiety symptoms. He thought it must be “gastro”. He consulted his GP who referred him to a Psychiatrist who identified anxiety symptoms and PTSD. He has been treated with anxiolytics, antidepressants and olanzapine. He continues to suffer criteria for PTSD as diagnosed by DSM V CRITERIA.
………..
Mr Nicholls (sic.) was working fulltime and had been adjudged medically fit for the work prior to his most recent employment. Since the incident he has been barely able to function.
In her medical report, dated 18 March 2016, Dr Fitch states:
[Applicant] has been unwell since an incident at work on 2.2.14.
[Applicant] has recounted the circumstances regarding the incident in his workplace in Feb 2014. He was asleep in his bunk when he was awoken by his co-worker who told him he had already been signed off the boat.
When he was told he was being signed off he responded with intense emotion and his actions were hasty. He raced upstairs to the bridge where he loudly protested about the matter. I note the Captain’s evidence states how loud [Applicant] was which reflects his physiological reactivity and the emotional impact of the incident.
As such it was reasonable that [Applicant] be apprehensive about his safety and welfare on the boat. That his name was signed off when he was still on board and still on duty as a Fire Fighting First Responder did not make sense to him. He suspected “skulduggery” as he put it. His gut instinct was that he was in danger and his body reacted with an acute stress response.
That there has been subsequent media publicity about the fatalities of crew who were outspoken or socially excluded whilst on board Panamanian flag vessels intensified [Applicant’s] fears. The Royal Commission into the Maritime Union of Australia and the shipping industry also raised alarm bells for him.
………..
This is a new condition directly related to the stress on board the boat culminating in the forged signature. [Applicant] has never had an Axis 1 diagnosis of PTSD or Major Depressive Disorder previously.
In her oral evidence, Dr Fitch told the Tribunal that she was the Applicant’s treating psychiatrist but that her specialist treatment was limited by the Applicant’s financial circumstances.
In her oral evidence, Dr Fitch told the Tribunal that the date of onset of the Applicant’s PTSD could have been before the Sign-off Incident. In explanation, Dr Fitch said:
Well, he describes his perception of difficulties between his role as a union delegate and interactions with the union and the captain. His perception that there was favouritism in allocating jobs off to another oil rig which he didn’t agree with and his perception about safety notifications. So – and there being – you know, just turn a blind eye to this coupled with the change to the flag of convenience…….so I guess whether those factors made him feel unsupported and safe…..signing people off is not a common event….it is quite significant……..Perhaps that was the final straw. I’m just trying to be open to other interpretations and it may have been that he became unwell on the boat and was – culminated in that episode.
Evidence of Dr Eileen Tay, Consultant Psychiatrist
Dr Eileen Tay, Consultant Psychiatrist, reviewed the Applicant, at the request of AOS, on 12 May 2015. Dr Tay provided a medical report, dated 20 May 2015, based on her review of the Applicant on 12 May 2015. In that report, Dr Tay states:
SUMMARY AND DIAGNOSIS
In summary, this is a complex case. [Applicant] is a 50 year old male who lives alone in his own accommodation, has been at sea for 35 years, working mainly as a Boson, but has performed other roles. He was employed by his current company, as a casual employee, starting the first swing of work over the Christmas period in 2013 and was signed on in January 2014. It was during the January 2014 swing that the fraudulent signature incident occurred but, in the context of [the Applicant’s] presumed gastroenteritis symptoms (later revised to be secondary to anxiety) that further experiences of being humiliated occurred. He became increasingly anxious, feeling paranoid about the company’s intents towards him in the context of the ship’s Captain dismissing the need for an investigation as to the forged signature and, in [the Applicant’s] mind, a breach of marine law practices which can result in safety consequences.
Not only has he been humiliated in a public manner when he left the ship unwell in February, but also has felt dismissed by the ship’s Captain and other workers regarding his safety concerns about the forged signature. He stated that has never happened to him before in his 35 years at sea, namely anybody forging his signature.
He has become highly symptomatic as a result of the events that unfolded in the January / February period of 2014 and is seeking justice for what happened.
Since then he has also been diagnosed with another physical health condition, namely Diabetes, which is also causing him anxiety and the fact that he cannot afford for his girlfriend to fly over from Thailand to be with him has left him feeling more isolated as well. The financial stress of not being paid for the last 16 months is taking its toll.
I believe [Applicant] fulfils criteria for an Adjustment Disorder, with prominent anxiety; while he subjectively reports feeling traumatised by his experiences this does not warrant a diagnosis of Post-traumatic Disorder. [The Applicant] loudly expressed fears regarding what the company may do to him next , without any evidence to substantiate ill intent or malicious intent toward him when I questioned him directly why the company may want to ‘get him', in his mind. It is also highly unlikely that the company did not value him as a worker as he was recalled to work in February and then again in March; he declined to return in March and subsequently lodged his workers’ compensation claim. When l questioned [Applicant] as to why the company would still offer him work (if they didn’t like him or think he was any good as a worker) he admitted that he was surprised as well. He then made comments such as “maybe they wanted me back on the ship to throw me overboard - I don’t know". There were allegedly personally humiliating events surrounding the incident, in the February period, when he we was sent home unwell with presumed gastroenteritis. [The Applicant] accepted that was plausible because of how much cleaning he was doing when he got sick and as stated he spent some time describing his duties on board ship. [Emphasis added]
In her supplementary medical report, dated 20 May 2016, Dr Tay states:
3.In your opinion, did [the Applicant] suffer a ‘stress and digestive disruption’ injury during the course of his employment with the employer on or about 29 January 2014 and/or 12 February 2014?
In my opinion, he did suffer a digestive disruption -injury during the course of his employment on or about 29th January, 2014 and /or February, 2014.
4.In your opinion, what is the cause of [Applicant’s] current complaints and symptoms? Are his symptoms and complaints caused by his employment? If not, what are the other causes of his complaints and symptoms (for example pre-existing conditions, non work related factors) and what proportion of his current complaints and symptoms are related to the other causes?
I cannot exclude other causes of his complaints and symptoms. He denied non work related factors and there would not appear to be many non-work related factors per his GP records other than some confusion about when his mother passed away but, according to the Applicant, it was two years ago and not in recent weeks as per Dr McDonnell’s records. The Applicant would appear to have a set routine to his life and lifestyle and there is nothing in his file material to suggest pre-existing psychological complaints or issues.
5.In your opinion, does the Applicant suffer a psychiatric condition and if so do you believe that it is related to his employment?
[Applicant] does not fulfil criteria for Post Traumatic Stress Disorder as he presented today in terms of symptomatology and severity of same ; it is subjective report of how incapacitated he is ; he has recently been diagnosed with Diabetes which may have been present earlier, except he wasn’t investigated for it until 3 weeks ago. He does fulfil criteria for an Adjustment Disorder with prominent Anxiety; he reports ruminating and obsessing in an over-valued manner regarding the intent of his employer, that they meant to cause him harm based on one text message shown to him by his colleague, which he received on 18* March, 2015. He also felt humiliated by alleged comments made by riggers who were at the Exmouth airport on the day he flew out in February when he was not well. He also reported being laughed at by his co-workers when he wanted to pursue the forged signature issue further. [Emphasis added]
Dr Tay was subsequently provided with extensive additional documentary material concerning the Applicant by AOS. This additional material caused Dr Tay to change her medical opinion and resulted in her providing a further medical report, dated 18 November 2015. In her medical report, dated 18 November 2015, Dr Tay states:
5.1Whether the attached statements and documents alter your understanding of the relevant events and history and opinion in relation to diagnosis or causation; and
The attached statements and documents do alter my understanding of the relevant events and history and my opinion in relation to diagnosis and causation.
5.2If so, please advise as regards the nature of the change in your opinion and the reasons for the change.
The fact that [Applicant] failed to advise me, in fact denying past psychiatric history, and of previous compensation claim with similar events and symptoms, and his history of aggressive and intimidating behaviours, would support a diagnosis of a Personality Disorder such as a Cluster 8 Personality Disorder with I would describe as Borderline and Antisocial traits. He has clearly lied in his pre-employment medical applications about previous medical and psychiatric history.
Alleged Digestive Disruption:
6. In light of the above and after review of the attached documents:
6.1 In your opinion, please advise whether there are any pre-existing Injuries, conditions or predisposing factors that caused or contributed to any digestive disruption alleged by the Applicant?
The Applicant has a history of gastrointestinal symptoms including nausea, vomiting and diarrhoea noted on 4th August, 2013 secondary to stress, and again when he developed chest pain also attributed to stress on 9th September, 2013. He was again apparently physically unwell at the end of January, 2014, and in the February / March period of 2014 as well. The pre-existing condition or predisposing factors that could have contributed to any digestive disruption alleged by the Applicant is that of his levels of anxiety, insomnia and alcohol consumption as per history provided by Mr Isted on or around 18th March, 2014.
6.2Was any digestive disruption that the Applicant experienced merely a recurrence of a recurring constitutional or pre-existing condition?
Any gastrointestinal symptoms that the Applicant experienced would appear to be consistent with a recurring constitutional problem as opposed to being due to a viral infection. I did note in my report that the cause of his gastrointestinal symptoms was finally attributed to anxiety once physical causes were excluded by his General Practitioner. At any rate, l note Statements from Witnesses who were working with him on 12th February when he returned to toe Ship, particularly from Mr Ray Isted who worked with him, and in his Statement noted that the Applicant looked sick that he had some sort of flu, but that no-one recalled him soiling himself nor that anyone made ton of him around that time. I note Mr Isted's Statement of the ‘‘banter” that they were all engaged with at Mr Isted’s house whilst drinking beers, and that was on 18th March, 2014.
I note there are similar themes to incidents to toe context of his current complaints, on board a Ship on 27th March, 1999 and 30th March, 1999; and again 2nd April, 1999 as per your referring letter page 3, where the Applicant had an altercation with authority figures such as toe Chief Engineer, toe Captain, and then after these interactions would complain of stress symptoms and attributing the source of these symptoms to being disliked by other people on the vessel.
would also appear to have a history of developing physical symptoms in response to unpleasant situations or interactions which would appear to be largely orchestrated by himself, or at least interactions in which he was observed to be fully participating, and later exaggerate or fabricate symptoms where he would then apportion blame and responsibility onto others for his perceived, as opposed to real, slights and/or criticisms against him. The exaggerated emotional and cognitive reaction to real or perceived threats or criticisms by others is an indicator of people with Borderline Personality Disorder.
…………
Alleged Psychological Condition:
The extensive file material confirms characterological or personality traits consistent with an Antisocial and Borderline Personality Disorder or structure. It is evident that the Applicant lied when he underwent his pre-employment medical assessment, as well as denying to myself any pre-existing psychiatric history. He also lied about pre-existing medical conditions or that he was on any medications when he completed an application for employment.
I also note a compensation claim in 1999 with opinions from Psychiatrists, Dr Mustac, Dr Febo and Dr Terace supporting, a personality disorder diagnosis. Dr Somers, a Physician had also stated that the Applicant’s physical and mental conditions were such that he was never likely to work in the Maritime industry again.
7. In light of the above add after review of the attached documents:
7.1In your opinion, is any psychological condition that the Applicant experiences the likely result of external factors such as pre-existing injuries, conditions or pre-disposing factors? If so, please advise.
The most likely cause of any psychological condition that the Applicant would experience is due to predisposing factors; the main one being his underlying Personality Disorder and also other medical conditions such as his diabetes and obesity. His financial situation would also appear to have been dire and that would also be another cause of psychological symptoms.
7.2Do you consider that the Applicant has exaggerated his symptoms (either consciously or subconsciously) and, if so, please explain the reason for your view?
I believe the Applicant is entirely capable of exaggerating his symptoms at a conscious level. The Applicant has been proven to be obstructive, angry and defiant, and dearly made up a story claiming that he was out of pocket with his taxi fare to attend this appointment with myself for example. It would also appear that the Applicant has little regard for due process, and in keeping with his antisocial personality structure would push his limits and boundaries. His disregard for due process is also reflected in the documented history of altercations with authority figures such as Captains of Ships that he has worked on previously. His Antisocial and Borderline Personality Disorder would also lead him to behave erratically in a highly reactive, emotionally charged manner as per the extensive attached documentation.
7.3Do you remain of the opinion that the Applicant suffered an adjustment disorder with prominent anxiety on or about 29th January, 2014 and 12th February, 2014?
Based on the documents attached with this referral letter, I would revise my opinion to that of [Applicant] not suffering from any psychiatric disorder on or about 29th January, 2014 and/or 12th February, 2014. The reasons for my revised opinion is based on the fact that there is lack of supportive contemporaneous evidence to suggest that [Applicant] had been treated unfairly or harshly by his employer or his workmates such as Mr Isted. [Applicant] has chosen to emphasise one aspect of the interaction, highlighting the banter in a negative way, and completely ignoring the context in which that occurred; namely that he was actually at Mr Isted’s house drinking beers with some other friends. [Applicnt] has taken comments and situations out of context, and his level of reactivity is consistent with a person with an Antisocial and Borderline Personality Disorder. The attached documents and Witness Statements have provided the context in which these alleged comments were made; namely the banter in the company of workmates whilst drinking beer, which the Applicant neglected to inform me during my assessment of him on 12th May, 2015. In keeping with an antisocial personality structure, the Applicant also became somewhat litigious in his approach and demanding in his manner for answers to the alleged forgery of his signature on board Ship. Again the Applicant failed to inform me of the context in which teat occurred, that there was no malicious intent, that it was dearly explained to him by both his friend, Ray Isted as well as the Captain; all of which the Applicant chose to ignore and instead pursue a litigious angry route, which again is consistent with a diagnosis of an Antisocial/ Borderline Personality Disorder. [Emphasis added]
Conclusions
Credibility
The evidence gives rise to significant concerns regarding the Applicant’s credibility:
· The Applicant failed to declare his past psychiatric history in an AMSA examination in 2010: refer to paragraph 53 above;
· Only months prior to the Sign-off Incident and the alleged “injury”, the Applicant was treated for similar symptoms and prescribed medication: refer to paragraph 54 above;
· In October 2013 and November 2013, the Applicant failed to notify AOS of his past psychiatric history and specifically denied any mental health issues, requiring medication, attending a psychiatrist or having depression, anxiety or insomnia: refer to paragraphs 56 and 57 above; and
· In May 2015, the applicant failed to advise Dr Tay of his past psychiatric history and use of medication, his previous compensation claim with similar events and symptoms and in his previous compensation claim and the Tribunal’s decision in [Applicant] and Norwest Shipping where the Reasons for Decision record that several psychiatrists reported that the Applicant had previously attempted to feign mental illness and engaged in intimidatory and threatening behaviour: refer to paragraph 75 above.
Findings
Based on the evidence, the Tribunal finds the following:
· Mr Isted, a colleague and friend of the Applicant, signed the Applicant’s signature in the sign off log book on board the Sapura Kencana Constructor on 29 January 2014 as a favour to the Applicant. Although perhaps an inappropriate act, it was not, based on the evidence, a malicious act. (This finding is supported, inter alia, by the evidence of Mr Isted, Captain Breivik, and the AMSA report following an investigation into the Sign-off Incident: refer to paragraphs 44 - 47and 65 above);
· The Applicant left the Sapura Kencana Constructor on 29 January 2014, after the Sign-off Incident in a stress free manner and without complaint of injury;
· On 11 February 2014, some 11 weeks after the Sign-off Incident, the Applicant returned to the Sapura Kencana Constructor and resumed his duties as an Integrated Rating;
· Between 29 January 2014 and his return to the vessel on 11 February 2014 (being a period of about 13 days), the Applicant was in communication with AOS and did not report any illness or injury: refer to paragraph 59 above;
· The Applicant became ill with fever and vomiting on 12 February 2014, the day after returning to the vessel, and was flown off the vessel on 13 February 2014. (The “Patient Contact Report”, dated 13 February 2014 records that the Applicant told the ship’s medic “that he has had similar episodes 2-3 months back”: refer to paragraph 8 above); and
· On 15 February 2014, some 17 days after the Sign-off Incident, Dr Baker certified the Applicant as being unfit for work from 15 February 2014 to 18 February due to “viral enteritis”: refer to paragraph 9 above; and
· On 18 February 2014, some three days Dr Baker certified that the Applicant was now “recovered” and “fit to return to work”: refer to paragraph 10 above.
Whilst the Tribunal acknowledges that the Applicant takes issue with the appropriateness of another crew member signing him off in the crew log book on the morning of 29 January 2014, and that he remains aggrieved by the Sign-off Incident, the Tribunal does not consider that the nature of the Sign-off Incident was such that it could cause the “injury” claimed by the Applicant (being “stress and digestive disruption”).
There is no contemporaneous medical evidence to support a finding that the Applicant suffered an “injury”, as defined in s 3 of the SRCA, on or about 29 January 2014 and/or on or about 12 February 2014, as a result of the Sign-off Incident or otherwise. The first mention of an injury due to the alleged “forgery” (i.e. of the Sign-off Incident) in the contemporaneous medical records was on 19 March 2014 in Dr McDonnell’s clinical notes (nearly 2 months after the Sign-off Incident): refer to paragraph 12 above. There was a significant delay between the alleged injury, on 29 January 2014, and the alleged onset of psychological/psychiatric symptoms and incapacity.
Further, there is no contemporaneous medical evidence to support a finding that the Applicant suffered an “injury”, as defined in s 3 of the SRCA, on or about 29 January 2014 and/or on or about 12 February 2014, “arising out of” his employment with AOS as a result of the Sign-off Incident or otherwise. If the Applicant suffers any disability and/or incapacity it is not as a result of his employment with AOS. There is no causal connection between the alleged injury and the Applicant’s employment with AOS.
The Tribunal notes the tentative diagnosis of PTSD by general practitioner Dr McDonnell (refer to paragraph 14 above), and the definite differing opinion of clinical psychologist, Dr Douglas, that the Applicant did not suffer PTSD as a result of the Sign-off Incident: refer to paragraph 66 above. The Tribunal prefers the opinion of Dr Douglas, as a specialist psychologist.
Having weighed the competing medical evidence of the two Consultant Psychiatrists, Dr Fitch and Dr Tay, the Tribunal prefers the evidence of Dr Tay over that of Dr Fitch. Dr Tay’s evidence was more definitive, more objective and was reviewed when additional relevant information became available to her: refer to paragraph 74 above. There were errors in Dr Fitch’s medical reports. An example is that in her medical report, dated 18 March 2016, Dr Fitch refers to the Sign-off Incident, which is central to these proceedings, as having occurred on 2 February 2014 rather than on 29 January 2014: refer to paragraph 69 above. Further, on a number of occasions in her report Dr Fitch incorrectly names the Applicant. When presented with other evidence before the Tribunal, which appeared inconsistent with the information on which she had based her medical opinion, Dr Fitch was reluctant to review her opinion. Dr Fitch seemed to lack objectivity in relation to the Applicant. When counsel for AOS put to Dr Fitch that the Applicant gained his medical clearance to gain employment with AOS without accurately and comprehensively completing the required medical form, Dr Fitch attributed any deficiencies in the form to the Applicant’s literacy deficits. (However, the Applicant told the Tribunal that he had not needed to provide all the information, as it had been provided previously.)
Dr Tay told the Tribunal that when she was provided with more complete information, including the Tribunal’s decision in [Applicant] and Norwest Shipping, she changed her diagnosis: refer to paragraph 74 above. Dr Tay attributed the Applicant’s behaviour to a personality disorder rather than a diagnosed psychiatric condition. Dr Tay told the Tribunal:
That in relation to the incident he was upset and entitled to feel angry and have an outburst. These were emotions, not a mental injury and within the bounds of human functioning and reaction.
Dr Tay identified the Applicant’s underlying personality disorder and his financial situation as predisposing factors that might have contributed to his condition or his circumstances.
At the hearing the Applicant asked Dr Tay about the 29 January “forgery” being a trigger point for an injury. Dr Tay replied:
I don’t believe you suffered significant psychological injury from that trigger point.
The Tribunal notes that the Applicant has a history of anxiety disorder and stomach ulcers (i.e. a non-work related pre-existing condition). The possibility that a non-work related pre-exiting or underlying condition could have been aggravated or accelerated by the Sign-off Incident is a relevant consideration for the purposes of the definition of “injury” in s 3(c) of the SRCA. However, Dr Tay’s response to the Applicant’s reference to the Sign-off Incident as a trigger point- “I don’t believe you suffered significant psychological injury from that trigger point”, and Dr Finch’s concession that the onset of her diagnosis of PTSD could have pre-dated the incident, weigh against this possibility. The Tribunal’s conclusion regarding the nature of the Sign-off Incident, as set out above, and the absence of medical evidence to support a causal nexus between the Sign-off Incident and any underlying conditions further negate such a finding.
DECISON
For the above reasons, the Tribunal affirms the Decision.
I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh, Brigadier AG Warner, Member
.........[Sgd]...............................................................
Administrative Assistant
Dated 20 May 2016
Dates of hearing 30-31 March 2016 and 1 April 2016 Applicant In person Representative for the
RespondentMs R Aria-Retnam Solicitors for the Respondent
Jarman McKenna
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