Hasanagic and Australian Postal Corporation (Compensation) - [2023] AATA 3672

Hasanagic and Australian Postal Corporation (Compensation) [2023] AATA 3672 (13 November 2023)
Division:GENERAL DIVISION
File Number:2022/9829
Re:Mr Sejad Hasanagic
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:13 November 2023
Place:Melbourne

The Tribunal does not have jurisdiction to consider the application lodged by Mr Hasanagic on 2 December 2022 against denial of liability for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) as Mr Hasanagic’s written claim was not accompanied by a certificate of the kind referred to in paragraph 54(2)(b) of the
SRC Act.
..............................[sgd]..........................................
Ms A E Burke AO, Member
Catchwords

PRACTICE AND PROCEDURE – WORKER’S COMPENSATION JURISDICTION –– denial of liability – requirement to provide medical certificates – s 54(1) – whether a valid Comcare application has been made as applicant has failed to supply a certificate from a legally qualified medical practitioner – as no valid claim has been made the Tribunal does not have jurisdiction to review the determination – applicant at liberty to submit compliant medical certificate to enliven original claim
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Catoni and John Holland Group Pty Ltd [2013] AATA 509
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Durham and TNT Australia Pty Ltd [2011] AATA 802
Ellison v Comcare [2022] FCA 95
Sequeira and Comcare [2005] AATA 1284
Secondary Materials
Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, 5^th ed, 2020)
REASONS FOR DECISION
Ms A E Burke AO Member
13 November 2023

The Applicant, Mr Sejad Hasanagic applied for review of a decision made by the Australian Postal Corporation (Australia Post) to deny liability for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
On 2 December 2022 Mr Hasanagic sought review of that decision by the General Division of the Administrative Appeals Tribunal (the Tribunal), stating that:
The reasons why I am making an application to have the decision reviewed is because I believe that there is a failure in Australian Post Group (APG) administration to fairly and with procedural fairness to administer the SRC Act 1988 in my claim. That APG delegates have not acted in good faith in their positions to deliver an unbiased determination regarding my injury. The information I provided and the information that should have been relied on from APG internal processes, was not relied on, and so not taken into account. I believe the inference and conclusions from the information that was relied on, to be an error in facts and in law. I ask for the tribunal to review the determination, and the conflicting use of the evidence (all) and administration events of my employment. And to take into account the credibility and reliability of the APG determination and reasoning. Consequently APG’s administration ability to be objective to all the facts and findings in my claim has clearly failed. I believe APG have used this process to further bully me, causing greater injury over an extended period of time. APG have not been accountable and have constantly excluded relevant evidence of wrongful doing. Had the relevant evidence been used, I would not have to make an application to the tribunal.
Prior to embarking on a substantive hearing to consider Mr Hasanagic’s appeal against Australia Post’s denial of his compensation claim, the Tribunal held a series of directions hearings to clarify numerous issues involved in this complex and at times confusing appeal. In the process, there arose the question of whether Mr Hasanagic had made a valid claim as he had not complied with section 54 of the SRC Act; by not providing a certificate from a legally qualified medical practitioner with his claim.
Australia Post did not dispute the Tribunal had the power to review Mr Hasanagic’s claim, nevertheless it submitted that in the absence of first determining the question of jurisdiction, the likely length of any such proceedings, their lack of appropriate focus and the additional costs that may be thrown away in meeting them was not in accordance with the Tribunal’s objective of being fair, just, economical, informal and quick.
Mr Hasanagic rightly questioned why it had taken so long for anybody, including the Tribunal, to raise with him that his compensation claim was not valid and that this could preclude it from being reviewed by the AAT. Additionally, Mr Hasanagic was again rightly perplexed by the legality of such a claim as Australia Post had determined he was eligible for compensation and advised him of his appeal rights to the AAT.
Given the complexity of this matter, the time that has elapsed since Mr Hasanagic lodged his appeal, and the question being of a purely legal nature, the Tribunal determined that it was appropriate to consider the jurisdictional question on the papers before any consideration of Mr Hasanagic’s claim. This decision does not touch in any substantive way on the merits of Mr Hasanagic’s claim. Its scope is strictly limited to the jurisdictional question.
BACKGROUND
Mr Hasanagic commenced working at StarTrack Express as a freight handler in September 2021 and performed his last shift on 2 May 2022. Prior to commencing at Australia Post, Mr Hasanagic had been out of the workforce for several years due to health issues. Mr Hasanagic claims he is suffering from depression, anger, anxiety, and physical issues due to his employment at Australia Post.
Mr Hasanagic claims his injury arose as a result of numerous incidents including being bullied by a team member, his perception of Australia Post’s handling of legislated Covid mandates, requirements for PCR testing, inability to produce policy and procedures to explain or justify Australia Post’s Covid requirements, issues with privacy, out of cycle salary payment, smart band implementation and being unfairly stood down.
On 23 May 2022, Mr Hasanagic submitted a OneSafe: Safety Event/Investigation – Output Form in which he reported a HR Incident that had occurred on 15 October 2021. Mr Hasanagic reported:
With lack of communication between myself and Australian Post HR. Procedural fairness was not provided to me, and continues to not be provided to me. Not supplying policy and procedures when asked multiple times. And not being consistent in their approach to my health. This lack of transparency when balanced with internal complaint handling procedures, has created an atmosphere of bullying, miss trust, and a feeling of isolation which has caused poor physical and mental health issues, at a time when understanding and help is needed most. Also a FWO case was raised and a complaint with Comcare, which in itself was and is very stressful. This is another avenue for miss treatment and will cause further issues for me in the workplace and personally.
As a result of the the above circumstances I find myself to be constantly Bullied, with the repeated behaviour of expecting me to do certain tasks in the name of my health, and when questioned, information is deliberately withhold relating to that task in an all ready stressful situation for all. My request for information relating to my health has never been taken seriously, even though the decisions made by Australia Post was based on my health. It has created a culture that I am now ostracised by HR, and that I can no longer advocate for myself in any decision making process in work or health matters, as I am constantly ignored and coerced. I need access to a psychologist for help in mental health issues that I hope will resolve my physical issues. I need help.
On 23 May 2022, Mr Hasanagic submitted an Australia Post/StarTrack Claim for Compensation and Rehabilitation for psychological and physical injury, anxiety, panic attack, sleep deprivation, depression, stomach, and bowel disfunction, headache, muscle and joint aches, tension and inflammation that he first experienced in November 2021 and reported to his manager in October 2021. On the form, Mr Hasanagic advised he first sought medical treatment from Australia Post’s EAP program, Beyond Blue and Moonee Ponds Medical Centre.
On 12 August 2022, Australia Post determined that Mr Hasanagic was not entitled to compensation under section 14 of the SRC Act:
Having taken into consideration of the above I acknowledge you have felt upset and aggrieved in relation to actions management staff have taken to ensure the centre is following the Australia Post Group’s policies and procedures.
Being asked to adhere to instructions outlined as part of the Australia Post Group’s policies and procedures is something all Australia Post Group employees are expected to follow. Section 5A(2) of the SRC Act does exclude a person from entitlement under compensation if their injury has resulted from a direction or request and is consider reasonable administrative action that has been taken in a reasonable manner.
It is noted you were initially “stood down” by StarTrack in relation to your refusal to wear a smart badge. This instruction was later clarified to advise you that by not complying with a reasonable site entry requirement, then you would be denied entry and disciplinary action may be taken. Consequently although the term “stood down” was used, the disciplinary action by StarTrack to deny entry due to your refusal to wear a smart badge appeared to be reasonable administrative action taken in a reasonable manner.
Furthermore there were several initiatives adopted by the State and Federal Governments in relation to the COVID-19 pandemic which the Australia Post Group had adopted.
I note these issues were addressed by the Australia Post Group’s Human Resources and the actions were considered reasonable.
Consequently I am satisfied the changes in the business processes were reasonable and therefore considered reasonable administrative action in a reason manner which resulted in your failing to retain a benefit. I therefore find you have no entitlement to compensation and your claim is denied.
On 4 October 2022, Australia Post affirmed its determination that compensation was not payable for Mr Hasanagic’s claimed condition of “psychological and physical injury” pursuant to section 14 of the SRC Act, determining:
On the basis of the evidence before me, I am not satisfied that your employment has significantly contributed to the development of your psychological condition, because you have demonstrated that there are several other factors (such as your interactions with doctors, human rights complaint, previous medical issues and issues with Centrelink) that have caused you significant distress and/or compounded the dissatisfaction you may have experienced in relation to Australia Post’s COVID-19 response.
I am also not satisfied that you have sustained a physical injury as there is no medical evidence to support this assertion. Further, I am not satisfied that the interactions management and HR have had with you constitute “bullying” as described by Australia Post’s policy on bullying and harassment in the workplace.
Lastly, even if your employment did significantly contribute to the development of your psychological condition, I consider that that the reasonable administrative action exclusion outlined section 5A(2) of the SRC Act would apply to exclude your claim from being compensable. I am satisfied that Australia Post’s actions in directing you to undertake your duties and responsibilities as an employee were lawful and administrative in nature, and further that these actions were reasonable and undertaken in a reasonable manner.
I have, therefore, decided to AFFIRM the determination of 12 August 2022.
If you are dissatisfied with this decision you may ask the Administrative Appeals Tribunal to review the decision. Please note you will be liable to pay your legal costs, if any, if you ask for a review and the AAT’s decision is not in your favour. If you succeed, costs or part costs may be payable. Full details including the address of the AAT are outlined in the enclosed copy of rights form “Employees’ Rights and Responsibilities”.
LEGISLATION
As a licensee, Australia Post’s liability for compensation for work-related conditions arises under section 14 of the SRC Act, should an employee suffer an injury which results in death, incapacity for work, or impairment. Relevantly, section 14(1) of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Procedural steps that must be taken by an employee before any entitlement arises are set out in Part V of the SRC Act.
Section 53(1) provides that Notice of Injury must be made as soon as practicable after the employee becomes aware of the injury:
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice-as soon as practicable after the employee's death.
Section 54(1) of the SRC Act provides that compensation is not payable to a person under this Act until a certificate by a legally qualified medical practitioner is provided by the employee:
(1)Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:
(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b) except where the claim is for compensation under section 16 or 17— a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
(3)Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.
(4)If a claim relating to an employee is given to Comcare, Comcare must cause a copy of the claim to be given to the principal officer of the Entity, Commonwealth authority or licensed corporation in which the employee was employed at that time.
(5)Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
ISSUES
The issue for determination is whether the Tribunal has jurisdiction to consider Mr Hasanagic’s claim?
EVIDENCE
Dr A. Tsiglopoulos, general practitioner in a WorkReady medical certificate of capacity dated 28 June 2022 reported:
Diagnosis: Sam feels anxious and stats this is due to his interaction with HR
Treatment: Needs to be reviewed by his GP in L.M.O for further follow up
Pre existing or other possible contributing factors: I was unable to obtain a history to indicate the presence of medical condition.
Associate Professor Abdul Khalid, Consultant Psychiatrist, in a medico-legal report (arranged by Australia Post) dated 27 July 2022 opined:
In your opinion from what condition(s) does Mr Hasanagic suffer? Please specify exact nature and location of the injury.
I consider that Mr Hasanagic is suffering from an adjustment disorder with mixed disturbance of emotions and conduct, according to the DSM-5 diagnostic criteria.
Are the circumstances described as causing Mr Hasanagic’s anxiety and stress consistent with the incident that was reported?
I consider that Mr Hasanagic’s adjustment disorder had started when he was required to wear a smart watch at work for social distancing, which he declined. He further did not want to get COVID-19 vaccination or PCR tested. He was told to stop work on 24 November 2021. He felt stressed due to his financial situation which can be diagnosed as an adjustment disorder. I consider that his adjustment disorder had remitted when he returned to work in January 2022. However, he was pursuing his case with the Fair Work Ombudsman, AHPRA and Health Complaints Commissioner and he remains preoccupied with how he is being treated by Australia Post and the doctors who labelled him as an anti-vaxxer, which is continuing to contribute to his adjustment disorder with mixed disturbance of emotions and conduct.
…
I consider that Mr Hasanagic’s current condition of adjustment disorder with mixed disturbance of emotions and conduct is primarily related to his perception of lack of support from StarTrack (Australia Post) and his anger towards general practitioners who allegedly labelled him an anti-vaxxer. He did not report any pre-existing psychiatric condition.
Dr Robert Bradford, general practitioner in a Worksafe certificate of capacity dated

22 September 2022 diagnosed Mr Hasanagic with anxiety and depression, vaccination issues and determined that he was unfit for work from 2 September 2022 to 30 September 2022.
Dr Bradford, in a Victorian Workcover Authority certificate of capacity dated 3 October 2022 diagnosed Mr Hasanagic with anxiety and depression - vaccination issues, answered ‘Yes’ to the question, ‘is the injury/disease consistent with patients’ description of cause’ and certified Mr Hasanagic unfit for work from 3 October 2022 to 31 October 2022.
Dr Bradford, in a Centrelink Medical certificate dated 28 October 2022 diagnosed Mr Hasanagic with anxiety and depression, with symptoms of insomnia, restless and agoraphobia and certified he was unfit for work from 28 October 2022 to 28 November 2022.
Dr Bradford, in a Centrelink Medical certificate dated 25 November 2022 diagnosed Mr Hasanagic with anxiety and depression, with symptoms of insomnia, restless and agoraphobia and certified he was unfit for work from 28 November 2022 to 28 December 2022.
Dr Bradford, in a Centrelink Medical certificate dated 29 December 2022 diagnosed Mr Hasanagic with anxiety and depression, with symptoms of insomnia, restless and agoraphobia and certified he was unfit for work from 28 December 2022 to 28 January 2023.
Dr Bradford, in a Centrelink Medical certificate dated 30 January 2023 diagnosed Mr Hasanagic with anxiety and depression, with symptoms of insomnia, restless and agoraphobia and certified he was unfit for work from 28 January 2023 to 28 February 2023.
Dr Benjamin Jose, general practitioner, in a Centrelink Medical certificate dated 6 February 2023 diagnosed Mr Hasanagic with anxiety and depression, with symptoms of insomnia, restless and agoraphobia and certified he was unfit for work from 28 February 2023 to 28 March 2023.
Dr Jose, in a Centrelink Medical certificate dated 3 April 2023 diagnosed Mr Hasanagic with anxiety and depression, with symptoms of insomnia, stress and anxiety and certified he was unfit for work from 3 April 2023 to 3 July 2023.
The Australia Post Group Senior Claims Manager in their original determination of

12 August 2022 outlined their perspective of the actions taken to progress Mr Hasanagic’s workers compensation claim:
You said you did not trust doctors, didn’t trust Australia Post or the HR Advisor. You believed the “only good thing is EAP”. You informed me you had chopped up your Medicare card and “wanted out” and did not want to pay the ATO as you didn’t use Medicare.
Following my conversation with you I emailed you a worker’s compensation pack and on 24 May 2022 I received a completed worker’s compensation claim via email. In your email you had said that there had been a delay as “I had a really rough week last due to the clinic calling me an anti-vaxxer: As explained I have difficulty in establishing any form of relationship with Doctors once covid-19 vaccinations are mentioned”.
On 31 May 2022 and 3 June 2022 you requested an update on his claim.
On 21 June 2022 the Workplace Rehabilitation Provider, Ms Noel Douglas, was able to speak to you. During Ms Douglas’ conversation with you, you had informed her that “my faith in humanity has gone”. Ms Douglas discussed with you the need for you to see a doctor and provided you with a list of three clinics where you may be able to see a doctor.
On 24 June 2022 I contacted you. You wanted to know why your claim had taken so long to be processed. You also advised that you had not been paid since April 2022. I suggested you approach Centrelink. You did not respond to my suggestion and instead said “don’t know what is going on and nothing taking it seriously”. You referred to the HR Business Partner arranging a meeting to see you, but to date nothing had occurred. You said you had never been through this before and couldn’t understand why you couldn’t go to work.
You again referred to people not taking things seriously and asked “is this a game”. You referred to leaving Australia Post and you did not want to come back to work as it “all makes me sick”.
You mentioned following your discussion with Ms Douglas you had arranged to see a doctor on Tuesday 28 June 2022 and I asked about asking the doctor for a medical certificate.
During the conversation I mentioned the need to arrange an appointment with a psychiatrist to assist with my assessment of your claim and I arranged the appointment while you were on the phone. You agreed to attend the appointment.
I again asked you about Centrelink and you said that you had initially seen Centrelink, but since you had received some salary, you believed Centrelink did not want to pay you. I suggested you approach Centrelink again however you said that you wouldn’t try again and “got rid of MyGov”.
As indicated above I had arranged for you to see a psychiatrist on 28 June 2022. However since you had decided to attend the appointment via an IPad in the park, the psychiatrist was not prepared to continue with the appointment.
Consequently another appointment was arranged for 15 July 2022 with Associate Professor Abdul Khalid, Consultant Psychiatrist. A/P Khalid stated you attended the appointment in your car and A/P Khalid was located in the mlcoa Victoria rooms.

Mr Hasanagic in his Statement of Facts, Issues and Contentions dated 2 August 2023 advises:
14. Claim for Compensation and Rehabilitation Decisions makers
I. Decision makers wilfully failed in their duty and principles of workplace rehabilitation as set out in the Safety, Rehabilitation and Compensation Act 1988 Sections 34D and 34E
(I) a focus on recovery at, or return to work
(II) the right services provided at the right time
(III) effective service provision at an appropriate cost;
(IV) evidence based decisions
II. I asked for a workplace doctor and was told Australia Post does not have workplace doctors to provide to me.
III. I organised with an independent clinic to book appointment for workplace injury claim, as directed by the workplace injury management.
IV. Clinic practitioners
(VII)Practitioner 1 refused to provide assistance with claim against Australia Post and a capacity to work form, as he thought it was an issue with vaccination. He proceeded to question my vaccination status during the 3 min consultation. I was asked to leave the consultation room and labelled an anti vaxxer.
(II) Complained to clinic management and a second practitioner was organised.
(III) Practitioner 2 explained that the clinic does not assist in workplace injury matters, and could not complete a capacity to work form. As it is a matter between the workplace and myself.
IV. I explained the above issues about the clinic to the injury claims manager and was provided with a claim application via email.
V. I had to complete a workers compensation claim with no direction or assistance from the claim manager.
VI. Stated in my email if not having a capacity to work form completed was an issue and one that will affect my application.
VII. I was ignored by the injury management manager as my email and claim were not replied too, for several weeks.
CONTENTION
Mr Hasanagic
Mr Hasanagic submitted he was at a complete disadvantage as he had been given no advice about the injury management process, and the requirements for lodging a compliant compensation claim. Mr Hasanagic submitted as an employee he was at a complete disadvantage, as the claims management staff as employees of the self-insurer had put the company ahead of employees. Mr Hasanagic submitted the claims managers provided no assistance or guidance on how to lodge claims for injuries suffered in the workplace.
Mr Hasanagic submitted he had attempted to obtain the required medical certificate. In the first instance Mr Hasanagic requested that he be reviewed by an Australia Post doctor and then asked to be referred to an Australia Post doctor. Mr Hasanagic submitted he was advised Australia Post did not have approved providers and he needed to attend his own general practitioner.
Mr Hasanagic submitted he then attended two doctors, with one labelling him an anti-vaxxer and attempting to vaccinate him, and the second doctor advising he did not provide capacity to work certificates. Mr Hasanagic submitted the second doctor advised him such an issue was between himself and his workplace; and that his workplace should organise an

in-house doctor.
Mr Hasanagic submitted in respect of the jurisdiction issue that it was completely prejudicial to him for the Respondent representative to find issue with jurisdiction at such a late stage in the process. Mr Hasanagic submitted the Respondent representative should question its own client, as to why they provided him with an application form, and then to accept the application, knowing that a certificate of capacity was unattainable at the time.
Mr Hasanagic submitted as a self-represented applicant he was at a complete disadvantage to deal with such a complex issue of jurisdiction.
Mr Hasanagic submitted in an email to the Tribunal:
“A member of Comcare then said to me in a conversation that my application should not of been accepted without a certificate of capacity. To which I asked well why was it then accepted. The reply I got was to obtain a certificate, and provide Australia Post with a certificate of capacity. I have done so at the earliest time available to me. …. has wilfully acted in a manner that proves malfeasance in his ability to manage claims, and further causing harm and injury. The respondent now questions the validity of the AAT to have Jurisdiction in this matter. This is disgraceful behaviour and one that should be cautioned and or reported to a Law body of sought, and more so when the evidence provided is fraudulent.”
Australia Post
The Respondent submitted as a practical matter, it was necessary for the Tribunal, before taking any further steps in the matter, to determine if there has been compliance with the terms of section 54 (the statutory requirements of the section which are expressed in mandatory language) and whether, as a consequence, it has any, and if so what, jurisdiction to undertake statutory review in these proceedings.
The Respondent noted:
“The AAT has the competence, authority and responsibility to determine whether it has jurisdiction to review a decision. The Tribunal therefore has power to inquire into the existence of the facts necessary to found its jurisdiction. See Re Adams and Tax Agents Board (1976) 1 ALD 251; Trajkovski v Telstra Corporation Limited (1998) 81 FCR 459 at 468; 153 ALR 248 at 256-7”:- Pearce D, “Administrative Appeals Tribunal” 5th Edition.”
The Respondent submitted Mr Hasanagic has not supplied any medical evidence in support of the contention that he did or does suffer from a condition to which his employment significantly contributed.
The Respondent submitted it understood Mr Hasanagic had no intention to file any such evidence and/or he was unable to supply any such further material. The Respondent noted that whilst Mr Hasanagic has previously supplied medical certificates to the Respondent, none of those so far discovered appear to satisfy the requirements of section 54 of the SRC Act, read in its statutory context.
The Respondent submitted such circumstances would normally compel only one outcome for an application that requires the Tribunal to be satisfied as to matters upon which medical expertise or opinion is necessary, to establish that the conditions for statutory entitlement are met.
The Respondent submitted it may be accepted that Mr Hasanagic harbours grievances in regard to the Respondent’s COVID-19 responses in respect of aspects of his employment. However, the Tribunal is not here conducting an open-ended inquiry into the Respondent’s COVID-19 and related policies or practices or their relative merits. It is concerned with whether the Applicant suffered an injury and whether one or other aspects of his employment significantly contributed to it. The scope of that inquiry would ordinarily be informed by medical evidence supplied by the Applicant that identified a condition and what employment facts and circumstances were thought to be causally relevant to its development. The Respondent submitted there was no such evidence before the Tribunal in this matter.
The Respondent submitted the SRC Act has specific provisions as to what may constitute a valid claim (see section 54). It is drafted in what are described legally as “mandatory” terms (for example, it uses the word “shall” rather than “may”). That form of statutory language means that, generally speaking, the Tribunal needs to be satisfied of strict compliance with its terms.
The Respondent submitted one reason for a provision requiring a medical certificate to be filed by a claimant is that the claimant’s doctor is able to certify, based upon their knowledge as a treater, that the essential elements of the claim are, in his or her opinion, satisfactorily met. That means certifying a belief that a medical condition resulting from employment has occurred (as opposed, for example, to one which was pre-existing). Or, alternatively perhaps, that some pre-existing condition has been made worse by employment factors.
The Respondent submitted normally the certificate would indicate in some way that employment factors are said to have been responsible for causing the relevant condition or its aggravation. It is important that this opinion comes from the claimant’s doctor, because he or she is expected to have a doctor/patient relationship with the person claiming compensation and can confirm a belief in the likely significance of the circumstances complained of by a claimant.
The Respondent submitted the report it obtained from psychiatrist A/P Khalid did not satisfy section 54 of the SRC Act, as it was not based on a doctor/patient relationship. Additionally, the Respondent submitted A/P Khalid’s report was not clear as to whether “employment” factors per se were responsible for the diagnosis that Mr Hasanagic was suffering from an adjustment disorder with mixed disturbance of emotions.
The Respondent submitted because Mr Hasanagic has not so far supplied medical material indicating the nature of the condition or conditions he claims to have suffered when he submitted his claim, the opinion of a medical practitioner that such condition(s) were relevantly employment related and specifying one or more compensable consequences said to have resulted from it/them, then the Tribunal is not able to assess Mr Hasanagic’s claim. The Respondent submitted Mr Hasanagic’s claim failed at the first hurdle as it did not meet the strict test of section 54 of the SRC Act and for the Tribunal to proceed to consideration of Mr Hasanagic’s claim would be fruitless as there was no medical evidence on which to assess his claimed condition or employment impact.
CONSIDERATION
The Tribunal in the manner adopts the succinctly put summary in Ellison v Comcare [2022] FCA 95 (Ellison):
In summary, compensation is not payable unless a written claim is made under s 54 by or on behalf of a person, in the form approved by Comcare. Subject to exceptions which are not presently relevant, the written claim must be accompanied by a medical certificate in the approved form. Substantial compliance with the approved claim form is sufficient.
There was no dispute between the parties that when Mr Hasanagic submitted his claim for compensation on 23 May 2022, he had not provided a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of section 54(2)(b) of the SRC Act.
There was confusion in respect of whether Mr Hasanagic had subsequently submitted a medical certificate that would meet the requirements of section 53(3) of the SRC Act as the Act clearly envisages medical certificates will be submitted after claims for compensation are lodged.
There was dispute as to whether the medico-legal report commissioned by Australia Post from A/P Khalid could satisfy the requirements of section 54(2) of the SRC Act.
The Tribunal found the medical certificate from Dr A Tsiglopoulos dated 28 June 2022 submitted by Mr Hasanagic did not meet the requirements of section 54(2) of the SRC Act, as the doctor opined, he was unable to obtain a history to indicate the presence of a medical condition.
The Tribunal found the report commissioned by Australia Post from A/P Khalid could not satisfy the requirements of section 54(2) of the SRC Act as it had not been obtained by Mr Hasanagic as the claimant in the application as envisaged by the SRC Act.
The Tribunal accepted that Mr Hasanagic had supplied Australia Post with a certificate from Dr Bradford dated 22 September 2022. However, the Tribunal found the medical certificate did not meet the requirements of section 54(2) of the SRC Act. The medical certificate does provide a clear diagnosis but there is no reference to causation, and there is nothing opined to assess what has caused Mr Hasanagic’s condition of anxiety and depression. The certificate also does not describe Mr Hasanagic’s condition and symptoms. The requirement of this information is vital to assess if Mr Hasanagic’s condition of a mental injury arose out of, or in the course of his employment with Australia Post.
As a basic premise, as articulated in Administrative Appeals Tribunal (LexisNexis, 5^th Ed, 2020), to determine if the Tribunal can review a decision, three matters must be considered:
(a)Does an enactment confer jurisdiction;
(b)Has a decision been taken; and
(c)Has that decision been under the enactment conferring jurisdiction.
At first blush it would seem self-evident the Tribunal has jurisdiction to review Mr Hasanagic’s appeal:
(a)Section 64 of the SRC Act confers jurisdiction on the Tribunal to review appeals of claimants against determinations;
(b)Australia Post affirmed its determination that compensation was not payable for Mr Hasanagic’s claimed condition of “psychological and physical injury” pursuant to section 14 of the SRC Act
(c)Australia Post purported to make the Reviewable Decision in accordance with sub-section 62(5) of the SRC Act, a reviewable decision, affirming the determination dated 12 August 2022.
However, where an act conferring jurisdiction on the Tribunal to review decisions requires certain provisions to be complied with, the Tribunal cannot simply waive this compliance requirement. The Tribunal does not have to accept Mr Hasanagic’s appeal simply because Australia Post made a determination.
The Tribunal shares Mr Hasanagic’s confusion over Australia Post’s assessment and determination of his claim when it was submitted without ‘a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare’. Comcare’s own guide clearly states:
Your claim cannot be assessed unless you attach: A Medical certificate for compensation with diagnosis and causation (including what has caused your condition), completed by your doctor or medical specialist, describing your condition and symptoms.
The Tribunal notes the determination in Sequeira and Comcare [2005] AATA 1284 where the Member found, the absence of a medical certificate was sufficient to dispose of the matter:
The first issue to be considered in this application is whether the absence of medical certificates in relation to the incapacity claimed by Mr Sequeira is an absolute bar to the success of his claim. Section 54 of the Act is relevant to this question.
The requirements of section 54 are clear and unambiguous (Cao v Australian Postal Corporation [1999] AATA 995; (61 ALD 299)). It is also clear that Mr Sequeira has not provided medical certificates of the kind required by section 54(2) or, indeed, of any kind. Notwithstanding the allowance made in section 54(5) that substantial compliance with section 54(2) is sufficient, the reports of Drs Wallace, Silva and Young do not provide sufficient, or sufficiently particular, information to support his wide ranging claim.
This absence of certificates or particular expert medical substantiation of Mr Sequeira’s claim is sufficient to dispose of the matter
Similarly in the matter of Catoni and John Holland Group Pty Ltd [2013] AATA 509 the Member found that section 54 of the SRC Act was clear and unambiguous. The Member found as the applicant had not provided a certificate of the kind referred to in paragraph 54(2)(b) of the SRC Act, the claim ‘shall be taken not to have been made until such a certificate is given...’:
I accept that the requirements of s 54 of the SRC Act are clear and unambiguous; that is, with the exception of a claim for compensation under ss 16 or 17, ‘a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of’ paragraph s 54(2)(b) of the SRC Act must be given to the relevant authority in order for a claim to be made. The real question is whether the evidence in the present application does or does not satisfy the requirements of the section by way of ‘sufficient compliance’ pursuant to s 54(5). It is therefore necessary to more closely examine the evidence.
….
Returning to the provisions of s 54 of the SRC Act, it is important that subsection (1) states that ‘compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.’ That provision makes it absolutely clear that compensation is ‘not payable’ unless a claim is made ‘under this section.’ If no claim is made under the section, no compensation can be payable.
……
Nevertheless s 54(2)(a) is not to be read alone. It includes the word ‘and’ linking it to the requirements of s 54(2)(b). The applicant’s claim is not pursuant to either s 16 or s 17, the exceptions to the application of s 54(2)(b). It is a claim pursuant to s 14 of the SRC Act. Accordingly the word ‘and’ requires that there be ‘a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of’ the paragraph. Again there is no proof of Comcare having approved any particular form. The forms which have been and which are now available on Comcare’s website require a medical certification of whether the person in question is fit to continue pre-injury duties or to return to pre-injury duties or is fit for modified duties and in respect of what particular period. Such a certification would add to the evidence before the source of payment of compensation and most relevantly so.
Sub-section 54(5) provides that ‘strict compliance with an approved form referred to in s 54(2) is not required and substantial compliance is sufficient.’ In my view, substantial compliance cannot be inferred when there is no certificate of any type under s 54(2)(b). Such provision enables this Tribunal to accept that the written claim to which s 54(2)(a) refers substantially complies even if the form has not been formally approved by Comcare. So far as s 54(2)(b) is concerned, there is no certificate upon which the requirement of substantial compliance can attach. There is the evidence of the applicant and of Dr Cordova. None is expressed in anything like a certificate approximating to the requirements in the forms on the website of Comcare for such a certificate. Further, the evidence is that Dr Cordova refused the applicant’s request to provide such a certificate retrospectively.
In my opinion the requirements of s 54 are clear and unambiguous and themselves require the applicant to produce a certificate under s 54(2)(b) or some document approximating it which would be sufficient to attract the provision respecting substantial compliance.
As the written claim was not accompanied by a certificate of the kind referred to in par 54(2)(b) of the SRC Act, the claim ‘shall be taken not to have been made until such a certificate is given...’
The Tribunal notes Mr Hasanagic’s contention, that the Tribunal has jurisdiction because a decision has been made, is supported by what is referred to as the Lawlor principle in the matter of Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21 where Bowen CJ observed:
… the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.
In the matter of Durham and TNT Australia Pty Ltd [2011] AATA 802 the Member considered that the Tribunal had jurisdiction on the basis that a reviewable decision has been made and the matter could be considered on the scope of the claim:
In conducting a review under s 64 of the Act, the Tribunal’s jurisdiction does not depend on the respondent’s characterisation of the applicant’s claim. Rather, the Tribunal must assess for itself the true scope of the claim and is empowered to conduct its review on that basis.
This is not to say that the jurisdictional preconditions set out in the Act (and identified by the respondent in its submissions) are dispensed with where the Tribunal’s characterisation of an applicant’s claim differs from that of the respondent. In such a case, it must be understood that the claim itself – interpretive issues aside – has been the subject of a determination, an application for reconsideration, a reviewable decision and an application to the Tribunal, and that the Tribunal’s jurisdiction under s 64 has therefore been enlivened.
The result is that the question whether the Tribunal has jurisdiction in the present case is to be resolved by reference to the scope of Mr Durham’s claim for compensation.
In construing Mr Durham’s claim, I adopt the propositions set out by Madgwick J in Abrahams as an appropriate reflection of the approach to be taken by the Tribunal. I also note that, unlike Re Cavanagh, the present case does not concern “a bare claim for a nominated condition entailing a specific diagnosis where there is no reference to any functional component”. Mr Durham’s claim, as set out below, was broadly expressed. Specific diagnoses were only offered in the context of later reports from medical practitioners.

The Tribunal however considered the construct of the SRC Act and the sheer requirements of the decision making to assess a claim cannot be achieved without medical evidence to support an applicant’s claim. The Tribunal relied upon the most recent determination of the Federal Court in Ellison, which found a claim cannot be considered by a decision-maker including the Tribunal unless section 54 of the SRC Act has been complied with:
Third, it can be accepted as Comcare submits, that ss 53 and 54 of the SRC Act impose preconditions upon a decision-maker, including the Tribunal, deciding a claim for compensation.
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Applying the principles set out in the authorities to the circumstances of the present case involves taking into account that:
(a) a broad, generous and practical approach is appropriate in construing a document purporting to be a notice of injury under the SRC Act (Abrahams at [18(1)]);
(b) notice is taken to have been given even if the notice fails to comply with the requirements under s 53(1) where the failure is caused by ignorance, mistake or any other reasonable cause, or where the relevant authority would not be prejudiced if the notice is treated as sufficient: s 53(3);
(c) strict compliance with the requirements of the prescribed claim form under s 54 is not required; substantial compliance is sufficient: s 54(5);
(d) the notice of injury requirements by the legislation are to be construed beneficially for claimants: Abrahams at [18(1)] and Sellick at [23];
(e) medical diagnoses as to the nature and aetiology of an injury commonly evolve over time: Abrahams at [21];
(f) the statutory scheme allows for “progressive and evolving decision-making” in the light of subsequent events and circumstances: Hannaford at [57];
(g) the purpose of requiring notice of injury is so that Comcare is appropriately informed as to “the nature of an injury or ailment and its connection with the employment”: Frosch at [8]; and
(h) the purpose of requiring notice and of enabling the decision-maker to have a fair opportunity to properly investigate the claim are paramount considerations when determining whether notice of injury has been given under the SRC Act: Abrahams at [18(5)].
The paramount consideration is whether Comcare was appropriately informed as to the nature of the claimed injury and its connection with the employment; and whether it was provided a fair opportunity to properly investigate that claim. As I have said, the materials before Comcare in the reconsideration application raised that claim. Comcare was on notice of it and had ample opportunity to properly investigate it. That it had notice of the claim is plain when one considers that, after Comcare gave notice of its intention to cease compensation payments and provided Mr Ellison with an opportunity to provide further medical evidence, Dr Sewell provided his December 2017 report to Comcare. That report expressly informed Comcare of Dr Sewell’s opinion that Mr Ellison was incapacitated for work by reason of spinal degeneration in his low back which was related both to the 2009 Workplace Incident and to his employment with Customs from 2002 to 2009. That report was plainly significant to the reconsideration application; and the review officer specifically referred to and briefly summarised it. That broader claim had been before Comcare in the reconsideration application, and the Tribunal had jurisdiction to consider and decide it.
Treating the broader claim as being properly before the Tribunal does no harm to the “orderly process of administration contemplated by the Act” (Abrahams at [16]). The orderly process of administration contemplates “progressive and evolving decision-making” in the light of subsequent events and circumstances: Hannaford at [57]. In the present case the subsequent circumstances are that, over time, the medical opinions relating to the nature and aetiology of Mr Ellison’s condition evolved. As I have said, Comcare had notice of those changes of medical opinion and had a fair opportunity to properly investigate the claims raised by them. In the circumstances of the present case, it is difficult to see what more Mr Ellison was realistically required to do to allow Comcare a proper opportunity to investigate his claim and for its orderly processing.
Mr Ellison was in receipt of compensation payments from Comcare for all his periods of incapacity for work from April 2009 until 11 January 2018. That does not prove that Mr Ellison was legally entitled to such payments, but there was no practical reason for him to make a fresh compensation claim nor to do anything more to notify Comcare of the changed medical opinions as to the nature and aetiology of his injury. He had provided Comcare with medical certificates throughout the period; had authorised Comcare to obtain reports from his treating doctors and Comcare had done so; had attended medical examinations by doctors engaged by Comcare as required; and, most importantly, Comcare had Mr Sewell’s December 2017 report and it was on notice of the broader claim. It cannot realistically be said that Mr Ellison completing a fresh claim form, and thus going back to the start of the claims process under the SRC Act, was necessary for the orderly processing of the broader claim.
The Tribunal’s jurisdiction arises under section 64 of the SRC Act; the extent of the jurisdiction is decided by the reconsideration determination (section 62 of the SRC Act), which in turn is governed by the scope of the original claim and the documents associated with it (sections 53 and 54 of the SRC Act). The Tribunal must make its determination on the claim as a whole, drawing not only on the claim itself but also on the notice of injury, medical certificate and other documentation submitted at the time.
The Tribunal considered it did not have jurisdiction as it found the purpose of requiring notice of an injury and a certificate by a legally qualified medical practitioner providing causation of the injury was a necessary element to enable the decision-maker to have a fair opportunity to properly investigate the claim and were paramount considerations when determining whether a valid claim had been made in accordance with the SRC Act.
The Tribunal was genuinely sympathetic to Mr Hasanagic’s frustration with the process and his inability to advance his claim. The Tribunal found as an unrepresented applicant Mr Hasanagic should have received clear advice from Australia Post about the requirements to lodge a valid claim in accordance with the SRC Act. Additionally, the Tribunal found Australia Post had failed to properly fulfil its requirements in assessing Mr Hasanagic’s application as they had determined his claim when it was clearly invalid.
The Tribunal also shared Australia Post’s genuine concern about the nature of Mr Hasanagic’s grievances and his behaviour to date in these proceedings. The Tribunal echoes Australia Post’s concern that many of Mr Hasanagic’s grievances are not related to his claimed injury but are essentially personnel issues, industrial relations issues and concern with government Covid mandates and should be prosecuted in other forums. However, the Tribunal also notes that essentially Mr Hasanagic claims his injury arose as a result of how Australia Post implemented these polices and that is something he has every right to prosecute in a claim for compensation under the SRC Act.
The Tribunal does not consider the absence of certificates or particular expert medical substantiation of Mr Hasanagic’s claim is sufficient to dispose of the matter. The Tribunal considers a broad, generous and practical approach is appropriate in dealing with all claimants under the SRC Act. Further, section 54(3) of the SRC Act clearly articulates a claim shall be taken not to have been made until such a certificate is given to that authority, therefore Mr Hasanagic’s claim can be enlivened once he submits a medical certificate in accordance with the requirements of the SRC Act.
The Tribunal encourages Mr Hasanagic to lodge a medical certificate as envisaged by the SRC Act to seek consideration of his claim for compensation.
DECISION
The Tribunal does not have jurisdiction to consider the application lodged by Mr Hasanagic on 2 December 2022 against denial of liability for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) as Mr Hasanagic’s written claim was not accompanied by a certificate of the kind referred to in paragraph 54(2)(b) of the SRC Act.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.

......................[sgd]............................
Associate
Dated: 13 November 2023

Date of hearing:

Hearing on the papers

Applicant:

Self Represented

Solicitors for the Respondent:

McInnes Wilson Lawyers

Date of hearing:	Hearing on the papers
Applicant:	Self Represented
Solicitors for the Respondent:	McInnes Wilson Lawyers