Krnjeta and Australian Postal Corporation (Compensation)

Krnjeta and Australian Postal Corporation (Compensation) [2015] AATA 802 (5 January 2016)

Division

GENERAL DIVISION

File Numbers

No. 2008/3445

No. 2008/3446
No. 2008/3449
No. 2009/1500

No. 2012/4510

Re

Dragan Krnjeta

APPLICANT

And

Australian Postal Corporation

RESPONDENT

Decision

Tribunal
Deputy President J W Constance

Date
5 January 2016 (this decision is in substitution to the document issued 15 October 2015)

Place Melbourne
APPLICATION NO. 2008/3445 – CLAIM FOR INJURY TO RIGHT HAND/ELBOW

The decision of Australia Post made on 13 November 2007 denying liability to compensate Mr Krnjeta in respect of a claimed injury to his right hand (inside elbow), is affirmed.

APPLICATION NO. 2008/3449 – CLAIM FOR INCAPACITY PAYMENTS IN RESPECT OF THE LEFT elbow

The decision of Australia Post made on 27 May 2008 denying liability to compensate Mr Krnjeta for incapacity to work claimed to be a result of the accepted injury to his left elbow, is affirmed.

Application no. 2008/3446 – claim for musculoskeletal injury of the lower back

1.       The decision of Australia Post made on 26 May 2008, denying liability to compensate Mr Krnjeta in respect of a claimed injury to his lower back, is set aside.

2.       In substitution for the decision set aside it is decided that:

(1)    Australia Post is liable to compensate Mr Krnjeta in respect of an injury to his lower back (being an aggravation of a pre-existing condition) which occurred on 10 February 2008;

(2)    the effects of this injury ceased no later than six weeks after the date of the injury.

3.       Within 28 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, the Respondent shall pay the costs of the proceedings incurred by the Applicant in relation to this application.

application no. 2009/1500 & application no. 2012/4510 – claims for mental/psychological disorder

1.       In application no. 2009/1500 the decision of Australia Post made on 19 March 2009 denying liability to compensate Mr Krnjeta in respect of a claimed injury being a mental/psychological disorder, is affirmed.

2.       In application no. 2012/4510 the decision of Australia Post made on 6 September 2012 denying liability to compensate Mr Krnjeta in respect of a claimed injury being a mental/psychological disorder, is affirmed.

............[SGD]..................................
J W Constance
Deputy President
Catchwords
COMPENSATION – right arm and psychological injuries - contribution by employment not found to be to a significant degree - decisions affirmed – accepted injury to left arm – no incapacity for work – decision affirmed – lower back injury – aggravation which arose out of, or in the course of employment – decision set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1), 5B, 6(3),14(1),19.
Cases
Re Halliday and Comcare (1994)19 AAR 431

Minister for Immigration and Multicultural Affairs and Bhardwaj (2002) 209 CLR 597
REASONS FOR DECISION
Deputy President J W Constance
5 January 2016
part 1: introduction

Mr Krnjeta was born in Yugoslavia in 1957. He is a highly qualified musician, having graduated with a degree in Music from the University of Belgrade. He is a Professor of Music and a conductor and teacher of music. His special instrument is the piano accordion.
In 1988 Mr Krnjeta came to Australia as a tourist, intending to stay for three months. As a result of an unexpected turn of events he stayed and settled here. He married and raised his three sons.
Unfortunately, Mr Krnjeta was unable to earn a living as a musician, although he has been able to undertake some teaching. In order to provide for his family he obtained permanent part-time work with Australia Post in 1999 as a Mail Officer. He always worked the night shift.
Mr Krnjeta claims that he has suffered a number of injuries caused, at least in part, by his employment. His claims for compensation in respect of these injuries have been refused by Australia Post. He has applied to this Tribunal to review the refusals.
The following applications are for determination:
Application No. 2008/3445
Review of refusal of claim for injury to “right hand (inside elbow)”; date injury reported 19 September 2007.
Application No. 2008/3446
Review of refusal of claim for “musculoskeletal injury of the lower back”; date of injury 10 February 2008.
Application No. 2008/3449
Review of refusal of claim for incapacity payments in respect of injury to “left elbow – lateral epicondylitis”; initial symptoms were experienced 12 November 2007. Liability was accepted for this injury on 18 April 2008, but not for loss of income arising from alleged incapacity.
Application No. 2009/1500
Review of refusal of claim for mental and/or behavioural disturbance or disorder including, but not limited to, depression, stress and anxiety; claimed to be a gradual process throughout course of employment.
The claims in respect of both upper limbs were repeated in the claim form relating to this claim.
Application No. 2012/4510
Review of refusal of claim for psychological disorder caused by workplace bullying and harassment.
These applications have an exceptionally long history before the Tribunal. Other than the application made in 2012, they first came on for hearing in May 2010 before a Tribunal constituted by a Senior Member and a Member. The matter was adjourned part- heard as Mr Krnjeta raised new allegations which required further consideration.
The hearing resumed in February 2011, but after further evidence was taken, the matters were again adjourned and the Members constituting the Tribunal recused themselves. The matters were then further managed in a pre-hearing process to assist Mr Krnjeta to prepare for a resumed hearing as he was not legally represented after the 2011 hearing.
I commenced to hear the matters in March 2014. With the agreement of the parties the transcript of the earlier hearings was admitted into evidence. However after four days of hearing I adjourned the matters to allow Mr Krnjeta to call additional evidence. The taking of evidence was completed in May 2015. I then agreed to Mr Krnjeta's request that he file written submissions in addition to those he made orally.
The written submissions were made in Serbian. The District Registrar of the Tribunal arranged for their translation. As the submissions contained references to material which had caused the Members to recuse themselves previously, the Solicitors for Australia Post provided a redacted version to Mr Krnjeta and to the Tribunal and invited Mr Krnjeta to advise if he objected to my considering only the redacted version.
On 15 October 2015 a purported decision was published. At the time of publication I understood that Mr Krnjeta did not object to the redactions proposed by the Solicitors for Australia Post. I did not read the unredacted version of Mr Krnjeta’s submissions. I read and took into account the redacted submissions.
Subsequently it was brought to my attention that prior to 15 October 2015 Mr Krnjeta had notified the Tribunal that he objected to the redactions proposed on behalf of Australia Post.
As Mr Krnjeta was not given the opportunity to make submissions as to why I should consider the unredacted version of his initial submissions, it is clear that he was denied procedural fairness when I purported to make a decision without further reference to him. Section 39 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal shall ensure that every party is given a reasonable opportunity to present his or her case. It was my intention to do so in this matter and it was in consideration of this requirement of the Act that I decided to allow Mr Krnjeta to make oral submissions followed by written submissions in both English and Serbian.
In Minister for Immigration and Multicultural Affairs and Bhardwaj [1] the High Court considered the situation in which the Immigration Review Tribunal had purported to make a decision without hearing submissions from the applicant. The Member constituting the Tribunal was unaware that the applicant had advised the Tribunal that he was unwell and unable to attend the hearing at the time specified.
[1] (2002) 209 CLR 597.
Chief Justice Gleeson said:
In the present case there was a denial of procedural fairness; but there was more to it than that. There was an error of the kind described as "error in fact" in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal "to stay its hand if it had knowledge, or to re-open its judgment had it the power." The Act, in Pt 5 Div 5, prescribed the procedures according to which the Tribunal was required to conduct its review of the delegate's decision. If the Tribunal was not prepared to decide in the respondent's favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The Tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The Tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its "decision", the Tribunal merely noted the delegate's decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the Tribunal, in reviewing the delegate's decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so.
In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.[2]
[2] At pp.605-606.
In view of the above I am satisfied that the “decision” which I purported to make on 15 October 2015 was not a valid decision of the Tribunal. In those circumstances Mr Krnjeta was given the opportunity to appear before Deputy President Frost and to make submissions as to whether I should consider those parts of his submissions to which Australia Post objected.
On 24 November 2015, having heard further argument by Mr Krnjeta, Deputy President Frost issued the following interlocutory decision:
Having given full consideration to the parties’ oral submissions, the Tribunal decides:
a.The Respondent’s proposed redactions to the Statement are necessary to maintain the integrity of, and to ensure the efficient conduct of, the review process. The redacted version of the Statement annexed to this Decision, and only that version, is to be made available to Deputy President Constance.
b.The Respondent’s proposed redactions to the Submissions are necessary to maintain the integrity of, and to ensure the efficient conduct of, the review process. The redacted version of the Submissions annexed to this Decision, and only that version, is to be made available to Deputy President Constance.
c.The Harassment Policy may be made available to Deputy President Constance.
d.The Article may not be made available to Deputy President Constance.
I have taken into account the Harassment Policy referred to in the decision.
For the reasons which follow the reviewable decision, the subject of application no. 2008/3446, will be set aside. In substitution it will be decided that Australia Post is liable to compensate Mr Krnjeta in respect of a short-term aggravation of a lower back condition, which aggravation occurred on 10 February 2010.
The remaining decisions under review will be affirmed.
PART 2: BACKGROUND
Mr Krnjeta commenced work with Australia Post as a casual Mail Officer in December 1997. He became a permanent part-time employee in November 1999.
His duties were varied. They included the opening of mail bags, sorting the contents, placing bags of sorted mail into bins, transporting mail to despatch areas, recording data on a computer and printing out despatch details. His normal working hours were 10.00 pm to 4.30 am Monday to Friday and alternate Sundays.
Mr Krnjeta worked hard and received good reports when routine periodic reviews were conducted. By way of example, he referred me to the periodic review dated 15 February 2006[3]. Under the heading “Comment on Progress” it was stated “Dragan has been very good in regard to his work ethics and has worked and communicated very well with other team members. His behaviour has been very good towards staff and supervisors/managers.
[3] Exhibit AA7.
Mr Krnjeta suffered a number of physical disabilities during his employment. Apart from the injuries the subject of his present claims, he suffered pain in his left shoulder in 1999, a musculoskeletal injury to his lower back, a soft tissue injury to his chest in 2001 and neck pain and a back injury in 2003. He was taken to hospital as a result of an episode of chest pain in 2007.
In 1996, 2000, 2003 and 2006 Dr Tan treated Mr Krnjeta for anxiety and depression. Dr Tan has been Mr Krnjeta's general practitioner continuously since 1996. On the last three occasions Dr Tan referred Mr Krnjeta for specialist assistance. According to Dr Tan when he gave evidence in 2010, Mr Krnjeta had suffered recurrent anxiety and depression almost constantly since 1996.[4]
[4] Transcript 06/05/2010 p.134.
In 2000 Mr Krnjeta experienced a marital breakdown which resulted in considerable acrimony with his wife, particularly in relation to Mr Krnjeta's contact with his children. Intermittently, during at least the next five years, Mr Krnjeta was involved in Court proceedings relating to his marriage and the children. He described 2003 as a “very, very difficult year” for him as his former wife refused to allow him contact with his children. He considered suicide.[5]
[5] Transcript 05/05/2010 pp.18 ff.
In September 2008 Mr Krnjeta was the victim of a frightening experience when two men forced their way into his home and demanded money. He was very scared and stressed by this incident. In addition to the demands made on him his piano accordion was stolen and later returned to him in a seriously damaged state. He sought medical treatment and was treated with medication.[6]
[6] Exhibit RR9.
PART 3: LEGISLATION
Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) 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.
Injury is defined in subsection 5A(1) of the Act. The relevant part of the definition reads:
injury means:
(a) a disease suffered by an employee …
Disease is defined in section 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.
Subsection 6(3) provides that:
Significant degree means a degree that is substantially more than material.
In subsection 4(1) ailment is defined:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 53 of the Act is relevant to the claim for a mental injury arising from the alleged harassment suffered by Mr Krnjeta. It 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; ….
(2) This subsection is not reproduced.
(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.
PART 4: APPLICATION NO. 2008/3445
CLAIM FOR INJURY TO RIGHT HAND/ELBOW
Evidence
Evidence of Mr Krnjeta
On 11 April 2007 Mr Krnjeta suffered chest pain at work. As a result he was off work until 18 June 2007. He returned to work on light duties and continued on light duties until he went on holidays on 16 July 2007.
Mr Krnjeta returned to work from holidays on 17 September 2007. On 19 September 2007, whilst sorting parcels, he noticed pain in his right hand and elbow and a lump on the outside of his right elbow. He experienced these symptoms about half an hour after he commenced his shift.
On 5 October 2007 Mr Krnjeta consulted Dr Wilkinson (a doctor appointed by Australia Post) who diagnosed right elbow tendonitis.[7] The delay in Mr Krnjeta consulting Dr Wilkinson apparently was caused by staff of Australia Post understanding that Mr Krnjeta said that his condition was not work-related.
[7] Exhibit T2 p.27.
Mr Krnjeta claims that this injury “arose by way of gradual process as a result of the heavy and repetitive duties of gripping, grasping and twisting my wrist that I was required to perform during my employment with Australia Post.”[8] He claims the pain in both arms has been continuous since November 2007.[9]
[8] Exhibit A1 para.11.
[9] Transcript 05/03/2014 pp.223-224.
Initially Mr Krnjeta had physiotherapy treatment for his arm. He had no treatment for his arm for some years prior to his using Voltaren cream in 2014.[10]
[10] Transcript 04/03/2014 p.118.
Evidence of Dr Tan, General Practitioner
Dr Tan has been Mr Krnjeta's general practitioner since 1996. He has provided several reports in relation to the various conditions claimed by Mr Krnjeta and he gave evidence.
On 26 November 2007 Mr Krnjeta consulted Dr Tan who diagnosed him as suffering tendonitis of the right elbow; Dr Tan did not record the cause of this condition[11]. Mr Krnjeta again consulted Dr Tan on 24 January 2008 when Dr Tan diagnosed tendonitis in both elbows.[12] He referred Mr Krnjeta for physiotherapy.
[11] Transcript 06/05/2010 p.143.
[12] Transcript 06/05/2010 p.130.
In March 2014 Dr Tan gave evidence that Mr Krnjeta had not received treatment for his right arm condition for the past two to three years.[13]
[13] Transcript 06/03/2014 p.314.
Report of Associate Prof Love, Orthopaedic Surgeon
Mr Krnjeta consulted Professor Love on 20 December 2007 with symptoms of pain in both elbows and both forearms. In the opinion of Professor Love, Mr Krnjeta was suffering from an overuse disorder related to his work as a mail officer.[14]
[14] Exhibit T2 p.70.
Evidence of Dr Castle, Occupational Physician
Dr Castle provided reports dated 14 April 2008 and 22 April 2009.[15] He also gave evidence.
[15] Exhibits T2 p.157 and A3 respectively.

Mr Krnjeta first consulted Dr Castle in March 2008. He continued to consult Dr Castle at least until the time of the hearing in May 2010.
In his report of 22 April 2009[16], Dr Castle stated that “although I have not discussed in detail with him the cause of his arm pain, from discussions I have had with him, I consider his bilateral arm pain is a result of overuse, consequent to his normal employment.” In his opinion the injury to each arm would prevent Mr Krnjeta returning to his pre-injury duties. He did not express an opinion as to whether the condition of either or both arms prevented Mr Krnjeta returning to work.
[16] Exhibit A3.
When Dr Castle gave evidence in 2010 he said that in his opinion Mr Krnjeta did not have any capacity for work. He said that the cause of that incapacity was Mr Krnjeta's back pain, bilateral arm pain, wrist pain and “quite marked depression”.[17] He considered it unlikely that that situation would change.
[17] Transcript 06/06/2010 at p.152
Dr Castle said that he did not obtain any detail as to the right wrist pain of which Mr Krnjeta complained, other than that Mr Krnjeta told him that it came on while he was sorting mail.
Report of Dr Muirden, Consultant Rheumatologist
On 1 April 2008, Dr Muirden assessed Mr Krnjeta at the request of Australia Post. He provided a report dated 4 April 2008[18] in which he stated:
With regard to the elbow and wrist pain reported to have commenced in September 2007, there are certainly signs of a lateral and medial epicondylitis affecting the right elbow and lateral epicondylitis affecting his left elbow. The aetiology of an epicondylitis includes repetitive grasping, gripping and repetitive wrist turning. It should be noted that the pathology is poorly understood and the pathogenesis uncertain. Even so, I consider that mail sorting has been a contributing factor to the epicondylitis affecting initially the right elbow. With the use of the left arm to spare the right arm, the same process is likely to have affected the left wrist. I did not find any evidence of any pathology affecting the wrist joints and I consider that the persistent use of the wrist splint is inappropriate.
consideration of claim for injury to right hand/elbow
[18] Exhibit T2 p.138.
Issues
The following issues require consideration.
(a)Has Mr Krnjeta suffered an ailment within the meaning of subsection 4(1) of the Act?
(b)If so, has Mr Krnjeta suffered a disease within the meaning of section 5B of the Act?
(c)If so, is Australia Post liable to pay compensation to Mr Krnjeta in accordance with subsection 14(1) of the Act?
Issue 1: Has Mr Krnjeta suffered an ‘ailment’ within the meaning of subsection 4(1) of the Act?
On the basis of the evidence of Mr Krnjeta and the medical practitioners to which I have referred, I am satisfied that he experienced pain in his right arm in September 2007 which was sufficiently severe for him to seek medical advice and treatment by physiotherapy. It is uncertain as to how long that treatment continued. I am satisfied that the condition of epicondylitis diagnosed by Dr Tan, Associate Professor Love, Dr Castle and Dr Muirden is a physical disorder and therefore an ailment within the meaning of the Act.
Issue 2: Has Mr Krnjeta suffered a ‘disease’ within the meaning of section 5B of the Act?
To be satisfied that Mr Krnjeta suffered a disease, I must be satisfied that the ailment he suffered was contributed to, to a significant degree, by his employment with Australia Post.
Although the Doctors shared the view that Mr Krnjeta's employment contributed to the condition, I am not satisfied on the evidence that the contribution was to a significant degree, i.e. to “a degree that is substantially more than material” (see subsection 5B(3)).
There is no explanation as to why Mr Krnjeta suffered epicondylitis, claimed to have been caused by repetitive use of his right arm, within two days of his returning to work from a holiday of two months and having worked for a period of only one month during the preceding five months.
Dr Tan did not record the cause of the condition when he diagnosed Mr Krnjeta as suffering epicondylitis. None of the other practitioners provided an opinion as to the degree of the contribution made by his employment. Further Mr Krnjeta gave evidence that he was playing the piano accordion in 2007, although he was unclear as to the extent of that activity. Dr Castle agreed that the epicondylitis could be related to Mr Krnjeta's accordion playing, depending on how much he was doing.[19] Dr Muirden noted that the pathogenesis of the condition is uncertain.
[19] Transcript 06/05/2010 p.157.
conclusion in respect of claim for injury to right hand/elbow
As I am not satisfied on the balance of probabilities that Mr Krnjeta's employment by Australia Post made a significant contribution to the claimed condition of his right hand/elbow. Australia Post is not liable to compensate him in respect of that condition. The decision under review will be affirmed.
PART 5: APPLICATION NO. 2008/3449
CLAIM FOR INCAPACITY PAYMENTS IN RESPECT OF THE LEFT ELBOW
The reviewable decision[20]
[20] Exhibit T2 p.188.
Mr Krnjeta submitted his claim for compensation in respect of his left arm on 28 November 2007. On 18 April 2008 Australia Post accepted liability to compensate him in respect of “left elbow – lateral epicondylitis” in accordance with section 14 of the Act. However Australia Post denied liability to pay compensation under section 19 of the Act on the basis that the injury had not caused Mr Krnjeta to be incapacitated for work. Section 19 provides for compensation to be paid to an employee who is incapacitated for work by reason of an injury found to be compensable under section 14.
The evidence of Mr Krnjeta
Mr Krnjeta stated:
On or about 12 November 2007 I noticed pain in my left hand/elbow while performing restricted duties for the work injury to my right upper extremity. This occurred as a result of the increased and repetitive use of my left arm and hand to perform my work duties of sorting mail.
I ceased work for a short period following the onset of this work injury. I then found it very difficult to return to work as I continued to experience pain even when performing light duties. My GP had restricted me from performing repetitive movement with my arms, lifting more than 2 kilograms and had advised me to take regular breaks.[21]
[21] Exhibit A1 paras 17-18.
Evidence referred to in Part 4
Some of the evidence relating to the left elbow has been referred to in Part 4 above. It is to be noted that neither Dr Castle nor Associate Professor Love indicated that Mr Krnjeta was unfit to work by reason of the condition of his left arm.
Certificate issued by Dr Wilkinson
Mr Krnjeta was referred to Dr Wilkinson by Australia Post. On 16 November 2007 Dr Wilkinson issued a medical certificate certifying that Mr Krnjeta was fit for full hours on restricted duties from 16 November 2007 to 23 November 2007. He diagnosed the conditions as “muscular left elbow and hand pain.”
Report of Dr Tan
On 26 November 2007 Dr Tan reported that Mr Krnjeta was suffering from “tendonitis of the right shoulder and both elbows”. He advised that Mr Krnjeta was fit for light duties with restrictions. There was no restriction of hours to be worked.
Report of Dr Muirden
In his report of 4 April 2008[22], Dr Muirden stated, in part:
Mr Krnjeta reports discomfort in his left elbow, forearm and hand that developed in association with his instruction to limit activities with his right upper limb. The condition affecting his left arm is a lateral epicondylitis.
…...
Breaks from repetitive based activities with the left arm are necessary. A five-minute break every 30 minutes is appropriate. Restriction on weights lifted is also appropriate and the current 2kg limit should in my view be continued with.
[22] Exhibit T2 p.138.
consideration of claim for incapacity payments in respect of the left elbow
Mr Krnjeta is entitled to compensation under section 19 if he has been incapacitated from work as a result of the claimed injury. There is no dispute that Australia Post is liable to compensate him in respect of this injury. However, there is no evidence that Mr Krnjeta was incapacitated for work as a result of that injury.
Mr Krnjeta ceased work on 8 February 2008 and has not worked for Australia Post since. He has claimed that he was unable to work because of the combined effect of the various injuries under consideration, although the immediate cause of his ceasing work was his back condition.
conclusion in respect of claim for incapacity payments in respect of the left elbow
As I am not satisfied that Mr Krnjeta has been incapacitated for work as a result of the accepted injury to his left elbow, the decision under review will be affirmed.
PART 6: APPLICATION NO. 2008/3446
CLAIM FOR MUSCULOSKELETAL INJURY OF THE LOWER BACK
Evidence of Mr Krnjeta
In his statement of 23 February 2010 Mr Krnjeta described the circumstances in which he suffered this injury as follows:
21. On or about 10 February 2008 I suffered injury to my low back while on a return to work plan for my other injuries. This injury occurred when I was performing quality-control checks for Australia Post. I bent down to pick up some letter from a tub on the kingfisher trolley when I felt a sudden onset of pain in my low back with pain also radiating down my right leg.
22. On about 11 February 2008 I attended Sunshine Hospital after my shift for treatment.
23. I attempted to remain at work from 11 February 2008 to 18 February 2008 with further restrictions to that of my previous return to work plan. I was told by my doctors to avoid bending.
24. Dr Tan then certified me unfit for all duties from about February 2008. I continue to be certified unfit for all duties as a result of my injury to my lower back.[23]
[23] Exhibit A1 paras 21-24.
Mr Krnjeta has not returned to work since he left work in February 2008.
When he gave evidence in 2014 Mr Krnjeta said that he had back pain “all the time” since he initially injured his back in 2001.[24]
[24] Transcript 05/03/2014 p.243.
Report of Mr Mihalaras, Evaluation Consultant concerning 2001 back injury
On 15 May 2002 Mr Mihalaras reported to Australia Post[25] after he assessed Mr Krnjeta's ability to return to work following his back injury in May 2001. In the report he noted that Mr Krnjeta had physiotherapy twice per week from 20 July 2001 until April 2002. He continued:
Mr Krnjeta reports that although there was some improvement in his flexibility, overall, he did not experience any improvement. In fact, recently he started experiencing referred pain down his left leg and has subsequently (in the last week) been prescribed Voltaren which he takes daily. To date, there has been no improvement in his condition.
[25] Exhibit R2, ST16 p.35.
Sunshine Hospital Emergency Department Record
The Hospital records indicate that Mr Krnjeta attended the Emergency Department at 4:57 am on 11 February 2008. The records include the following:
24:00 knelt down to pick up letters and when stood up, pain R lumbar region, worse this morning. Radiating to groin.
Had Panadeine Forte at triage – feels a bit better.
….
No midline tenderness
Mildly tender R lumbar area
Evidence of Dr Tan, General Practitioner
Dr Tan provided a report dated 27 April 2009[26] and gave evidence.
[26] Exhibit A2.
Dr Tan first treated Mr Krnjeta for low back pain in 2001. Mr Krnjeta informed him that the pain started when he was pulling out a heavy box at work. The pain was of sudden onset and radiated to his left thigh. It was aggravated by lifting, bending, twisting and sitting for more than 45 minutes. Dr Tan reported that despite Mr Krnjeta undertaking modified duties and extensive physiotherapy, he continued to suffer pain “on and off” in his lower back after the 2001 incident.[27]
[27] Exhibit A2.
Dr Tan recorded that on 30 January 2008 he was consulted by Mr Krnjeta. His notes of that consultation include “LOWER BACK PAIN, CHRONIC Referral: Sunshine City Radiology Service- X-Ray (Chest); X-ray (Spine; lumbosacral)”[28]
[28] Exhibit RR10.
Mr Krnjeta again consulted Dr Tan concerning his lower back on 20 February 2008. He told Dr Tan that on 10 February 2008 he leant down to lift a box of letters and felt a sudden onset of pain in the lower back radiating to his groin, right thigh and right leg. Dr Tan’s initial diagnosis was a musculoskeletal injury of the lower back. In the opinion of Dr Tan Mr Krnjeta's employment played a significant role in this injury. He prescribed regular physiotherapy and a gym programme. When Dr Tan wrote his report on 27 April 2009 he expressed the opinion that Mr Krnjeta was suffering “disc bulging of the LS spine and … needs to have MRI scan of the lumbar spine in order to delineate the extent of the injury.”
When Dr Tan examined Mr Krnjeta, he complained of tenderness to palpation at the level of L4 and L5. Dr Tan performed some neurological examination, but did not record the results of that examination.
When Dr Tan gave evidence before me in March 2014 he said that in 2012 he had again discussed with Mr Krnjeta the issue of treatment for his lower back pain. By that time Mr Krnjeta had obtained some chiropractic treatment.
Report of Dr Muirden, Consultant Rheumatologist [29]
[29] Exhibit T2 p.138 at p.144.
On 1 April 2008 Dr Muirden reported:
With regard to back pain which is his current main complaint, an injury apparently occurred in 2003 and a CT scan at that time (15 November 2003) showed minor disc bulges without compromise of the spinal canal. The recent episode that occurred on 10 February 2008 did sound relatively trivial in nature although my examination did show significant limitation of movement of the lumbar spine that I considered was at least partly related to organic pathology. My examination in this region also identified a significant limitation of movement of the right hip and I suspect that there is an underlying hip osteoarthritis that I consider is constitutional in origin and not related to work.
Dr Muirden provided a supplementary report dated 14 April 2008.[30] In that report he stated:
With regard to the back condition, I formed the opinion that organic pathology was involved but that this was constitutional and degenerative in nature and not related to workplace activities. I felt that the injury mentioned by Mr Krnjeta was of a trivial nature and would not have had any ongoing effects as far as his lower back problem is concerned. I thought I stated clearly my opinion that employment had not contributed to the back condition in any significant degree.
[30] Exhibit T2 p.157.
Evidence of Dr Castle, Occupational Physician
Dr Castle treated Mr Krnjeta in respect of his back condition, commencing in March 2008.
In his report dated 22 April 2009[31] Dr Castle stated that following Mr Krnjeta injuring his back at work in 2003 he was shown to have three injured disks. He noted a report of a CT scan performed in November 2003 which referred to a central disc bulge at L5/S1 without compromise of the spinal canal.
[31] Exhibit A3.
Dr Castle reported:
Mr Krnjeta suffered back pain on Sunday 10/2/2008, when he leant over into a cage to pick up some objects prior to sorting them. There was a clear and direct link between his employment and his injury. His injury has not resolved, and remains directly caused by his employment. He has a disc protrusion at L5/S1, and clinically a problem with his right sacro-iliac joint.
….
He is not fit for any work at present, and I do not know when he will be.
….
His back pain clearly originated as a result of his employment, when he had to reach into a cage to get letters to sort.[32]
[32] Exhibit A3.
When he gave evidence Dr Castle agreed that Mr Krnjeta's medical conditions would not prevent his teaching music, although his ability to teach would be limited. He agreed that his epicondylitis could be related to his playing the piano accordion, depending on the amount of playing he was undertaking.
Evidence of Mr Jones, Orthopaedic Surgeon
Mr Jones examined Mr Krnjeta on 30 July 2009 at the request of the Solicitors for Australia Post. He reviewed the various medical reports (including x-ray reports) available at the time of the examination. Mr Jones provided reports dated 31 July 2009[33] and 3 October 2014[34] and gave evidence.
[33] Exhibit RR17.
[34] Exhibit RR18.
In his report dated 31 July 2009 Mr Jones expressed the opinion that:
This man suffers from some mild constitutional based degenerative disease affecting the lower lumbar spine. In particular, this is reflected radiographically in some mild disc desiccation at a number of the disks in the lower lumbar spine particularly at L5/S1. There is some facet joint arthritis affecting the small joints at both the L4/5 and L5/S1 levels in the lumbar spine.
As to the causation of this condition Mr Jones stated:
I do not believe that this condition arose out of this man’s employment nor the particular incident of 10.02.08.
It is possible that the flexion incident described by the patient on 10.02.08 may have been the cause of some acute back pain symptoms at this time and had the capacity to aggravate his pre-existing lower back condition.
I believe that the effects of this possible aggravation to his pre-existing condition has[sic] since resolved and would have so resolved within possibly 4 to 6 weeks of his reported injury. I do not think that the incident has contributed to the progress of his lower back condition either from the effects of the reported injury of 10.02.08 nor his work in general.
I believe that this man’s current lower back complaint is the natural progression of constitutionally based degenerative disease affecting the lower lumbar spine, which would have occurred even without this man being employed.
Mr Jones re-examined Mr Krnjeta on 30 September 2014. At the time of the examination Mr Krnjeta reported symptoms of continuous lower back pain, which had worsened in the previous five years. Following this examination Mr Jones’ opinion as set out in his earlier report remained unchanged.
Report of Ms Peake, Physiotherapist
Ms Peake assessed Mr Krnjeta in early 2015 at the request of Dr Tan. She reported that Mr Krnjeta had “several re-exacerbations of back pain between 2001 and 2008, and had not been able to return to his previous duties since 2008. … I believe he is best suited to work that allowed him to frequently change positions as he would not tolerate prolonged sitting or standing.”[35]
consideration of claim for injury to lower back
[35] Exhibit AA12.
Issues
The following issues require consideration.
(1)Has Mr Krnjeta suffered an injury within the meaning of subsection 5A(1) of the Act?
(2)If so, has the injury suffered by Mr Krnjeta resulted in impairment in accordance with subsection 14(1) of the Act?
(3)If so, does he continue to suffer the effects of that injury?
Issue 1: Has Mr Krnjeta suffered an injury within the meaning of subsection 5A(1) of the Act?
It is not in dispute that Mr Krnjeta suffered an injury to his lower back in 2001 and that from that time onwards he has continued to suffer pain in his lower back.
There is a difference of medical opinion as to whether the ongoing pain after the 2001 injury was a result of that injury, or a combination of the effects of the injury and an underlying degenerative condition. However for the purposes of this application it is unnecessary to decide this point.
Based on the evidence of Mr Krnjeta, Dr Tan, Dr Castle and the records of the Sunshine Hospital, I am satisfied that in February 2008, when he leant over to retrieve the letters from the trolley he aggravated his pre-existing back condition, however described. I am satisfied that this action resulted in Mr Krnjeta suffering ongoing pain sufficient to cause him to seek treatment at the Sunshine Hospital Emergency Department within a few hours of the incident.

As this aggravation “arose out of, or in the course of” Mr Krnjeta's employment by Australia Post it falls within the definition of injury within section 5A of the Act.
Issue 2: Has the injury suffered by Mr Krnjeta resulted in impairment in accordance with subsection 14(1) of the Act?
In Re Halliday and Comcare [36] the Tribunal said:
There does not appear to be any significant discrepancy between the various dictionaries as to the meaning of the words “damage” and “malfunction”. In the context of the definition of “impairment” in which those words are used and in the context of the whole Act, there seems to be no reason why we should not adopt the ordinary meaning of those words. Consequently, there will be an impairment of a part of the body or a bodily system or function if it has been damaged in the sense that its usefulness of value has been diminished or if it malfunctions in the sense that it fails to perform normally or properly.[37]
[36] (1994) 19 AAR 431.
[37] At p.441.
On the basis of the evidence to which I have referred, I am satisfied that as a result of the injury he suffered on 10 February 2008 Mr Krnjeta's lower back failed to perform normally. On this basis Australia Post is liable to compensate Mr Krnjeta in accordance with subsection 14(1) of the Act.
Issue 3: Does Mr Krnjeta continue to suffer the effects of the injury?
In view of the manner in which this application has been conducted, it is appropriate that I make a finding as to time during which Mr Krnjeta continued to suffer the effects of the injury. Clearly, Mr Krnjeta considers that, right up to the present, the pain he experiences in his lower back is a result of the injury he suffered in 2008.
Although Dr Tan has expressed the opinion that Mr Krnjeta's employment played a significant role in his suffering the injury in 2008, I am not satisfied that he has given sufficient consideration as to whether the effects of the aggravation have ceased.
Dr Castle considered that the injury had not resolved when he wrote his report in April 2009.[38] Again however, Dr Castle did not explain why he considered that Mr Krnjeta’s ongoing problems with his lower back were referable to the 2008 incident, rather than the injury in 2001 or alternatively, a result of a degenerative condition of Mr Krnjeta's spine.
[38] Exhibit A3.
In his report Dr Castle stated that “his back pain clearly originated as a result of his employment, when he had to reach into a cage to get letters to sort.” This opinion is clearly inconsistent with the evidence of Mr Krnjeta who said that he had suffered back pain since his injury in 2001. It is inconsistent also with the clinical notes of Dr Tan.
Dr Castle obtained a very limited history of Mr Krnjeta's earlier back injury. He noted that he had injured three discs in his back but he did not record which ones. Dr Castle did not know how that injury occurred nor did he know the symptoms Mr Krnjeta suffered at the time. He did not know whether those symptoms continued, abated or changed in any way. Dr Castle said that he knew nothing of Mr Krnjeta's psychiatric history.[39]
[39] Transcript 06/05/2010 p.154, exhibit T1.
On the basis of the evidence I do not find the opinions expressed by Dr Castle persuasive.
I prefer the evidence of Dr Muirden and Mr Jones in determining this issue.
Although Dr Muirden initially expressed the opinion that Mr Krnjeta's back condition was not related to his workplace activities, he went on to say that he did not consider that his employment had contributed to the condition in any significant degree. He did not say that the 2008 incident would not have had some short term effects.
In 2009 Mr Jones was of the opinion that Mr Krnjeta suffered a mild degenerative disease affecting the lower lumbar spine. Whilst he did not consider that this condition arose out of Mr Krnjeta's employment, he agreed that it was possible that the incident described may have caused some acute back pain at the time and had the capacity to aggravate the pre-existing lower back condition. Mr Jones was of the opinion that any aggravation would have resolved within six weeks of the reported injury.
On the basis of the evidence of Dr Muirden and of Mr Jones, I am satisfied that on the balance of probabilities, the aggravation of Mr Krnjeta's back condition would have ceased to have any effect by the end of six weeks from 10 February 2008. In reaching this conclusion I have also taken into account that Dr Tan recorded that Mr Krnjeta was suffering from chronic lower back pain in late January 2008 (less than two weeks prior to the February incident), and that Mr Krnjeta said that he has continued to suffer back pain ever since his injury in 2001.
Conclusion in respect of claim for musculoskeletal injury of the lower back
As I am satisfied that Mr Krnjeta suffered an aggravation of his lower back condition the decision under review will be set aside. In substitution for the decision set aside, it will be decided that:
(1)Australia Post is liable to compensate Mr Krnjeta in respect of an injury to his lower back (being an aggravation of a pre-existing condition) which occurred on 10 February 2008;
(2)the effects of this injury ceased no later than six weeks after the date of the injury.
PART 7: APPLICATION NO. 2009/1500 &
APPLICATION NO. 2012/4510
CLAIMS FOR MENTAL/PSYCHOLOGICAL DISORDER
Mr Krnjeta lodged two claims in respect of the same psychological condition. The most common diagnosis of that condition by the various medical experts has been anxiety and/or depression of varying severity.
On 27 January 2009 Mr Krnjeta made a claim for mental and/or behavioural disturbance or disorder caused by the effects of several physical conditions suffered by him. The refusal of this claim is the subject of application no.2009/1500.
On 20 February 2012 Mr Krnjeta made a claim for a psychological disorder caused by workplace bullying and harassment. The refusal of this claim is the subject of application no. 2012/4510.
As both claims relate to the same psychological condition and as Mr Krnjeta claims that the condition was caused by a combination of workplace events, both physical and psychological, I will deal with these applications together.
Evidence as to the workplace incidents
Evidence of Mr Krnjeta
In his statement of 23 February 2010[40] Mr Krnjeta provided the following details of this claim:
31. Prior to the injuries in dispute, I suffered from depression. I consulted the doctors and received treatment for this condition. This condition, however, improved and at the time of each of my work injuries did not cause me any or any significant interference with my capacity to work or ability to undertake my normal activities of daily living.
32. I have suffered from stress, anxiety and depression as a result of each of my physical injuries. This is also a consequence of the stress associated with the rejection of each of my compensation claims and the financial consequences of being unable to work and not receiving any compensation.
33. Prior to each of my work injuries I was an active and capable man who was good at my job and enjoyed working. Since the onset of my work injuries I have felt humiliated by the mediocre tasks I was required to perform as result of my work injuries.
34. I found it difficult to maintain my relationships with each of my children as I cannot be as active with them as I had been prior to each of my work injuries. I also feel like an embarrassment to my children because of my work incapacity and am upset that I cannot provide for them as well as I had intended to throughout their lives.
35. I found my continued return to work efforts following the injury to my right upper extremity and left upper extremity very stressful. I felt that Australia Post management were trying to humiliate me and I often became upset by the incapacity my injuries had caused.
36. Since ceasing work I have become withdrawn and rarely socialise with friends. I find that I am constantly worrying about my financial situation caused by my inability to work and often distracted by constant though varying degrees of pain from each of my work injuries.
37. I have consulted with and continue to consult with Mr John Lezon to help me to deal with the psychological consequences of the hardship and incapacities my physical injuries have caused. I currently take Efexor for my depression.
[40] Exhibit A1 paras 31-37.
In a statement made 6 August 2010[41] Mr Krnjeta set out several incidents which he says contributed to his psychological injury. He described these incidents as follows:
4. In or around November 2003 I was working in the dispatch. I was calling countries as I had been directed to do and as I recall Harry Petropoulos became very abusive towards me in front of a few staff members including Michelle O’Connor, Logistics Manager. He was swearing and raising his voice at the front of other workers. I made a written complaint about this behaviour in a letter to the operations Manager, Christine Dewes. I had a meeting regarding the issue, however, I do not know if there was any disciplinary action against him regarding this issue.
5. One such incident occurred in or around March 2007 when I was working with Adeline Vella-Hamed. During this time I was in training and was approached by another mail officer by the name of Ernie Yutuc who without reason turned to me in front of many co-workers and said words to the effect of, what are you doing here, go home. This upset me, embarrassed me in front of others and made me feel humiliated. I reported this issue to David Harrison. This incident was investigated.
6. Another incident that occurred while I was working at Australia Post, happened during my time on restricted duties in or around December 2007. My manager at the time Sylvio Bignoux told me in effect to sit down and do nothing because he had no jobs available that I could do. I complied with the manager’s request, however, a few minutes later the manager returned and very angrily demanded to know why I was sitting around doing nothing. I responded that I was complying with his request. Sylvio then became very angry and began to criticise and demean me in the front of other workers. He made me very upset and I began to cry. Further harassed and embarrassed me on two more occasions throughout this shift.
7. A further incident occurred with Sylvio Bignoux in or around December 2007, where Sylvio instructed me not to talk at all to any staff members. This further ostracised me from my team members and made me feel further embarrassment and humiliation.
8. I was also embarrassed and upset when I was informed about my car being repossessed while I was working with Australia Post. The event took place in or around March 2002. The Operational Manager, Robert Brockley announced to me in front of many of my colleagues that my car had been repossessed from the secure Federal Car Park at 501 Williamston Road, Port Melbourne Victoria. This event should have been recorded by management, however I was not provided with any information or explanation in regard to the incident. The way in which the Operational Manager addressed me regarding this issue was extremely upsetting and embarrassing.
[41] Exhibit A6.
In 2003 Mr Krnjeta was called “an idiot” by another employee. This caused him to feel humiliated in front of his fellow-workers. Australia Post took disciplinary action against the employee responsible.[42]
[42] Exhibit T2, document T4 p.5 in matter 2012/4510.
When he gave evidence in 2011 Mr Krnjeta referred to another incident when he believed Mr Yutuc tried to “make fun” of him. He said that on that occasion, sometime in 2007, Mr Yutuc was using a computer and then immediately told him that it was not working when he (Mr Krnjeta) asked to use it. He felt that Mr Yutuc and others were laughing behind his back[43].
[43] Exhibit T1- transcript 07/02/2011 pp.8 & 19.
Mr Krnjeta also said that on occasions other workers would make unnecessary noise when using some of the equipment. He believed this was done deliberately to upset him.[44]
[44] Exhibit T1- transcript 07/02/2011 p.12; transcript 03/03/2014 pp.40-42.
In March 2014, when I first heard evidence in these applications, Mr Krnjeta described an incident which he said occurred in 2003. He said that at the time he had an application before this Tribunal in relation to his claim for the back injury he suffered in 2001. Mr Krnjeta said that he was called in to a meeting at Australia Post where he was threatened that if he did not stop the Tribunal proceedings he would lose his job. He said he was shocked and crying during this meeting and felt that his dedication to his work was not appreciated and that as a result he discontinued the proceedings.[45]
[45] Transcript 03/03/2014 pp.30-38.
Mr Krnjeta also described incidents which he said took place in 2003 involving Mr Yutuc. Mr Krnjeta said that over a period of 6-12 months Mr Yutuc made unpleasant comments about Serbian politics and the war which was then being fought. Mr Yutuc continued to make these comments despite Mr Krnjeta requesting that he stop doing so. He felt humiliated by this conduct.[46]
[46] Transcript 03/03/2014 pp.38-40.
Mr Krnjeta was asked by Counsel for Australia Post about the occasions when he attended Western General Hospital over several years prior to February 2008. He was asked:
Because you were depressed about your wife, and custody issues, and your father’s death, and the loss of your license, and your family law cases were pending, and your alcohol abuse and your ex-wife’s husband beating your children. They were the things the hospital has recorded?
Mr Krnjeta responded:
Including the harassment at work, including my injury at work, yes.
When it was put to Mr Krnjeta that he did not give a history of incidents at work when he was being attended at the Hospital, he said that he told his general practitioner, Dr Tan, what had happened to him at work [47]
[47] Exhibit T1 p.22.
Evidence of Ms Vella-Hamed
Ms Vella-Hamed provided a statement dated 30 June 2010[48] and gave evidence.
[48] Exhibit AA7.
Ms Vella-Hamed worked with Mr Krnjeta from 1999 until February 2008.
In December 2007 Ms Vella-Hamed was training Mr Krnjeta in the International Section when Mr Yutuc said to Mr Krnjeta words to the effect “what are you doing here, go home.” This was said in front of other colleagues as well as herself. She also recalled another incident when Mr Krnjeta was on restricted duties. A manager, Mr Bignoux, told Mr Krnjeta to sit down and to do nothing. After a few minutes, Mr Bignoux returned and said to Mr Krnjeta in a loud voice, “why are you sitting down there doing nothing?”. This was said in front of work colleagues. Ms Vella-Hamed said that Mr Krnjeta was very upset by this incident and was crying.
Evidence of Mr Browne
Mr Browne gave evidence and provided a statement dated 30 June 2010[49].
[49] Exhibit AA8.
Mr Browne said that he recalls numerous incidents in the period 1999-2002 when Mr Yutuc spoke to Mr Krnjeta in a teasing manner concerning Yugoslav/Serbian politics. These incidents occurred near the change rooms and the mess room.
Evidence of Mr Yutuc
Mr Yutuc commenced working for Australia Post as a mail officer in 1989. He provided a statement dated 31 January 2011[50] and gave evidence.
[50] Exhibit RR14.
Mr Yutuc denied teasing Mr Krnjeta about Yugoslav and/or Serbian politics. He said that he could not recall any discussions about politics or religion with Mr Krnjeta.
In relation to the incident in March 2007 Mr Yutuc said:
I was working on the express mail service processing mail with a team of workers. We were under pressure to get the work done. At that time that particular team did not have a manager, so I was the most senior person. Dragan belonged to a different team, and he was talking with other people within the area that I was assigned to. So I asked him if he was working in that area. He said that I was not his PL (process leader), so I had no authority to ask him that. I said that if he was not working here, we did not need him here. I did not tell him to go home.[51]
[51] Exhibit RR14.
Evidence of Mr Bignoux
Mr Bignoux has worked for Australia Post since 1990. He provided a statement dated 1 February 2011[52] and gave evidence.
[52] Exhibit RR13.
Mr Bignoux first met Mr Krnjeta when he was working at the Port Melbourne Mail Centre on nightshift as an Area Co-ordinator.
In relation to the incident which occurred on 29 November 2007, Mr Bignoux stated:
I do recall that on 29 November 2007 I noticed that Dragan was talking and interrupting other staff on the floor. Dragan was not doing any work at the time. I have no issue with staff talking to each other whilst working on a shift. I consider that it is important for the morale in the workplace to have interaction with other employees. It is however, my responsibility to ensure that staff are not being disruptive or interrupting other staff in an inappropriate manner.
In order to deal with the issue I asked Dragan to come into my office. I spoke to Dragan about the situation and told him that if he did not have any work to do he should not be standing around and interrupting other staff members. I told him there was always quality control work to be done and he should be looking for that work. I also told him that it was not the first time he was interrupting other staff whilst they were working and that it needed to stop. At the end of the meeting Dragan agreed with what I was saying and the issue went no further.[53]
Mr Bignoux produced a copy of an email dated 29 November 2007 in which he confirmed this conversation.
[53] Exhibit RR13 paras 19-20.
In relation to the alleged incident in December 2007 Mr Bignoux stated:
I note that Dragan has claimed in [sic] that in around December 2007 I told him in [sic] to sit down and do nothing because I had no jobs available for him to do then subsequently questioned him about why he was sitting around doing nothing. I deny that I spoke to Dragan in this manner or that I criticized or demeaned Dragan in front of other employees. I further deny that I harassed and embarrassed Dragan throughout this shift.
I may have spoken to Dragan about talking and interrupting other employees but I would not do this in an angry fashion on the floor or in front of other employees. It is my practice to deal with any such issues in a discreet manner and speak to that employee in my office.[54]
[54] Exhibit RR13 paras 17-18.
Evidence of Mr Brockley
Mr Brockley has worked for Australia Post for approximately 40 years. He provided a statement dated 21 January 2011[55] and gave evidence.
[55] Exhibit RR11.
Mr Brockley worked with Mr Krnjeta for a period of six months in 2003-2004 and from November 2007 until February 2008. His role was night shift manager.
Mr Brockley has only a vague recollection of Mr Krnjeta's car being repossessed from the Australia Post car park. He has no recollection of his involvement in the process nor of saying anything in relation to it in front of Mr Krnjeta's work colleagues. It is his usual practice to discuss personal issues in the office rather than on the floor in front of other employees.
Further, he has no recollection of speaking to Mr Bignoux about an incident involving Mr Krnjeta. He said that Mr Bignoux is a very polite and softly spoken person and that it would be out of character for him to become upset or angry in front of other colleagues in the manner alleged.
Evidence of Mr Harrison
Mr Harrison has been employed by Australia Post since 1997. He was Mr Krnjeta's manager for several years prior to Mr Krnjeta’s ceasing work in 2008. He provided a statement dated 2 February 2011[56] and gave evidence.
[56] Exhibit RR20.
Mr Harrison stated:
I recall a minor incident in March 2007 involving Dragan and Ernie Yutuk (Ernie). Dragan came into my office and said that Ernie had said that he (Dragan) should not be here. I said words to the effect of ‘hang on a minute’ and went and spoke with Ernie. Ernie explained that Dragan was in the ECI area (express courier international area), which is where we do parcels, but that he was not rostered on and therefore should not have been in that area. Ernie told me that he said something like you (Dragan) should not be here if you are not rostered to this area. Ernie told me that it was not said rudely or in anger.
I called Dragan back into my office and explained that Ernie had not intended to be rude, but that Dragan just needed to be where he was working. Both Dragan and Ernie speak English with a bit of an accent which may have contributed to some misunderstanding. From my observation Dragan did not have any issue after I had explained that he simply went back to work.[57]
Evidence Of Health Professionals
[57] Exhibit RR20 paras 2-3.
Evidence of Dr Tan, General Practitioner

In his report of 27 April 2009[58] Dr Tan expressed the opinion that Mr Krnjeta was suffering anxiety and depression as a result of his injuries.
[58] Exhibit A2.
On 30 July 2012 Dr Tan reported that Mr Krnjeta “continues to experience signs and symptoms of work-related anxiety and depression which emanates from his having been bullied/harassed and having sustained chronic physical injuries at his most recent place of employment, has not improved.” [59]
[59] Exhibit AA21.
By letter of 6 March 2013 Dr Tan certified that Mr Krnjeta was suffering from “permanent lower back pain as result of a work-related injury in February 2008. An MRI scan of the LS spine was done and confirmed a Disk Bulging of the lumbar spine. As a result of this, he developed signs and symptoms of severe anxiety and depression. ” [60]
[60] Exhibit AA20.
In a report dated 25 February 2014, Dr Tan referred to Mr Krnjeta suffering lower back pain radiating to his left leg and that he continued to suffer from anxiety and depression as a result of the injury.[61]
[61] Exhibit AA19.
When he gave evidence to the Tribunal in 2010, Dr Tan said that every time Mr Krnjeta came to see him he had multiple problems, such as back pain, anxiety and depression all at once.[62]
[62] Transcript 06/05/2010 p.140.
Clinical notes of Dr Tan
Dr Tan’s notes record a consultation with Mr Krnjeta on 21 December 2012. Included in those notes is the following:
Recently felt very stressed, anxious, moody, tense, restless, depressed.
On 24 December 1996 Dr Tan recorded, in part:
Depression
He’s very good musician in his country but struggles here very much frustrated, counselling given. [63]
[63] Exhibit RR10.
Report of Dr Kemp, Consultant Rheumatologist
Mr Krnjeta was assessed by Dr Kemp on 4 January 2001, on referral by Australia Post.
In his report of 11 January 2001 Dr Kemp took the following history from Mr Krnjeta:
He considers that his general health is good and his weight is constant. During the last two years he has been depressed about the situation of his parents and family in Belgrade has been referred to Psychiatrist, Dr Parikh.[64]
[64] Exhibit T2 Supplementary T documents p.20.
Reports of Dr Orchard, Psychiatrist
Dr Tan referred Mr Krnjeta to Dr Orchard in May 2003.
On 9 May 2003 [65] Dr Orchard reported:
He presents with the problem of a severe recurrent depression which has not responded to antidepressant medication and he reluctantly admitted to moods of aggression …… He impressed me as lacking psychological mindedness and deeply into his depression without having any understanding of how he may have contributed to his own problems.
Dr Orchard was of the opinion that the best explanation for Mr Krnjeta's conduct was that he suffered bipolar disorder and that he needed some form of biological treatment.
[65] Exhibit R1.
In a further report dated 30 July 2003[66] Dr Orchard states:
It is clear that he only gave me a fraction of his problems at his first appointment and I suspect that he has been quite irrational for a number of years and yet finds reasons outside himself explaining his aberrations….. He has quite a sense of grievance against his wife and claims that she will not cooperate with him so that he can see his children. He admits that he has mood swings but he tends to become defensive when I have attempted to clarify what happens to him with his mood swings.
……
I suspect that he may have had mood swings going back many years and this may have been a factor in his not being able to establish himself as a musician and has played a part in the breakdown of his marriage. [67]
[66] Exhibit R2.
[67] Exhibit R2.
Report of Dr Cole, Psychiatrist
Mr Krnjeta was referred to Dr Cole for assessment in June 2004. He provided a report dated 12 July 2004.[68]
[68] Exhibit T2 p.77.
Dr Cole reported:
Mr Krnjeta has, I believe, always had well-developed obsessional personality characteristics. He is now suffering from an adjustment disorder with mixed anxiety and depression of mood which is to be seen as stemming from the various problems that he has encountered in recent years, including his work related injuries. Perhaps the biggest factor has been his wife’s infidelity which led to the breakdown of their marriage, while the accidental death of his father also made a significant contribution. The fact that he is obliged to do a job which carries little status in his eyes and does not recognise his academic qualifications has done nothing to help matters. I note that there does not appear to be a great deal of objective evidence of injury to his lower back, neck and head, but his anxiety has become displaced upon these regions with the result that his awareness of and preoccupation with his physical or ostensibly physical symptoms have come to approach a hypochondriac level. However, no evidence was obtained to suggest conscious symptom exaggeration I note that he has not lost a great deal of time for work as a result of his injuries.
He also believes that he has been harassed in the workplace, but I suspect that he is inclined to be rather oversensitive and I do not know just how much substance there is behind these complaints.
Evidence of Mr Lezon, Psychologist
Mr Lezon gave evidence in 2010 and provided reports dated 20 April 2009[69] and 4 February 2010[70].
[69] Exhibit A4.
[70] Exhibit A5.
Mr Krnjeta was referred to Mr Lezon by Dr Tan. He consulted Mr Lezon on six occasions between June 2007 and April 2009. This completed the first part of his Mental Health Care Plan.
Mr Lezon reported:
Mr Krnjeta informs me that he has sustained injuries in the course of his employment to his forearms for which he has to wear a brace on his dominant right forearm and lower back for which he similarly wears a brace. He also says that he suffers from work-related groin, shoulder and most prominently neck pain as well as severe headaches.
……
From a psychological perspective Mr Krnjeta has not been able to efficaciously cope with his range of physical injuries which have left him particularly reliant upon the assistance of others. He feels especially saddened and frustrated by the deleterious effects of his injuries and by the fact that he is unable to work and to participate in a meaningful and fulfilling daily routine. He has also become socially isolated and withdrawn which he indicates is quite atypical for him as he once genuinely enjoyed mixing with others. There also has occurred a substantial diminution in his self-esteem and confidence, post-injury.[71]
[71] Exhibit A4.
On 4 February 2010 Mr Lezon reported that Mr Krnjeta had again consulted him. At that time Mr Lezon reported that Mr Krnjeta's psychological condition had also been caused by instances of harassment at work which had significantly contributed to his pain and suffering. In his opinion Mr Krnjeta did not have any earning capacity, given his physical and psychological work-related injuries. When he gave evidence in 2010 Mr Lezon was of the opinion that Mr Krnjeta's condition had stabilized and was chronic.[72]
[72] Transcript 06/05/2010 p.170.
Mr Lezon accepted that the psychiatric condition suffered by Mr Krnjeta in 2003 was work-related because that was what Mr Krnjeta told him. Although he looked at Mr Krnjeta's entire history from birth he was satisfied that nothing relevant to the condition had occurred prior to that time. Mr Lezon was adamant in this regard. He formed his opinion based on the belief that Mr Krnjeta was first diagnosed with depression when he consulted Dr Orchard. He was unaware that Dr Tan had diagnosed Mr Krnjeta as suffering from depression in 1996. Mr Lezon had not seen Dr Orchard’s reports at the time he gave evidence in 2010. When asked as to his knowledge of when Mr Krnjeta's family problems began, Mr Lezon said that obviously they began prior to Mr Krnjeta commencing work with Australia Post. He understood that these problems arose in the 1990s.
Further, Mr Lezon said that he did not have the opportunity to look at any other documents whilst he was treating Mr Krnjeta. His treatment was based purely on what Mr Krnjeta had told him of his consultations with Dr Orchard. When asked “and you were only told that he saw Dr Orchard in respect of work stress, is that correct?” Mr Lezon replied “purely work-related, yes. That was the crux of it.” [73]
[73] Exhibit T1 p.178.
Reports of Dr Castle
In his report of 22 April 2009, Dr Castle stated that Mr Krnjeta had become “more depressed over the time I have so been (sic) seen him, because of his financial difficulties, and the dispute about his workers compensation claim. …. His chronic adjustment disorder with depression is entirely due to his physical injuries, and the stress of his compensation claim generally and particularly the financial consequences of being unable to work and not receiving any compensation”.[74]
[74] Exhibit A3.
In a further report dated 1 August 2012[75], Dr Castle stated that Mr Krnjeta was suffering from a chronic adjustment disorder with depression and anxiety, secondary to his back and neck pain and wrist tendonitis, all of which were continuing at that time.
[75] Exhibit T2, document T19, p.46.
Report Mr Mackinnon, Forensic and Consultant Psychologist
Mr Krnjeta was referred to Mr Mackinnon by Dr Tan in 2012. Mr Krnjeta attended a number of psychological therapy sessions with Mr Mackinnon during 2012. He provided a report dated 27 November 2012.[76]
[76] Exhibit AA15.
In the opinion of Mr Mackinnon Mr Krnjeta was suffering from a Generalised Anxiety Disorder (severe) and a Depressive Mood Disorder (also severe). Further, in his opinion, Mr Krnjeta's separation from his wife was an additional source of stress for a significant period, but Mr Krnjeta had apparently eventually adjusted to the loss of his marriage and got on with his life in caring for his sons. However, the eventual loss of employment and his associated workplace injuries appear to have had a devastating impact on Mr Krnjeta. Other factors which came into being after Mr Krnjeta had stopped working, and not relevant to these proceedings, caused a significant deterioration in his psychological health causing him to become severely depressed and highly anxious.
Statement of Mr Ferrow, Psychologist
In his statement dated 7 May 2015[77] Mr Ferrow said that he had been providing counselling and therapy to Mr Krnjeta since 8 April 2014. Since treatment commenced it emerged that his presenting problem arose from his industrial injuries. At the time of the report, Mr Krnjeta suffered severe depression and generalised anxiety disorder. Mr Ferrow referred to the physical injuries suffered by Mr Krnjeta in the discharge of his professional duties. He did not refer to the incidents described by Mr Krnjeta as bullying.
[77] Exhibit AA9.
Evidence of Professor Paoletti, Psychiatrist
Professor Paoletti assessed Mr Krnjeta in early 2013 for the purpose of these proceedings. He provided a report dated 24 April 2013[78].
[78] Exhibit AA13.
In the report he stated:
From a psychiatric point of view, Mr Krnjeta suffers from a mixed anxious/depressive illness …. The chronicity and severity of his symptoms no longer warrant the diagnosis of chronic adjustment disorder.
In my opinion, issues of employment, including both physical injuries and the alleged bullying/harassment would appear to have precipitated and to have been a major factor in maintaining/perpetuating Mr Krnjeta's psychiatric problems. Mr Krnjeta comes across as an exacting person, who would have not coped with procedures and processes not being in place at work.
….
The financial problems caused by the inability to work after February 2008, and also by the pursuit of his claim have also contributed as maintaining/perpetuating factors.
The wife’s infidelity in the past and marital breakdown have been an issue in the past, but Mr Krnjeta had treatment with psychotherapy and pharmacotherapy by a psychiatrist, Dr Orchard, that he substantially recovered and got on with his life.
Evidence of Dr Greenberg, Psychiatrist
Dr Greenberg assessed Mr Krnjeta in September 2009 at the request of the Solicitors for Australia Post. She provided reports dated 3 September 2009[79] and 18 September 2013[80] and gave evidence.
[79] Exhibit RR15.
[80] Exhibit RR16.
In preparing her report, Dr Greenberg considered and summarised earlier medical reports and the records of the Western General Hospital and the Sunshine Hospital, which are in evidence before me.
She noted in her report that Mr Krnjeta presented to the Western Hospital in 2004 seeking psychiatric admission. He reported major issues between himself and his estranged wife over child access, finances and the law.
Dr Greenberg also noted that Mr Krnjeta attended Sunshine Hospital in February 2005. The attending medical practitioner noted that he may have been depressed and that the depression could be contributing to his multiple somatic complaints.
Mr Krnjeta presented at the Sunshine Emergency Department in February 2006. It was noted that he was very stressed and depressed. He stated that he had thought of killing himself. He was interviewed by the psychiatric crisis team. It was noted that he had experienced marital problems, had suffered recent bereavements and had lost his driver’s licence for four years on an alcohol-related offence. It was concluded that Mr Krnjeta was depressed in response to various adverse life events, particularly the marriage breakup.
In April 2007 Mr Krnjeta again presented to the Sunshine Emergency Department. He described thoughts of dying and was upset that he had had no access to his children and thought they were being beaten. He was diagnosed as having atypical chest pain thought to be due to stress.
Dr Greenberg notes in her report that “Mr Krnjeta apparently presented quite frequently to the Sunshine Hospital into psychiatric services with somatic problems. On multiple occasions the assessing doctors thought psychological factors were important.” [81] Later in her report she stated:
As Dr Cole pointed out, Mr Krnjeta has had a number of disappointments in Australia. He has not been successfully employed in his chosen career in music, he was not offered the promotions or work roles he preferred in Australia Post and his marriage failed, apparently acrimoniously and with loss of access to his children. He now describes serious financial problems.[82]
[81] Exhibit RR15 p.6.
[82] Exhibit RR15 p.7.
In the opinion of Dr Greenberg:
My diagnosis of his psychological condition is that Mr Krnjeta has chronic dysthymia or depression with multiple physical complaints and symptoms, either as a comorbidity or as one of the manifestations of his depressive illness. My impression is that Mr Krnjeta genuinely perceives symptoms predominantly because of his depression.
……
In my opinion compared with all of the disappointments and frustrations Mr Krnjeta has had to cope with in Australia the work traumata described seem to be minimal. The injuries which have not involved identifiable significant tissue damage for the most part, would seem to be less likely to cause psychological symptoms than the social and personal disappointments including Mr Krnjeta's inability to find meaningful work in his chosen profession.
If anything, one noxious aspect of his employment is possibly the fact that he has not been able to attain promotions or more interesting work roles.
……
My clinical opinion is that the physical injuries would at most have contributed only to a minor degree to his current predicament and current symptoms.[83]
[83] Exhibit RR15 p.8.
In her report of 18 September 2013 Dr Greenberg expressed the following opinion:
I think that workplace injuries and perceived harassment were at most minimally contributory, compared to non-work related disappointments. The alleged harassment as detailed or described sounds relatively benign compared to the personal, financial, and legal disasters that have befallen Mr Krnjeta.”
consideration of claim for mental disorder
Issues
The following issues require consideration.
(1)Has Mr Krnjeta suffered an ailment within the meaning of subsection 4(1) of the Act?
(2)If so, has Mr Krnjeta suffered a disease within the meaning of section 5B of the Act?
(3)If so, has Mr Krnjeta suffered an injury within the meaning of section 5B of the Act?
(4)If Mr Krnjeta has suffered an injury, is the application of the Act to that injury excluded by section 53 of the Act?
(5)If not, is Australia Post liable to pay compensation to Mr Krnjeta in accordance with subsection 14(1) of the Act?
Issue 1: Has Mr Krnjeta suffered an ailment within the meaning of subsection 4(1) of the Act?
I am satisfied that Mr Krnjeta suffers from anxiety and depression. I am satisfied that both these conditions are ailments within the meaning of the Act. They are both disorders and morbid conditions.
Issue 2: Has Mr Krnjeta suffered a disease within the meaning of section 5B of the Act?
To decide this question in the affirmative I have to be satisfied that either the ailment or an aggravation of such an ailment was contributed to, to a significant degree, by Mr Krnjeta’s employment by Australia Post.
Mr Krnjeta argues that his mental condition was caused by the combined effects of the physical injuries he claims he suffered arising out of his employment and the conduct of other employees towards him, which he describes as bullying and harassment.
Although I have decided that the condition of Mr Krnjeta's right arm was not a compensable injury under the Act, this does not mean that I should exclude this condition from consideration in relation to this issue, provided that his employment made some contribution to his right arm condition. I am satisfied that Mr Krnjeta's employment made an unspecified contribution to that condition.
I have heard several versions of the events, other than the physical injuries, which Mr Krnjeta claims contributed to his psychiatric condition. The witnesses who gave evidence as to these events who were called by Australia Post impressed me as honest witnesses who gave their evidence to the best of their recollection. Having said this however it is well known that the best recollections of witnesses to the same event can vary considerably. This is even more so after the passage of several years. In view of the conflicting evidence in these applications I cannot be satisfied that the subject events took place other than as described by the witnesses called by Australia Post.
Notwithstanding my finding set out in the preceding paragraph, I must take into account Mr Krnjeta's perception of the incidents of which he complains. Based on the evidence of Dr Greenberg I am satisfied that Mr Krnjeta now perceives the effect of these incidents to be far greater than he regarded them at the time they occurred. I am satisfied that this is a result of the psychiatric condition from which he now suffers. I am satisfied that at the times the events happened Mr Krnjeta did not regard them as damaging as he now regards them. When he attended the Western General Hospital at about the times of some of these events he did not complain about work-place incidents, but about other distressing events in which he was involved, particularly the difficulties arising from the acrimonious separation from his wife.
In his report dated 18 September 2002 Dr Tan stated:
He was suffering from severe stress, anxiety and depression due to family stress, which is affecting his work, health and daily activities. He has been a good father and needs to see his children regularly to maintain his health.
I am satisfied that the severe stress arising from family issues continued, at least until 2006.
Mr Krnjeta claims that he had not suffered from any medical condition prior to his commencing employment by Australia Post. I do not accept this evidence. Based on the notes of Dr Tan, I am satisfied that, as early as 1996, Mr Krnjeta was diagnosed by Dr Tan as suffering from anxiety and depression.

Mr Krnjeta's claim is supported by Dr Tan, who is of the opinion that he continues to suffer anxiety and depression emanating from his having been bullied/harassed at work, and having sustained chronic physical injuries at work. Mr Lezon, his treating psychologist, also expressed the opinion that instances of harassment at work had “significantly” contributed to his pain and suffering. In weighing up this evidence, I note that the extent to which a particular event has contributed to an ailment is a question to be decided by the Tribunal. The fact that a health professional expresses such an opinion does not determine that the requirements of the Act have been met.
I take into account also that Dr Castle, Mr Ferrow, Professor Paoletti and Mr Mackinnon support the opinions of Dr Tan and Mr Lezon.
However the histories taken by each of Dr Castle, Mr Lezon, Professor Paoletti and Mr Mackinnon when they formed their respective opinions had significant gaps. For this reason I do not accord their opinions the weight I would otherwise have given to them.
Having carefully considered all of the evidence, I prefer the opinion of Dr Greenberg to those of the practitioners to whom I have just referred. In doing so I have taken into account that her view is contrary to Mr Krnjeta's treating practitioners, and that commonly the views of treating practitioners are afforded considerable weight. This is on the basis that usually they have had greater opportunities to assess the employee over time.
Dr Greenberg gave evidence. I was impressed by the detailed consideration she gave to the material provided to her as well as her own assessment of Mr Krnjeta. I was impressed also by her considered responses to the questions asked of her and the apparently balanced approach to the consideration of all of the evidence. Dr Greenberg concluded that:
I think it is highly likely that Mr Krnjeta's disappointment with life in Australia and his personal, social and marital problems are the most significant causes of his current state.[84]
And in her report of 18 September 2013:
Based on my interview with Mr Krnjeta and my consideration of the reports and documents provided, however, I think that workplace injuries and perceived harassment were at most minimally contributory, compared to non-work related disappointments. The alleged harassment as detailed or describe sounds relatively benign compared to the personal, financial, and legal disasters that have befallen Mr Krnjeta.[85]
[84] Exhibit RR15 p.9.
[85] Exhibit RR16 p.2.
conclusion in respect of claim for mental disorder
I am satisfied that Mr Krnjeta's work-related physical injuries, and the other incidents which occurred at work and which he found upsetting, made some contribution to his mental condition. However, I am not satisfied on the balance of probabilities that the combined effect of these incidents and conditions, or any one or more of them individually, contributed to a significant degree to the mental condition, or conditions, from which he suffers.
It follows that I am not satisfied that the condition claimed by Mr Krnjeta is a disease within the meaning of the Act. In these circumstances the remaining issues do not require determination.
PART 8: DECISIONS
APPLICATION NO. 2008/3445 – CLAIM FOR INJURY TO RIGHT HAND/ELBOW
The decision of Australia Post made on 13 November 2007 denying liability to compensate Mr Krnjeta in respect of a claimed injury to his right hand (inside elbow), will be affirmed.
APPLICATION NO. 2008/3449 – CLAIM FOR INCAPACITY PAYMENTS IN RESPECT OF THE LEFT elbow
The decision of Australia Post made on 27 May 2008 denying liability to compensate Mr Krnjeta for incapacity to work claimed to be a result of the accepted injury to his left elbow, will be affirmed.
Application no. 2008/3446 – claim for musculoskeletal injury of the lower back
The decision of Australia Post made on 26 May 2008, denying liability to compensate Mr Krnjeta in respect of a claimed injury to his lower back, will be set aside.
In substitution for the decision set aside it will be decided that:
(1)Australia Post is liable to compensate Mr Krnjeta in respect of an injury to his lower back (being an aggravation of a pre-existing condition) which occurred on 10 February 2008;
(2)the effects of this injury ceased no later than six weeks after the date of the injury.
application no. 2009/1500 & application no. 2012/4510 – claims for mental/psychological disorder
In application no. 2009/1500 the decision of Australia Post made on 19 March 2009 denying liability to compensate Mr Krnjeta in respect of a claimed injury being a mental/psychological disorder, will be affirmed.
In application no. 2012/4510 the decision of Australia Post made on 6 September 2012 denying liability to compensate Mr Krnjeta in respect of a claimed injury being a mental/psychological disorder, will be affirmed.

I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
...........[SGD].............................................................
Associate
Dated 5 January 2016

Dates of hearing 3, 4, 5 and 6 March 2014; 18, 19, 20, 21 and 22 May 2015

Applicant In person

Counsel for the Respondent Ms A McMahon

Solicitors for the Respondent Sparke Helmore, Melbourne

[2015] AATA 802

5 January 2016

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Remedies

Appeal

Duty of Care

Division	GENERAL DIVISION
File Numbers	No. 2008/3445 No. 2008/3446 No. 2008/3449 No. 2009/1500 No. 2012/4510
Re	Dragan Krnjeta
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Tribunal	Deputy President J W Constance
Date	5 January 2016 (this decision is in substitution to the document issued 15 October 2015)
Place	Melbourne

Dates of hearing	3, 4, 5 and 6 March 2014; 18, 19, 20, 21 and 22 May 2015
Applicant	In person
Counsel for the Respondent	Ms A McMahon
Solicitors for the Respondent	Sparke Helmore, Melbourne