Dennis Borg and Australian Postal Corporation
[2015] AATA 254
•24 April 2015
[2015] AATA 254
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/3396
Re
Dennis Borg
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 24 April 2015 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS – compensation – claim for dizziness, blurred vision and memory loss – insufficient evidence of diagnosis or causal connection to employment – decision under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 5A(1), 5B(1), 14
Cases
Borg and Australian Postal Corporation [2002] AATA 796
Borg and Australian Postal Corporation [2003] AATA 221
Borg and Australian Postal Corporation [2013] AATA 363
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Hennessy and Secretary, Department of Social Security (1985) 7 ALN N113REASONS FOR DECISION
Senior Member J F Toohey
Background
Mr Dennis Borg was employed by Australia Post as a mail officer from 12 September 1988 until 21 May 2009 when his employment was terminated due to his absences from work. During that time, Mr Borg experienced various difficulties at work which it is not necessary to go into here other than to say that they appear to have been complicated by Mr Borg’s long-standing psychiatric illness.
Over the years, Mr Borg lodged numerous Incident Reports in respect of injuries said to have been the result of his employment. On several occasions, he also lodged claims for compensation for injuries including burns to his right arm, psychological conditions, injury to his right elbow and shoulder, back strain, and blurred vision and dizziness. In some cases, the date of the claimed injury and its relationship to Mr Borg’s employment was not identified or was not clear.
On 22 December 1997, Australia Post accepted liability for burns to Mr Borg’s right arm sustained at work on 2 November 1997. On 8 April 2002, Australia Post accepted liability for medical expenses in respect of musculo-ligamentous pain of the right elbow and shoulder sustained by Mr Borg on 18 February 2002. Australia Post has otherwise denied liability in respect of each of Mr Borg’s claims.
Previous Tribunal decisions
On 12 September 2002, the Tribunal determined that it had no jurisdiction to determine an application by Mr Borg for review of a decision denying liability in respect of a psychological condition said to be related to the incident on 2 November 1997: Borg and Australian Postal Corporation [2002] AATA 796.
On 7 March 2003, the Tribunal affirmed a decision by Australia Post that the effects of the right elbow and shoulder injury sustained by Mr Borg on 18 February 2002 ceased as of 24 February 2002: Borg and Australian Postal Corporation [2003] AATA 221.
On 31 May 2013, the Tribunal affirmed decisions by Australia Post in respect of claims by Mr Borg on 10 November 2008, 4 August 2011, 18 October 2011 and 13 December 2011 for various physical and psychological injuries: Borg and Australian Postal Corporation [2013] AATA 363.
Mr Borg’s present application for review
Mr Borg’s present application for review concerns a claim for compensation lodged on 3 December 2013 for “dizzyness and blury vision memory loss” (sic). He identified the dates on which he first noticed his injuries as 18 March 2003 and 30 July 2008.
Mr Borg represented himself at a hearing of the Tribunal on 21 April 2015. In support of his claim, he has provided the following documents:
(a)prescription certificates dated 30 December 2013, 6 January 2014 and 30 January 2014 for spectacles;
(b)a letter dated 31 January 2014 from Dr Akram Moussad addressed To Whom it May Concern;
(c)a report dated 8 October 2014 from Dr Moussad;
(d)a letter dated 28 February 2014 addressed To Whom it May Concern, and one dated 20 March 2014 addressed to Centrelink, from Lorraine Roe, Manager, Recovery and Resource Support Program at Richmond PRA.
Australia Post has provided documents that it says are relevant to Mr Borg’s claim (“T-documents”) as well as his leave records from January 1989 to May 2009 and clinical records from his general practitioner, Dr Safwat Soliman and from Cumberland Hospital.
Claim for dizziness and blurred vision
On 18 March 2003, Mr Borg lodged an Incident Report (a “P400”) claiming “dizzyness blury vision” (sic). He stated:
While I was indexing I experienced dizzyness and blury vision. Symptoms continued. Indexed training has not been forfilled (sic).
Mr Borg’s present claim is the first he has made for compensation in respect of this incident. He gave evidence that his job at the time involved entering postcodes on letters into a keypad device. He says he was not given proper training and had great difficulty performing this task accurately. He performed it slowly and, instead of entering the postcode without looking at the keypad, he had to keep moving his head from the letter to the keypad to check what he was doing.
Mr Borg says this repeated action caused him neck and wrist pain, and dizziness and blurred vision. He does not recall ever seeing a doctor about the dizziness, and he does not recall seeing a doctor about his blurred vision until 2014 when he saw Dr Akram Moussad, a general practitioner whom he sees occasionally.
Dr Moussad’s letter of 31 January 2014 states only:
Mr Dennis Borg is suffering from blurring of vision and he had an eyes (sic) examinations.
Dr Moussad’s report of 8 October 2014 states that Mr Borg had been severely traumatised by events in his workplace and:
[He] is experiencing on going dizziness and blurring of vision since March 2003.
The basis of Dr Moussad’s comments is not clear. Dr Soliman has been Mr Borg’s general practitioner since some time before 2001. His clinical notes, which cover the period 1 August 2001 to 3 October 2014, make no reference to complaints of dizziness or blurred vision. In particular, they make no mention of complaints of dizziness or blurred vision around March 2003. Mr Borg does not dispute Dr Soliman’s records. Nor is there any mention in Mr Borg’s leave records of any time off work on account of dizziness or blurred vision.
Mr Borg says he told Australia Post staff repeatedly about his problems with indexing, and he lodged a P400 in March 2003, but they did not care and they did not arrange an eye test either before he started indexing or after, and nor did they arrange for him to see a doctor. He says Australia Post should have dealt with this matter long ago.
The prescription certificates dated 30 December 2013, 6 January 2014 and 30 January 2014 are just that. They do not indicate any causal connection between Mr Borg’s need for glasses and his employment. Mr Borg gave evidence that he uses glasses for reading in poor light but otherwise he generally manages without them.
Claim for memory loss
The reference in Mr Borg’s claim for compensation to 30 July 2008 as the date of this injury appears to be a mistake on his part. His leave records show, and he agrees, that he was on extended leave on that date. I am satisfied that he meant to refer to an incident that occurred at work on 30 September 2008 when he returned to work.
Mr Borg says Australia Post wrote to him several times while he was on leave requiring him to return to work. There is no evidence of that correspondence but nothing turns on this. Mr Borg obtained a certificate of fitness to return to work from his doctor and went to work on 30 September 2008. Australia Post records indicate that he was not expected to return to work that day and managers did not accept his certificate and required him to leave. Mr Borg left voluntarily but not before the police had been called.
Mr Borg says he found this incident extremely traumatic. As he recalls, he saw Dr Soliman the same day or the next. Dr Soliman’s records show a consultation on 1 October 2008 and the note:
Insomnia shaky as Australia Post refused his appt and got the police involved to let him out of work. For coucelling (sic)
On 20 October 2008 Dr Soliman recorded that Mr Borg was experiencing insomnia “due to problems at work/stress” and “feels anxiety about work brought police for him (sic)”. Dr Soliman does not refer anywhere in his notes to memory loss.
Mr Borg says he does not recall noticing his memory loss straight away but he thinks he reported it to Australia Post about a month after the incident.
According to Dr Moussad’s report of 8 October 2014, Mr Borg had been “also complaining of memory loss since July 2008”. Again, the basis for this statement is not clear as there is no reference in Dr Soliman’s notes to any complaint of memory loss.
In her letter of 28 February 2014, Ms Roe refers to incidents at Mr Borg’s workplace which he believed constituted workplace bullying. She states:
Dennis has also experienced memory loss, financial loss and psychological distress from these events.
In her letter of 20 March 2014 to Centrelink, Ms Roe supports Mr Borg’s application for Disability Support Pension, stating that he suffers from post-traumatic stress and:
… has blurred vision, memory loss and confusion and loss of confidence as a consequence of workplace injury.
Mr Borg gave evidence that he has attended RichmondPRA since July 2011 and has seen Ms Roe since March 2013. It appears, from her letter, that Ms Roe holds a graduate diploma in applied counselling. She does not appear to hold qualifications appropriate to diagnosing post traumatic stress, and her statement that Mr Borg has blurred vision and memory loss as a consequence of workplace injury appears to be based on a history she took from Mr Borg; she does not refer to medical or other evidence to support her statement.
Relevant legislation
Australia Post will be liable to compensate Mr Borg for an injury that results in death, incapacity for work, or impairment: s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act).
By s 5A(1), injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment.
By s 5B(1), disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
Mr Borg appears to relate his dizziness and blurred vision to his duties at Australia Post rather than to an injury within the meaning of s 5A(1). He appears to relate his claim for memory loss to the incident on 30 September 2008. However, whether properly characterised as an injury or a disease, for the following reasons I am not satisfied that his claim can succeed.
Is Australia Post liable to compensate Mr Borg?
An applicant in Tribunal proceedings does not bear an “onus of proof” as that expression is commonly understood. The Tribunal’s task is to make the correct or preferable decision on the information before it. That said, there must be sufficient information before the Tribunal for it to be satisfied that a particular decision is correct or preferable. As a result, a practical onus will often fall on the party asserting a claim to put before the Tribunal the material necessary to support that claim: McDonald v Director-General of Social Security (1984) 1 FCR 354; and see, for example, Re Hennessy and Secretary, Department of Social Security (1985) 7 ALN N113.
In this case, Mr Borg asserts that he suffers an injury as a result of his employment. Australia Post does not suggest that his claim is mischievous. I accept that he genuinely believes his employment is the source of his symptoms. I accept that he feels genuinely aggrieved by what he regards as a failure by Australia Post to respond to his complaints and deal with him fairly.
However, the material before me does not support a conclusion that Australia Post is liable to compensate Mr Borg for the injuries claimed. There is no contemporaneous medical information, supporting diagnoses of dizziness, blurred vision or memory loss. Dr Moussad’s statement that Mr Borg was suffering from “on going dizziness and blurring of vision since March 2003” finds no basis in Dr Soliman’s records.
Even if I accepted that Ms Roe was qualified to make such diagnoses, they were made five years after the event which Mr Borg says led to memory loss and 10 years after the events that he says led to dizziness and blurred vision. She apparently relied on an account given by Mr Borg which I accept reflects his genuine belief but, again, it finds no basis in Dr Soliman’s records.
Even accepting that Mr Borg suffers, or has suffered, from the conditions he complains of, there is no information before me on which I could be satisfied of any causal connection between any condition and Mr Borg’s employment with Australia Post.
For these reasons, I affirm the decision under review.
37. I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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Associate
Dated 24 April 2015
Date(s) of hearing
21 April 2015
Representatives for the Applicant
Self-represented
Representatives for the Respondent
Mr Paul Jones , Counsel
Mr Graham Jones, Graham Jones Lawyers
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