Dillon and Teekay Shipping (Australia) Pty Limited and Anor

[2006] AATA 65

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 65

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No N2004/1650   )     &     N2005/790

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SAMUEL VINCENT DILLON

Applicant

And

TEEKAY SHIPPING (AUSTRALIA) PTY LIMITED

  First Respondent

BHP BILLITON LIMITED

Second Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date27 January 2006

PlaceSydney

Decision

Both decisions under review are set aside and in substitution thereof:

(a) Mr Dillon is entitled to payment of compensation for an injury namely adaptive disorder with anxiety and depressive symptomatology pursuant to section 26 of the Seafarers Rehabilitation and Compensation Act 1992 (“the Act”).
(b) Mr Dillon is entitled to payment of compensation for medical and related expenses for this injury pursuant to section 28 of the Act.
(c) Mr Dillon is entitled to payment of compensation for incapacity suffered as a result of this injury from 19 August 2004 until 4 January 2005 pursuant to section 31 of the Act.
(d) Teekay Shipping (Australia) Pty Ltd, the last employer, is to be responsible for the calculation and payment of the incapacity payments, and the assessment and payment of any medical expense claims arising from the injury. It is suggested that such amounts paid be shared equally by the two Respondents.
(e) Costs are awarded to Mr Dillon in accordance with the Tribunal's Practice Direction, with such costs to be shared equally between the Respondents.  

[SGD] Dr J D Campbell   Member

CATCHWORDS

Workers’ compensation –Seafarers’ or merchant seamens’ compensation - workplace injury suffered – Applicant's credit – not suffered as a result of reasonable disciplinary action – impairment - incapacity – medical and related expenses – costs awarded – decision set aside

Seafarers Rehabilitation and Compensation Act 1992 sections 3, 9, 26, 28, 31, 73, 79, 92

Comcare v Chenall (1992) 37 FCR 75

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

REASONS FOR DECISION

27 January 2006 Dr J D Campbell, Member

1.      Mr Dillon was born in Dublin on 14 May 1940; is married with two non-dependent sons; commenced work as a merchant seaman in the United Kingdom in 1960, and migrated to Australia in 1964. In 1967 or 1968 Mr Dillon commenced working as an Assistant Steward with BHP and in 1969 was appointed as a Chief Steward with the same company. In 1977 Mr Dillon resigned and returned to Ireland for two years, and on his return to Australia did various work before rejoining BHP as Assistant Steward in 1985 and shortly after Chief Steward on vessels transporting iron ore.

2.      In April 1993 Mr Dillon was transferred to a gas tanker vessel, the MV Northwest Sandpiper. On 1 April 1999 Mr Dillon was transferred to the MV Northwest Sanderling (gas tanker), a vessel on which he served as Chief Steward until 19 August 2004. The ownership of the latter vessel was transferred to Teekay Shipping (Australia) Pty Limited (“Teekay”) on 1 January 2002.

3.      Following his transfer in April 1999 Mr Dillon described a series of circumstances, initially involving the Chief Cook, Mr Bryce, and an ongoing series of interactions with the ship’s master, Captain Walker, which he, Mr Dillon, believes were detrimental to his health and well being and were the cause of his inability to continue working after 19 August 2004 up until his retirement on 14 May 2005.

4.      Because of the transfer of ownership on 1 April 2002 Mr Dillon has claimed compensation for injury from BHP Billiton (N2005/790) and from Teekay Shipping (Australia) Pty Limited (N2004/1650).

issues

5.      The relevant issues in this matter are:

(a) Is Mr Dillon’s history of events a credible rendition of past events, or is the      history as described the story of an individual seeking to portray events and     circumstances in a manner which he believes places the nature of his         grievances and the cause thereof in the best light?

(b) Did Mr Dillon suffer an injury and if so what is the nature of that injury? If         the injury was a disease, was the ailment or the aggravation of any such        ailment contributed to in a material degree by his employment?

(c) If Mr Dillon did suffer an injury, when did this injury occur and/or commence?

(d) If Mr Dillon did suffer an injury was it suffered as a result of reasonable            disciplinary action taken against him?

(e) Is Mr Dillon suffering any impairment and/or incapacity as a consequence      of his alleged injury? If so is he entitled to be paid compensation for that   injury?

(f) Is Mr Dillon entitled to be paid:

(i) Compensation for medical and related expenses?

(ii) Compensation for incapacity for work?

(g) Is Mr Dillon entitled to an award of costs?

decision

6.      For the reasons nominated later in this decision, I find that:

(a) Mr Dillon told his story in his own way. While at times discursive, Mr Dillon related his tale which encompassed his response to circumstances he faced during the last years of his employment and his attempts to cope and deal with the issues which confronted him. I find no evidence of embellishment in any of his evidence, nor do I find evidence of an attempt by Mr Dillon to manipulate the history of events.

(b) Mr Dillon did suffer an injury, namely a disease, this being an ailment    suffered and an ailment aggravated with both being contributed to in a            material degree by his employment.

(c) Mr Dillon first suffered his injury with the clinical onset of his ailment      (adaptive disorder with anxiety and depressive symptomatology) in          1999/2000. While the underlying symptomatology was less evident from mid       2001 to late 2003, increasing symptomatology was in evidence throughout the     first half of 2004, culminating in an aggravation of his ailment in August 2004.

(d) Mr Dillon’s ailment and/or aggravation of his ailment were not suffered as        a consequence of reasonable disciplinary action by his employer.

(e) Mr Dillon suffered an impairment as a consequence of his initial injury (namely the ailment). Further there is evidence that he suffered a period of         variable incapacity in mid 2001. The impairment suffered as a consequence of the initial injury continued thereafter, with increasing impairment and       incapacity resulting from the aggravation of the ailment in August 2004.

(f) I find that upon analysis of the circumstances of this matter both Respondents are liable to pay compensation to Mr Dillon because impairment/incapacity arising from his injury arose while employed by BHP    Billiton, with increasing impairment/incapacity arising from an aggravation of            his ailment while employed by Teekay.

(g) I make no findings as to each party’s contribution to any payment of      compensation that results from these decisions. I do note however that the         clinical scenario would suggest that Mr Dillon’s impairment/incapacity was the    consequence of circumstances which reflected interpersonal transactions on       the same ship with the same parties, with the ultimate employer, a distant           influence on the events as they transpired. In the circumstances where an            ailment has been materially contributed by activities in employment with both       employers, and with such activities being essentially of a like and continuing      nature, apportionment of compensation payments is perhaps best shared          equally between the two Respondents.    

(h) Mr Dillon is entitled to seek compensation for medical and related expenses where such expenses relate to the injury, and where Mr Dillon has actually incurred an expense. I note that there are no items of refused expenses properly before me.

(i) Mr Dillon is entitled to be paid compensation for incapacity from 19 August 2004 until 4 January 2005. Calculation of that entitlement is a matter for his last employer, with apportionment between the parties a matter for the two Respondents.

(j) Costs in accordance with the Tribunal’s Practice Direction are awarded to Mr Dillon. Payment of such costs is to be shared equally by the Respondents.

background

7.      I note that in both of his employment and medical histories prior to his transfer to MV Northwest Sanderling as Chief Steward in April 1999, there is no evidence before me to suggest that Mr Dillon was other than a valued and conscientious employee. Similarly and for the same time interval there is no evidence before me to suggest that Mr Dillon had suffered from either psychological and/or psychiatric ailments, nor was any evidence made available that would indicate Mr Dillon experienced difficulties and/or conflict in interpersonal transactions with either his superiors and/or his subordinates.

8.      Mr Dillon’s employment involved a swing of nine weeks sea duty and nine weeks leave. During the nine weeks sea duty, three 21-day return voyages to Japan would be completed, two of which with Captain Walker as Master, and one with Captain Dawson.

9.      Mr Dillon’s duties as Chief Steward were acknowledged as involving responsibility to the Captain for managing the catering and cleansing departments of the vessel. This involved preparing annual budgets and ordering and replacing the ships’ food and liquour stores in compliance with the budget on a three-week cycle. In undertaking these activities Mr Dillon would have close liaison with the Chief Cook in preparing the list of stores required, after which he would prepare and email the stores order list to the Captain for his approval and on forwarding to the provedores. It was stated by Mr Dillon that prior to 2000 the Chief Steward was totally responsible for this activity and dispatching the stores order to the provedores. In preparing the stores order for the Captain’s approval each item was priced and the total order price compared against budget with variance to budget noted.

10.     Mr Dillon acknowledged that his transfer to the MV Northwest Sanderling occurred after discussions with Mr Hume who indicated that it was company policy to rotate department’s chiefs. Later (some months) Mr Dillon formed the view that he had been lied to about the reason for transfer and this made him despondent and disappointed.

11.     It is evident that Mr Dillon found his working relationships with the Chief Cook, Mr Bryce, difficult for many months after his transfer in April 1999. Mr Dillon considered that while Mr Bryce was professional and one of the best, “he was pedantic” and “wanted everything done his way”, with his first altercation with Mr Bryce occurring over the placement of a wooden bowl of bananas in the cold servery (1999/2000). Mr Dillon acknowledged that he kept a diary in which he recorded details of particular incidents, made one to two hours after the event. Mr Dillon admitted that his difficult relationship with Mr Bryce continued for about 12 months, and ceased when he compromised by accepting Mr Bryce’s demands for stores as best he was able, with a working relationship developing between the two. Some of the compromises involved Mr Dillon balancing the excessive and costly order demands by Mr Bryce with the less excessive and less costly demands of the other equally competent chief cook.

12.     The evidence details Captain Walker, in Mr Dillon’s view, speaking often to Mr Dillon about the stores order, the budgetary position and the need to remain within budget. Mr Dillon discussed the following circumstances in which budgetary and other issues were raised directly by Captain Walker with him:

(a) Carton of Coke matter – 31 March 2000 (“Coke Incident”)

Mr Dillon was required to attend Captain’s Walker cabin to give him some bond money. The issue of a carton of coke from the Master’s entertainment list was raised in that a carton of coke (as opposed to a half carton) had been recorded as issued and the Captain wished to know where the other half carton had gone. Mr Dillon stated to the Captain that he had put it back in bond.

(b) Budgeting Discussions with Captain Walker (“Budget Discussions”)

A budgetary discussion was stated by Mr Dillon as occurring on 31 March 2000. In this discussion of the over budget situation Mr Dillon alleges that in a heated discussion Captain Walker stated “It seems to me that you are taking a loan of me”, which Mr Dillon interpreted to mean that “he was trying to pull the wool over his eyes or making out that you just didn’t care whether you were performing your duties diligently or not”. Such an allegation, one that had never been made against him by a Ship’s Master in all his years at sea, caused Mr Dillon, in his own words, to become “completely  churned up” and “depressed”.

In many subsequent discussions on budget Mr Dillon considered that Captain Walker remained dogmatic on the issue of adherence to budget. Mr Dillon stated that in response, he felt belittled and churned up and experienced difficulty in sleeping properly at night. His difficulty in sleeping was associated with early wakening (1-3am) with the whole issue of the victualling budget going around in his head. This difficulty was more apparent at the finalisation of the order cycle, which often involved initial refusal of the proposed order by Captain Walker, which in turn necessitated more discussion and negotiation with Mr Bryce. Mr Dillon also became increasingly concerned that budgetary difficulties were often created/enhanced by the orders placed by the other Chief Steward and approved by the other Master – a matter drawn to his attention by Captain Walker and for which the latter required corrective action.

(c) The Galley Incident – 30 July 2000 (“The Galley Incident”)

This incident is stated by Mr Dillon as involving Captain Walker coming into the galley area, pointing his finger at him, while ordering him to go down to the laundry and put in place the “wet floor” or “wet deck” signs. Mr Dillon stated that he objected, stating “Please, don’t order me around like that, when it is the responsibility of the caterer, who is doing the job down there”.  Captain Walker is said by Mr Dillon as beckoning him to accompany him to the laundry area, which he did. Following this Mr Dillon recalls that there was a heated discussion in the Master’s office. Again Mr Dillon stated that he felt belittled and churned up, as he had never ever been involved in conflict, controversy or trouble in all his life at sea. Such feelings of upset remained for some time afterwards. Mr Dillon stated that during this meeting, after issues of budget were again raised by Captain Walker, he did express to Captain Walker that if this treatment of him continued he would bring charges of harassment against him, because it was getting him down.

Later on the same day Mr Dillon, when taking a vacuum cleaner from the linen locker on the same deck as the Captain’s office to do some cleaning, was accosted by the Captain, who came rushing down and reminded him “I thought I told you about making noise” (which he had earlier, as a student, was studying for exams). Mr Dillon believed that this appeared to be in furtherance of the altercation which had occurred earlier in the day,  and in so doing told the Captain that he wanted the Company and the Union to get together and resolve this ongoing situation, one way or the other.

(d) Dry Dock Nagasaki  - May 2001 (“Dry Dock Incident”)

The catering staff raised the issue of catering for five extra staff with Mr Dillon requesting “short hand” monies be paid. Mr Dillon raised the matter with Captain Walker, who Mr Dillon stated “refused point black to consider it”, with orders to cook for 23 meals only, with the others to eat cold meals and salads if the hot dishes are empty. Mr Dillon stated that he broke down in his cabin, and later decided to make a call to the manager of ALSOC (Mr Amble) in Perth to tell him of the situation, during which Captain Walker entered and Mr Amble, on being made aware, asked to speak with the Captain. On 30 May 2001 Mr Dillon wrote a letter to Mr Amble detailing the events of 30 May 2001 during which orders issued by Captain Walker to him were in his belief unfair and unreasonable, and in continuance of the conflict that has existed between himself and Captain Walker ever since he joined “The Sanderling”. Mr Dillon again raised the issue of bringing harassment charges against Captain Walker and/or Mr Bryce (2T16,p60).

Following this incident Mr Dillon, while on normal leave swing, consulted Dr Mitchell (his general practitioner) on 16 June 2001 and acquainted him with his problems (Master of ship/Chief Cook, harassed by Master – written to company – prepared to ride it out if no further incidences) (Exhibit A3). On 3 July 2001 Mr Dillon saw Dr Furey for his annual seaman’s medical examination. Mr Dillon recalls breaking down in his rooms, with Dr Furey recording in a request for a consultation to Dr Mitchell that Mr Dillon “has anxiety and depression – work related – and I will not be able to certify he is fit to go to sea. I am sending him back for treatment … plus or minus referral. He’ll need a work cover certificate. I will see him in approximately three months when he is ready to go to sea” (Exhibit A4). Mr Dillon stated that he next received a letter from Mr Amble in which the latter suggested that he would visit the ship on Mr Dillon’s return from leave and discuss the situation with Captain Walker and himself to try and resolve the differences. On 15 July 2001 Dr Mitchell records in his clinical notes:

“Phil Furey suggested not fit due to work situation – have three months off. Sam would prefer to confront his problems, not to defer it. I agree for trial for next trip – 21 days. “

On 17 July 2001, Dr Furey following a discussion with Dr Mitchell, issued a certificate of medical fitness. Mr Dillon stated that he returned to his ship, had a meeting with Mr Amble and Captain Walker on 7 August 2001; found the meeting helpful and continued working on board without any time off until August 2002. Mr Dillon stated that he never submitted Dr Furey’s letter to the Company, and it was noted that Captain Walker went on 18 weeks leave, two months after the meeting. With no particular incident occurring prior to Mr Dillon’s leave in August 2002 he attended for counselling on 16 August 2002 with Mr Stigfeldt, an appointment arranged by Teekay at his request to help deal with difficulties he was still having aboard ship.

(e) The Bottle of Brandy - 2003 (“Brandy Incident”)

This involved Captain Walker questioning Mr Dillon about a bottle of cooking brandy following a bond stock take. Mr Dillon, when asked where the bottle of brandy is, replied that it was still on board and that he had transferred it from the bond store into the victualling store, where it should have been stored. Again Mr Dillon felt churned up while explaining to Captain Walker the wrongful storage issue.

(f) Christmas Arrangements – November 2003 (“Christmas Stores”)

Mr Dillon stated he was called to the Captain’s cabin to discuss a Christmas Stores list that Mr Dillon had sent to him for approval. Mr Dillon stated that the Captain again referred to budgetary limitations and requested that particular luxury items be delisted from the order list. After discussion the items were removed and the ship left Withnell Bay without those provisions, with Mr Dillon again stating to the Captain that such stores were normal for the Christmas order and no more  than the men and women on board ship would normally have at home in the festive season. Such action by the Captain made Mr Dillon feel “absolutely shattered”, with Mr Dillon feeling much pressure as he had to explain the reason for the absence of such stores to the crew. Mr Dillon stated that the matter was resolved when Captain Dawson replaced Captain Walker in Japan and immediately approved the purchase of such stores from petty cash. Mr Dillon stated that his working relationship after this episode with Captain Walker was tolerable up to August 2004, and in stating that, indicated that his relationship with the Captain was never right, and that he continued to experience a churning up feeling and a difficulty in sleeping.

(g) Further Budget Discussion – 4 August 2004 (“Budget”)

A budget discussion occurred between Captain Walker and Mr Dillon before lunch on 4 August 2004. Mr Dillon stated that the discussion was heated, with Captain Walker stating in Mr Dillon’s words “adhere to these figures; we cannot supply the Christmas cheer”. Mr Dillon stated he felt the anxiety and the churning up experience, the same feeling that persisted, whenever there was a discussion with Captain Walker regarding his duties.

On the return trip two days out from Whitnell Bay, Mr Dillon stated that the Captain asked whether he could manage to continue with the swing, without seeing a doctor in relation to his continuing knee problem. Despite his reply to the contrary, arrangements were made for him to see Dr Newfield. During this consultation Mr Dillon stated that he broke down when asked whether something else was bothering him. Mr Dillon stated that he told the doctor of his anxiety and depression, after which she certified him unfit for duty and to be sent home as soon as possible.

On arrival at home he consulted with his general practitioner. In report dated 12 July 2005 (Exhibit A1) Dr Mitchell detailed that he saw Mr Dillon on 24 August 2004, diagnosed adjustment disorder with major depression and anxiety, all secondary to his work environment. Dr Mitchell concluded that he is totally unfit to return to the position for which by way of education he has been suitably trained, with Mr Dillon continuing to remain unwell.

13.     In cross-examination by Mr Kelly, Mr Dillon agreed that he had told Mr Brecht on 24 September 2004 that all the incidents that had occurred were relatively trivial; that at the end of the day the ship’s Master is ultimately responsible to the company for everything that happens aboard including the ship’s adherence to budget, and to each element of the budget. Mr Dillon added that the difference in this matter was the frequency with which discussions on the catering budget occurred and how often such discussions became heated with Captain Walker as opposed to other Captains. Mr Dillon admitted that Captain Walker always approached such discussion in a professional manner and that it was possible that from time to time he may have overreacted or made an unreasonable response.  Mr Dillon admitted that he might fire up from time to time, but if he was found to be in the wrong he would stand corrected and apologise. Mr Dillon stated that while “the coke incident” caused him no loss of time from work it did cause him to become churned up and depressed, while the galley incident “he found offensive”. Mr Dillon considered the Dry Dock Incident in May 2001 to be a serious incident, which caused him to write to Mr Amble. Mr Dillon also admitted that there was a further incident in 2003 when Captain Walker insisted that he rechecked the meat inventory, an activity he had already performed. Mr Dillon was upset that Captain Walker did not take his word for it. After some discussion both proceeded to the freezer and meat rooms, with Captain Walker in Mr Dillon’s words commenting that “you have got too much there anyway” or words to that effect. 

14.     Mr Dillon considered the Christmas stores issue in November 2003 a more serious disagreement as was the budget discussion on 4 August 2004, which Mr Dillon believed brought the problem to a head and after which Mr Dillon sought a meeting with the Company’s manager and Union representatives. Mr Dillon admitted that before leaving the ship on 19 August 2004 and after seeing Dr Newfield, that he told Captain Walker that no one on the ship had been the cause of his anguish – an admission that was not the case and given only in possible gratitude for the help given by Captain Walker in assisting in his expeditious separation. Mr Dillon stated that he was referred by Teekay to see Ms Scevak, a Clinical Psychologist for counselling on his return to Newcastle in August 2004. Mr Dillon agreed that what was written in Ms Scevak’s notes were consistent with what he had told her. Mr Dillon also admitted that he had told Ms Parker, an Occupational Therapist on 10 September 2004 that it would be his preference not to return to the sea, an admission he also made to Mr Brecht in September 2004, and also to Dr Brown in November 2004. Further Mr Dillon stated that he did want to see Captain Walker transferred to another ship on the basis of what had occurred. Mr Dillon believed that he was unable to return to work after 11 November 2004, even if Captain Walker was not the Master, because the medical and psychological advice received by him recommended he not return to the environment on any vessel. Mr Dillon stated that he was unaware that by 11 November 2004 Captain Walker had in fact been transferred off the Sanderling.

15.     In cross-examination by Mr Parker, Mr Dillon stated that Captain Walker had never indicated to him on 19 August 2004 that he was to be transferred off the Sanderling; that he did go against the initial advice of Dr Furey in July 2001 to have three months off, but that was only after Mr Amble had arranged a meeting and he had accepted Dr Mitchell’s advice. In such circumstances Mr Dillon denied having manipulated Dr Furey to produce two contradictory certificates within 14 days, even though there had been no change in his underlying condition. Mr Dillon again confirmed that he considered that Captain Walker was unreasonable in his attitude towards him during budgetary discussions and when he made decisions which caused Mr Dillon anxiety and depression.

16.     Mr Dillon admitted that during a budgetary discussion with Captain Walker in December the invoice was in excess of $13,000 against a budget of $9,000 with a similar invoice and budget situation in November 1999, and that this constituted a significant budgetary problem. Mr Dillon admitted that when this issue was raised with him he became angry, emotional and refused to further discuss it with Captain Walker, stating that Mr Bryce was responsible for the problem. Mr Dillon considered it unreasonable that Captain Walker discussed the matter with him as “Mr Bryce was total head of the galley” as the latter refused to acknowledge him as head of the Department and Captain Walker often talked directly with Mr Bryce. Mr Dillon also admitted that he went to Captain Walker and admitted that he was unable to control the demands or ordering of Mr Bryce and that he also had asked Captain Dawson to speak to Mr Bryce on both issues.

17.     Mr Dillon confirmed that major conflict and symptomatology involving being churned up, discomfort, difficulty with sleeping and symptoms of which he complained to Dr Furey in July 2001, commenced in November 1999. This he had reported in discussions with Mr Brecht from Teekay on 24 September 2004 (2T,p71). Mr Dillon confirmed that the symptoms have essentially remained the same for the whole period since November 1999. He also confirmed that “I am just as happy to stay off and not go back to sea” referred to the situation that if the opinion of Dr Muratore, who he was to see on 8 October 2004, agreed with Dr Mitchell who had already provided such advice to him. Mr Dillon also confirmed in his consultation with Dr Brown on 11 November 2004 that other matters were causing him distress, including being apart from his family, his wife’s health and his readiness to retire. Mr Dillon, while acknowledging that Dr Brown concluded that the only psychological impediment that prevented him from returning to work was having to work on a ship with Captain Walker, stated that any return to work was prevented as a result of certificates issued by Dr Mitchell on a fortnightly basis that he was unfit for duty due to anxiety and depression.

18.     In relation to the “Galley incident”, Mr Dillon agreed that the wet floor in the laundry area was a dangerous situation with the caterer, his subordinate, failing in his duty to make it safe, but denied any responsibility for the caterer’s failings in that health and safety measures were an individual responsibility, and he, as the supervisor, was elsewhere on duty. Mr Dillon confirmed that his dispute with Captain Walker was with the manner in which Captain Walker approached him to have the problem corrected, and that he responded with words to the effect “Don’t order me around to do what is someone’s else’s responsibility”. Mr Dillon did not believe his actions on that day amounted to insubordination.

19.     In relation to his right knee problems Mr Dillon confirmed that he received treatment by the third mate on the trip to Japan in July 2004, but this was discontinued on the return voyage. While unable to recollect meeting with Captain Walker on 31 July 2004 about issues concerning his right knee, Mr Dillon did confirm that he had spoken with him about the return of pain in his right knee associated with the loading of stores prior to departure, an earlier arthroscopy and treatment by the third mate. In a further discussion with Captain Walker on 11 August 2004 Mr Dillon confirmed that the treatment was of assistance, but there was a strong prospect that he would need a partial knee reconstruction and that he was still able to perform his duties. Mr Dillon further confirmed that the need to have a medical examination of his right knee was mentioned on 13 August 2004 to confirm his continuing fitness for duty, with he entertaining a belief that he would not be able to claim compensation if rendered unfit for work because of the right knee condition. Mr Dillon denied that the right to compensation was an issue in his mind when he left the ship on 19 August 2004.

20.     Mr Dillon believed Captain Walker was professional, but not courteous in his dealings with him. Mr Dillon alleged that Captain Walker requested him to withdraw a harassment charge after a dispute over the ordering of stores in 2000 during which Mr Dillon stated Captain Walker accused him of dereliction of duty (30 July 2000). Mr Dillon stated that an apology by Captain Walker and handshake was the outcome, with Mr Dillon denying that there was any suggestion of him being charged with dereliction of duty.

21.     In answer to questions from myself, Mr Dillon confirmed that his disputation with Mr Bryce commenced in 1999, that it lasted a couple of years – that he felt belittled and put down and his experience and integrity in the job was being questioned – that Mr Bryce would make comments “that he’s sick and tired of working with unprofessional chief stewards”, which Mr Dillon assessed as “he was putting me down”.  As part of the compromise to induce harmony in their relationship Mr Dillon stated that “I had to agree to things that normally – well, you wouldn’t agree, just to keep a smooth…”

22.     Mr Dillon stated that he was careful in his ordering, encompassing only what was needed, but from time to time he knew the order submitted was above budget, without explanation, but not with the intention of inducing confrontation.

evidence of captain walker

23.     Captain Walker detailed his experience as a Mariner, which included being Master of the Northwest Sanderling from June 1996 to 2004, with the issue of this being his last swing on the ship being told to Mr Dillon on 19 August 2004 – an action taken by the Captain as a conciliating measure towards Mr Dillon, with there being “a history” between the two.

24.     Captain Walker detailed his assessment of the relationship between Mr Dillon and Mr Bryce as follows:

“Percy did not think that Samuel was a, with all due respect, a good chief steward. On the other hand, Samuel was quite open to Percy that he did not like Percy, and that he would never like Percy.”

25.     In their interactions on budgetary issues in 1999/2000 Captain Walker stated that Samuel was blaming Percy for the over spending in the provisions budget, with Percy stating that Samuel was ordering provisions that were not needed. Captain Walker stated that the problem with Mr Dillon was his difficulty in ordering within budget parameters, an issue that was evident in 1999 and which Mr Dillon was requested to address on several occasions thereafter. Captain Walker believed that such discussions at that time on this issue were undertaken in a civil and professional manner, with Mr Dillon appearing defensive, while wishing to shift the blame to Mr Bryce. Captain Walker noted that the annual provisions budget for 1999 to 2003 were all over expended, with Mr Dillon’s response always being defensive and emotional in discussions concerning conformity to budget.

26.     In relation to the “Galley incident” on 30 July 2000, Captain Walker detailed the circumstances leading up to the incident, denied pointing his finger at Mr Dillon, and observed that when Mr Dillon was asked to please arrange a sign to be placed at the laundry floor his reaction was immediately defensive with his response suggesting that he had no right to ask him to do that and that the area was not his responsibility. Following further statements by Captain Walker he and Mr Dillon proceeded to the laundry area, Captain Walker having used hand motion for Mr Dillon to follow.  In the laundry area Captain Walker stated that Mr Dillon complied with his further order to have a sign put in place by the caterer.

27.     In relation to the issue of disciplinary sanctions against Mr Dillon for his behaviour on this occasion, Captain Walker stated :

“Certainly this situation did not warrant, in my opinion, any of that at this stage, because once again I was left feeling at the end of it that I was in the wrong.”

28.     In relation to the issue of what constitutes a disciplinary process on ship, Captain Walker detailed the verbal and written levels of disciplinary actions and protocol. Captain Walker indicated that where an instruction was not obeyed, you would initially move to a higher level of assertiveness from ‘can you just do this’, or ‘when you get the chance do that’.

29.     Captain Walker was unable to recall the coke incident of 31 March 2000. As regards  the “Christmas Cheer incident” in 2003 Captain Walker commented that Mr Dillon became immediately angry when the issue of deleting some but not all of the items for Christmas Cheer was suggested by Captain Walker, with Mr Dillon wishing to involve the Union on such a matter.

30.     In the meeting between himself, Mr Amble and Mr Dillon in August 2001, Captain Walker remembers Mr Dillon bringing up many but not all of the incidents that had occurred, with Captain Walker realising that Mr Dillon was sensitive, especially to seemingly small issues. As a consequence of this meeting Captain Walker changed his view that Mr Dillon was just being deliberately obstructive and difficult to a situation where Mr Dillon had obviously got issues, including issues against himself (Captain Walker). Captain Walker acknowledged that he recognised as a consequence of this meeting that he would have to use a lot more tact and sensitivity when dealing with Mr Dillon on whatever issue may arise.

31.     Captain Walker stated that subsequent to the meeting in August 2001 he sensed an underlying tension, which made him tense in his dealings with Mr Dillon. Captain Walker stated there were no major issues from August 2001 involving Mr Dillon until a few days into the voyage to Japan in August 2004 when Mr Dillon provided him with a photocopy of a specialist report concerning his right knee and stated that pain and discomfort had returned to his right knee since he rejoined the ship in late July 2004. Captain Walker referred Mr Dillon to the third officer and offered Mr Dillon the opportunity to see a doctor in Japan, which he refused. Captain Walker stated that he noticed that Mr Dillon had started to limp and after consultation with Mr Amble, a medical appointment was arranged for Mr Dillon, when he returned to Australia. Captain Walker remembered further store budget discussions with Mr Dillon in early August 2004 in which he suggested that they should review the already dispatched order to perhaps delete some items, in order to accommodate some extra items Mr Dillon wished to order. Captain Walker stated that “it was almost like flicking over a switch” with Mr Dillon threatening to involve the Union and alleging harassment. In further discussion in his office when Mr Dillon attended with a list of deletions, Captain Walker stated that he started to explain the five per cent budget margin but ceased because of signs that Mr Dillon was getting upset.  

32.     Captain Walker was unable to remember the “Brandy Bottle Incident”, but remembered that incorporation of cooking alcohol within the bond reconciliation would cause difficulties for the head office accountant. Captain Walker was able to remember the meeting with Mr Dillon regarding the Christmas Stores issue in November 2003 and a discussion with both chief stewards and Mr Bryce in early 2002 after the budget blow out in 2001.  Captain Walker confirmed that from 1999 onwards he entertained a concern that all was not right with either Mr Dillon or Mr Bryce and that while at the time he felt that he did nothing to upset Mr Dillon, in retrospect he believes he could have handled the situation better. Captain Walker also acknowledged that Mr Dillon would have come under pressure from other members of the crew in relation to the provision of stores.

medical evidence

dr l brown – consultant psychiatrist

33.     In her report dated 15 November 2004 Dr Brown detailed Mr Dillon’s social, life and work history as well as noting incidents and events which had given rise to the particular symptomatology experienced by Mr Dillon. As a consequence of her history and examination, Dr Brown concluded that :

·Mr Dillon did develop a mild adjustment disorder with an anxious and depressed mood, probably arising over a several month period prior to his cessation of work in August 2004.

Multiple factors contributed to the development of this condition namely:

·Underlying personality style in terms of his high level of obsessionality and interpersonal sensitivity;

·A combination of his emotional reactions to the workplace altercations with Captain Walker, his knee condition and knowledge of requiring further operative intervention, his age, mental readiness to seek retirement and his desire to spend more time with his wife and family.

·Although good recovery has been made from this condition with supportive counselling and removal from the workplace stressors, his ambivalence about returning to work will possibly hamper his return to the workplace setting.

·His perception that his conscientiousness was not acknowledged and that he was unfairly held to task for issues outside his control are likely to have troubled him and to have led to the type of rumination, intermittent sleep disturbance and some apprehensive anxiety about returning to ship duty over a previously several year period.

·Based on the history provided by Mr Dillon, such complaints would not have met the level of a diagnosable psychiatric disorder until 2004.

·His level of residual complaints at the time of consultation would not currently qualify for a diagnosis of adjustment disorder.

·His very obsessively and sensitive personality style has probably not done well in the setting of this particular type of interaction, and rather than there being any evidence of Mr Dillon exaggerating or malingering his symptoms, the somewhat minimal nature of the stressors involved in these altercations and the more severe nature of the symptoms reported are probably likely to be explained by the personality factors noted.

·Probably about one half of the causation of this adjustment disorder is likely to have arisen directly as the result of the workplace conflicts and altercations with Captain Walker.

·Mr Dillon may require four or five further sessions with his current psychologist.

·Given the perception of discouragement from others to return to work, and the lack of obvious incentives to do so given his approaching retirement, it may be difficult for Mr Dillon to be sufficiently motivated to seek to return to work.

dr r lewin – consultant psychiatrist

34.     In his report dated 4 May 2005, Dr Lewin detailed Mr Dillon’s social life and work history as well as noting incidents and events and Mr Dillon’s responses to these events. As a consequence of this history and examination Dr Lewin concluded that Mr Dillon was:

·Suffering from an adjustment disorder with mixed emotional features of anxiety and depression with anger also felt against his employer.

·That the psychiatric condition first evolved in 2001 in the context of a dispute with Captain Walker and a recurrence of symptoms in 2004.

·That residual symptoms at the time of consultation were not sufficient to diagnose any psychiatric condition.

·That there is at the time of consultation no incapacity for work arising because of his psychiatric condition.

·That he does not require any further psychological or psychiatric treatment for any diagnosed psychiatric condition, nor does he need any anti-depressant medication.

clinical psychologist – dr j scevak

35.     In her clinical notes (Exhibit A2) Dr Scevak details the clinical symptomatology and progress of Mr Dillon from 31 August 2004 on a fortnightly basis. On 4 January 2005 Dr Scevak reports:

“No developments since last visit, discussed frequency of visit and intervals between, now that he was able to manage his own situation with some degree of confidence…”

No further consultations are noted.

dr r muratore – sports physician

36.     In his report dated 12 October 2004, Dr Muratore noted that Mr Dillon’s problems (non physical) were not within his area of expertise. Dr Muratore diagnosed adjustment disorder and depression. After discussion with Dr Mitchell they both agreed that from a psychological perspective, Mr Dillon is not fit for return to work.

dr mitchell – general practitioner

37.     In his report dated 12 July 2005, Dr Mitchell confirmed that he saw Mr Dillon on 24 August 2004 and diagnosed him as suffering from “adjustment disorder with major depression and anxiety”, all secondary to his work environment. Dr Mitchell stated that Mr Dillon still remains unwell, his treatment is essentially counselling and eventually he may require anti-depressant medication. Dr Mitchell remained of the opinion that he was totally unfit for return to his position. The clinical notes of Dr Mitchell from the Myra Street Medical Centre (Exhibit A3) notates in the last entry, namely 13 January 2005, in which the penultimate remark appears to read “in limbo at present”.

consideration and finding

38.     I have been particular in detailing much of the evidentiary material that has been placed before me. I note the particular discursive manner in which Mr Dillon responds to particular questions and I observe the nature of the issues that has caused much angst for Mr Dillon. I note the opinion given by Dr Brown which defines Mr Dillon’s personality style to be associated with marked obsessional and sensitive tendencies, which in her view explains Mr Dillon’s response to the somewhat minimal nature of the stressors involved in the altercations by way of the severe nature of symptoms reported. I also note that Dr Brown did not believe that Mr Dillon was either exaggerating or malingering and that she believed him to be an honest historian.

39.     I further note that Mr Dillon has been relatively consistent in response to various questions over time, and those which are particular to events surrounding any questioning of his professionalism in the workplace. I also acknowledge his habit of recording events in his diary, shortly after they occurred. Equally it is evident that while much of the hearing time was concerned with his ongoing series of budgetary disputations with Captain Walker, the evidence of his difficult relationship with Mr Bryce from 1999 for a period of one to two years evolved as the hearing progressed.

40.     In terms of the evidence given by Mr Dillon, I find that such evidence was given to the best of his beliefs, with such beliefs being validated generally by the evidence of Captain Walker and other documentation of such events and concerns that he has addressed to the Company. Mr Dillon admitted that many of his disputations with Captain Walker arose out of trivial issues (the Coke Incident, the Brandy Incident), while others in his mind arose out of significant issues, in which questions were raised in his mind as to his professionalism in the carriage of his position and/or duties (the Galley Incident and his period of stormy interactions with Mr Bryce). In these circumstances, I again conclude that Mr Dillon has provided a valid and honest rendition of such events as they appeared and were perceived by him to be. Further it is to be noted that Mr Dillon gave honest responses when questioned about other issues which were in his mindset, when considering the issue of his return to work.

issue of manipulation

41.     A more serious contention was raised by Mr Parker in closing submissions, namely Mr Dillon had manipulated issues, circumstances and people for his own purpose. The first example submitted was the circumstances commencing on 16 June 2001 when he told Dr Mitchell of the problems he was having with Captain Walker and the Chief Cook. Some two weeks later he breaks down in Dr Furey’s room where he is be examined for his annual seaman’s medical fitness. Dr Furey concludes that he should proceed on sick leave for three months and writes a consultation note to Dr Mitchell suggesting the same. In the meantime Mr Dillon received a letter from Mr Amble, to whom he had written of his complaints against Captain Walker, indicating his intention to attend at the ship on Mr Dillon’s return from leave, in order to address issues raised by him with Captain Walker and Mr Dillon. In response Mr Dillon attended upon Dr Mitchell, discussed the issue with him and both agreed that it was appropriate to attend the scheduled meeting. This involved a further examination by Dr Furey on 17 July 2001, with the latter completing a certificate that Mr Dillon was fit for sea duty for one year.

42.     From this scenario it is contended that Mr Dillon manipulated his symptomatology on each occasion to secure the outcome he desired, and that only when the outcome desired changed did his symptomatology change. While theoretically attractive, such a contention fails to consider that the workplace was considered at that time to be the cause of Mr Dillon’s symptoms and any attempt to resolve the workplace issues would help relieve the stressors causing Mr Dillon’s symptoms. This no doubt was an issue considered by both Mr Dillon and the two doctors involved. It is also to be noted that Mr Dillon attended the meeting in early August 2001, that the meeting resulted in an amicable resolution of their differences, with the absence of disputation between the two for some two years, although it is noted that Mr Dillon attended an arranged psychological appointment in Newcastle while on leave in August 2002.

43.     A careful evaluation would in such circumstances place particular emphasis on the role that both doctors played. It is evident that they were fully acquainted with the circumstances of Mr Dillon’s difficulties and his symptomatology. In such circumstances it is the exercise of their clinical judgement that determines the outcome for Mr Dillon, and it is evident that both exercised their judgement with full knowledge of Mr Dillon’s complaints. While Mr Dillon may have reported a changed symptomatology in the two week gap between successive appointments with Dr Furey, and again there is no evidence to suggest it is other than the fitness certificate of 17 July 2001, Dr Furey wrote the certificate knowing all that occurred and presumably after consultation with Dr Mitchell. In such circumstance the two doctors must accept responsibility for their clinical actions, with Mr Dillon being at best a reporter of his symptoms and his desires. To suggest that such is manipulation by Mr Dillon is to suggest that he has powers of persuasion that have not been demonstrated in workplace in dealings with either Captain Walker and/or Mr Bryce. Furthermore it suggests that both doctors did not act with clinical proprietary and were somehow persuaded by Mr Dillon to meet his desires, despite any exercise of clinical judgement.

44.     Further I would suggest that there is little sense in Mr Dillon manipulating the material provided to the doctors, if his intent was to benefit from such manipulation. He had been given a three month certificate from work, he was on leave, he in effect surrendered his sick leave and returned to work to try and resolve the difficulties that he had been experiencing. I am satisfied that he did what he did with the motivation being resolution of his difficulties and that any purported manipulation by him would be an erroneous assessment of the circumstances in which he had detailed all his attendant circumstances to the two doctors involved.

45.     I note a further set of circumstances were canvassed in relation to the right knee issue and the breakdown in Dr Newfield’s surgery. While Mr Dillon was questioned extensively on whether he had a belief he was entitled to claim compensation for his right knee, it is clearly evident that he had a long history of difficulties with his right knee and to suggest that somehow complaining about his right knee difficulties during the voyage in August 2004 was done with an ulterior purpose is again inconsistent with the factual circumstances. Again I conclude that such contentions are borne of little merit, when indeed in the circumstances of this matter the issue has and remains Mr Dillon’s difficulties arising from minor stressors occurring during interpersonal dealings with either Captain Walker and/or Mr Bryce causing considerable symptomatology.

did mr dillon suffer an injury?

46. The evidence before the Tribunal from all the doctors, including the two psychiatrists, is that Mr Dillon was diagnosed with a psychiatric condition, namely adaptive disorder with anxiety and depressive symptomatology, following his departure from the ship on 19 August 2004. Clearly such a condition falls within the definition of ailment within section 3 of the Seafarers Rehabilitation and Compensation Act 1992 (“the Act”). For such an ailment to constitute a disease for the purposes of the Act, section 3 of the Act requires that the ailment or the aggravation of the ailment was contributed to in a material degree by the employee’s employment. Discussion of what constitutes “contributed to in a material degree by an employee’s employment” was considered in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, in which the Full Federal Court stated at 323:

“the use of the word “material”… It has served only to emphasise that the section is not brought into play unless it is established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”

47.     An analysis of the material clearly demonstrates that Mr Dillon’s psychiatric/psychological symptomatology arose in 1999/2000 as a consequence of the difficulties he experienced in dealing with Mr Bryce, followed by a continuance of his symptoms in his dealings with Captain Walker and an aggravation of his symptomatology in August 2004. The medical evidence is consistent in stating that such symptomatology arose as a consequence of Mr Dillon’s interpersonal conflict with Mr Bryce and Captain Walker over issues concerning the workplace and which have been clearly outlined earlier in this decision. It is also evident that the level of his symptomatology varied over time with any increase being associated with stressors arising in the course of his duties.

48.     While I note that other factors such as his personality style, his right knee physical disability and the need for reconstructive surgery, his age, mental readiness to seek retirement and his desire to spend more time with his family may also be contributing factors, I am satisfied on the balance of probabilities that workplace interpersonal conflict has made a material contribution to his ailment. Further I am satisfied that on the balance of probabilities his ailment was further aggravated by workplace interpersonal conflict in the months leading up to his repatriation on 19 August 2004, the aggravation being evidenced by both the worsening of his symptoms, the need for treatment and the occurrence of incapacity. In making such findings I rely on the evidence outlined by both Mr Dillon and Captain Walker, the written records, and the clinical opinions of Drs Mitchell, Muratore, Newfield, the psychological records of Dr Scevak and the psychiatric opinions of Drs Brown and Lewin.

49. Having found on the balance of probability that Mr Dillon’s ailment and the aggravation of that ailment had been materially contributed to by Mr Dillon’s employment, then it follows that Mr Dillon’s condition of adaptive disorder with anxiety and depressive symptomatology satisfies the definition of disease nominated within section 3 of the Act. In turn such a disease constitutes an injury within section 3 of the Act unless such disease suffered by Mr Dillon was the result of reasonable disciplinary action taken against the employee.

when did the disease commence?

50.     I have already referred to the evidence of both Mr Dillon and Captain Walker in relation to Mr Dillon’s interpersonal conflict occasioned during his activities at work with Mr Bryce and the symptomatology which commenced as a result of such difficulties in 1999/2000. It is evident that such relevant history was not available for the two psychiatrists when they formed their opinions as to commencement of the symptomatology in November 2004 and May 2005 respectively. Both psychiatrists focussed essentially on the conflict arising from Mr Dillon’s and Captain Walker’s workplace transactions on such issues as budgets, signs in the laundry, Christmas Cheer, a carton of coke, allowances and the proper storage of a bottle of brandy to name but a few. In turn Dr Brown concluded that the symptoms of his disorder commenced in 2004 some several months prior to his repatriation on 19 August 2004. Dr Lewin on the other hand concluded that the symptomatology commenced in 2001 as a consequence of increasing workplace conflict between Mr Dillon and Captain Walker followed by a recurrence of symptoms in 2004.

51.     In reviewing all the evidence I am satisfied on the balance of probabilities that the symptomatology associated with his psychological/psychiatric condition commenced in 1999/2000, as a consequence of considerable conflict in his workplace with initially Mr Bryce and later Captain Walker. I am also satisfied on balance of probabilities that this condition continued throughout Mr Dillon’s employment, with varying levels of symptomatology, until August 2004, when the condition was clearly made worse, as evidenced by his need to be repatriated, to take sick leave and to be treated by way of counselling.  

was the injury a result of reasonable disciplinary action?

52.     Mr Parker, counsel for Teekay, made submissions to the effect that Mr Dillon’s injury was the result of reasonable disciplinary action, namely actions taken by Captain Walker against Mr Dillon in the nature of or to promote discipline. In so stating Mr Parker contended that Captain Walker’s actions against Mr Dillon were actions taken to promote adherence to rules necessary for the proper operations of the vessel. In so contending reliance was placed on Comcare v Chenhall (1992) 37 FCR 75 where Cooper J at 83 stated:

“In the context of the definition of “injury” in s 4(1) of the Act, the phrase ”disciplinary action” means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth.”

53.     Counsel argued that there was a body of rules that existed for the proper running of the vessel. Included amongst these rules was a requirement by an employee to conform to such rules in the day to day performance of their duties. Further it is evident that Mr Dillon was not conforming with such rules when he constantly submitted store orders to Captain Walker which were not within budgetary limits and when he failed initially to respond to Captain Walker’s order to place or have placed a wet floor sign in the laundry. It is contended that Mr Dillon’s injury arose as a consequence of Captain Walker’s actions and activities in insisting that Mr Dillon keep within budget and place or have placed the wet floor sign in the laundry, these being examples of some of the issues of disputation between Mr Dillon and Captain Walker.

54.     It is evident that such an argument must fail. It is agreed that for the proper conduct of the running of a ship there will be a series of administrative instructions, orders and protocols issued. Compliance with such instructions is expected, albeit within parameters in such matters as budgets, where general year end compliance is expected to be achieved with some seasonal unders and overs in budgetary terms. In essence these are administrative instructions to which compliance is expected.

55.     Failure to comply with such instructions may result in administrative discussions between the supervisor and the employee as to the reasons for non compliance. In such situations the supervisor may or may not accept the reasons for non compliance by the employee. Further, in not accepting the reasons the supervisor may embark on administrative actions to rectify the non compliance, which may encompass a whole host of activities. Alternatively he may embark on a course of disciplinary action against the employee in accordance with the body of duties and such rules of conduct as are applicable to and enforceable against the employee.

56.     In the matter to hand Captain Walker clearly defined that body of duties and such rules of conduct that were applicable to and enforceable against Mr Dillon, if the disciplinary action course was to be adopted. Captain Walker was particular in stating in relation to the wet floor sign incident, “certainly this situation did not warrant, in my opinion, any of that at this stage” (referring to the disciplinary code and measures on the ship).

57.     In summary there is much evidence to suggest that Mr Dillon and Captain Walker often had heated discussions over a number of issues including adherence to budgets. These were discussions held within the context of administrative action that is between supervisor and employee. Such discussions are part of the normal administrative process in which the supervisor seeks adherence to administrative instructions, while the employee in many circumstances seeks to argue a case for non compliance. In such circumstances, and where views are firmly entrenched, such discussions may be turbulent.

58.     There is no doubt that constant and/or wilful abuse of administrative instructions may lead to the supervisor embarking on a course of disciplinary action against the employee. In the matter to hand there is no evidence to suggest that Captain Walker instituted disciplinary proceedings against Mr Dillon, or indeed contemplated such. In such circumstances it must be concluded that the many heated discussions that occurred between Captain Walker and Mr Dillon were fundamentally part of the general administrative process and certainly preliminary to the commencement of any disciplinary course of action, the rules for which being generally outlined by Captain Walker.

59.     In such circumstances I conclude that Mr Dillon’s injury was not the result of reasonable disciplinary action. I would also note that Mr Dillon’s difficult interactions with Mr Bryce and their consequences to Mr Dillon’s wellbeing in 1999/2000, would also fall within actions taken to foster general administrative adherence.

entitlement to compensation

60. Section 26(1) of the Act states that in effect compensation is payable where an employee suffers an injury and impairment, incapacity or death results. In this matter the evidence is that Mr Dillon suffered feelings of belittlement, anxiety and depression, which allowed a diagnosis of adaptive disorder with anxiety and depressive symptomatology. Such a diagnosis was made by both psychiatrists and constitutes impairment by way of diminution of normal mental functioning. Similarly the two psychiatrists and Dr Mitchell nominate that Mr Dillon suffered a period of incapacity – though not necessarily agreeing on what was that period of incapacity.

61. It is my finding that Mr Dillon is entitled to be paid compensation pursuant to section 26 of the Act.

entitlement to compensation for medical and related expenses

62. In both of Mr Dillon’s claims for compensation, compensation was sought for medical and related expenses. While an original determination to decline the claim was made by Teekay on 27 September 2004, the reconsideration decision is a deemed reconsideration of 11 December 2004 pursuant to section 79 of the Act. In relation to the claim against BHP Billiton, both the primary determination and the reconsideration decision were deemed decisions of 20 March 2005 and 8 June 2005 respectively.

63. In the light of such litigation history, it would appear that the issue of medical and related expenses is properly before me. In the absence of any nominated expenses, I conclude that Mr Dillon is entitled to payment of reasonable medical expenses pursuant to section 28 of the Act in relation to the injury for which liability has been found.

entitlement to compensation for incapacity payments

64.     For the reasons referred to in the previous issue, I find that the issue of compensation for injuries resulting in incapacity for work is properly before me. The commencement date for the period of incapacity clearly commences on 19 August 2004, being the date of Mr Dillon’s repatriation.

65.     The fixing of the cessation date is more difficult. Clearly Mr Dillon would see it as ongoing with compensation for incapacity payable to the date of his retirement by age (14 May 2005). Dr Mitchell would also appear to support such a proposition in his report of 12 July 2005. Similarly Dr Muratore would support such a proposition in his report of 12 October 2004, this being after discussion with Dr Mitchell.

66.     Dr Brown, in her report of 15 November 2004 stated that Mr Dillon’s level of complaints at the time of consultation would not currently qualify for a diagnosis of adjustment disorder. Dr Brown suggested that Mr Dillon may require four of five more counselling sessions, that he had made a good recovery, but factors such as his perception of discouragement from others to return to work, the lack of incentives to do so, given his approaching retirement may make it difficult for Mr Dillon to be sufficiently motivated to return to work.

67.     Dr Lewin in his report of 4 May 2005 concluded that residual symptoms at the time of consultation were not sufficient to diagnose any psychiatric problem and that there was no incapacity for work arising from his psychiatric problem, nor does he need any further psychological or psychiatric treatment.

68.     Further I note the comments contained within the clinical records of Dr Scevak which indicate on 4 January 2005 that Mr Dillon was able to manage his own situation with some degree of confidence. I note there is no further consultation. I also note that this consultation was the third consultation consequent to Dr Brown’s consultation.

69.     On analysis, such opinions would point to the period of incapacity arising from his injury as ceasing on or about 4 January 2005. In so finding I rely upon the opinions of Dr Brown and Dr Scevak, both opinions being reinforced by Dr Lewin. In so doing I acknowledge their speciality of practice and their detailed reasoning (particularly Dr Brown). I also acknowledge that there are many other factors in play and to his credit admitted by Mr Dillon as to his ambivalence of returning to work so close to retirement. Nevertheless incapacity arising from his workplace injury ceased at 4 January 2005. While I note Dr Mitchell’s opinion, I find it deficient in reasoning and inconsistent with the report of the two psychiatrists, the consultation with Dr Lewin only having occurred a few months earlier. I also note that Dr Muratore correctly pointed out that psychological/psychiatric matters were not within his area of specialisation. Similarly I note that Captain Walker had been transferred in September 2004, leaving Mr Dillon’s workplace free from that particular stressor.

70. I find that Mr Dillon is entitled to payment of compensation pursuant to section 31 of the Act for incapacity arising from an injury for the period 19 August 2004 until 4 January 2005.

costs

71.     Costs are awarded to Mr Dillon in accordance with the Tribunal Practice Directions. Such cost payments are to be shared equally by both Respondents.

determination

72.     Both decisions under review are set aside and in substitution thereof:

a.Mr Dillon is entitled to payment of compensation for an injury namely adaptive disorder with anxiety and depressive symptomatology pursuant to section 26 of the Act.

b.Mr Dillon is entitled to payment of compensation for medical and related expenses for this injury pursuant to section 28 of the Act.

c.Mr Dillon is entitled to payment of compensation for incapacity suffered as a result of this injury from 19 August 2004 until 4 January 2005 pursuant to section 31 of the Act.

d.Teekay Shipping, the last employer, is to be responsible for the calculation and payment of the incapacity payments, and the assessment and payment of any medical expense claims arising from the injury. It is suggested that such amounts paid be shared equally by the two Respondents.

e.Costs are awarded to Mr Dillon in accordance with the Tribunal's Practice Direction, with such costs to be shared equally between the Respondents. 

I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         A. Garcia
  Associate

Date/s of Hearing  9 and 10 November 2005
Date of Decision  27 January 2006      
Counsel for the Applicant  Mr P Menar
Counsel for the First Respondent             Mr G Parker    

Counsel for the Second Respondent       Mr B Kelly