Borg and Australian Postal Corporation
[2002] AATA 796
•12 September 2002
DECISION AND REASONS FOR DECISION [2002] AATA 796
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/54
GENERAL ADMINISTRATIVE DIVISION )
Re DENNIS BORG
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr J Campbell, Member
Date12 September 2002
PlaceSydney
Decision The Tribunal determines that the Tribunal has no jurisdiction in this matter and that the application be dismissed.
[SGD] Dr J Campbell Member
CATCHWORDS
WORKERS COMPENSATION - injury at work - liability accepted - liability ceased by consent agreement - referral to a rehabilitation counsellor - access to report only by way of medical practitioner - Freedom of Information Request - access to report eventually granted by the Administrative Appeals Tribunal - acute stress disorder and/or aggravation of previous stress reaction claims in response to reading of report - issue of disease/injury - issue of causation - issue of jurisdiction – non-compliance of claim for compensation
Safety, Rehabilitation and Compensation Act 1988 sections 4, 14, 17, 19, 54
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
12 September 2002 Dr J Campbell, Member
In this matter, Mr D Borg ("the Applicant") seeks a review of the decision of 7 December 2001 made by an authorised delegate of the Australian Postal Corporation ("the Respondent") that the Applicant was not entitled to compensation in respect of a psychological condition as a result of his employment. This decision had affirmed an earlier decision made by the Respondent on 28 November 2001, in which it was stated that the Applicant's claim for compensation does not comply with section 54 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") on 15 July 2002 at which the self represented Applicant presented evidence. The Respondent was represented by Mr Johnson of Counsel.
The following material was placed into evidence before the Tribunal:
Exhibit No. Description Date
T1-T64 pp1-162 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1 Bundle of documents from the Applicant 18 March 2002
A2 Report by Mr Jones to Mr Chairperson Psychologists Registration Board 4 June 2001
R1 Letter by Applicant to Manager Seven Hills Mail Centre 19 January 1998
R2 Letter by Applicant to Grievance Appeals Coordinator 18 August 1998
R3 Letter by Complaint Coordinator to Applicant 24 August 1998
R4 Letter by Applicant to Complaint Coordinator 28 August 1998
R5 Letter by Complaint Coordinator to Mr Jones 4 September 1998
issues
The relevant issues in this matter are:
(a) whether the Applicant has submitted a claim for compensation which complies with section 54 of the Safety, Rehabilitation and Compensation Act 1988;
(b) what injury and/or disease does the Applicant suffer; and
(c) whether such injury and/or disease has arisen out of or in the course of employment with the Respondent.
legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 and in particular sections 4, 14, 17, 19 and 54.
backgroundThe Applicant notified his employer of an incident which occurred on 2 November 1997, and which involved the Applicant being sprayed with hot oil to his right upper arm when a can of sardines exploded, having been left unattended on a stove by an unknown employee. The Applicant filed a claim for compensation with his employer on 24 November 1997. Medical certificates accompanying the claim detailed the Applicant as suffering from multiple superficial burns to right upper arm and anxiety (T5).
The Applicant was referred by his employer for counselling on 26 November 1997, because of his anger and anxiety over the incident (T8). In the meantime, his treating general practitioner, Dr Soliman, referred the Applicant to Dr Motum, a psychiatrist on 4 December 1997 (T9, p32), and later to Dr Schultz on 16 January 1998 because of illness of Dr Motum (T9, p38). The Applicant was treated with psychotherapy and Aurorix (T9, p41).
On 22 December 1997, the Respondent accepted liability for the superficial burns of the right arm, but not for the anxiety disease, with medical costs and incapacity payments being paid in relation only to the burns injury (T10).
The Applicant expressed his dissatisfaction with the decision on 12 January 1998 (T11). The Respondent's rehabilitation counsellor notes on 21 January 1998 that the Applicant had not felt comfortable consulting Davidson Trahaire (counsellor) to whom he had been referred, and that he preferred to continue with counsellors of his own choice. The rehabilitation counsellor also noted that the Applicant was angry and distressed, with a continued focus on the actual incident and how he felt the matter should have been dealt with (T12).
The Applicant requested a reconsideration of the decision of 22 December 1997 and 4 February 1998 and attached a letter from Dr Schultz, which detailed the Applicant's condition as an adjustment disorder with depressed and anxious mood, which the psychiatrist considered to be related to the accident (T14). On 27 February 1998 liability for the anxiety condition was accepted by the Respondent (T16).
Following further absences from work, the Respondent referred the Applicant to Dr Lee, a psychiatrist, who saw the Applicant on 27 April 1998 and expressed the following opinion (T25, p69):
"I believe that this man became resentful after he was splashed with hot oil as he felt that nobody took notice of him or attempted to investigate the matter. His main reaction was anger and I believe this caused him to express it through absenteeism. He began to perceive management as aggressive and incompetent and took what I consider to be an excessive period of leave, from November 1997 to January 1998. I believe that he was exaggerating or malingering anxiety when he was angry and resentful".
A copy of Dr Lee's report was forwarded to the Applicant by the Respondent on 4 May 1998, while in the same letter notifying the Applicant that liability in respect of injuries and sequela thereof arising out of the accident of 2 November 1997, would cease as of 4 May 1998 (T26). Following a request for reconsideration by the Applicant on 21 May 1998, the decision was affirmed by the Respondent in undated correspondence (T29).
On 19 January 1998 the Applicant wrote to the Respondent complaining that the incident of 2 November 1997 was being ignored and that since returning to work on 24 November 1997, his condition had deteriorated "due to the aggression and contention in the environment that I work in…" (Exhibit R1). On 6 April 1998 the Applicant wrote to the Respondent concerning issues relating to information concerning the existence of a Grievance Officer and complaints concerning statements made by Mr Sadler. On 2 June 1998 the Respondent replied denying substance to such complaints (Exhibit A1, Folio 1).
Following an application by the Applicant for a Board of Reference review of his grievance on 5 July 1998, the chairman of that review concluded:
"Australia Post have agreed that the report resulted from an investigation into an exploding food can which injured Mr Borg and it was not a matter which would be included on his personnel file or be used in any future counselling or review relating to his employment (Exhibit A1, Folio 2)."
By letter dated 18 & 25 August 1998 the Applicant lodged a further grievance against the author of the letter of 25 June 1998, in that the investigation undertaken was not properly conducted and similarly a grievance against Mr Johnston in that he displayed anything but an impartial view in relation to his investigation of his grievance (Exhibit R2). The Respondent's Complaint Coordinator responded to the Applicant on 24 August 1998 that such matters had been raised and/or the Applicant given every opportunity at the Board of Reference to raise such issues, and as such is not appropriate to raise matters again which had already been the subject of review (Exhibit R3). On 28 August 1998, the Applicant replied to the Respondent indicating that he was dissatisfied with and rejected the response, as his letter of 18 & 25 August 1998 was a letter detailing a genuine complaint of grievance (Exhibit R4).
On 4 September 1998 the Respondent's Complaint Coordinator referred the Applicant to Mr Jones, a counsellor at Davidson Trahaire, with the following extracts cited (Exhibit R5):
"The consensus is that it will not matter how many times it is explained to Mr Borg, unless the outcome is as he requires, it is expected he will cascade this office with yet more correspondence. Further correspondences could be determined to be vexatious and mischievous and therefore subject to disciplinary action.
However, before proceeding with any form of disciplinary action it would be appreciated if an assessment could be undertaken of Mr Borg to ensure his reaction is not driven by any psychological factor which could attribute to his behaviour. Opportunity to counsel Mr Borg should be taken if it is considered appropriate and particularly if it is considered same would help to resolve the matter.
It will be explained to Mr Borg that, as all efforts to resolve his complaint have now been exhausted internally within Australia Post, the matter has been referred to Davidson Trahaire who will act as an independent party for him to discuss all matters with which he is dissatisfied with a view of revealing a means in which the matter may be resolved.
It would be appreciated if you would forward a confidential report in due course, addressed to the writer. The report should include a psychological assessment together with any options which may be deemed appropriate for consideration under these particular circumstances."On 4 September 1998, the Respondent's Complaint Coordinator wrote to the Applicant in the following terms (Exhibit A1, Folio 5):
"It is not my intention to be seen as dispensing with this matter unfairly or without due consideration, however the fact remains you have pursued your appeal and review rights as far as they can go using the internal grievance procedure within Australia Post.
Notwithstanding, because of your sincerity and the fact you remain dissatisfied I have arranged an appointment with Davidson Trahaire to which it is important you attend and which will give you opportunity to discuss all maters with a third party. It is hoped that this meeting will reveal a means in which this whole matter can be resolved".On 17 September 1998, Mr Jones, a consultant psychologist concludes (at T31, p87):
"There is a clear perception by Mr Borg that he has been disadvantaged by his "reasonableness" in not being more aggressive in pursuing an outcome in these matters. The question in this regard becomes is there any likelihood that he may in fact " up the ante", so to speak, in order to produce an outcome which he wants.
…
Mr Borg's beliefs are indicative of an individual with paranoid thinking who perceives in some way that he has been persecuted and singled out as a target of others' malevolent behaviour. Nowhere in the available information is there sufficient evidence to support this personal interpretation."In concluding comments, Mr Jones suggests the following options to further manage the situation (T31, pp87 to 88):
"From my meeting with Mr Borg, it was evident that he is singularly interested in pursuing his complaint through some available avenue of appeal which is at present frustrated as he has reached the peak body for such within Australia Post. In further managing the situation involving Mr Borg, the following are possible options:
· Address some of the detail concerns that he has in regard to specific inaccuracies in the Chairman Board of Reference's letter.
· Refer Mr Borg back to his General Practitioner through direct liaison by the Australia Post Medical Officer with supporting evidence detailing the discrepancies between the available evidence and Mr Borg's perception and behaviour, with a request that Mr Borg be referred for psychiatric treatment.
· Consider available disciplinary measures in regard to Mr Borg's unrelenting pursuit of this matter."
On 24 September 1998, the Respondent's Complaint Coordinator wrote to the Applicant scheduling a meeting for the Applicant to meet with the Manager, letters NSW/ACT on 2 October 1998 to discuss the Applicant's unmet expectations (Exhibit A1, Folio 6). Following the Applicant's non-attendance, a further letter was forwarded on 2 October 1998 to the Applicant, indicating that the Applicant's non-attendance has signalled an intention not to pursue this issue and the mater was therefore deemed closed. Moreover, it was stated that if the Applicant wanted to discuss the contents of the Jones report, it could be arranged by having a copy of the report forwarded to a nominated general practitioner (Exhibit A1, Folio 7). The Applicant responded in an undated letter, indicating that he had been on annual recreation leave and that he did not understand why his general practitioner was being involved, when he was invited initially to discuss the matter with Mr Jones - a neutral third party (Exhibit A1, Folio 8).
On 14 December 1998, a consent decision issued by the Tribunal set aside the reviewable reconsideration decision of the Respondent, and in substitution extended the liability to pay compensation in relation to medical expenses and incapacity payments up to and including 31 August 1998, arising from "superficial burns right arm, psychological condition" suffered by the Applicant on or about 2 November 1997 (T32).
On 1 February 1999, the Applicant sought a copy of his file held at the Grievance Complaints Unit (T33). The Respondent provided all the material bar the Jones report on 4 March 1999, indicating that it would be necessary for the Applicant to nominate a doctor to whom the Jones report could be sent (T35). Following pursuit of appropriate avenues, the Applicant received a copy of the Jones report some 14 days after a Tribunal hearing on 27 November 2000 determined that the document was to be made available to the Applicant (Exhibit A1, Folio 9).
On 21 January 2001 the Applicant lodged a claim for compensation stating that it was a claim related to the injury of 2 November 1997, and that there had been an aggravation relating to superficial burns upper right arm and psychological condition as a result of "releasing of paperwork and medical report" (T43). The Applicant detailed a number of issues which contributed to his aggravation, some of them being:
being misled and deceived into visiting a psychologist;
period of pursuing Mr Jones' medical report and the period after releasing the documental report directly to him without assistance.
The Respondent denied liability in relation to this claim on 25 January 2001 (T44). In response, the Applicant indicated on 5 February 2001, that his claim was in response to his reading of the Jones report which he received on 11 December 2000 (T45). Later the Applicant sought incapacity payments for the period 1 February 2001 to 25 May 2001 and 5, 6, 8 June 2001 (T48), which were refused. On 16 July 2001, the Tribunal indicated that it had no jurisdiction in the matter as there had been no reconsideration of the decision of 25 January 2001, and that the Applicant's response of 5 February 2001 should be treated as a request pursuant to section 62 of the Act for reconsideration of the original decision (T49).
On 25 July 2001, the Applicant forwarded a copy of a report from Ms Braithwaite, a psychologist, to the Reconsideration Officer at Australia Post. In her report Ms Braithwaite stated that the Applicant was self referred, that the Applicant was experiencing symptoms of anxiety, insomnia, mental churning and dysthymia and that he felt powerless and vulnerable in the workplace. Mrs Braithwaite further stated that she had seen the Applicant on 11 occasions between December 2000 and July 2001 for therapy and counselling. Ms Braithwaite detailed the following opinion (T50):
"Assessment/Conclusion
From the way Mr Borg described his symptoms following the canteen accident in 1997 it is likely he suffered an Acute Stress Disorder. This disorder appears to lasts for a minimum of two days and a maximum of four weeks and occurs within four weeks of a traumatic event that contains the threat of death or serious injury. In a canteen where one is peacefully eating one's lunch, an exploding can in one's face is certainly a threatening event and Mr Borg believed he had been in danger of serious injury and was shocked as well as burned. Given Mr Borg's previous work history, if no trauma had been experienced he would have returned immediately to work.
Rehabilitation back to work is a tentative time for many people and to be accused at this time by management of "bullshitting" about the accident and insulting the rehabilitation officer appears quite bizarre. These insults invalidated Mr Borg and any attempt he made to address the matter resulted in further humiliation and invalidation and in the end Mr Borg felt he had been cast as a "psycho" and cut off from any avenues of recourse or indeed for employment elsewhere. Mr Borg's symptoms appear understandable given the circumstances that suggest ongoing harassment in the workplace."On 20 August 2001, the Respondent indicated to the Applicant that the documentation relating to his claim for compensation on 21 January 2001 was insufficient as he had failed to nominate the employment circumstances which he suggested caused the aggravation and provide medical evidence indicating the causal relationship between any condition which he was then claiming to be suffering from and his employment (T53).
As a consequence the Applicant completed a further claim for compensation on 9 September 2001, in which he claimed an acute stress disorder caused by the events of 2 November 1997, and a meeting conducted on 3 February 1998 (T54).
The Applicant was advised by the Respondent on 8 October 2001 that his new application for compensation related to his earlier claim and that his claim was not consistent with what he had been advised to present in the correspondence of 20 August 2001 (T56). The Applicant believed that he had complied with all requests in relation to information needed for the Respondent to make a decision and accordingly appealed to the Tribunal (T57).
In a letter to the Respondent dated 14 November 2001, the Applicant detailed the circumstances of his aggravation due to the Respondent. The Applicant stated that:
when instructed to meet with Mr Jones on 14 September 1998, he was not informed that Mr Jones was a psychologist and that he was to be psychologically assessed;
Mr Jones did not reveal himself to be a psychologist, and that he was confused when asked for his doctor's particulars, which he refused to give;
to receive a copy of the report it was necessary for the report to be sent to a doctor nominated by him, who would discuss the report with him;
he became worried and frustrated when he could not receive a copy of this report directly;
on reading the Jones report, after being granted access by the Tribunal, he became upset and confused, in that he had been assessed psychologically;
no counselling was offered, even though it was claimed that the report was detrimental to him;
he thought he was going to get into trouble as suggested by Mr Jones;
he had been misled and deceived by his employer in relation to the appointment with Mr Jones causing him to be distressed and depressed (T38).
On 28 November 2001, the Respondent denied the Applicant's claim for compensation on the grounds that:
the claim for compensation did not comply with section 54 of the Act;
inability to discern what injury or disease was being claimed;
an absence of facts which would indicate that a claimed disorder was caused or contributed by employment (T59).
Following a request for reconsideration by the Applicant on 3 December 2001, the reconsideration officer affirmed the earlier decision on 7 December 2001, stating the following as one of the reasons for his decision:
that Ms Braithwite's report is insufficient for the purposes of establishing that the Applicant suffers from a work related condition (T61).
The Tribunal also notes that the Applicant made a complaint to the Psychologists Registration Board and also the reply to the chairperson of that Board made by Mr Jones on 4 June 2001 (Exhibit A2).
applicant's evidenceThe Applicant told the Tribunal that he was born in February 1960 and left school at age 17 having completed year ten. His first job was as a trainee in electroplating, a position he held for three years, but he did not finish his apprenticeship which he had to leave as he suffered badly from the fumes. The Applicant said he next worked in a warehouse dealing with issuing of bankcards for the next five to six years and because of company closure, he undertook two further jobs until joining Australia Post in 1988 as a mail officer, where he has worked in various locations.
In relation to his claim, the Applicant states that he was sent to see Mr Jones about a grievance matter; that he was misled as to the nature of the consultation with Mr Jones and that he was psychologically assessed.
In a further statement, the Applicant indicated that he was injured when on reading the contents of the Jones report, there were matters of content, which were damaging. The Applicant nominated these as:
consider available disciplinary measures
paranoid thinking
misquoted when it was stated :
"he mentioned that the effects of the various comments that had been made to him were the same as if "someone had broken my leg"."
that he never used the word "booby trap".
The Applicant further stated that he went to see Mr Jones to talk about his grievance, which was to do with the manager saying to him "I think you're bullshitting" and he, being alleged to have told a rehabilitation counsellor "to go and jump". Other grievances included the nature or content of the first investigation and report into the incident of 2 November 1997, and the Board of Reference handling of his various grievances. The Applicant stated that he spent half an hour with Mr Jones and that he was unaware that he was to be psychologically assessed.
The Applicant stated that he only found out that he had been psychologically assessed after reading the Jones report. The Applicant considered the referral to Jones as "a trick " or "a plot" and those stories were "made up". On reading the Jones report in December 2000, the Applicant stated that he felt anxious and panicky; that he was concerned about returning to work because he may have to face a disciplinary process. The Applicant stated that he continues to think about the report; that he sought help from Ms Braithwaite, a psychologist between December 2000 and July 2001 to help him deal with the resulting circumstance after reading the Jones report; that he continues to take medication and finds that exercise by running helps his circumstances. The Applicant also stated that when he returned to work in 2001 he was harassed concerning phone calls he is alleged to have made to Mr Jones, calls he cannot recall having made. The Applicant stated that he has not spoken to Mr Jones after the consultation in 1998, and that his memory has been affected.
The Applicant indicated that when he returned to work in 2001, he was harassed and intimidated in relation to Mr Jones, but the harrassment stopped when he returned from sick leave.
The Applicant indicated that he was seeking compensation to meet medication costs, the cost of counselling with Ms Braithwaite and incapacity payments for days lost as a consequence of his work related condition.
In response to questions in cross examination, the Applicant made the following comments:
in relation to his FOI requests for a copy of the Jones report, he was not satisfied with being advised that he could only access the report in discussion with a nominated general practitioner;
that in December 1997, he had arranged his own counselling provider as he was not comfortable with the Respondent's counselling service provider;
that he had sought such help in order to deal with his feelings and his anxiety condition;
that he felt let down by people in Australia Post, but he rejected statements to the effect that he "has anger and resentment to Australia Post or people within it";
that he went to see Mr Jones to talk about his grievance and that he did not know that he was a psychologist;
that the referral process utilised in sending him to Mr Jones was misleading and deceptive;
that he considered he was going to be into trouble as a result of the Jones report;
he is unable to recall whether he spoke to Mr Jones or anybody else at Davidson Trahaire after he read the Jones report.
submissions
respondent
Mr Johnson contended that the claim by the Applicant relates to the Applicant's description of the effects felt by him upon his reading of the Jones report, which was released to him in December 2000. It was contended that the release of the Jones report occurred as a consequence of the Tribunal's decision to release the report and that this was made despite there being ample evidence in the T-documents that release should only be granted through the medium of a doctor. It was argued that the reading of the report by the Applicant was not part of the Applicant's duties and as such does not form part of his work employment. Further, it was contended that there was no characteristic of his work that would permit an argument to be made that work was a contributing factor to the aggravation of any such ailment that the Applicant may said to be suffering. In so stating, the Respondent relied upon the Full Federal Court decision of Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
Mr Johnson further contended that there is in this matter no evidence of a disease or aggravation of a disease in reading either the Jones or Braithwaite reports. It is argued that it is not enough that an Applicant has a belief that there has been an aggravation of a disease (Comcare v Mooi (1996) 69 FCR 439).
Finally, Mr Johnson argued that there were aspects of the Applicant's evidence which appeared "to guild the lily", namely:
a trick or a plot to obtain psychological assessment;
continued raising of the grievance issues after the Board of Reference hearing and the third party grievance resolution process;
the description of the 1997 incident which was a careless accident to one of deliberate assault.
applicant
Mr Borg contended that he had pursued two issues in relation to the incident of 2 November 1997, namely:
a process involving a proper grievance procedure in which his grievances related to the investigation of the original injury, statements made by some managers, the investigation of those grievances, the inadequacy of the Board of Reference in dealing with the grievances, the referral to Mr Jones, and the processes there after, in which he had believed that the discussion between himself and Mr Jones were about his grievances and not a psychological assessment, and that any discussion would remain between him and Mr Jones;
a process involving a Workers Compensation Claim for initial injury involving superficial burns right upper arm and a psychological condition, and a further claim for aggravation of the psychological condition following his reading of the Jones report in December 2000.
In relation to the aggravation of the psychological condition, the Applicant relies upon the report of Ms Braithwaite, a psychologist, to demonstrate the need for and continuance of his counselling sessions, which commenced after his reading of the Jones report.
consideration and findingsIn this matter the Tribunal has been particular in detailing the interactions that have occurred between the two parties subsequent to the unfortunate incident which caused injury to the Applicant on 2 November 1997. The Tribunal further observes that neither party has led evidence of less than satisfactory relationships between the parties prior to the incident of 2 November 1997. The Tribunal notes that the incident of 2 November 1997 gave rise to a compensation claim by the Applicant and liability being accepted by the Respondent for superficial burns right upper arm and later for an anxiety condition, a subsequent cessation of liability for both conditions upon receipt of a psychiatric report from Dr Lee, with a subsequent consent agreement determining that liability would cease in relation to superficial burns right upper arm and psychological condition as and from 1 September 1998. Further, the Tribunal observes that the Applicant had become distrustful of the Respondent by December 1997, when he elected to arrange his own referral for counselling from Drs Motum and later Schultz, and that thereafter embarked upon pursuit of grievances relating to the Respondent's investigation of the original incident, statements made by managers, and failure to investigate such utterings properly. The Applicant, it is observed, attempted to use the grievance process nominated, but at the end of that process still felt that his grievances had not been adequately heard and acted upon.
The Tribunal observes that the Applicant was referred to Mr Jones for psychological assessment and that the Applicant was advised that he is to attend Mr Jones to help in the resolution of the grievances. The Tribunal notes that Mr Jones' report is specific in detailing the Applicant's grievances, his assessment of the Applicant's response to attempted resolution of those grievances and options for the Respondent to follow in working through resolution of the grievances. It is also noted that the Applicant should only receive access to the report through the medium of a nominated doctor. The Tribunal notes that after many endeavours, the Applicant received access to the Jones report as a consequence of a Tribunal decision to release the report to the Applicant.
The Tribunal also notes the Applicant's stated response to the reading of the Jones report on 11 December 2000, and his need to seek counselling from Ms Braithwaite between December 2000 and July 2001. The Tribunal also notes the four major issues which the Applicant stated were the most damaging (paragraph 35 of this decision) and that he felt anxious and panicky and that he was concerned about returning to work because he may have to face a disciplinary process.
The Tribunal further notes the lodgement of a claim for compensation on 21 January 2001 citing aggravation of previous injuries (superficial burns right upper arm and psychological condition) caused by his reading of the Jones report, being misled and deceived into visiting a psychologist and not been given assistance at the time he read the report or thereafter. No medical report accompanied the claim. The claim was refused by the Respondent on the grounds that liability on the original claim had ceased on 1 September 1998, as there was nothing in the claim that established it as a new claim. In response the Tribunal notes the Applicant details the nature on his claim on 5 February 2001. On 16 July 2001 the Tribunal determines that it has no jurisdiction to hear the matter as there has been no reconsideration of the decision. The Tribunal notes that on 25 July 2001 the Applicant forwarded a copy of the Braithwaite report. On 20 August 2001 the Respondent reminded the Applicant that his documentation in relation to his claim for compensation on 21 January 2001 was still incomplete as he has failed to nominate the employment circumstances which he suggested caused the aggravation and provide medical evidence of the condition which the Applicant was then claiming to be suffering from and its causal relationship to employment. On 14 November 2001 the Applicant detailed the circumstances of his aggravation to the Respondent.
The Tribunal, in detailing the particulars of the claim for compensation on 21 January 2001, notes the further interchange of correspondence between the parties and in particular the Respondent's letter of 20 August 2001 where it was indicated to the Applicant that his accompanying documentation was deficient. Further, the Tribunal notes the provision of a psychological report by Ms Braithwaite on 25 July 2001 and the Applicant's provision of the detailed circumstances of his aggravation on 14 November 2001. The Tribunal concludes that when all the documents referred to are considered, and the particular circumstances of this matter are taken into consideration, the claim for compensation is still deficient as there is no accompanying certificate from a qualified medical practitioner, nor is there any suggestion of a current diagnosis in the report of Ms Braithwaite to satisfy the requirements of section 54(2)(b) of the Act. The Tribunal determines that a claim for compensation has not been properly made pursuant to section 54 of the Act, as it is not competent for the Tribunal to assume an aggravation of a condition which on all the available medical and psychological evidence appears not to have continued to exist by at least May 1998 (Dr Lee's report).
While it is not necessary for the Tribunal to further deal with the merits in this matter, the Tribunal would also, in summary conclude that the Applicant's case as it now stands would fail for the following reasons:
(a) the Applicant's case is dependent upon an aggravation of a psychological condition being demonstrated on the balance of probabilities. This in turn requires a psychological condition being determined to be present prior to an incident(s) causing aggravation;
(b) the only medical evidence before the Tribunal is that of Dr Schultz who considered the Applicant to have an adjustment disorder in early 1998 with a depressed and anxious mood, and that of Dr Lee who on 30 April 1998 (T25, p73) stated:"I do not believe that he has any current psychiatric condition. Rather, he is a man who has indulged in anti-authoritarian behaviour by taking an excessive amount of sick leave as a result of his resentment."
(c) that these two opinions were available at the time the consent decision was issued ceasing liability for superficial burns right upper arm and psychological condition as and from 1 September 1998;
(d) that later psychological evidence before the Tribunal consists of the Jones and Braithwaite reports. Neither report give any indication of an ongoing psychological diagnosis or condition, with Braithwaite considering the Applicant to have suffered an acute stress disorder as a result of the injury in 1997 with the effects of this ceasing within a few weeks;
(e) in the absence of evidence to indicate what underlying psychological condition may exist, it becomes increasingly difficult for the Tribunal to further address the matter;
(f) this situation is further reinforced when the Tribunal notes the symptomology of the Applicant as recorded in the Braithwaite report. While the Tribunal notes the Applicant has described his reaction upon reading the Jones report, the Tribunal notes that nowhere on the Braithwaite report is there any indication of a current diagnosis nor is there a clear identification that the symptoms nominated by the Applicant relate to his reading of the Jones report, or alternatively as perhaps suggested by the report associated with the Applicant's ongoing dissatisfaction with his employers and the difficulties in achieving resolution of his grievances to his satisfaction. Further, there is no evidence in the Braithwaite report that the symptoms nominated have varied significantly over time or constitute evidence of the worsening in an underlying psychological condition, which remains either undefined or non-existent;
(g) simply put, the Tribunal concludes that in this matter there is insufficient evidence to support a finding of an ongoing psychological condition, which in turn has been aggravated by an incident in the workplace;
(h) in further comment, and while there is no necessity to make a finding on the issue, the Tribunal believes that there are circumstances in which reports on an individual which are prepared as a consequence of workplace requirements and that the contents of such reports, if adverse, may have significant effects on an individual, when read by the individual. The Tribunal would suggest that such reports are an essential part of the workplace environment and cannot be divorced easily from being an integral but consequential part of employment activity.
In summary the Tribunal, mindful of the obvious difficulties that exist between the Applicant and the Respondent in this matter, has considered the merits of this matter to assist the Applicant in better understanding the difficulties confronting him, if on receipt of this decision, he elects to further pursue the matter by obtaining necessary medical evidence to support his case before resubmitting a compliant claim for compensation. This matter, in the Tribunal's view also highlights the need for a compliant claim, for in its absence, as in this matter, difficulties in dealing with the merit issues will be significant.
While the Tribunal recognises the somewhat unsatisfactory resolution in this matter in so far as the parties, are concerned, the Tribunal has concluded that after an examination of all the documents placed before it, the claim for compensation dated 21 January 2001 and the documents furnished thereafter by the Applicant do not satisfy the requirements nominated in section 54 of the Act. In particular the Tribunal concludes the absence of any medical certificate or report of any nature an impediment to the construction of a compliant claim for compensation.
determinationThe Tribunal determines that the Tribunal has no jurisdiction in this matter and that the application be dismissed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL, Member
Signed: H Sim .....................................................................................
AssociateDate of Hearing 15 July 2002
Date of Decision 12 September 2002
Counsel for the Applicant Self represented
Solicitor for the Respondent Graham Jones LawyersCounsel for the Respondent Mr J Johnson
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