Lawson and Stateships
[2012] AATA 32
•20 January 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 32
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0755
GENERAL ADMINISTRATIVE DIVISION ) Re BARRY LAWSON Applicant
And
STATESHIPS
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member
Dr A Frazer, MemberDate20 January 2012
PlacePerth
Decision The Tribunal:
1. Dismisses the application under s42B(1)(a)of the Administrative Appeals Tribunal Act 1975; and
2. Orders that pursuant to s42B(1)(b) of the Administrative Appeals Act 1975 the applicant not make any application to the Tribunal seeking compensation arising from or in connection with his employment by the respondent in respect of any claimed mental injury, or aggravation of a mental injury without first obtaining the leave of the Tribunal.
...(sgd) Mr A Sweidan..........
Senior Member
CATCHWORDS
Workers Compensation - claimed aggravation of previously diagnosed mental condition - application dismissed under s42B(1)(a) of the AAT Act
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 42B
Seafarers, Rehabilitation and Compensation Act 1992CASES
Barry Lawson and Stateships [2009] AATA 871
Re Filsell and Comcare (2009) 109 ALD 198
REASONS FOR DECISION
20 January 2012 Mr A Sweidan, Senior Member
Dr A Frazer, MemberBackground and History
1.On 3 November 2010 the applicant claimed worker’s compensation pursuant to the Seafarers, Rehabilitation and Compensation Act 1992 (Cth) (“the Act”): T5 p 19-23.
2.The applicant claimed that he was injured on 25 March 2010. The time of the injury was to be stated “on going”.
3.The applicant stated that he did not report the injury or illness to his employer.
4.The applicant stated that he was on compensation leave and described his injury as mental aggravation.
5.The actions that contributed to his injury were said to be unconscionable, unfair and unreasonable conduct of his employer.
6.The applicant described the events that lead to his injury as his employer refusing to:
(a)pay, pay in lieu of long service leave (sic);
(b)refusal to pay for home care services as agreed at the AAT;
(c)supplying misleading and incorrect information to Comcare to justify decision not to reimburse the cost of personal trainer (sic).
7.In his application the applicant stated that his injury first happened in June 2006. He described the injury as psychiatric disorder and anxiety adjustment disorder. He did not provide any details of the alleged original injury said to be aggravated.
Application to the Tribunal
8.In his application for review to the Tribunal dated 2 March 2011 the applicant described the decision he wanted reviewed as “deemed refusal to compensation for aggravation of my previously diagnosed mental condition, anxiety and adjustment disorder” (sic).
9.In his reasons for the application the applicant stated “my employer’s unconscionable, unfair and unreasonable behaviour has led to an aggravation to my previously diagnosed anxiety and adjustment disorder. I have been denied nature justice and procedural fairness”. No further details were provided. In particular, no details of the alleged previously diagnosed anxiety and adjustment disorder were provided.
10.By fax dated 3 March 2011, sent to the Tribunal on 4 March 2011, the applicant referred to 24 documents in support of his application. The first 20 documents referred to are supplementary “T” documents 54 at pages 124-146 and were submitted as part of the applicant’s claim for long service leave in AAT application 2011/0509. That application was dismissed by the Tribunal for want of jurisdiction on 18 February 2011.
11.By his reply to the respondent’s statement of issues, facts and contentions the applicant repeated that his claim was for mental aggravation, anxiety and adjustment disorder arising from “my employer’s unconscionable, unfair and unreasonable behaviour, in dealing with my worker’s compensation claim”. Under the heading “issues” the applicant referred to a letter from Dr Knight of 13 June 2011 plus (unspecified) progress medical certificates; stated that an aggravation of an injury constituted an injury under the Act and that he was not seeking monetary compensation. He stated that “I am seeking a cessation to Stateships’ harassment and the requirement that I apply to the AAT for every entitlement and, most importantly, their assistance in my rehabilitation and recovery to good health”.
Tribunal’s Findings
12.The Applicant is a 65 year old former seafarer, date of birth 2 August 1945.
13.The Applicant is in receipt of compensation in respect of an alleged injury on the Respondent’s vessel, the “MV Roberta Jull” on or about 27 July 1991, made pursuant to the Seafarers Rehabilitation and Compensation Act (1992)(Cth) (“SRCA”). Ongoing incapacity payments ceased upon the Applicant’s retirement on 2 August 2010.
14.On 3 November 2010 the Applicant claimed workers compensation for a mental aggravation of his June 2006 anxiety adjustment disorder. The date of alleged mental aggravation is 25 March 2010. The aggravation is said to arise as a result of the alleged denial and delay of various workers compensation benefits such as long service leave, home help and personal training benefits (“mental aggravation claim”) [T5].
15.Medical expenses, a rehabilitation program and household and attendant care services are the heads of workers compensation claimed [T5].
16.On 2 March 2011 the Applicant lodged an application for review of decision with the Administrative Appeals Tribunal in response to the Respondent’s deemed refusal of the mental aggravation claim.
17.The case history is set out in the Section 37 Statement dated 3 May 2011.
18.The Applicant seeks compensation for an alleged aggravation of his non-compensable June 2006 anxiety adjustment disorder. This disorder was held to be non-compensable in Tribunal proceedings number 2007/1541 before Deputy President R D Nicholson by decision dated 11 November 2009 (“previous decision”) [T2].
19.As noted by the Tribunal at paragraph 43 of its previous decision in the matter, psychiatrist Dr McCarthy did not consider that the Applicant’s future psychiatric condition would be at all affected by his workplace injury [T2 pg 14].
20.The Tribunal notes that the applicant has not identified the original asserted mental injury that is said to have occurred in June 2006.
21.The Tribunal finds that there is no acceptable medical evidence put forward by the applicant in relation to the original mental injury or the asserted aggravation of that injury.
22.It is clear that in order for an aggravation of a mental injury to be a compensable injury under the Act the applicant must first establish that the original mental injury was contributed to in a material degree by the employee’s employment: Barry Lawson and Stateships [2009] AATA 871 at [24], [44]. The applicant has not identified the original injury, much less provided any evidence that the original mental injury was materially contributed to by the applicant’s employment.
23.If (as appears to be the case) the applicant is relying on his claimed adjustment disorder that was the subject of the decision of the Tribunal referred to in the preceding paragraph (the applicant stating in both his reply to the respondent’s supplementary T documents and his reply to the respondent’s statement of facts, issues and contentions that it was true that he did not appeal that decision but that he did not do so because he believed it would be detrimental to his mental state) it is clear that that decision does not in any way assist the applicant. The decision of the Tribunal in that case was that the applicant’s adjustment disorder was not materially contributed to by the applicant’s employment and that there were no features of the applicant’s employment that contributed to his claimed injury in that case.
24.If (contrary to what appears to be his case) the applicant is not relying on his claimed disorder in that case, there is no evidence of any other relevant original injury in the course of employment before the Tribunal.
25.Even if the applicant could establish an original injury in the course of the applicant’s employment (and it seems clear that he cannot), it would be necessary for the applicant to establish his claimed mental aggravation, and that the aggravation was contributed to in a material degree by the applicant’s employment with the respondent.
26.There is no evidence whatsoever supporting either the applicant’s asserted mental aggravation, or that it was contributed to in a material degree by the applicant’s employment with the respondent.
27.The Tribunal is of the view that the application is frivolous and vexatious within the meaning of s42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act), and that it has no reasonable prospects of success: see Re Filsell and Comcare (2009) 109 ALD 198.
28.In its terms s42B(1) of the AAT Act provides that the Tribunal may at any stage of the proceedings if it is satisfied that an application is frivolous and vexatious dismiss the application, and further provides that if the Tribunal considers it appropriate it may on the application of a party to the proceedings direct that the applicant must not without leave of the Tribunal make a subsequent application to the Tribunal of a kind or kinds specified in the decision.
29.The respondent seeks an order that the application be dismissed pursuant to s42B(1)(a) of the AAT Act. It also seeks an order pursuant to s42B(1)(b) of the AAT Act that the applicant not make any application to the Tribunal seeking compensation arising from or in connection with his employment by the respondent in respect of any claimed mental injury, or aggravation of a mental injury without first obtaining the leave of the Tribunal.
Decision
30.The Tribunal:
1. Dismisses the application under s42B(1)(a)of the Administrative Appeals Tribunal Act 1975; and
2. Orders that pursuant to s42B(1)(b) of the Administrative Appeals Act 1975 the applicant not make any application to the Tribunal seeking compensation arising from or in connection with his employment by the respondent in respect of any claimed mental injury, or aggravation of a mental injury without first obtaining the leave of the Tribunal.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member and Dr A Frazer, Member
Signed:..(sgd) T Freeman...................
AssociateDate/s of Hearing 16 December 2011
Date of Decision 20 January 2012
Representative for the Applicant Self-represented
Counsel for the Respondent Mr L Tsaknis
Solicitor for the Respondent Cocks Macnish