[2013] AATA 73
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/0434
2012/0443
Re
Benjamin Smith
APPLICANT
And
John Holland Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate 15 February 2013 Place Perth Application 2012/0434
The decision under review is affirmed.
Application 2012/0443
The decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable, under s 14(1) and Part VIII of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay compensation, in accordance with that Act, to the applicant in respect of a mental “injury”, namely, major depressive disorder, deemed to have been sustained by him on 2 February 2011.
Application may be made to the Tribunal in relation to the costs of the proceedings in Application 2012/0443 within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of those proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers' Compensation Jurisdiction.
..(sgd) S D Hotop..............
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – employee of licensed corporation – applicant suffered anosmia and loss of taste – applicant claimed compensation – anosmia and loss of taste a compensable injury – incapacity for work – amount of compensation payable to applicant – applicant's normal weekly earnings – amount applicant able to earn in suitable employment – amount of compensation payable to applicant for incapacity for work is nil – applicant suffered major depressive disorder – applicant claimed compensation – applicant’s anosmia and loss of taste contributed significantly to applicant's major depressive disorder – applicant’s major depressive disorder a disease – applicant's major depressive disorder a compensable injury – respondent liable to pay compensation to applicant for major depressive disorder – decision under review regarding liability to pay compensation for incapacity for work affirmed – decision under review regarding liability to pay compensation for major depressive disorder set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 4(10A), s 5A(1), s 5B, s 7(4), s 8, s 9(1), s 14(1) and s 19
CASES
Commissioner of Taxation v Salenger (1988) 19 FCR 378
John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member15 February 2013
Introduction
Benjamin Smith (“the applicant”) has applied to the Tribunal for review of two “reviewable decisions” made on behalf of John Holland Pty Ltd (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), namely:
·a reviewable decision, dated 19 January 2012, which affirmed a determination, dated 14 October 2011, that the respondent is not liable to pay compensation to the applicant, pursuant to s 19 of the SRC Act, for incapacity…
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Details
- Case
- [2013] AATA 73
- Decision Date
CaseChat Overview and Summary
Benjamin Smith, the applicant, brought a case against John Holland Pty Ltd, the respondent, to claim compensation for injuries sustained while working as a Boiler Maker/Coded Welder for the respondent. Smith claimed compensation for anosmia and loss of taste, as well as major depressive disorder. The case was heard by the Administrative Appeals Tribunal, which had to decide on the liability of the respondent to pay compensation for the injuries sustained by Smith.
The Tribunal had to decide whether the injuries suffered by Smith were compensable under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The Tribunal found that Smith's anosmia and loss of taste were not compensable injuries under the SRC Act as they did not result in incapacity for work. However, the Tribunal found that Smith's major depressive disorder was a compensable injury under the SRC Act. The Tribunal concluded that the respondent was liable to pay compensation to Smith for his major depressive disorder, which was deemed to have been sustained by him on 2 February 2011.
The Tribunal affirmed the decision under review regarding the liability to pay compensation for incapacity for work. However, the Tribunal set aside the decision under review regarding the liability to pay compensation for major depressive disorder. Instead, the Tribunal decided that the respondent was liable to pay compensation to Smith for his major depressive disorder. The Tribunal's decision was based on the evidence presented by both parties, including medical reports, witness statements, and expert opinions. The Tribunal found that the evidence supported the conclusion that Smith's major depressive disorder was a compensable injury under the SRC Act.
In conclusion, the Administrative Appeals Tribunal decided that John Holland Pty Ltd was liable to pay compensation to Benjamin Smith for his major depressive disorder, which was deemed to have been sustained by him on 2 February 2011. The Tribunal affirmed the decision under review regarding the liability to pay compensation for incapacity for work but set aside the decision under review regarding the liability to pay compensation for major depressive disorder. The Tribunal's decision was based on the evidence presented by both parties and the applicable provisions of the SRC Act.
The Tribunal had to decide whether the injuries suffered by Smith were compensable under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The Tribunal found that Smith's anosmia and loss of taste were not compensable injuries under the SRC Act as they did not result in incapacity for work. However, the Tribunal found that Smith's major depressive disorder was a compensable injury under the SRC Act. The Tribunal concluded that the respondent was liable to pay compensation to Smith for his major depressive disorder, which was deemed to have been sustained by him on 2 February 2011.
The Tribunal affirmed the decision under review regarding the liability to pay compensation for incapacity for work. However, the Tribunal set aside the decision under review regarding the liability to pay compensation for major depressive disorder. Instead, the Tribunal decided that the respondent was liable to pay compensation to Smith for his major depressive disorder. The Tribunal's decision was based on the evidence presented by both parties, including medical reports, witness statements, and expert opinions. The Tribunal found that the evidence supported the conclusion that Smith's major depressive disorder was a compensable injury under the SRC Act.
In conclusion, the Administrative Appeals Tribunal decided that John Holland Pty Ltd was liable to pay compensation to Benjamin Smith for his major depressive disorder, which was deemed to have been sustained by him on 2 February 2011. The Tribunal affirmed the decision under review regarding the liability to pay compensation for incapacity for work but set aside the decision under review regarding the liability to pay compensation for major depressive disorder. The Tribunal's decision was based on the evidence presented by both parties and the applicable provisions of the SRC Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The evidence before the Tribunal comprised:·the “T Documents” (T1–T116, pp 1–573) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);·Exhibits A1–A2 tendered by the applicant;·Exhibits R1–R24 tendered by the respondent; and·the oral evidence of the applicant and each of the following witnesses:- Dr Philip Beinart, Professor Terence McManus, Dr Alan Home and Shane Taranto (who were called by the applicant); and- Jeremy Gledhill, Peter Metcalf, Jack Bowden and Professor Aleksandar Janca (who were called by the respondent).The Applicant’s Evidence The applicant confirmed that he had signed a witness statement, dated 18 May 2012, for the purpose of these proceedings and that its contents are true and correct. The contents of the applicant’s witness statement are as follows:“ 1. My name is BENJAMIN SMITH.2. I was born … March 1977.3.Prior to my working at John Holland, Blue Water, Collie site, for 1 year I worked out of my trade, where I was not surrounded by toxic fumes, or any dangerous substances that could affect my health.4.From December 1997, I ceased all Boiler Maker work, and all other forms of work, where I enjoyed the Gascoyne lifestyle, coastline and all other activities, and lived of (sic) all monies I had save, until June 1999, when I took up Professional fishing, as it had always been a dream of mine.5.I worked in different aspects of this field until June 2003. In the off season I would do labouring work for friends on their plantations.6.In November 2002, I obtained gardening work, and courier work, and supplemented this with a second and sometimes, third job working for abattoirs, security, and again for friends on plantations.7.I continued with security, and started with Retail, as the hours suited my lifestyle.8.I left security in 2005, and began driving trucks for a local fruit and veg packing and freight company.9.In March 2006, I left these financially futile types of employ and these hours were dangerous to my health.10.I moved to Perth in March 2006, following employment as a Boiler Maker/Coded Welder. I immediately started working for Austline Fabrication and then Alltype Engineering.11.During these engineering positions at no time was I inflicted with any injury or illness.12.I started working for John Holland on 21 July 2008 where I started working in confined spaces from 22 July 2008, during working in confined spaces for a length of time I noticed deterioration in my sense of smell & taste.13.I therefore advised my supervisor of this, namely Jack Bowden. After a couple of weeks I had lost complete sense of taste & smell.14.I advised Jack ‘Jack there is something really wrong, I have now no sense of smell or taste’ Jack advised ‘see how you go over the weekend, if still no better then you had better go see a doctor’.15.During a prestart meeting there was a discussion regarding the concern of what we were dealing with and side effects of NR604 aluminium paint.16.It was a heated discussion and not the first on this matter, guys were refusing to work with the product unless a MSDS [Material Safety Data Sheet] in English was supplied and correct PPE [Personal Protective Equipment] was issued.17.A few work colleagues commented ‘Bens already affected were not going to be next’.18.Colin BMWE [Boiler Maker Welder], a 457 welder completed works in the penthouse, grinding paint off penthouse floors. MSDS was handed around in the crib room.19.During work at Bluewater Collie JHG, more than half of the work completed was inside confined space and 75% welding on or in proximity to painted surfaces.20.This is to the best of my knowledge and experience, the direct cause for the complete deterioration of my senses.21.It was the project manager’s duty of care to ensure safe operating procedures.22.These welded surfaces should have been ground clean proper to assembly and this had not taken place prior to my commencement of employment at John Holland.23.During my time working in confined spaces, Management did not acknowledge them:a.As confined spaces, never once, in my recollection, used a gas monitor to test these confined spaces. Whilst a storm ravaged the site, and every other employee, obtained shelter in the crib room, or sent home, John Holland staff were instructed to ‘go out to work’ whilst flying objects and pieces of structure were picked up and thrown across the work site.b.I blatantly refused, and sheltered in a sea container. I later found out that, colleagues, had their lives at risk by objects and many near misses were reported.24.After my confined space and working at heights tickets elapsed, on the 7th and 8th June 2009. After three weeks of notice for requirement of retraining, 1. No training was given, 2. 25.I was still asked to work at heights and confined space work, even though my tickets were out of date. The day I refused to work at such tasks without a ticket (which is a criminal act), I was told my employment was to cease that afternoon.26.For the entire month I had been asking my direct supervisor, Peter Metcalf, and in addition, the Project Manager Aaron for Workers Compensation forms, and every request had been dismissed.27.This is again, another criminal act by management.28.After being laid off by John Holland I went about looking for work not thinking about not having any support about the implications or potential incidents, that could occur or I could have caused due to my loss of both senses.29.During the past John Holland work it is true, that I did work in confined spaces on iron ore mines fixed/mobile plant and equipment. Welding, whilst in these confined spaces would have been less than 10% of the total time whilst employed.30.The majority of works was liner or wear plate replacement (fitting). Not one of the surfaces I welded on had any paint or foreign body in proximity to the weld zone in these following employment/roles.31.Furthermore no toxic fumes or flammable gases were used by myself or co-workers whilst within confined spaces on these sites so any possible thought of further degradation of health during this further employment is not possible.32.After handing Supervision my work cover form precluding me from working in confined spaces, I noticed an immediate lack of usefulness, supervision found no immediate task I was suitable for.33.Once certification of confined space and working at height expired and JHG reluctance to pay for my retraining had become clear my role was non-existent and I was repeatedly asked to continue working unsafely in these roles.34.Further that day I was laid off. Between my doctor’s appointments & Termination management were reluctant to hand over/provide and complete my claim forms.35.On 10th December 2009, I had an appointment with ENT Dr Latif Kardhim, who also gave me further referrals to eliminate other possible causes for the Anosmia.36.Although I was in contact with Forrest Family Practice, being my GP Practice, Compensation to this date was not yet recognised.37.Constant Invoices, and contact with management, right up to 21 Jan 2010, my partner and I conceded John Holland would not accept liability for my work place accident, which is why the referrals, were never acted upon.38.During post John Holland employment, tended pre-employment medicals, for different employers, during which, they could find no physical or other injury that would make me unfit for work.39.When asked if there was any other information I would like to disclose, which could make me unfit for work, therefore unemployable, for fear of financial failure and bankruptcy, I failed to inform medical practitioners, of my condition/affliction, namely Anosmia.40.Due to the fact, John Holland SMP, Bunbury, had all but collapsed, my After being laid off by John Holland I went about looking for work not thinking about not having any support about the implications or potential incidents, that could occur or I could have caused due to my loss of both senses.…46.Continued attempts to obtain Workers’ Compensation paper work, took some time, and exhaustive contacting.47.The forms were submitted on 9th December 2009.48.On 2 February 2010 I spoke JHG Workers’ Compensation Department.49.Jade Kimi, after previous, exhaustive failed contact, stressed my concern, the following day I posted further documents, regarding Dr Kardhim’s appointment. 50.On 24 March 2010 we made a Medicare Claim for Dr Singh’s appointments.51.On 23 June 2010 we received a letter advising Liability is accepted regarding Anosmia.52.A further appointment was arranged to meet Ear, Nose & Throat specialist Dr McManus subsequent to a telephone conversation between myself and JHG representative.53.On 7 July 2010, I attended Dr McManus’ office for an assessment.54.On 26 July 2010, I received Dr McManus’ report, after I had made numerous requests and demands from the John Holland team.INCIDENCES THAT HAVE OCCURRED AS A RESULT OF MY ANOSMIA55.In my post John Holland employment I have lost count of the number of times I have been performing hot-work, that has caused my work wear to smoulder and have been unaware of this, until either, colleagues have informed me I am on fire.56.One particular incidence whilst working on site for RCR Tomlinson in Port Hedland. It occurred whilst I was oxy thermal cutting, at night, with double eye protection, consisting of, oxy goggles, and welding helmet.57.The cuff around my ankle caught fire to such an extent, flames were licking above me knee, and I was oblivious to this, as the welding helmet, blocked my vision, and sense of smell was gone so I could not smell burning material.58.My leg continued on fire, until physical burns made me aware of the fact I was on fire.59.I notified Management and had to be re-issued clothing.60.In following days, other staff members jested, joked and made a mockery of me.61.This has caused me considerable embarrassment and damage to my self esteem.62.This caused me to distance myself from my co-workers.63.This was a weekly or every other week occurrence where clothes would catch on fire whilst working in my trade.64.The abovementioned instance was by far the most severe and really made it apparent how dangerous continuing in my trade was to my and others safety and wellbeing.65.Another particular incident, I was working on another site for Transfield at BHP Yandi on a stacker platform, repairing a ladder section, using oxy-acetylene to heat and straighten.66.I was three platforms above ground level and whilst resting oxy-acetylene on grid mesh, a co-worker passed within 6 metres painting hand railing, and he asked me if I could smell acetylene gas leaking.67.I immediately checked my hand piece, and noticed I had created a flammable gas plume of approximately 200 cubic metres, which had the explosive capacity to kill both co-workers and myself and cause hundreds of thousands of dollars in damage to structure.68.Upon recollection of these past incidences, coupled with Dr McManus’ report, I conceded I was no longer fit to work on site or anywhere in my trade, and resigned in desperation.69.I believed at this point, John Holland, after reading Dr McManus’ report, would pay my wages and accept full liability.70.After receiving Dr McManus’ report and after I terminated my employment, I had been battling to grasp the aspirations and financial goals and career achievements I previously had no trouble achieving.71.My sense of worth has almost completely diminished and I am unable struggling with day to day living.72.I felt at this point I could not leave employment, even though I had a report to say I was unfit for work, because my life’s goals and dreams were ending up, in my opinion, the sewerage pit.73.So I conceded that my affliction, being Anosmia, had in fact rendered me an extremely unsafe worker, which against the best safe work practices and safe working measures could not be put aside, that, not only was I endangering my own life, but that of all surrounding workers.74.Since September 2010 when I resigned from site work and began living at home again, a further realisation has been made, that my limitations extend further than the work place.75.There have been incidences around the home where I have passed out after using household cleaners, simply from the fact that I cannot smell them.76.Additional incidents include, though very infrequent, but be that as it may, occurrence of a gas stove top, has not quite been turned off, engulfing the house with fumes.77.This was only bought to my awareness some hours later, when my partner Natalee, returned from work. Upon request, she will testify to this.78.Another more recent incident is whilst oiling timber in the shed, my mother-in-law walked into the house and was overcome by the fumes of the oil.79.She came out to the shed, and made sure I was okay however because she was so overcome by these fumes, she started to feel physically sick.80.The distance from the front door of the house. And the rear door to the shed is approximately 7 metres.81.Who knows what the result would have been for me, even though I had an exhaust fan going, if she had not come to let me know how bad the fumes were.82.This indicates further, how limited my recreational/hobbies could become, without being exposed to potentially harmful substances/gases.83.Due to the fact my finances are so depleted, my partner, Natalee, purchases fuel for her car, and fills jerry cans, when the fuel price is at the lowest during the week.84.Whilst refilling the vehicle in the carport, with the jerry cans, after being interrupted by my partner Natalee, who told me the petrol fumes were unbearable, and I must open the carport door.85.During day to day living, I require the service of my partner, Natalee, or any friend or family member to instruct me, if foods and liquids are fit to consume as I have had the calamity several times, without such a service, of consuming, seemingly, to me, edible food, I have had food poisoning.86.Additionally, during day to day living, where it be by friends, family or by my partner Natalee, I am occasionally informed my body odour or a piece of my attire smells unbearable after doing house chores.87.As much as this keeps me decent, it is very destructive to my well-being and conscientious as I am totally unaware of this, and I do my best to keep myself in a clean and tidy manner.88.In addition to this, the impact resulting on my day to day living has been quite substantial.89.There are many hobbies I no longer partake in as I cannot enjoy them to the full extent.90.Things like going out to dinner are no longer a joy for me as I have no sense of taste.91.I cannot enjoy the simple pleasures of going to the beach and smelling the air.92.In recent months, I have seen my General Practitioner who has referred me to a further two specialists.93.The first specialist (who I believe was an Orthopaedic Surgeon) that I attended on, conducted an Electrical Conductivity Test of the veins that go from my left elbow to my wrist and found that I had a major blockage in the tendons/veins.94.I then obtained a further referral from my General Practitioner to see another specialist and provided him with the details resulting from my attendance on the Orthopaedic Surgeon.95.The second specialist advised that I would need to undergo keyhole surgery on my elbow.96.I have lost feeling in my left pinkie & ring finger and have been advised by the specialist if I did not undergo surgery immediately, the damages would be permanent.97.Undergoing such a surgery could impact on further job opportunities as it is likely there would be further duties I will be unable to fulfil subsequent to the surgery.98.It will take from 2 to 4 weeks to recovery from that surgery.” (sic)(Exhibit A1)
Decision
Reasons for decision
The Tribunal concludes, therefore, that, pursuant to s 14(1) and Part VIII of the SRC Act, the respondent is liable to pay compensation, in accordance with that Act, to the applicant in respect of a mental “injury”, namely, major depressive disorder, deemed to have been sustained by him on 2 February 2011.Decision For the above reasons the Tribunal decides as follows:Application 2012/0434·the decision under review is affirmed;Application 2012/0443·the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable, under s 14(1) and Part VIII of the SRC Act, to pay compensation, in accordance with that Act, to the applicant in respect of a mental “injury”, namely, major depressive disorder, deemed to have been sustained by him on 2 February 2011.
Ratio Decidendi
Legal Principle Established
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