Ibrahim v Sydney South West Area Health Service - [2011] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Ibrahim v Sydney South West Area Health Service [2011] NSWWCCPD 44
APPELLANT:		Tony Ibrahim
RESPONDENT:		Sydney South West Area Health Service
INSURER:		Employers Mutual Limited
FILE NUMBER:		A1-107/11
ARBITRATOR:	Ms C D’Souza
DATE OF ARBITRATOR’S DECISION:		19 April 2011
DATE OF APPEAL DECISION:		12 August 2011
SUBJECT MATTER OF DECISION:		Workplace injury management dispute; order that worker attend a psychiatric examination; compensation; no compensation at issue on appeal; s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Self-represented
Respondent:	Hicksons
ORDERS MADE ON APPEAL:		The Arbitrator’s decision dated 19 April 2011 is confirmed. Each party is to pay his or its own costs of the appeal.

INTRODUCTION

This case concerns a workplace injury management dispute that arises out of a stress claim. The Arbitrator determined that the employer is to obtain a psychiatric clearance before allowing the appellant worker, Mr Ibrahim, to return to work and that Mr Ibrahim should attend a psychiatric examination “for the purposes of [obtaining] a clearance to return to work”. Though the appeal must fail, because there is no compensation “at issue” on appeal, to fully understand the matter, it is appropriate to set out some of the background facts.

BACKGROUND

Mr Ibrahim started work as a security guard with the Sydney South West Area Health Service (the respondent) at Royal Prince Alfred Hospital (the hospital) in 2002. Though he is still employed by the respondent, he has not worked for it since mid-September 2009.
On 20 April 2009, he claimed workers’ compensation based on a medical certificate from Dr Ibrahim, his nominated treating doctor, dated 15 April 2009, which certified him unfit until 29 April 2009 because of an adjustment disorder with mixed anxiety/depression because of bullying and harassment at work. The certificate recommended a psychiatric assessment, which Mr Ibrahim did not attend.
At some stage, Mr Ibrahim came under the care of Dr Saba. After liaising with Dr Saba, the respondent’s insurer approved an initial assessment with a psychologist. However, Mr Ibrahim again changed his nominated treating doctor (to Dr Kafiris) and did not attend the proposed assessment.
Mr Ibrahim has refused to attend medical examinations arranged by the respondent’s insurer with Dr Lee, psychiatrist, in May and June 2009. On 11 June 2009, the insurer wrote to Mr Ibrahim advising him of his obligation to take all reasonable steps to assist with his rehabilitation and that it was unable to determine his claim until he attended a medical examination.
On 15 September 2009, Mr Ibrahim was rostered to work with Mr Lahood, one of the people he alleges has harassed and bullied him for over several years. Mr Ibrahim states that Kevin Lewis, the operations manager, prepared the roster and, as he has done on numerous occasions, ignored requests from the union, and certificates from Mr Ibrahim’s doctor, that the two men not be rostered together. As a result, he took sick leave on 15 September 2009. Ross Hughes, the manager of security and parking services, asked Mr Ibrahim to provide a clearance certificate, which, “after six years of stress”, Mr Ibrahim felt was unreasonable bullying.
On 18 September 2009, the respondent’s director of corporate services and finance, Joseph Jewitt, wrote to Mr Ibrahim to remind him that he was required to provide a medical clearance certificate from a registered psychiatrist prior to returning to work. The assessment was needed to determine his fitness for duty and what, if any, arrangements needed to be put in place to ensure a safe return to work.
Mr Ibrahim came under the care of Dr Kafiris in October 2009. Dr Kafiris certified him fit for suitable duties from 5 October 2009, with the restriction that he “not work on the same shifts with Mr Lahoud” [sic, Lahood]. His provisional diagnosis was that Mr Ibrahim had an adjustment disorder with mixed anxiety/depression. The doctor’s management plan included a referral to a psychiatrist and/or psychologist for review.
On 23 December 2009, Dr Kafiris recommended a trial of pre-injury duties with no reference for a psychiatric review.
The insurer prepared an injury management plan on 29 December 2009. The plan recorded that, among other things, Mr Ibrahim was to attend all medical treatment recommended by Dr Ibrahim and approved by the insurer, and attend all appointments related to his rehabilitation and return to work. It noted that a failure to participate in the injury management plan may result in a suspension of benefits.
Dr Kafiris issued a series of certificates starting on 8 January 2010 and ending on 17 March 2011 certifying Mr Ibrahim fit to return to work provided he avoided Mr Lahood. None of those certificates referred to a need for a psychiatric review. On 17 March 2011, Dr Kafiris wrote a short report in which he confirmed that Mr Ibrahim was “able to return to work as according to my WorkCover certificate dated 22.2.11 and 17.3.11 and within the conditions set out in the management plan”. The conditions in the management plan were that Mr Ibrahim was safe to return to work provided he avoided direct contact with Mr Lahood and did not have to work on the same shift as him.
On 25 January 2010, the insurer wrote to Mr Ibrahim noting that, to facilitate his return to work, it had requested him to attend numerous independent medical examinations with a psychiatrist and he had advised he did not wish to attend. As Dr Kafiris continued to recommend “a psychiatrist referral” and as Mr Ibrahim had stated that he would not attend that appointment, the claim would be closed.
Notwithstanding the letter of 25 January 2010, the insurer prepared a further injury management plan on 1 February 2010 in essentially the same terms as the plan prepared on 29 December 2009.
The insurer wrote to Mr Ibrahim on 6 April 2010 advising him of an appointment with Dr Synnott, psychiatrist, on 4 May 2010. Mr Ibrahim did not attend that appointment.
On 4 May 2010, Mr Ibrahim wrote an email to Jacqui Clark, the respondent’s area director of human resources, stating that he would be returning to work on Thursday 6 May 2010. He said that he had three “clearances certificates” from his doctor from 9 December 2009 and had nothing in writing from her stating why he should be off work.
Jackie Mills, the director of human resources at Royal Prince Alfred Hospital, replied to Mr Ibrahim on 5 May 2010 saying that he was not to report for duty until he attended an independent psychiatric/psychological assessment. Mr Ibrahim responded that he considered the requirement that he attend a psychological assessment was “unreasonable and unjust”.
On 7 May 2010, Ms Clark advised Mr Ibrahim by email that the psychiatrist assessment he was being asked to attend was not a workers’ compensation issue. She said the assessment was required because of concerns about Mr Ibrahim’s fitness to be at work and perform the responsibilities of his position. She told Mr Ibrahim that an appointment had been made for him to be examined by Dr Doron Samuell on 31 May 2010 and that the hospital would meet the cost of that appointment. Mr Ibrahim did not attend that appointment.
In his written submissions, Mr Ibrahim said of Ms Clark’s email:
“I informed Jacqui Clark on numerous occasions that I will not be undertaking psychiatric assessment, for the following reasons: 1) I was cleared by my Doctor to return back to work, 2) I informed Jacqui Clark that I consider this assessment unreasonable, 3) I don’t think that this assessment is necessary to get me back at work, 4) This assessment is a set up by Kevin Lewis, and Joe Lahood, and, 5) A victim of bullying and harassment should not be asked to have psychiatrist [sic] assessment and should get counselling.”
On 2 July 2010, Mr Ibrahim attended the hospital and went through his file. He wrote an email to Ms Clark on 4 July 2010 stating that the file only contained documents that were “fabricated, untrue, or appear to be against me to anyone who reads this file”. He asked, among other things, why he was being forced to have a psychiatric assessment and why he was being blocked from going to work.
On 11 January 2011, Mr Ibrahim filed with the Commission an Application to Resolve a Workplace Injury Management Dispute (the Application). Under “Reason for Application”, Mr Ibrahim ticked the following:
“The injury management plan has not been followed
There is no return to work plan
No suitable duties have been provided
The worker’s capacity to perform work duties is disputed”
In the Application, Mr Ibrahim described his injury as “negative stress, anxiety disorder resulting from bullying and harassment”. He complained that Kevin Lewis was deliberately putting the harasser, Joe Lahood, on Mr Ibrahim’s shift to cause him (Mr Ibrahim) problems and stress, despite numerous requests to avoid it.
Under “Dispute Details” in the Application, Mr Ibrahim had said:
“The employer is imputing [sic] my return to work because I have made a complaint about Kevin Lewis and Joe Lahood for bullying and harassment, also the employer does not seem to provide a safe workplace”.
Under “Describe how [the] applicant met/has not met their workplace injury management obligations”, Mr Ibrahim recorded:
“The injury Management Plan was set without my consultation and I feel my Doctors have been manipulated, to refer me for psychiatric assessment despite a clearance certificate from my Doctor to return to work.”
Under “Describe how respondent failed to meet their workplace management obligations”, Mr Ibrahim said:
“Instead of Accomodating [sic] suggestions made by my Doctor to return to work, without having to work with Joe Lahood on the same shift, they decided to not let me return to work.”
The Application then referred to Mr Ibrahim having turned up for work in January 2010 when Mr Lewis threatened to “come with the Police and escort me out of the hospital, because I have made a complaint against him”.
In its Reply filed on 17 January 2011 , the respondent:
(a)     said that Mr Ibrahim had not complied with the injury management plan because he had not attended an independent psychiatrist’s examination. The available information suggested that Mr Ibrahim may have “significant psychological difficulties” and the respondent had to have regard to the health and safety of all its employees in deciding what requirements should be met by Mr Ibrahim to demonstrate his fitness for work;
(b)     said that no suitable duties had been provided because of its concerns about the potential for Mr Ibrahim to come into contact with staff in relation to whom he had made allegations of bullying and harassment. The respondent had offered Mr Ibrahim duties at other locations;
(c)     disputed Mr Ibrahim’s capacity to perform duties;
(d)     said that the dispute was “industrial in nature”, and
(e)     said that the Commission should make no recommendations, and, if any recommendation was made, the Commission should recommend that Mr Ibrahim attend an independent psychiatrist for evaluation of his fitness for work.
The matter came before a delegate of the Registrar, Ms Robichaud, who held a teleconference on 19 January 2011. In her “Recommendation” dated 2 February 2011, Ms Robichaud said that Mr Ibrahim sought a “recommendation that the respondent allow him to return to work without having to attend a psychiatrist or psychologist”.
The parties agreed that the Commission would appoint an injury management consultant to examine Mr Ibrahim, liaise with the respondent and the nominated treating doctor, and report to the Commission. The Commission appointed Dr Keller, occupational physician, to examine Mr Ibrahim on 27 January 2011. Mr Ibrahim attended that appointment and Dr Keller reported on the same day. He said the reason for the referral was to determine if it was necessary for Mr Ibrahim to have a “psychological evaluation before he is considered fit for pre-injury duties”.
Dr Keller took a history that Mr Ibrahim had suffered stress since being wrongfully accused of parking illegally at work in 2003. This was the first of an extensive chain of complaints from him against two other employees at the hospital. Mr Ibrahim said that the events led to him suffering a psychiatric trauma (depression) from which he had recovered and needed no further treatment. He added that the issues still made him feel frustrated and sad, and he had nightmares because of his current circumstances.
Dr Keller concluded that the employer had a statutory duty of care to its staff and visitors to the hospital to ensure that all employees are fit for work and not a danger to themselves or others. He felt it was necessary for Mr Ibrahim to have a psychological evaluation before he was considered fit for pre-injury duties.
Based on this report, Ms Robichaud made the following “Recommendation”:
“That the employer obtains a psychiatric clearance for the applicant before allowing him to return to work.”
This recommendation was apparently made under s 307 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
At Mr Ibrahim’s request made on 15 February 2011, the Commission referred the matter to Arbitrator D’Souza (s 308 of the 1998 Act). The Arbitrator held a teleconference on 8 March 2011 and, after receiving detailed written submissions from the parties, determined that it was appropriate to decide the matter on the basis of those submissions.
In his written submissions, Mr Ibrahim said he would not have a psychiatric assessment “as this was based on fabrication, false, stolen medical evidence by Joe Lahood and Kevin Lewis against me, and I informed Mr Wallace (Area CEO) that I will not be having this assessment because it is a nasty setup”. He requested that his wages be paid from 16 September 2009 to date and an immediate return to work accommodating the suggestion by his doctor that he not work with Mr Lahood.
Mr Ibrahim said that he wanted the matter dealt with as quickly as possible because it was very clear from his submissions that he had been certified fit to return to work and it was “unnecessary and a complete insult” to force him to have a psychiatric assessment when he was the “victim of bullying and harassment”.
The Arbitrator accepted the opinion from Dr Keller and the Commission issued a Certificate of Determination on 19 April 2011 in the following terms:
“The Commission determines:
1. That, pursuant to sections 307 and 310 of the Workplace Injury Management and Workers Compensation Act 1998, the respondent obtains a psychiatric clearance before allowing Mr Ibrahim to return to work.
2. That, pursuant to sections 307 and 310 of the Workplace Injury Management and Workers Compensation Act 1998, the applicant attends a psychiatric examination with an independent psychiatric specialist to be scheduled by the respondent for the purposes of a clearance to return to work.
3. No order as to costs.”
On 2 May 2011, Mr Ibrahim wrote to the Commission expressing his disagreement with the Arbitrator’s decision and requested reconsideration.
On 16 May 2011, Mr Ibrahim lodged an Appeal Against Decision of Arbitrator under s 352 of the 1998 Act.
On 18 May 2011, Mr Ibrahim spoke with an officer at the Commission, Mr Wormald, complaining that the respondent had not been making payments to him. Mr Wormald explained that the Application before the Commission was a return to work dispute, not a dispute about weekly compensation and he urged Mr Ibrahim to seek legal advice.
Mr Wormald also told Mr Ibrahim that Presidential members can only deal with certain types of cases and issues and, as his dispute was not about monetary compensation, he needed to be aware that an appeal to a Presidential member may not be able to proceed, though it was ultimately a matter for the Presidential member assigned to determine the matter. Mr Ibrahim understood this. Mr Wormald explained that Commission staff could not provide legal advice and he advised Mr Ibrahim to contact the Law Society. Mr Ibrahim said he was “arranging” legal representation.
On 17 June 2011, the Arbitrator published reasons for declining the reconsideration application.
Mr Ibrahim’s s 352 appeal was allocated to me on 9 August 2011.

PRELIMINARY MATTERS

Self-represented party

The role of the Commission when a self-represented party appears was discussed by Deputy President Byron in Smith v New South Wales Police Service [2004] NSWWCCPD 77, where he said at [30]:
“An unrepresented person will ordinarily be at a disadvantage because of their lack of legal skill (Rjaski v Scitec Corporation Ltd [unreported] NSW CA 16 June, 1986 (Rjaski)). A court (and a tribunal) has an obligation to diminish this disadvantage so as to ensure a fair and just hearing (Rjaski; Minogue v HREOC [1999] FCA 85; Panagopoulos v Southern Healthcare Network [unreported] SCT Vic 15 September, 1997). However, the court or tribunal must remain neutral and must not provide an advantage to the unrepresented person over the party that is legally represented (Rjaski). (The relevant issues in dealing with unrepresented litigants were discussed in Reisner v Bratt [2004] NSWCA 22)). A determination of this appeal ‘on the papers’, with the relevant principles in mind, is appropriate.”
In the present case, the Commission has provided Mr Ibrahim with procedural and other general advice about how best to proceed, and has strongly urged him to seek legal advice. He does not appear to have acted on that advice. Both before the Arbitrator and on appeal, Mr Ibrahim has had every opportunity to present his case and has done so.
In these circumstances, I am satisfied that the Commission has complied with its obligations under its Access and Equity Service Charter.

On the papers

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Mr Ibrahim has submitted that he seeks a “face to face arbitration hearing” or the referral of the matter to the Commission. He added that a “confrontation” would be the best way to resolve the dispute. As the issues were quite complex, he felt unable to put his case in writing.
The respondent has not filed a Notice of Opposition, but has merely re-filed the Reply it filed before the Arbitrator. It has therefore made no submission on this or any other issue on appeal.
It is not appropriate or necessary for this matter to be listed for an oral hearing. For the reasons explained below, the appeal is completely without merit and there are no reasonable submissions that could be advanced at an oral hearing to alter that fact.
Having regard to Practice Directions Nos 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

DISCUSSION AND FINDINGS

The appeal is fundamentally flawed and the Arbitrator’s decision must be and is confirmed. My reasons are as follows.
While I have reservations about whether the Commission has power to make the order Mr Ibrahim apparently sought from the Registrar’s delegate, namely, an order recommending that the respondent allow him to return to work without having to attend a psychiatrist or psychologist, I do not have to determine that issue because the appeal is not properly before me.

Section 352(3) of the 1998 Act states:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
The term “compensation” is defined in s 4 of the 1998 Act to mean “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”. Mr Ibrahim has never applied for weekly or any other monetary compensation. The whole purpose of the Application before the Commission was to obtain an order to relieve Mr Ibrahim of the obligation to attend a psychiatric or psychological assessment before returning to work. While that application was misconceived, it was not a claim for monetary compensation.
If Mr Ibrahim seeks weekly compensation as a result of a psychological injury allegedly received in the course of or arising out of his employment, and if that application is disputed, he will need to file an Application to Resolve a Dispute before the Commission will have jurisdiction to determine it. He has not done that. He filed the baseless and misguided Application that is now before the Commission and which was doomed to fail because, if there had been any non-compliance with the injury management plan, that non-compliance had been by Mr Ibrahim.
It follows that, as no “compensation” is at issue in the present application, there is no appeal under s 352 and the Arbitrator’s decision must be confirmed.

OTHER MATTERS

Regrettably, Mr Ibrahim’s Application, and his conduct in this matter generally, has demonstrated a fundamental misunderstanding of the procedure for bringing a claim for compensation in the Commission. I therefore strongly urge Mr Ibrahim to seek legal advice before filing any further applications in the Commission. Before the Commission has jurisdiction, the worker must make a claim for compensation and the insurer must dispute it.
I also remind Mr Ibrahim that, where a worker has given notice of any injury, he or she “must, if so required by the employer submit himself or herself for examination by a medical practitioner, provided and paid for by the employer” (s 119(1) of the Workers Compensation Act 1987 (the 1987 Act)). If a worker refuses to submit to any examination or in any way obstructs the examination, his or her right to recover compensation with respect to the injury is suspended until the examination has taken place (s 119(3) of the 1987 Act).

DECISION

The Arbitrator’s decision dated 19 April 2011 is confirmed.

COSTS

Each party is to pay his or its own costs of the appeal.

Bill Roche

Deputy President
12 August 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE