Bailey and Broadsword Marine Contractors Pty Limited (Compensation)
[2016] AATA 1048
•20 December 2016
Bailey and Broadsword Marine Contractors Pty Limited (Compensation) [2016] AATA 1048 (20 December 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3246
Re
Travis Bailey
APPLICANT
And
Broadsword Marine Contractors Pty Limited
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 20 December 2016 Place Brisbane I affirm the decision under review.
................................[sgd]........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – seamen’s compensation – whether disease or an aggravation of a disease suffered by applicant – whether applicant made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease – decision under review affirmed
LEGISLATION
Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 3, 10, 26, 78
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5BCASES
Kennedy v Comcare [2015] AATA 334
Gaffey v Comcare (2015) 239 FCR 76; [2015] FCA 1024
Comcare v Power (2015) 149 ALD 286; [2015] FCA 1502
Comcare v Martin [2016] HCA 43
Comcare v Porter (1996) 70 FCR 139; [1996] FCA 562
Inco Ships Pty Ltd v Hardiman (2007) 167 FCR 294; [2007] FCA 1138REASONS FOR DECISION
Deputy President Dr P McDermott RFD
20 December 2016
INTRODUCTION
Mr Travis Bailey (“the applicant”) seeks a review of a reconsideration determination of Broadsword Marine Contractors Pty Limited (“the respondent”) dated 22 June 2015 to affirm the determination dated 7 April 2015 which denied the applicant ongoing benefits under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”).
BACKGROUND
Employment
The applicant is a 35 year old male. He commenced employment in the maritime industry around 2002 to 2003.[1]
[1] Transcript of proceedings at p. 7.
On 22 April 2014, the applicant was sent a letter of assignment by the respondent requesting to engage him as a launch master on a casual basis on the Van Oord project which he then accepted.[2] On 26 June 2014, the applicant was signed off the ship having ceased duties.
[2] Exhibit A, T-Documents, T6.
Claim Form
On 5 August 2014, the applicant lodged a claim for workers’ compensation form in respect of “(f)atigue induced stress and anxiety and depression”. The claim form disclosed that the applicant ceased work as a result of the injury or illness on 26 June 2014. The applicant also disclosed on the claim form that there was a “(g)radual buildup (sic) due to fatigue, stress and lack of sleep”. The applicant listed the events that he said led to his illness or injury:[3]
- Extreme fatigue caused by continuous periods of inadequate breaks between operations (operating 24/7)
- Facilities on board not conducive to sleep in break periods (e.g. sea state, noise of operations and inadequate mattress).
- Vessel constantly being at sea with varying sea state made sleep periods inadequate.
- Lack of organisation and structure of operations resulted in constant interruption of planned duties and rest periods.
- In summary while work place standards may have been in practise they were unable to be adhered to, ie fatigue management plan units exceeded due to work output expectations. These stated expectations took precedence over all other activity.
[3] Exhibit A, T-Documents, T14 at p. 45.
Prior Determinations
On 22 December 2014, a determination was made under s 78 of the Act which revoked the deemed decision to disallow the claim and instead determined that liability was accepted under s 26 of the Act to pay compensation for an “adjustment disorder with depressed and anxious mood”.[4]
[4] Exhibit A, T-Documents, T22.
On 7 April 2015, a determination was made to decline any further liability for the applicant’s claim for seafarer’s compensation.[5] On 22 June 2015, a reconsideration determination was made that affirmed the determination of 7 April 2015.[6] On 29 June 2015, the applicant lodged an application with this Tribunal for a review of the reconsideration determination.[7]
[5] Exhibit A, T-Documents, T30.
[6] Exhibit A, T-Documents, T34.
[7] Exhibit A, T-Documents, T1.
ISSUE
In the spirit of cooperation, the parties have identified that the sole issue for determination is whether s 10(7) of the Act operates to preclude the entitlement of the applicant to compensation.[8]
[8] Applicant’s submissions dated 24 May 2016 at [1].
LEGISLATION
Section 3 of the Act provides the following general definitions:
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
"disease" means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment.
Section 10 of the Act provides the following provisions relating to diseases:
(1) If:
(a) an employee has suffered, or is suffering, from a disease, or the
death of an employee results from a disease; and
(b) the disease is of a kind specified by the Minister, by legislative
instrument, as a disease related to employment of a kind
specified in the instrument; and
(c) the employee was, at any time before symptoms of the disease
first became apparent, engaged in employment of that kind in the
maritime industry;
the employment in which the employee was so engaged is taken, for the
purposes of this Act, to have contributed in a material degree to the
contraction of the disease, unless the contrary is established.
(2) For the purposes of this Act, if an employee contracts a disease, any
employment in the maritime industry in which he or she was engaged at any
time before symptoms of the disease first became apparent is taken, unless
the contrary is established, to have contributed in a material degree to the
contraction of the disease if the incidence of the disease among people who
have engaged in such employment is significantly greater than it is among
people who have engaged in other employment.
(3) For the purposes of this Act, if an employee suffers an aggravation of
a disease, any employment in the maritime industry in which he or she
was engaged at any time before symptoms of the aggravation first became
apparent is taken, unless the contrary is established, to have contributed in
a material degree to the aggravation if the incidence of the aggravation of
the disease among people suffering from it who have engaged in such
employment is significantly greater than it is among people suffering from
the disease who have engaged in other employment.
(4) If:
(a) an employee suffers an injury (other than one resulting in a
hearing impairment); and
(b) the injury is a disease or an aggravation of a disease;
the employee is taken, for the purposes of this Act, to have suffered the
injury on the day when:
(c) the employee first sought medical treatment for the disease or
aggravation; or
(d) the disease or aggravation resulted in the death of the employee
or first resulted in his or her impairment or incapacity for work;
whichever happens first.
(5) For the purposes of this Act, the death of an employee is taken to
have resulted from a disease, or an aggravation of a disease, if, apart
from that disease or aggravation, as the case may be, the death of
the employee would have happened at a significantly later time.
(6) For the purposes of this Act, an incapacity for work, or an impairment,
of an employee is taken to have resulted from a disease, or an
aggravation of a disease, if, apart from that disease or aggravation, as
the case may be:
(a) the incapacity or impairment would not have occurred; or
(b) the incapacity would have started, or the impairment would have
happened, at a significantly later time; or
(c) the extent of the incapacity or impairment would have been
significantly less.
(7) For the purposes of this Act, a disease suffered by an employee, or an
aggravation of such a disease, is not taken to be an injury to the
employee if the employee has at any time, for purposes connected
with his or her employment or proposed employment in the maritime
industry, made a wilful and false representation that he or she did not
suffer, or had not previously suffered, from that disease.
CONSIDERATION
In these reasons I will give my conclusions on various aspects of s 10(7) of the Act. In Inco Ships Pty Ltd v Hardiman (2007) 167 FCR 294; [2007] FCA 1138 at [66], Mansfield J has cautioned the need to have regard to the precise wording of s 10(7) of the Act.
What was the nature of the psychiatric condition?
Dr Chalk, psychiatrist, has given his opinion that from June 2014 to the date of his report (22 October 2014) the applicant developed “symptoms of an adjustment disorder with depressed and anxious mood”.[9] Dr Chalk reported that the past history of the applicant suggests a brief reactive depression or an adjustment disorder that resolved.[10] In giving his evidence Dr Chalk stated that the symptoms the applicant presented with in 2011 were consistent with an adjustment disorder.[11]
[9] Exhibit A, T-Documents, T20 at pp. 75-76.
[10] Ibid at p. 75.
[11] Transcript of proceedings at p. 87.
Dr Chalk in giving his evidence gave convincing reasons for his conclusion noting in particular in his oral evidence that the presentations in 2011 and 2014 were very similar. Dr Chalk confirmed that the quality of the applicant’s reaction to difficult circumstances was the same; the reaction encompassed depression and anxiety symptoms.[12]
[12] Ibid at p. 89.
I place reliance on the opinion of Dr Chalk in finding that the applicant suffered an adjustment disorder with mixed anxiety and depressed mood both in 2011 and 2014. Another reason why I have come to this conclusion is because the applicant himself in his claim form has stated that he previously had a similar illness or injury in April 2011 when he had stress related depression and anxiety due to poor management.[13] I also place reliance on the records dated 25 May 2011 of Mr Farr, psychologist, who referred to the then diagnosis of the adjustment disorder of the applicant.[14]
[13] Exhibit A, T-Documents, T14 at p. 46,
[14] Exhibit C, General practitioner medical records.
On 23 July 2014, Mr Farr assessed the applicant as having “moderate/severe” depression on the depression, anxiety and stress scale.[15] The applicant asserted that the symptoms he experienced in 2014 were more severe than the symptoms he experienced in 2011. Certainly, Dr Chalk confirmed in cross-examination that the events of 2014 had been more severe. In my opinion, s 10(7) of the Act does not require me to make an assessment as to the severity of the symptoms. It is sufficient for the operation of that provision for the disease, which is the subject of the applicant’s claim, to be the disease that he previously suffered from.
[15] Exhibit A, T-Documents, T29.
The applicant contends that he suffered posttraumatic stress disorder in 2014 and relies upon the evidence of Dr Sardinha, psychiatrist, who, in his report of 4 August 2015, has diagnosed the applicant as having post-traumatic stress disorder. Dr Sardinha in his report has set out the category A event as:[16]
He described a traumatic experience wherein the boat he was managing was allegedly taking water in with potential adverse consequences.
[16] Exhibit B, Medical report of Dr Sardinha, consultant psychiatrist, dated 4 August 2015 at p. 2.
Under cross-examination Dr Sardinha confirmed that his clinical notes do not contain any reference to the applicant being on a boat that was potentially sinking.[17] Dr Sardinha stated that the statement of the applicant, which was compiled with the assistance of his wife, and was sent to Dr Sardinha on 10 November 2014, made reference to the boat event.[18]
[17] Transcript of proceedings at p. 49.
[18] Ibid at p. 56.
Dr Chalk in giving evidence remarked that the history that the applicant gave to him is in his reports that he provided[19] and that there is nothing else described that he did not put in those reports.[20] None of the reports of Dr Chalk make any reference to the applicant mentioning a boat taking in water. Dr Chalk, who was briefed with the report of Dr Sardinha, stated that he did not consider that the applicant suffered from post-traumatic stress disorder and stood firm in his opinion during extensive cross-examination.[21] I accept this assessment of Dr Chalk.
[19] Exhibit A, T-Documents, T20 and T28; Exhibit P, Medical report of Dr Chalk, psychiatrist, dated 17 November 2015.
[20] Transcript of proceedings at p. 89.
[21] Ibid at pp. 94-95.
There is no cogent evidence that the applicant experienced a life threatening or similar event. While it has been alleged that the boat that the applicant was on board suffered a leak to the extent of compromising the applicant's safety, I do not accept that this is the case. Mr Oliver, superintendent and operations manager, certainly gave evidence that a leak in the boat was repaired and the integrity of the boat was not compromised. Mr Oliver stated that the applicant had actually assisted him in fixing the leak.[22] What is also important in examining the contemporaneous documents is that there is no mention of any leak in the boat being the cause of stress to the applicant. On his claim form the applicant linked a number of events that he said led to his illness or injury, I have earlier mentioned these events,[23] yet there is no mention of any leak to a boat or any other distressing situation.
[22] Transcript of proceedings, p. 74.
[23] See [4] of these reasons.
For these reasons I do not accept that the applicant suffered post-traumatic stress disorder in 2014 or that he experienced the category A event as described by Dr Sardinha.
Did the applicant suffer from a disease?
The applicant contends that s 10(7) of the Act has no application because he suffered an “injury” and not a “disease”.[24] The applicant relies upon the opinion of Dr Chalk who in cross-examination stated that an adjustment disorder and a post-traumatic stress disorder can be regarded as an “injury” rather than a “disease”. Dr Chalk based his answer on his State Workcover experience.[25]
[24] Applicants submissions dated 25 May 2016 at [6](a).
[25] Transcript of proceedings at p. 100.
The definition of “disease” in s 3 of the Act includes any ailment suffered by an employee, or the aggravation of any such ailment that was contributed to in a material degree by the employee's employment. The definition of “ailment” in s 3 of the Act includes any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
A mental health condition has been held to be an ailment under the definition in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). In Kennedy v Comcare [2015] AATA 334 DP Hack at [50]-[51] regarded a depression condition as an ailment. The Federal Court of Australia in Gaffey v Comcare (2015) 239 FCR 76; [2015] FCA 1024 at [44] accepted a Tribunal finding that a psychiatric condition was a “disease” being an ailment. In Comcare v Power (2015) 149 ALD 286; [2015] FCA 1502, Katzmann J remarked at [74] that it was not in dispute that the adjustment disorder of the applicant was an ailment and therefore a disease within the meaning of Safety, Rehabilitation and Compensation Act 1988 (Cth). Recently, in Comcare v Martin [2016] HCA 43 the High Court of Australia at [13] accepted that it was appropriate that an adjustment disorder was appropriately described as a mental condition and therefore an ailment within s 5B(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and a “disease” within the meaning of s 5B(1) of that Act.
The definition of ailment in s 3 of the Act is indistinguishable from the definition of ailment in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). I find that the mental condition of the applicant, which been diagnosed as an adjustment disorder, is an “aliment” and therefore a “disease” for the purposes of s 10(7) of the Act.
One issue is whether the mental condition of the applicant prior to him leaving work involved a sudden psychological change. The applicant himself in his claim form refers to a “Gradual buildup (sic) due to fatigue, stress and lack of sleep.”[26] Dr Chalk has described the changes having developed over a relatively brief period of time:[27]
This thirty-two year old man has been off work since June, and certainly reports some mixed improvement since that time. He describes the presence and development over time of mixed anxiety and depressive symptoms that have improved to a degree with treatment, and I note that in the material he has described a number of events that in his view have led up to the development of his condition. Certainly it does appear from his account as though his symptoms developed over a relatively brief period of time, and that similar to his previous experiences removal from the causative irritant seems to have improved matters over a period of time.
However, in my opinion it is not material whether the onset of the ailment was sudden or gradual. This is because the definition of “ailment” in s 3 of the Act refers to an ailment as being “of sudden onset or gradual development”.
[26] Exhibit A, T-Documents, T14 at p. 45.
[27] Exhibit A, T-Documents, T20 at p. 75.
The applicant's psychiatric illnesses in 2011 and 2014 are each an ailment as defined in s 3 of the Act and a “disease” within the meaning of s 10(7) of the Act.
The mental condition that the applicant experienced in 2011 is “that disease” in terms of s 10(7) of the Act as it is an adjustment disorder condition with symptoms of depression and anxiety. This is the same condition that the applicant experienced in 2014. Therefore, the claimed condition is a disease which he “previously suffered” within the meaning of s 10(7) of the Act.
Did the applicant make a false representation?
The applicant in giving evidence confirmed that on 26 May 2014 he signed the medical information form titled: “Western Desert Resources - Medical Information form”.[28] The applicant gave evidence that the form was provided to him by an employee of the respondent and that he had to complete the form “ASAP” and then return it to that employee.[29]
[28] Exhibit A, T-Documents, T9; Transcript pf proceedings at p. 12.
[29] Transcript pf proceedings at p. 12
The medical information form requires the participant to indicate whether he or she has had specified medical conditions. The form also has an open question requesting the participant give details of any “Other” conditions. The applicant answered “NIL” to this open question.[30] In completing the form this way and providing it to the employee of the respondent, the applicant has indicated that he had no other conditions. I consider that the answer that was given by the applicant was false because he did not disclose that he had previously suffered a psychiatric condition in 2011, yet he had later disclosed on his claim form that he had suffered a similar injury or illness to the one he was claiming compensation for.
[30] Exhibit A, T-Documents, T9.
I find that the applicant made a “false representation” to the employee of the respondent within the meaning of s 10(7) of the Act when he gave that employee the medical information form which contained the false answer.
What was the purpose of the representation?
I have to consider whether the representation was made for purposes connected with the applicant's employment or proposed employment in the “maritime industry” within the meaning of s 10(7) of the Act. I am satisfied that the employment of the applicant can be properly regarded as being in the maritime industry because the applicant would be working on a tugboat. Mr Oliver gave evidence that the respondent was engaged by Western Desert Resources to conduct tugboat operations in the Gulf of Carpentaria.[31] Mr Oliver in giving evidence remarked that the medical information form was “a document that everybody on site has to fill in on arrival”.[32] When he was cross-examined he confirmed that “on arrival on site everyone goes to [the] office and fills it out”.[33]
[31] Transcript of proceedings at pp. 70-71.
[32] Ibid at p. 71.
[33] Ibid at p. 75.
The applicant in giving evidence remarked that the employee of the respondent that he provided the completed form to “needs to pass on all my information and everything else to the company that we were working for to get me onto site as soon as possible”.[34] The applicant therefore recognised that he needed to complete the medical information form so that he could get onto the Western Desert Resources site.
[34] Ibid at p. 12.
I find that the representation by the applicant was made for purposes connected with the applicant's employment or proposed employment in the “maritime industry” within the meaning of s 10(7) of the Act. Under cross-examination the applicant agreed that the form that he signed on 26 May 2014 was associated with his employment. The applicant remarked:[35]
They need that form for me to start on site, yes.
[35] Ibid at p. 13.
When the applicant provided the medical information form to the employee of the respondent on or about 26 May 2014 this was done “at any time” within the meaning of s 10(7) of the Act as it was provided before the applicant would be employed on a new worksite.
Was there a wilful representation?
I next have to consider whether the representation of the applicant that he had no other conditions in his medical history can be regarded as “wilful” within the meaning of s 10(7) of the Act. For a representation to be regarded as “wilful” it would be necessary that the “representation be made without any belief that it is true”.[36] I am satisfied on the evidence before me that this is certainly the case. Mr Oliver in the incident report has recorded that the applicant informed him on 26 June 2014 that he suffers from manic depression and has received treatment for suicidal tendencies.[37] On that date, Mr Oliver stated that the applicant informed him that he had not told the respondent of his suicidal tendencies and serious depression as this would be detrimental to his employment opportunities.[38] I do not accept as plausible the explanation of the applicant that he provided at the hearing that he had been talking about his mother-in-law who is undiagnosed.[39] There is no reason why he would mention the condition of his mother-in-law to Mr Oliver on that occasion.
[36] Comcare v Porter (1996) 70 FCR 139; [1996] FCA 562 at 150 per Jenkinson J.
[37] Exhibit A, T-Documents, T10.
[38] Exhibit A, T-Documents, T19.
[39] Transcript of proceedings at p. 10.
The applicant in giving evidence asserted that he was not informed that he had been diagnosed with anxiety and depression in 2011.[40] I do not accept this evidence having regard to the admissions made by the applicant to Mr Oliver on 26 June 2014 that he had a mental condition which he then described as “manic depression”.[41] I accept the evidence of Mr Oliver that the applicant had made such an admission. On 25 May 2011, the applicant was recorded as being advised by Mr Farr of his adjustment disorder condition: the wife of the applicant was present on that occasion.[42] This record was shown to the applicant, who asserted that he was not aware that Mr Farr used the words “adjustment order” directly to him.[43] I do not accept the explanation of the applicant as the note of Mr Farr records that the applicant was advised of the condition and was given an explanation of how the adjustment disorder arose. I consider that the applicant was then advised by Mr Farr of his adjustment disorder condition.
[40] Transcript of proceedings at p. 39.
[41] Exhibit A, T-Documents, T10 at p. 28.
[42] Exhibit C, General practitioner records.
[43] Transcript of proceedings at pp. 23-24.
The medical information form was not a form that the applicant had casually completed. During his cross-examination the applicant admitted that he had “lent some thought” to what information he provided in the medical information form.[44] This is supported by the detailed information he did include on the form, including his allergy to Codeine, that he has a tetanus injection in 2010 and that he had a first aid certificate.[45] The decision not to disclose his previous history of depression was, in my opinion, a wilful decision by him to make a false answer because he appreciated that such disclosure would be detrimental to his employment. Under cross-examination the applicant admitted: “I will agree with you that if I put something on there that it would be detrimental”.[46]
[44] Ibid at p. 15.
[45] Exhibit A, T-Documents, T9.
[46] Transcript of proceedings at p. 19.
I accordingly find that in not disclosing his past psychiatric condition on the medical information form that he completed and provided to the employee of the respondent on or about 26 May 2014, the applicant had made a wilful and false representation that he did not suffer, or had not previously suffered, from a disease within the meaning of s 10(7) of the Act, that disease being the adjustment disorder of the applicant.
CONCLUSION
This is a case whereby the operation of s 10(7) of the Act the adjustment disorder that the applicant suffered in 2014 is not taken to be an injury for the purposes of the Act. Prior to his employment by the respondent, the applicant had suffered from an adjustment disorder and he had made a wilful and false representation that he had not previously suffered from that disease when he provided an employee of the respondent with the medical information form that he completed on or about 26 May 2014. That medical information form was needed for the employment or proposed employment of the applicant in the maritime industry.
DECISION
I affirm the decision under review.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD ................................[sgd]........................................
Associate
Dated 20 December 2016
Date(s) of hearing 3 May 2016; 4 May 2016 Date final submissions received 5 December 2016 Counsel for the Applicant Ms S Anderson Solicitors for the Applicant Woods Prince Lawyers Counsel for the Respondent Mr C Clark Solicitors for the Respondent Jarman McKenna
7
2