Khiyo and Australian Postal Corporation (Compensation)

[2016] AATA 736

Khiyo and Australian Postal Corporation (Compensation) [2016] AATA 736 (23 September 2016) 

Division

GENERAL DIVISION

File Number(s)

2013/1445

2014/4049

Re

Sargon Khiyo

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member Dr S Toh, Member
Date	23 September 2016
Place	Sydney

The Tribunal affirms the decisions under review.

....................................[sgd]....................................

Dr L Bygrave, Member

CATCHWORDS

COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – whether applicant suffered ‘injury’ as defined under section 5A of Act – applicant claimed allergic sinusitis plus chronic sinusitis with saprophetic infection – applicant claimed organic solvent and ink burns to both eyes, allergic blepharities, punctate keratitis – both conditions found to be continuation of symptoms applicant experienced prior to employment – applicant failed to disclose history of symptoms – both conditions found not to be an ‘injury’ under section 5A of Act – decisions affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7(7), 14, 53

REASONS FOR DECISION

Dr L Bygrave, Member
Dr S Toh, Member

23 September 2016

INTRODUCTION

1. The applicant, Mr Sargon Khiyo, was born in 1972. Mr Khiyo completed a Bachelor of Engineering (Hons) degree at University of Western Sydney in 1996, and was employed at GEC Alstom from 1996 to 1999 and Dominion Electronics from 1999 to 2000.

2. On 8 January 2001, Mr Khiyo commenced employment at Australia Post. He was certified unfit for work on 10 April 2012 and ceased employment with Australia Post on 29 November 2013.

3. Mr Khiyo claims he has suffered two ‘injuries’ as a result of his employment at Australia Post. His claims for compensation in respect of these injuries have been refused by Australia Post and he has applied to the Administrative Appeals Tribunal to review these refusals.

4. The following applications are for determination:

   Application No. 2013/1445

   Review of refusal of claim for ‘allergic sinusitis plus chronic sinusitis with saprophetic infection’; date reported injury occurred – 21 October 2011; date of claim for rehabilitation and compensation form – 10 December 2012.

   Application No. 2014/4049

   Review of refusal of claim for ‘organic solvent and ink burns to both eyes / allergic blepharities / punctate keratitis’; date reported injury occurred – ‘initial October 2002 and recurrence February 2016’; date of incident form – 29 May 2014.

5. The applications were heard jointly in Sydney on 15–17 June and 18 July 2016. Mr Khiyo represented himself at the hearing.

6. In addition to four days of hearing evidence, Mr Khiyo and Australia Post provided the Tribunal with an abundance of documents. We have considered and given appropriate weighting to these documents in making this decision.

   RELEVANT LEGISLATION AND ISSUES

7. Mr Khiyo’s applications relate to a claim for acceptance of liability to pay compensation for an ‘injury’ under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Subsection 14(1) of the Act provides:

   (1) Subject to this Part, Comcare [or in these applications, Australia Post] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

8. Injury is defined in sub 5A(1) of the Act. The relevant part of the definition reads:

   injury means:

   (a) a disease suffered by an employee …

9. Disease is defined in s 5B to mean:

   (a) an ailment suffered by an employee; or

   (b) an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

10. Subsection 6(3) provides that:

    Significant degree means a degree that is substantially more than material.

11. Ailment is defined in sub 4(1) as:

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

12. Section 7(7) of the Act states:

    A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

13. Section 53 of the Act provides, in part:

    (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; ….

    …

    (3)  Where:

    (a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;

    (b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and

    (c) the relevant authority would not, by reason of the failure, be  prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake from any other reasonable cause;

    the notice shall be taken to have been given under this section.

14. The determinative issues before the Tribunal are:

    (a)whether Mr Khiyo’s ‘allergic sinusitis plus chronic sinusitis with saprophetic infection’ (upper respiratory condition) and/or ‘organic solvent and ink burns to both eyes / allergic blepharities / punctate keratitis’ (eyes condition) are an ‘injury’ as defined in s 5A of the Act;

    (b)whether Mr Khiyo’s upper respiratory condition and/or eyes condition are a ‘disease’ as defined in s 5B of the Act;

    (c)if Mr Khiyo has suffered a disease, whether it should be taken to be an injury for the purposes of the Act having regard to s 7(7) of the Act;

    (d)if Mr Khiyo has suffered an injury, whether the injury results in any incapacity for work or impairment; and

    (e)if Mr Khiyo has suffered an injury, whether the Act applies in relation to the injury having regard to s 53 of the Act.

15. In considering these issues, the Tribunal had regard to evidence about the workplace environment of the Australia Post South West Letter Facility (SWLF) and evidence in relation to Mr Khiyo’s medical conditions. This evidence is set out below.

    EVIDENCE – AUSTRALIAN POST SWLF WORKPLACE ENVIRONMENT

16. Mr Khiyo was employed by Australia Post as a Postal Technical Officer at the SWLF at Strathfield between 2001 and 2012. His duties of employment included:

    ·the installation of mail handling plant and other equipment in a mail centre;

    ·the diagnosis and correction of machine faults;

    ·the maintenance of and preventative work on machinery;

    ·cleaning and testing of machines;

    ·monitoring plant performance; and

    ·operating screen based equipment.

17. Postal Technical Officers’ duties were completed on a rotating shift of 6am to 2pm, 2pm to 10pm, and 10pm to 6am on a two week rotation.

    Evidence of Mr Sargon Khiyo

18. Mr Khiyo, in a statement signed and dated 11 July 2013, described the SWLF workplace as a ‘dusty environment with continuous exposure to the contaminants that are contained within the dust mix’.

19. At the Tribunal hearing, Mr Khiyo provided detailed descriptions about the cleaning and maintenance procedures he undertook as part of his duties. This included explanations about tasks to fix, maintain and clean machines; and his ‘constant’ exposure to dust, alcohol, solvents, chemicals, ‘gunk’ and ‘sludge’ while completing these tasks at the SWLF. He told of feeling ‘sprinkles’ and dust on his face while working under machines, and spoke about a ‘plume’ near the machines, which he described as ‘invisible – like a veil that…comes down on you as you’re working underneath the machine’.

20. Mr Khiyo told the Tribunal that he always wore the Personal Protective Equipment (PPE) provided by Australia Post while working at the SWLF. PPE included eye glasses and masks. Mr Khiyo said he wore a paper mask during maintenance and production, and used a respirator mask when undertaking a job that involved stirring up dust. When he completed a ‘full blowout’ clean at the SWLF, he would wear a ‘full spacesuit’ and respirator mask. From about 2006, Mr Khiyo said he wore sunglasses at work to alleviate symptoms of photophobia and because they were a better fit around his eyes.

    Evidence of Mr Seb Tas

21. Mr Seb Tas was Mr Khiyo’s team leader at the SWLF of Australia Post from 2001 to 2011. In a signed affidavit dated 1 September 2015, Mr Tas described Mr Khiyo as ‘a very smart technician who knew his job well’, but also noted that he could demonstrate ‘eccentric behaviour’ including holding a view that ‘everyone was conspiring against him’.

22. Mr Tas explained the procedures involved with maintaining and cleaning machines, and wearing PPE at the SWLF in his affidavit as:

    The correct maintenance procedure which was known as the Technical Maintenance Procedure (TMP) but now is the Safe Work Instruction (SWI) is to vacuum all the machines so there is no airborne dust. Dust is only in the environment when a blowout occurs. This does occur once per day but all Technicians wear P2 face masks, glasses and their Personal Protective Equipment (PPE) while conducting the task.

    …

    Routine maintenance occurs every day. We open the covers to the machines so we can vacuum, but we are not exposed to dust.

    …

    The procedure for air blowing the machines is as follows:

    ·Lock Out – Tag Out (LOTO).

    ·Wear correct PPE & Safety Glasses, minimum P2 mask and gloves.

    ·Vacuum the machine of all accessible dust.

    ·Blow inaccessible dust from around rollers and belts.

    ·Vacuum any excess from machine decks.

    ·Feather dust external areas of the machine as required.

23. At the Tribunal hearing and in his affidavit, Mr Tas noted that Mr Khiyo was ‘always in his mask, glasses, gloves and his general PPE, so there was no risk of exposure to dust’ and ‘if anything, he wore his mask excessively in comparison to the other Technicians’.

    Evidence of Mr Jason Mifsud

24. Mr Jason Misfud was Mr Khiyo’s team leader at Australia Post and they worked together between 2001 and 2011.

25. In a signed affidavit dated 29 August 2015 and confirmed at the Tribunal hearing, Mr Misfud reported Mr Khiyo as ‘very good at diagnosing and repairing the machines’. Mr Misfud worked with Mr Khiyo on a daily basis as they were on the same shifts and machine groups. Their duties were to:

    ...conduct preventative maintenance, cleaning operations and service breakdowns. On the Multiline Optical Character Recognition (MLOCR) machine, depending on the shift, we would apply Lock out – Tag out (LOTO) if we were required to clean the machines. We would vacuum clean heavy areas and also use the vacuum cleaner to blow out inaccessible areas. Once cleaning was complete, we would conduct any preventative maintenance on the machines such as replace any worn 0 ring belts or rollers.

    We were also required to clean printers. The alcohol based ink printers were cleaned with alcohol and the water based ink printers with distilled water.

26. In his affidavit, Mr Misfud also described procedures for wearing PPE in the workplace:

    While conducting the cleaning and maintenance; we wore gloves, glasses, face masks and ear buds. I recall Sargon wearing dark glasses, his mask and full PPE, he was no different. He told me the dark glasses were because the lights were too bright for his eyes. If anyone wasn’t wearing PPE, then I would have spoken to them about it if, especially if I was my shift as Team Leader at the time. [sic]

    About every 3 months we would conduct a major blow out of the machines with compressed air. We would wear space suits; respirators, goggles, glasses, ear buds and full PPE under the space suits. I don’t recall Sargon doing the weekend blow outs, but it was voluntary.

    Hibbs and Associates Report

27. In November 2013, Hibbs and Associates (Occupational Health and Safety Consultants, Environmental Management Consultants) undertook an assessment of the exposure of Postal Technical Officers at the Australia SWLF workplace to inhalable dust, volatile organic compounds and mould. The results of this assessment were provided in a report titled Inhalable Dust, Volatile Organic Compounds and Airborne Mould Exposure Assessment, Australia Post, SWLF, Strathfield NSW (Hibbs Report).

28. The Hibbs Report detailed the scope of the assessment including the methodology and the criteria for assessing the SWLF work environment.

29. The results in the Hibbs Report were that:

    ·inhalable nuisance dust and composite exposure to detected volatile organic compounds was well below (<10%) the eight hour Safe Work Australia Workplace Exposure Standard;

    ·individual detected volatile organic compounds were  well below (<10%) the eight hour Safe Work Australia Workplace Exposure Standard;

    ·spot screening for total volatile organic compounds indicated low level (>10% and < 50%) short term exposure to volatile organic compounds (ethanol and isopropyl alcohol) during printer head washing; and

    ·airborne mould tests indicated normal indoor air mould levels and no significant risk of mould spores exposure.

30. At the Tribunal hearing, both Mr Khiyo and Australia Post accepted the results in the Hibbs Report.

    Bureau Veritas Report

31. Bureau Veritas, at the request of Australia Post, performed an airborne dust assessment at the SWLF on 12 July 2010. The assessment involved evaluating airborne inhalable dust levels associated with the receiving, sorting and distribution of mail at the SWLF.

32. The results showed:

    …personal airborne inhalable dust monitoring performed on staff in the Receipt Dock, Express Post, CFC, Large Letter/MLOCR, Bar Code Sorters, and Dispatch Dock ranged between 0.05-1.58 mg/m³. These results are well below the Safe Work Australia exposure standard of 10 mg/m³.

    The area monitoring performed in general areas and near operator work stations in the Receipt Dock, CFC, MLOCR, FMOCR, Bar Code Sorters, Express Post, MMF, Print Post and Bull Ring areas returned low to negligible levels of total inhalable dust…

    Report of Mr Michael Kottek

33. Mr Michael Kottek, an occupational and environmental health consultant, undertook a site inspection at the SWLF on 9 December 2014 and wrote a report dated 19 February 2015.

34. Mr Kottek’s report included observations about the significance of exposure to solvents, dust and bio-aerosols at the SWLF, but concluded ‘that the attribution of Mr Khiyo’s illnesses are [sic] a matter for medical evidence’. The report also speculated about research papers in relation to findings from the SWLF site inspection.

35. Mr Kottek’s report was submitted into evidence although there was no examination about the veracity of the report findings at the Tribunal hearing. We note the speculative nature of Mr Kottek’s report and therefore assign it minimal weight in making our findings about the work environment of the SWLF.

    Findings

36. We find that the evidence of Mr Tas and Mr Misfud about the SWLF work environment was reliable and consistent with the results in the Hibbs Report and the Bureau Veritas Report. 

37. Based on this evidence, we are satisfied that:

    ·the work environment at the SWLF contained low and safe levels of dust and chemicals;

    ·any potential exposure of Mr Khiyo to dust and/or chemicals at the SWLF would have been minimised by:

    oregular (daily, weekly and bi-monthly/quarterly) cleaning procedures;

    othe procedure to first vacuum machines and then blow inaccessible dust before undertaking maintenance on machines;

    othe procedure to wear PPE when cleaning or undertaking maintenance on machines.

38. We further find that there is no independent evidence that substantiates Mr Khiyo’s description of his exposure to contaminants and dust while working at the SWLF.

    MEDICAL EVIDENCE

39. Mr Khiyo has been diagnosed with respiratory conditions and an eyes condition.

40. The Tribunal received a significant number of medical reports reviewing Mr Khiyo’s conditions. These reports have been considered and given weight according to whether the relevant doctor was provided with a complete and accurate record of Mr Khiyo’s medical history prior to writing their report.

41. The following is a summary of evidence about these conditions from:

    ·Dr Sobhy Hakeem Khalil (General Practitioner);

    ·Dr Alexander Lozynsky (Consultant Allergist and Clinical Immunologist);

    ·Associate Professor Dr David Bryant (Associate Professor of Medicine);

    ·Associate Professor Dr David McKenzie (Respiratory and Sleep Physician);

    ·Dr Michael Steiner (Ophthalmic Surgeon); and

    ·Dr Michael Delaney (Ophthalmic Surgeon).

    Respiratory conditions

    Dr Khalil’s Clinical Notes

42. Dr Khalil has been Mr Khiyo’s treating General Practitioner since 1986. The clinical notes written by Dr Khalil on Mr Khiyo’s medical conditions were before the Tribunal,[1] although Dr Khalil was not called to provide oral evidence at the hearing.

    [1] Exhibit R11 no 3.

43. Dr Khalil’s clinical notes for Mr Khiyo describe an upper and lower respiratory medical history dating from July 1986. A chronology of Mr Khiyo’s medical history shows that Mr Khiyo presented approximately 55 times between 1989 and 2000 with symptoms of coughing, sore throat or throat infection, sinusitis and/or bronchitis; and was treated for irritable cough and/or sore throat periodically from 2000 to 2006.[2]

    [2] Exhibit R10.

44. In a report dated 25 June 2016, Dr Khalil summarised Mr Khiyo’s sinusitis from 2003 to 2012 as:

    One bout of acute sinusitis on 26/08/2003, which was isolated and from which he recovered fully.

    Several consultations unrelated to sinus infection from 27/10/2003 until 21/02/2004.

    Eight bouts of respiratory tract infections – which were not including sinus infection – from 19/04/2004 until 14/08/2006.

    Two bouts of acute sinusitis one on 10/10/2006 and another five months later on 30/03/2007.

    Eight further bouts of respiratory tract infections, which were not including sinus infection – from 19/05/2008 until 20/03/2010.

    Two bouts of acute sinusitis one on 29/06/2010 and another on 23/07/2010.

    Four bouts of respiratory tract infections – which were not including sinus infection – from 07/09/2010 until 08/10/2010.

    From 09/03/2011 Sargon presented with frequent and repeated bouts of acute sinusitis symptoms on the following dates: 09/03/2011, 07/05/2011, 25/05/2011, 06/07/2011, 14/07/2011, 21/10/2011, 25/10/2011, 30/11/2011, 01/02/2012, 06/02/2012, 14/03/2012, 30/03/2012, 10/04/2012, 08/05/2012, 26/04/2012, 03/03/2012, 08/05/2012.

    Reports of Dr Lozynsky

45. In a report dated 14 June 2013, Dr Lozynsky diagnosed Mr Khiyo with ‘chronic rhino-sinusitis, probably related to infection, which could have been bacterial and also fungal’. In discussing the cause of Mr Khiyo’s condition, he stated that:

    …in the absence of objective data to indicate the presence of specific chemical vapors or irritant particles in the air in the area where Mr Khiyo has been working for the past 12 years, it is not possible to be certain as to the causality of his symptoms.

46. In his report dated 2 June 2015, Dr Lozynsky concluded:

    The fact that he has current evidence of chronic sinusitis, which appears to have recurred following his previous sinus surgery, despite no longer working in that facility, does suggest that there is another cause or causes for this condition.

    Evidence of Dr Bryant

47. Dr Bryant also provided reports on 17 July 2013, 16 September 2013, 2 March 2015 and 12 March 2015. In the report dated 12 March 2015, based on medical history and workplace information supplied by Mr Khiyo, Dr Bryant diagnosed Mr Khiyo as ‘suffering from chronic rhinitis and chronic bronchitis’ and ‘therefore suffering from a broncho-pulmonary disease’.

1. In the report dated 17 July 2013, Dr Bryant wrote that ‘prior to the illness developed [sic]  between 2003-2007, Mr Khiyo told me that he was aware of no history of upper or lower respiratory tract disease’.

2. During the hearing at the Tribunal, Dr Bryant was shown Dr Khalil’s clinical notes about Mr Khiyo’s medical history from 1986 to 2000 and was referred to the findings in the Hibbs Report about the SWLF workplace environment. After considering this information, Dr Bryant gave oral evidence that Dr Khalil’s notes show that since 1986 there have been complaints by Mr Khiyo of episodic cough from an upper respiratory tract infection (which is not classified as a disease), rhinitis, sinusitis and bronchitis. He said that persistent cough could be due to chronic bronchitis, or secondary to rhinitis and sinusitis. Dr Bryant said he was not comfortable with the diagnosis of bronchitis or evidence that Mr Khiyo had bronchopulmonary disease as his chest examination was clear, there was no impairment of lung function tests and the chest x-ray was normal. His impression was Mr Khiyo’s chronic cough was more likely secondary to chronic rhinosinusitis but Dr Bryant would not comment on the causation of sinusitis.

   Evidence of Associate Professor McKenzie

3. Associate Professor McKenzie provided medical reports relating to Mr Khiyo dated 8 November 2013, 1 December 2013 (two reports), 14 August 2015 and 15 August 2015.

4. Associate Professor McKenzie stated in his report on 8 November 2013 and reiterated at the Tribunal hearing that:

   Mr Khiyo had long-standing cough and lower respiratory tract symptoms dating back to at least 1986. These symptoms seem to have settled as he was not complaining of them at the time of my examination. I conclude that these symptoms were related to either post nasal drip or oesophageal reflux or both... The symptoms were present long before his employment with Australia Post and the medical record did not suggest that these symptoms were aggravated by any exposures in his employment.

   …

   Mr Khiyo had a history of infrequent nasal symptoms and sinusitis prior to his employment with Australia Post in 2001. He had a significant exacerbation of sinusitis in 2006 and 2007 which resolved clinically and radiographically. He had a further severe exacerbation of chronic sinusitis with probable bacterial and fungal infection in 2011 and 2012… The sinus problems may also have been aggravated by gross nasal septal deviation.

5. In considering the causation or aggravation of Mr Khiyo’s nasal problems, Associate Professor McKenzie said that sensitivity to dust and chemicals can certainly lead to nasal congestion and rhinitis. However, the evidence suggested that the allergic reaction was to house dust-mites and to moulds. The latter is more common in the domestic environment and would be uncommon in the work environment. He noted that:

   The main cause of the severe exacerbation of sinusitis in 2011 and 2012 appears to have been bacterial and fungal infection. Bacterial infection of the upper airway is usually spread from person to person and could be contracted in the community or at work. Fungal infection is more likely to be contracted in the domestic environment than in an office or factory environment unless the latter was especially damp.

6. Associate Professor McKenzie told the Tribunal that Mr Khiyo’s symptoms were similar before and after the commencement of his employment at Australia Post. He concluded that Mr Khiyo’s symptoms of cough, nasal problems and sinusitis were not caused or aggravated by his employment at Australia Post.

   Eyes condition

7. Dr Khalil’s medical notes for Mr Khiyo describe an eyes condition dating from September 1988. A chronology of Mr Khiyo’s medical history indicates:[3]

   ·from 1988 to 1998, he had ‘continuous flare-ups’ of  an eyes condition;

   ·between 1998 and 2001, he was on continuous steroid treatment under the care of Dr S Franks (Ophthalmologist), and his eyes condition ‘waxed and waned’ during this period;

   ·in February 2001, Dr Franks diagnosed Mr Khiyo with corneal inflammation caused by recurrent adenoviral keratitis.

   [3] Exhibit R10.

8. Associate Professor McKenzie confirmed at the Tribunal hearing that Mr Khiyo had a long-standing history of eyes irritation dating back to the 1980s, with symptoms that have ‘waxed and waned’.

   Evidence of Dr Steiner

9. Dr Steiner provided two medical reports on 15 September 2014 and 15 June 2016.

10. In the 15 September 2014 report, Dr Steiner diagnosed Mr Khiyo with chronic tarsal conjunctivitis. He obtained a history from Mr Khiyo that ‘he suffered from viral keratoconjunctivitis’ and was ‘relatively asymptomatic till he started work with Australia Post and his symptoms started almost immediately’. Dr Steiner then observed that it is possible his eyes condition ‘was contributed to a significant degree by his employment with Australia Post’.

11. After receiving further information about Mr Khiyo’s medical history, Dr Steiner provided a supplementary report dated 15 June 2016 in which he acknowledged that Mr Khiyo had significant symptoms from viral conjunctivitis over many years before he worked at Australia Post. He stated that Mr Khiyo had a ‘predisposing ocular condition which made his eyes particularly sensitive to fumes and any other form of irritation’.

12. At the Tribunal hearing, Dr Steiner was shown the chronology of medical records in relation to Mr Khiyo’s eyes condition from September 1988 to May 2013. Dr Steiner told the Tribunal that Mr Khiyo did not mention that he had undertaken a decade of consultations with Dr Franks. Dr Steiner agreed with counsel for Australia Post that it would seem that the long term problems experienced by Mr Khiyo had caused permanent damage to his eyes, prior to his employment with Australia Post.

13. On the basis of this information, Dr Steiner told the Tribunal that Mr Khiyo had ‘sick eyes’ which, if irritated, would produce symptoms of itching, burning, stinging, redness and wateriness. Having regard to Mr Khiyo’s complete medical history and a description of his work environment, Dr Steiner told the Tribunal that Mr Khiyo had a predisposing ocular condition which made his eyes particularly sensitive to fumes and any other form of irritations, but could not say that it should be regarded as a permanent aggravation.

    Evidence of Dr Delaney

14. In a medical report completed on 21 October 2014, Dr Delaney diagnosed Mr Khiyo as suffering from bilateral Thygeson’s punctate keratitis. He noted that bilateral Thygeson’s punctate keratitis is thought to be of viral origin although the cause is unknown and there are no references in the literature relating it to chemical exposure. Mr Khiyo gave him a history of no pre-existing medical conditions and Dr Delaney observed in his report that Mr Khiyo’s eyes condition was ‘aggravated and exacerbated intermittently by his work situation’.

15. Dr Delaney was provided with the chronology of Mr Khiyo’s complete medical history at the Tribunal hearing. In view of this chronology, Dr Delaney advised that Mr Khiyo’s eyes condition was a permanent condition. He clarified to the Tribunal that Thygeson’s punctate keratitis had similar symptoms to chronic viral keratoconjunctivitis and the two terms can be used synonymously and interchangeably.

16. Dr Delaney further informed the Tribunal that the work environment at Australia Post ‘did not aggravate the disease process’ of the eyes condition and ‘did not cause any underlying further impairment or scarring, but it certainly made it more symptomatic’. He also told the Tribunal that a doctor doing the pre-employment medical would want to know the prolonged history of keratoconjunctivitis and a doctor would advise the patient not to work in an environment of dust and fumes as it would make him symptomatic.

    Findings

17. Based on the medical evidence provided to the Tribunal, we are satisfied that Mr Khiyo had:

    ·upper respiratory conditions dating from 1986, which were diagnosed as acute or chronic sinusitis, and manifested in symptoms that included a sore throat and coughing, nasal congestion and nasal discharge; and

    ·an eyes condition dating from 1988, which was diagnosed as Thygeson’s punctate keratitis or chronic viral keratoconjunctivitis, and manifested in symptoms that included itching, burning, stinging, red and watery eyes.

    APPLICATION NO. 2013/1445 – CONSIDERATION OF CLAIM FOR UPPER RESPIRATORY CONDITION

18. On 10 December 2012, Mr Khiyo submitted an incident form and a claim for rehabilitation and compensation form to Australia Post for ‘allergic sinusitis plus chronic sinusitis with saprophetic infection’ on 21 October 2011 (upper respiratory condition).

19. The claim was refused by Australia Post, both initially and on review, on the basis that the condition was not caused by Mr Khiyo’s employment with Australia Post.

20. On 4 April 2013, Mr Khiyo applied to the Tribunal for a review of that decision.

    Is Mr Khiyo’s upper respiratory condition an ‘injury’ as defined in s 5A of the Act, or a ‘disease’ as defined in s 5B of the Act?

21. Mr Khiyo submitted the following documents to Australia Post in relation to his claim:

    (a)Incident form signed and dated by Mr Khiyo on 10 December 2012, which describes the ‘contributing factors’ to the incident as ‘dusty environment exposure’ and the incident ‘inhaling dust while at work’ occurring on 21 October 2011 at the SWLF in the MLOCR work area. The supervisor’s statement completed by Mr Seb Tas on 13 December 2012 provides no determination of the root cause of the incident.

    (b)Claim for rehabilitation and compensation form signed and dated by Mr Khiyo on 10 December 2012, which refers to an attached Workcover NSW medical certificate. Mr Khiyo answered the question:

    Have you ever had a similar injury/illness? No

    (c)Workcover NSW medical certificate signed and dated by Dr John Williams on 30 November 2012, which diagnoses Mr Khiyo with  ‘allergic sinusitis plus chronic sinusitis with saprophetic infection’ and an injury of ‘inhaling dust while at work’ in October 2011.

22. In a statement signed and dated 11 July 2013, Mr Khiyo stated that even after wearing dust proof masks, he would expel ‘bile of phlegm laced with black residue of dust that had found its way into my throat’. He told about feeling tightness in his chest and having recurrent chest and throat infections. He said he complained to the Team Leader and Manager ‘many times’, and ‘many times Team Leaders and Manager [sic] saw me lay on the ground and on break out room benches because of my crippling symptoms’.

23. The evidence of Mr Tas and Mr Misfud clearly refutes Mr Khiyo’s claims of being unwell at work:

    ·Mr Misfud told the Tribunal that he could not recall Mr Khiyo mentioning any health problems or noticing that he was unwell at work.

    ·In his affidavit, Mr Tas recalled that ‘towards 2010–2011’ he witnessed Mr Khiyo ‘having what appeared to be cold or flu symptoms’ but ‘there was never any mention of any work related illness’. He also did not recall Mr Khiyo ‘ever coming to [him] to voice concerns about dust, chemicals or his health’.

24. We are satisfied, however, that this period of chronic cough, rhinitis and sinusitis is a continuation of the symptoms experienced by Mr Khiyo in relation to his upper respiratory conditions since 1986. This is supported by the medical evidence of:

    ·Associate Professor McKenzie, who confirmed that:

    Mr Khiyo has had a history of infrequent nasal symptoms and sinusitis in 1990 and 1993, prior to his employment with Australia Post in 2001. He had significant exacerbation of sinusitis in 2006 and 2007 and again in 2011 and 2012 with bacterial and fungal infection.

    ·Associate Professor McKenzie also described Mr Khiyo’s symptoms as similar before and after his employment at Australia Post. He concluded that the evidence indicated Mr Khiyo had recurrent sinusitis separated by prolonged periods of remission, and that Mr Khiyo would most likely have contracted his bacterial and fungal sinus infection in the community or domestic environment.

    ·Dr Bryant, who concluded that Mr Khiyo’s upper respiratory condition was a continuation of the symptoms he has had since 1986 and that his chronic cough would be caused most likely by the post nasal drip from his sinusitis.

    ·Dr Khalil’s clinical notes, which show the entries where Mr Khiyo consulted for cough, sore throats, rhinitis and sinusitis.

    ·Dr Lozynsky, who opined:

    The fact that he has current evidence of chronic sinusitis, which appears to have recurred following his previous sinus surgery, despite no longer working in that facility, does suggest that there is another cause or causes for this condition.

25. We also find the claim by Mr Khiyo implausible. Firstly, there is no evidence that Mr Khiyo reported the claimed injury at the time (October 2011) to his supervisors. Indeed, there is a significant contrast between Mr Khiyo’s evidence that his respiratory condition ‘crippled’ him ‘many times’ in front of his supervisors at work, and the more reliable evidence of Mr Tas and Mr Misfud who could not recollect any such incidents.

26. Secondly, in both the incident form and the claim for rehabilitation and compensation form, Mr Khiyo denied that he had previously experienced this illness/injury. Given the extensive medical evidence before the Tribunal demonstrating that Mr Khiyo experienced symptoms of upper and lower respiratory conditions from 1986, it is surprising that Mr Khiyo would not provide this information when completing these forms. This suggests that Mr Khiyo may have sought to hide this information from Australia Post and undermines the reliability of his evidence to the Tribunal.

27. Finally, the date of the incident form and the claim for rehabilitation and compensation form is approximately 14 months after the date of the claimed injury. The relevance of this period of time indicates that Mr Khiyo may have recognised his ‘injury’ was non-existent at the date of the claimed injury. In relation to this timeframe, we also have regard to s 53 of the Act, which requires an employee to give notice in writing of the injury as soon as practicable after they become aware of the injury.

    Conclusion

28. Based on the evidence before the Tribunal, we are satisfied that Mr Khiyo’s upper respiratory condition is not an ‘injury’ within the meaning of s 5A of the Act, including a ‘disease’ within the meaning given by s 5B of the Act. We are also satisfied that Mr Khiyo’s upper respiratory condition is not an ailment as defined in sub 4(1) of the Act, nor an aggravation of such an ailment.

29. As we find that Mr Khiyo has not suffered either an injury or a disease as defined in the Act, we are not required to consider whether s 7(7) applies.

30. As we find that Mr Khiyo has not suffered an injury as defined in the Act, it is not necessary for the Tribunal to address whether Mr Khiyo’s condition results in any incapacity for work or impairment.

    Decision

31. For the reasons set out above, the Tribunal affirms the decision under review.

    APPLICATION NO. 2014/4049 – CONSIDERATION OF CLAIM FOR EYES CONDITION

32. On 29 May 2014, Mr Khiyo submitted a second claim for compensation to Australia Post for ‘organic solvents and ink chemical burns to both eyes / allergic blepharitus / punctate keratitis’ in October 2002 and February 2006 (eyes condition).

33. This claim was rejected by Australia Post, both initially and on review, on the basis that the claim did not satisfy the requirement of section 53(1) of the Act which requires an employee to notify the relevant authority of an injury in writing as soon as practicable after the employee becomes aware of the injury.

34. On 6 August 2014, Mr Khiyo applied to the Tribunal for a review of that decision.

    Is Mr Khiyo’s eyes condition an ‘injury’ as defined in s 5A of the Act, or a ‘disease’ as defined in s 5B of the Act?

35. Mr Khiyo submitted the following documents to Australia Post in relation to his claim:

    (a)Incident form signed and dated by Mr Khiyo on 29 May 2014, which describes ‘burning eyes from daily exposure to organic solvents’ and ‘injury to both eyes from an allergic reaction to the organic solvents, resulting in burns to both eyes’ on ‘initial October 2002’ and ‘recurrence February 2006’. In completing the form, Mr Khiyo answered the question:

    Is this an aggravation of a previous injury illness? No

    (b)Claim for rehabilitation and compensation form signed and dated by Mr Khiyo on 29 May 2014, which states the injury is ‘organic solvents and ink chemical burns to both eyes, allergic blepharitis / punctate keratitis’. The date of claimed injury is ‘from initial 10/2002 symptoms to recurrence in 2/2006’. Mr Khiyo wrote on the form that he ‘Made mention to several Team Leaders and Managers about my eyes being irritated. Even took sick leave for the incident involved in 10/2002. In completing the form, Mr Khiyo answered the question:

    Have you ever had a similar injury/illness? No

    (c)Workcover NSW medical certificate signed and dated by Dr John Williams on 29 May 2014, in which he diagnosed Mr Khiyo with ‘punctate keratitis and allergic blepharitis due to ink and solvent exposure’.

36. Mr Khiyo described his eyes condition to the Tribunal as ‘itchiness with sand in the eyes and redness and tearing’. He confirmed that his eyes condition ‘waxed and waned’ from 1988 to 2001 when he was treated by Dr Franks with steroid medication in the eyes. Mr Khiyo told the Tribunal that he first visited Dr Goh in November 2002, when he presented with a long history of initially itchy, then gritty and then burning eyes. Dr Goh, however, did not support any link between Mr Khiyo’s workplace and his eyes condition.

37. Based on the medical evidence, we are satisfied that Mr Khiyo’s claim for an eyes injury in October 2002 and February 2006 is a continuation of the symptoms experienced by Mr Khiyo in relation to his eyes condition since 1988. This is confirmed by:

    ·Associate Professor McKenzie, who concluded that Mr Khiyo’s symptoms of eyes irritation are not caused by Australia Post.

    ·Dr Steiner, who diagnosed Mr Khiyo’s eyes condition initially as a ‘permanent aggravation’ and changed his opinion when he was made aware of the long chronology of chronic keratoconjunctivitis prior to Mr Khiyo’s employment with Australia Post.  Dr Steiner concluded that Mr Khiyo had sick eyes prior to his employment with Australia Post.

    ·Dr Delaney, who said the work environment at Australia Post ‘did not aggravate the disease process’ of Mr Khiyo’s eyes condition.

38. We are not persuaded by Mr Khiyo’s claim that he suffered an injury to his eyes in October 2002 and February 2006. This is because there is no evidence that supports a view that Mr Khiyo was unwell or took extended sick leave at or around the dates of the claimed injury.

39. Firstly, Mr Khiyo’s employee leave history shows the only leave he took in October 2002 was ‘“Do Not Use” Special Compassionate Leave’ to ‘care for sick mother’ on 15 October 2002. In February 2006, Mr Khiyo’s employee leave history shows he was late for work on 13 February 2006, took ‘Sick Leave / Family Leave’ on 22–24 February 2006, and took ‘Sick Leave / Family Leave’ on 28 February 2006 to ‘care for daughter’.

40. Mr Khiyo also did not report the claimed injury to his supervisors in either October 2002 or February 2006. Mr Tas stated in his affidavit that Mr Khiyo did not submit a P400 form in relation to experiencing symptoms of burning eyes in October 2002 or February 2006.

41. Thirdly, in both the incident form and the claim for rehabilitation and compensation form, Mr Khiyo denied that he had previously experienced this illness/injury. Given the extensive medical evidence before the Tribunal demonstrating that Mr Khiyo experienced symptoms of an eyes condition from 1988, we find it surprising that Mr Khiyo would not provide this information when completing these forms. This also suggests that Mr Khiyo may have sought to hide this information from Australia Post and undermines the reliability of his evidence to the Tribunal.

1. Finally, the date of the incident form and claim for rehabilitation and compensation form is 12 years and eight years after the date of the claimed injury. The passing of this extensive period of time supports the non-existence of an injury at the date of the claimed injury. In relation this timeframe, we also have regard to s 53 of the Act, which requires an employee to give notice in writing of the injury as soon as practicable after they become aware of the injury.

   Conclusion

2. Based on the evidence before the Tribunal, we are satisfied that Mr Khiyo’s eyes condition is not an ‘injury’ within the meaning of s 5A of the Act, including a ‘disease’ within the meaning given by s 5B of the Act. We are also satisfied that Mr Khiyo’s eyes condition is not an ailment as defined in sub 4(1) of the Act, nor an aggravation of such an ailment.

3. As we find that Mr Khiyo has not suffered either an injury or a disease as defined in the Act, we are not required to consider whether s 7(7) applies.

4. As we find that Mr Khiyo has not suffered an injury as defined in the Act, it is not necessary for the Tribunal to address whether Mr Khiyo’s condition results in any incapacity for work or impairment.

   Decision

5. In accordance with our reasons above, the Tribunal affirms the decision under review.

I certify that the preceding 93 (ninety -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member, Dr S Toh, Member

...............................[sgd].........................................

Associate

Dated 23 September 2016

Date(s) of hearing	15, 16, 17 June 2016 and 18 July 2016
Applicant	In person
Counsel for the Respondent	Matthew Gollan
Solicitors for the Respondent	Moray & Agnew Lawyers