Moran and Inco Ships Pty Ltd (Compensation)
[2022] AATA 36
•14 January 2022
Moran and Inco Ships Pty Ltd (Compensation) [2022] AATA 36 (14 January 2022)
Division:GENERAL DIVISION
File Number(s): 2020/5274
Re:Jamie Moran
APPLICANT
AndInco Ships Pty Ltd
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:14 January 2022
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the correct or preferable decision is to affirm the decision under review, that being the reconsideration determination of the Respondent dated 7 August 2020, by which it affirmed its determination dated 23 June 2020, declining the compensation claim of the Applicant for psychological/psychiatric injury.
............................[SGD]............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
COMPENSATION – seafarers compensation – alleged psychiatric/psychological injury – whether applicant had a pre-existing psychological condition – whether the alleged injury arose out of or in the course of employment – whether the employment contributed to the condition to a material degree – where medical certification to work as a seafarer had expired – where applicant required to obtain new medical certification – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Navigation Act 2012 (Cth)
Seafarers' Rehabilitation and Compensation Act 1992 (Cth), ss 3, 26
CASES
Australian Industry Development Corporation v Boyd (1990) 95 ALR 149
Comcare v Sahu-Khan (2007) FCA 15
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Re Jones v Comcare [2013] AATA 334
Re Pedersen and Comcare [2016] AATA 449
SECONDARY MATERIALS
Maritime Order 76 (Health – medical fitness) 2017
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
14 January 2022
NATURE OF APPLICATION
The Applicant lodged a claim for compensation on 19 February 2020 pursuant to the Seafarers' Rehabilitation and Compensation Act 1992 (the Act) for psychological/psychiatric injuries allegedly arising as a result of the Respondent refusing to provide him with work following him being declared fit for pre-injury duties, on 5 December 2019, after a back injury.
On 23 June 2020, following the issuing of extensions by Seacare, the Respondent issued a determination to decline the compensation claim for psychological/psychiatric injuries.
On 30 June 2020, the Applicant requested a reconsideration of the determination dated 23 June 2020.
On 7 August 2020, the Respondent issued a reconsideration determination affirming its determination, dated 23 June 2020, to decline liability for alleged psychological/psychiatric injuries (the reviewable decision).
On 7 August 2020, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) in Sydney for review of the Respondent’s reconsideration determination dated 7 August 2020.
BACKGROUND
On 19 July 2017, Mr Carmody, a mental health professional, reported that the Applicant had severe stress, severe anxiety and mild depression and alcohol use.
On 8 November 2019, the Applicant lodged a workers’ compensation claim against the Respondent for a lower back injury incurred on 28 October 2019 when tightening nuts and bolts on a manifold.
On 11 July 2018, Mr Carmody, reported that the Applicant had poor impulse control, an alcohol use issue and symptoms of personality disorder and verbal and physical violence at home.
On 10 December 2018, Mr Carmody reported that the Applicant had an acute or chronic adjustment disorder that emanates from an abusive relationship with his partner that had been managed very poorly with subsequent problems for his son and the possibility of alcohol use disorder and anger management issues exacerbated by an AVO restricting contact with his wife and son.
On 16 April 2019, Mr Carmody reported that the Applicant was coming to terms with his marriage separation but under-reported his consumption of alcohol, had major difficulties self-regulating his behaviour, had distorted thinking and had many prerequisites for a personality disorder.
On 5 December 2019, Dr Huynh, a general practitioner, issued a medical certificate to the Applicant stating that he had suffered a lumbar back strain on 28 October 2019 and was now fit for pre-injury duties.
The Respondent arranged for the Applicant to undergo an Australian Maritime Safety Authority (AMSA) medical examination to enable the Applicant to return to work on a vessel operated by the Respondent. It is a requirement of an integrated rating signed onto a vessel to maintain a valid medical certification.
On 5 December 2019, the Applicant underwent an AMSA medical examination by Dr Huynh but the AMSA certification was delayed due to non-work related medical issues of the Applicant.
The Respondent attempted to contact the Applicant on several occasions to confirm that the Applicant was required to provide further information, based on his pre-existing health, to the AMSA reviewing doctor before a valid AMSA certificate could be issued.
On 18 December 2019, Mr Carmody wrote to Dr Huynh, stating that the Applicant was currently suffering an adjustment issue relating to his marriage.
On 23 December 2019, Dr Ramrakha, a general practitioner, issued a medical certificate stating that the Applicant was seeing a psychologist for assistance during a stressful period.
On 20 January 2020, Dr Eric Lim, a general practitioner, certified the Applicant unfit for work due to an adjustment disorder as a result of the Respondent refusing to give him work after being cleared fit for pre-injury duties after his back injury.
On 24 January 2020, Dr Huynh reported that he had found the Applicant fit for pre-injury duties with regard to his lumbar back strain. However, Dr Huynh noted that the AMSA medical assessment was separate to the injury management case for the lumbar back strain, and due to confidentiality reasons he could not disclose why the Applicant had not been found fit for work as a result of the AMSA assessment.
On 12 February 2020, Dr Mo, a general practitioner, issued a medical certificate that the Applicant was unfit for duty due to an adjustment disorder suffered on 28 October 2019.
On 19 February 2020, Dr Tso, a general practitioner, issued a medical certificate that the Applicant was unfit for duty due to an adjustment disorder suffered on 5 December 2019.
On 25 February 2020, Dr Calvache-Rubio, a general practitioner, issued a medical certificate that the Applicant was unfit for duty due to an adjustment disorder suffered on 5 December 2019.
On 25 February 2020, the Respondent issued a section 67 request to the Applicant for more information.
The Respondent obtained extensions of time from Seacare for the issuing of a determination, in order to request clinical records from the doctors referred to in the section 67 request and to allow more time to obtain the documents.
On 23 June 2020, the Respondent issued a determination to decline the compensation claim for psychological/psychiatric injuries on the basis that:
(a)There was no evidence that the Applicant suffered a psychological/psychiatric injury as a result of his employment with the Respondent;
(b)If the Applicant did suffer a psychological/psychiatric injury, it was a result of pre-existing and long standing psychological/psychiatric conditions;
(c)The Applicant had not been refused work by the Respondent but instead failed to comply with various requests from the AMSA reviewing doctor and the Respondent to enable the AMSA medical examination to be finalised and a valid certificate issued, which is a requirement of his engagement as an Integrated Rating and an industry requirement to be signed onto vessels in this capacity.
On 30 June 2020, the Applicant requested a reconsideration of the determination dated 23 June 2020.
On 14 July 2020, the Respondent requested assistance from Comcare in reconsidering its determination.
On 7 August 2020, Comcare recommended that the determination, dated 23 June 2020, be affirmed on the basis that:
(a)it appeared that the injury was as a result of the actions of the Respondent not providing work, and not arising out of, or in the course of, employment in accordance with s 3 of the SRC Act; and
(b)the actions of the Respondent were as a result of complying with the Navigation Act 2012, which stipulates that a person is only qualified to perform seafarer duties if they possess the appropriate certification, which includes an AMSA certificate of medical fitness (Marine Order 73 (Ratings) 2014).
On 7 August 2020, the Respondent issued a reconsideration determination affirming its determination, dated 23 June 2020, to decline liability for alleged psychological/psychiatric injuries.
On 7 August 2020, the Applicant applied to the Tribunal for review of the Respondent’s reconsideration determination, dated 23 June 2020.
On 12 February 2021, Dr Roberts, a psychiatrist, reported on behalf of the Applicant that:
(a)at the time of the examination on 28 January 2021, he was not suffering a diagnosable psychiatric condition; and
(b)the Applicant was fit for pre-injury duties and did not require further treatment.
On 30 April 2021, Dr Samuell, a psychiatrist, reported on behalf of the Respondent that:
(a)the Applicant did not claim to have any psychological difficulty and was in fact mentally well and had not taken any medication for 3 months;
(b)there was no psychiatric diagnosis; and
(c)his mental health was completely normal, and he was fit for pre-injury duties.
LEGAL FRAMEWORK
Section 3 of the Act defines an “injury” as follows:
“injury” means:
(a) a disease; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
Section 26 of the Act relevantly provides in relation to compensation for injuries:
(1) If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.
(2) Compensation is not payable for an intentionally self-inflicted injury.
(3) Compensation is not payable for an injury that is not intentionally self-inflicted but is caused by the serious and wilful misconduct of the employee, unless the injury results in death, or serious and permanent impairment.
ISSUE
The issues to be determined by the Tribunal are:
(a)whether the Applicant had a pre-existing psychological condition; and
(b)whether the Applicant sustained a psychological/psychiatric injury arising out of, or in the course of, his employment with the Respondent pursuant to s 3 of the Act.
EVIDENCE
The Applicant
The Applicant affirmed his written statement of 12 January 2021.
The Applicant said that he had been employed by the Respondent since 2017.
The Applicant affirmed that he had been seeing Dr Lim and Dr St George. The Applicant said he was currently fit for work, and that during the period 5 December 2019 to 28 January 2021, he had not had any work and had been supported by Centrelink payments.
He said that he had been told by Kelly Lawrence, the Human Resources and Quality Assurance Manager of the Respondent, to attend Dr Huynh.
The Applicant said that around 9 December 2019, Dr Huynh told him that he needed further information in order to issue the AMSA certificate that the Applicant required to be able to recommence work on marine vessels. When questioned as to how he felt when Dr Huynh said that he could not issue the AMSA certificate immediately and needed further information, the Applicant said he felt very “frustrated, cranky and depressed”.
Dr Huynh sent letters to an ophthalmologist in order for the Applicant to get glasses, and also requested a report from Mr John Carmody, who the Applicant had been seeing in relation to his mental health issues.
The Applicant gave evidence that he got new glasses and hearing aids. The Applicant said that a week after seeing Dr Huynh, he still felt “cranky and frustrated”, and that he couldn’t wait to get back to work.
The Applicant also gave evidence that he knew he could only work on marine vessels if he had an AMSA certificate, which required certification by a doctor accredited by AMSA.
Under cross-examination, the Applicant agreed that he had been employed as a casual. He did not have a contract, but rather worked depending on the amount of work available. In March 2019, he had requested to reduce his hours, after which he worked on a relief roster and worked on vessels refuelling ships in Sydney Harbour. He agreed that from 27 May 2019 to late October 2019, he had worked only 20 days for the Respondent, as per the Respondent’s record of the Applicant’s service history which was produced to the Tribunal,[1] conceding “that could be right”. He had gone on another “swing” on 28 October 2019 in order to bring a ship back to Sydney.
[1] Exhibit R10, Attachment 4 (KL-4).
The Applicant agreed that he had injured his back during that period and that he had made a claim for which the Respondent accepted liability. Accordingly, he was paid for time off because of his back injury. He agreed that the Respondent had also assisted him with rehabilitation through its agent, MP Safety, so as to assist him to return to work. The Applicant agreed that he had seen the closure report from MP Safety. The date of review was 28 November 2019, and the Applicant agreed that he had also been told about the need for an AMSA review at the same time. He had asked for the AMSA review to be postponed, but did not remember going to an appointment with Dr Lim. The Applicant said that he saw Dr Huynh on 5 December 2019, and that he was certified fit for work, having recovered from his back injury. No follow up was required in respect of this injury.[2] However, Dr Huynh declined to issue the AMSA certificate at this time because the Applicant had a number of health issues including the need for glasses, and more particularly, because Dr Huynh needed further details about the treatment the Applicant had been receiving from Mr Carmody.
[2] Exhibit R10, Attachment 7 (KL-7), p 23-24.
On 9 December 2019, the Applicant agreed that MP Safety Management had closed their file in relation to rehabilitation and issued a report, sent to the Applicant, which said that it was the Applicant’s responsibility to provide the information required in order for his AMSA certification to be issued. The Applicant was also told on 10 December 2019 that the Respondent had work for him if he could provide his AMSA certification. He was asked by MP Safety on a number of occasions whether he had an AMSA certificate, but the Applicant did not respond.
The Applicant confirmed that he had spoken to Ms Lawrence on 17 December 2019, and that she had asked him to provide the information required to the AMSA doctor as soon as possible in order to avoid further delays to the process over Christmas.
On 18 December 2019, Mr Carmody said in his report that there was no impediment to the Applicant returning to work, and that he had diagnosed “adjustment issues”. Dr Huynh had called the Applicant on 20 December 2019 and explained that given Mr Carmody’s diagnosis, he needed a psychiatric review of the Applicant in order to issue the AMSA certificate. The Applicant said he was not happy about this because his psychological problems were not related to work, but rather were personal and that he had wanted to be “on-call” over Christmas. The Applicant had complained to Ms Lawrence after his conversation with Dr Huynh. The Applicant agreed that he was told by Ms Lawrence that it was his responsibility to get the AMSA certificate, as his personal issues were private and were not disclosed to the Respondent. He was told the AMSA issue was between him and AMSA, and quite separate to the Respondent.
The Applicant confirmed that his usual GP, Dr Ramrakha, had certified on 12 December 2019 that he had “no mental illness”. He said that he had gone to Dr Ramrakha instead of going to a psychiatrist as required. He said that on 23 December 2019, he asked Dr Ramrakha for a medical certificate that he could provide to Dr Huynh.
The Applicant’s attention was drawn to the Patient Health Summary of Sonic HealthPlus, which noted that Dr Huynh had tried to call the Applicant to let him know that he needed a letter from a psychiatrist and that the report from Dr Ramrakha was not sufficient. Dr Huynh stressed that he needed a report from a psychiatrist.
The Applicant gave evidence that he had seen five different psychologists and told them that he had psychiatric problems due to his employer not giving him any work when he was ready. He agreed that at the time he made those statements, he knew that he had to have an AMSA certificate.
When the Applicant saw Dr Roberts in an appointment organised by his solicitors, he said that Dr Huynh had failed to give him clearance and that Dr Huynh did not return his calls, despite the fact that he had spoken to Dr Huynh on 20 December 2019 and that Dr Huynh had said that he needed a report from a psychiatrist. Instead, the Applicant had gone to see Dr Ramrakha, a GP, as mentioned above.
The Applicant agreed that in January 2020, he had been told by Ms Lawrence that the AMSA certificate had not been issued, and that the Respondent could only give him work if he had an AMSA certificate. It was the Applicant’s responsibility to obtain the AMSA certificate.
Under questioning, the Applicant said that he was unsure whether he had received a letter from the Respondent dated 25 February 2020, seeking further details of his claim in relation to psychological injury. However, he recalled that he had told Ms Vergara, a psychologist at Workers’ Doctors, that the Respondent had not paid him compensation or backpay. He said that he had not recovered from his psychological injury by 12 January 2021 and that this was an impediment to him returning to work. The Applicant agreed that on 12 February 2021, Dr Roberts said in his report that he had recovered from his psychological injury. He also agreed that he told Dr Roberts that when he last saw Dr St George on 11 September 2020, he had wanted to return to work and felt that he was fit to do so, although he was still a “bit depressed” because he said that he had done everything he had been asked and was still unable to return to work.
The Applicant said that when he saw Dr Samuell, Dr Samuell had asked him how he felt at his worst and that he had told the doctor that he had been “frustrated” and “angry with Dr Huynh”.
Ms Kelly Lawrence
Ms Kelly Lawrence gave evidence that she was the Human Resources and Quality Assurance Manager employed by the Respondent. Ms Lawrence affirmed her statement of 6 September 2021. When questioned, Ms Lawrence gave evidence that the situation as outlined in paragraph 23 of her statement was still the position today. That is, that the Sydney vessel operation of the Respondent ceased due to COVID-19 and the ship remains inactive.
Ms Lawrence gave evidence that she had called Mr Moran back after he had called her regarding his AMSA certification, but her call was not returned.
She said that she had sent numerous emails and text messages to the Applicant in relation to his situation. The Tribunal was taken to a number of specific documents annexed to her statement.
Ms Lawrence confirmed that she had engaged MP Safety Management to manage the Applicant’s return to work following his 2019 back injury. MP Safety had retained Dr Huynh to manage the Applicant’s back injury. Ms Lawrence said Dr Huynh was an AMSA accredited doctor and the Respondent’s employees in Sydney would usually go to Dr Huynh, or sometimes go to another doctor in a different location.
On 5 December 2019, the Applicant attended Dr Huynh for two purposes. Firstly, to obtain a clearance to return to work following his back in injury, and secondly, to get a new AMSA certificate, which had expired on 4 December 2019.
When questioned as to whether the Respondent wanted to offer the Applicant further work, Ms Lawrence said that it was the Respondent’s usual practice for employees who had sustained an injury to have a medical examination prior to returning to work. She said it was just a coincidence that the Applicant’s AMSA certificate had also expired on 4 December 2019.
Ms Lawrence said that as of 6 December 2019, Dr Huynh was waiting for information from the Applicant’s GP in order to be able to complete the AMSA certificate. In this regard, she said that she spoke to the Applicant on a number of occasions to tell him that the doctor was still waiting for information, and that she made it clear that he needed to talk to his personal doctors regarding the information Dr Huynh still required.
Ms Lawrence said that she did not offer to assist the Applicant in relation to the AMSA certificate because the Applicant had been seeing his personal doctors in relation to this information, which was confidential to him.
Ms Lawrence also gave evidence that the Respondent’s Sydney vessel operation had been shut down in April 2020 because of COVID-19, and that there was no continual work available to the Applicant. Any work that was available was for short periods during which casuals were involved.
DISCUSSION
In essence, this case turns on whether there is a causal connection between the Applicant’s mental health disorder and his employment. At the hearing there was considerable agreement between the parties in relation to the history of this matter. Briefly, as set out above, the Applicant suffered a back injury on 28 October 2019 during the course of his employment, for which the Respondent accepted liability and paid appropriate compensation in accordance with the terms of the Act.
It was also agreed that the Applicant had a psychological condition during the period 20 January 2020 to 28 January 2021. In his report dated 12 February 2021, Dr Roberts clearly expressed the view that the Applicant was suffering from an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” in relation to his difficulty in obtaining recertification to enable him to work for the Respondent, although he no longer demonstrated features of a diagnosable psychiatric condition.[3] Dr Samuell was unable to satisfy himself that the Applicant actually suffered from the condition during the period in question, but accepted that he may have had the condition. Both doctors agreed that the Applicant did not suffer from any psychological illness as of 12 February 2021.
[3] Exhibit R5, p 10.
To be specific, on 12 February 2021, Dr Roberts reported as follows:
(a)at the time of the examination, on 28 January 2021, the Applicant was not suffering from a diagnosable psychiatric condition; and
(b)the Applicant was fit for pre-injury duties and did not require further treatment.
Dr Samuell reported on behalf of the Respondent on 30 April 2021:
(a)the Applicant did not claim to have any psychological difficulty and was in fact mentally well and had not taken any medication for 3 months;
(b)there was no psychiatric diagnosis; and
(c)his mental health was completely normal, and he was fit for pre-injury duties.
In his statement, confirmed in oral evidence at the hearing, the Applicant said that during the course of 2018 he had experienced relationship difficulties which led to a separation from his wife in May 2018. The Applicant also said that he had consulted his GP in January 2018, and that he had been referred to a psychologist, Mr John Carmody. He continued seeing Mr Carmody approximately every 4-5 weeks. On 18 December 2019, Mr Carmody said in his report to Dr Alan Huynh that the Applicant was suffering from an “adjustment issue” as a result of his marriage breakup, however, Mr Carmody did not think this would prevent the Applicant from returning to work. Mr Carmody’s report to Dr Huynh was in the context of the Applicant seeking to return to work following the resolution of his back injury.
As accepted by both parties, the Applicant was not able to return to work until he was in receipt of a current AMSA certificate. The Applicant had previously held an AMSA certificate which expired on 4 December 2019. He attended on Dr Huynh on 5 December 2019, who was an AMSA accredited doctor, in order to obtain the necessary medical clearance for a new AMSA certificate to be issued. The certification process was delayed due to non-work-related medical issues of the Applicant. His back problems were seen as having been resolved, and not requiring any further follow up.[4]
[4] Exhibit R10, Attachment 7 (KL-7), p 223-224.
When the Applicant saw Dr Huynh on 5 December 2019, Dr Huynh said that he could not issue the AMSA certificate because, firstly, the Applicant needed glasses, and secondly, he needed to review the Applicant’s treatment with Mr Carmody. Dr Huynh sent letters to the Applicant’s optometrist and to Mr Carmody, both of which were in evidence before the Tribunal.
On 9 December 2019, MP Safety Management, who were engaged by the Respondent to assist the Applicant with his return to work, closed his rehabilitation file and issued a report which was sent to the Applicant and which said it was the Applicant’s responsibility to provide all of the necessary information for him to be issued with the requisite AMSA certificate. Regardless of any other matter, the Applicant could not work in his former employment without an AMSA certificate, which required that he be mentally and physically fit.
It is worthwhile to set out the relevant provisions from the Maritime Order 76 (Health – medical fitness) 2017, which filed in evidence with the Tribunal[5]:
[5] Exhibit A7.
Division 2Requirements — medical fitness
7 Requirement to hold a certificate — seafarer
(1) A person may perform duties as a seafarer on a regulated Australian vessel only if:
(a) the person holds a certificate of medical fitness; and
(b) the certificate of medical fitness evidences that the person is medically fit for the particular duties performed. (emphasis added)
Penalty: 50 penalty units.
(2) The owner of a regulated Australian vessel must not take the vessel to sea if any seafarer on board does not hold a certificate of medical fitness evidencing that the seafarer is medically fit for the particular duties to be, or being, performed.
Penalty: 50 penalty units.
(3) An offence against subsection (1) or (2) is a strict liability offence.
(4) A person is liable to a civil penalty if the person contravenes subsection (1) or (2).
Civil penalty: 50 penalty units.
8 Requirement to hold a certificate of medical fitness — licensed pilot
(1) A person may perform duties as a licensed pilot only if:
(a) the person holds a certificate of medical fitness; and
(b) the certificate of medical fitness evidences that the person is medically fit for the particular duties performed.
Penalty: 50 penalty units.
(2) An offence against subsection (1) is a strict liability offence.
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 50 penalty units.
9 Aids to vision or hearing
(1) A seafarer or licensed pilot, whose certificate of medical fitness states that an aid to vision or an aid to hearing was used for the purpose of being found medically fit, must when performing duties on a vessel:
(a) use the aid; and
(b) if the aid is an aid to vision — have a spare aid to vision available; and
(c) if the aid is an aid to hearing — have spare batteries for the aid to hearing available.
Penalty: 50 penalty units.
(2) An offence against subsection (1) is a strict liability offence.
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 50 penalty units.
10 Evidence of being medically unfit
(1) A seafarer must not perform duties as a seafarer on a regulated Australian vessel if the seafarer has a change in medical condition that would make the seafarer unfit.
Penalty: 50 penalty units.
(2) A licensed pilot must not perform duties as a licensed pilot if the licensed pilot has a change in medical condition that would make the licensed pilot unfit.
Penalty: 50 penalty units.
(3) AMSA, the owner or master of a vessel may direct a seafarer to be assessed by a medical inspector for a replacement certificate of medical fitness if there is evidence that the seafarer has an injury or illness or has experienced a change in medical condition.
(4) AMSA or a pilotage provider may direct a licensed pilot to be assessed by a medical inspector for a replacement certificate of medical fitness if there is evidence that the licensed pilot has an injury or illness or has experienced a change in medical condition.
(5) An offence against subsection (1) or (2) is a strict liability offence.
(6) A person is liable to a civil penalty if the person contravenes subsection (1) or (2).
Civil penalty: 50 penalty units.
11 Certificates to be made available
A seafarer or licensed pilot who performs or proposes to perform duties on a vessel must make available for inspection at all reasonable times a copy of his or her certificate of medical fitness if asked by:
(a) the owner or master of the vessel; or
(b) an inspector.
Division 3Medical inspectors and assessments
12 Appointment of medical inspectors
(1) AMSA may appoint a person as a medical inspector.
(2) The person must be registered as a medical practitioner in a State or Territory of Australia.
13 Assessment by medical inspector
(1) A medical inspector may issue a certificate of medical fitness.
Note An approved form for a certificate of medical fitness that may be used by the medical inspector is available on AMSA’s website at (2) For the issue of a certificate of medical fitness, a medical inspector must:
(a) assess whether the person is medically fit to perform the duties of a seafarer or licensed pilot in accordance with the latest edition of the Standards for the Medical Examination of Seafarers and Coastal Pilots, published by AMSA; and
(b) complete a medical examination report in the approved form.
Note for paragraph (a) The AMSA publication Standards for the Medical Examination of Seafarers and Coastal Pilots is available on the AMSA website at for paragraph (b) An approved form for a medical examination report is available on AMSA’s website at Assessment by expert panel
(1) A person who has been assessed by a medical inspector as medically unfit, or medically fit for particular duties only, in consecutive assessments may arrange to be assessed by an expert panel consisting of:
(a) an occupational physician; and
(b) a specialist physician or surgeon; and
(c) a medical inspector.
Note The person may bring evidence of fitness for the intended duties, including medical reports from treating medical practitioners.
(2) The expert panel may issue a certificate of medical fitness.
(3) For the issue of a certificate of medical fitness, the expert panel must:
(a) assess whether the person is medically fit to perform the duties of a seafarer or licensed pilot in accordance with the latest edition of the Standards for the Medical Examination of Seafarers and Coastal Pilots, published by AMSA; and
(b) complete a medical examination report.
(4) The expert panel must be approved by AMSA.
(5) A person making arrangements to be assessed by an expert panel is responsible for the related costs.
15 Assessment by medical practitioner in an overseas country
(1) A medical practitioner in a country other than Australia may issue a certificate of medical fitness in accordance with subsection 13(2).
(2) For subsection (1), a medical practitioner must be a medical practitioner who:
(a) is in a country whose administration has an agreement with Australia for AMSA to recognise its certificates of competency; and
(b) has been appointed by the administration in accordance with regulation I/9.2 of the STCW Convention and section A-1/9.3 of the STCW Code.
Note A seafarer may hold a certificate of medical fitness issued by a medical practitioner in an overseas country for the purpose of renewal and revalidation of a seafarer certificate or certificate of recognition or for the issue of a restricted certificate of recognition — see Marine Order 54 (Coastal pilotage) 2014 and the seafarer certification series of Marine Orders 70, 71, 72, 73 and 74.
Division 4Duration of certificate of medical fitness
16 Duration of certificate of medical fitness
(1) A certificate of medical fitness mentioned in sections 13, 14 or 15 may be issued for:
(a) up to 2 years; and
(b) up to 1 year if at the date of assessment the person is:
(i) not more than 18 years old; or
(ii) at least 55 years old.
Note The certificate may be issued for a shorter period if a further examination is required to assess the continued efficacy of treatment for a condition.
(2) However, if a certificate of medical fitness expires during the course of a voyage, the duration of the certificate continues until the earlier of:
(a) the next port of destination where a medical inspector or medical practitioner is available to undertake assessment of the person; or
(b) the day that is 3 months after the expiry of the certificate.
(3) Also, a certificate of medical fitness expires if a further certificate of medical fitness is issued.
17 Revocation of certificate of medical fitness
(1) AMSA may revoke a certificate of medical fitness if:
(a) for a certificate for a seafarer — the person fails to comply with a direction under subsection 10(3); and
(b) for a certificate for a licensed pilot — the person fails to comply with a direction under subsection 10(4).
(2) AMSA may only revoke a certificate of medical fitness if the failure was not reasonable in the circumstances.
In particular, s 7(1) of the Order sets out that a person can only perform duties as a seafarer on a regulated Australian vessel if the person holds a medical certificate certifying that the person is medically fit to perform such duties. Relevantly, s 10(3) of the Order also vests the owner of a vessel with the power to direct a seafarer to obtain a replacement medical certification if they have experienced an injury, illness or change in medical condition. The effect of the Order is that the Respondent could only direct the Applicant to attend for medical examination and re-certification. The evidence suggests that this is what the Respondent did.
Between 10 December 2019 and 19 December 2019, the Respondent, through its Human Resources Manager Ms Lawrence, asked the Applicant whether he had an AMSA certification, but did not receive any response from the Applicant. The Applicant spoke to Ms Lawrence on 17 December 2019, when she asked him to provide information to the AMSA doctor as soon as possible in order to avoid delays over Christmas which would slow down his return to work.
On 20 December 2019, Dr Huynh called the Applicant and explained that given Mr Carmody’s diagnosis of an “adjustment disorder”, the Applicant required a review from a psychiatrist in order to be able to proceed with the AMSA certificate.
The Applicant said that he was not happy with this because in his opinion, he acquired his psychiatric problems not because of his work, but rather, due to issues of a personal nature. The Applicant also wanted to be on-call over Christmas. He complained to Ms Lawrence about the conversation with Dr Huynh but was told by Ms Lawrence that it was his responsibility to get the AMSA certificate. Ms Lawrence gave evidence which I accept, that the Respondent was not aware of any personal issues relating to the Applicant, and that in any case, such issues were not a matter for the Respondent. AMSA requirements were seen as quite separate.
The Applicant did not attend on a psychiatrist as requested by Dr Huynh, but instead, went to Dr Ramrakha, a GP, who issued a certificate on 12 December 2019 which said the Applicant had “no mental illness”.
On 9 January 2020, Dr Huynh tried to call the Applicant to tell him that he needed a letter from a psychiatrist, and that Dr Ramrakha’s report was not sufficient as he was not a psychiatrist. On 20 January 2020, the Applicant saw Dr Eric Lim at Parramatta at the suggestion of his Union. Dr Lim worked in a large practice with a number of general practitioners. The Applicant saw five different psychologists at the practice and told them that he had psychological problems because of his employer not allowing him to work when he was ready and able to do so.
During his consultation with Dr Roberts, to whom he was sent for assessment by his solicitors, the Applicant said that Dr Huynh had failed to give him a medical clearance, and that Dr Huynh had failed to return his calls. This was at odds with the evidence that he had in fact spoken to Dr Huynh on 20 December 2019, when Dr Huynh said that he needed a report from a psychiatrist in order to be issued the AMSA certificate.
The Applicant admitted under cross-examination, that he knew at the time that he had to have an AMSA certificate in order to return to work.
On 20 January 2020, Ms Lawrence told the Applicant that the AMSA certificate had not been issued, and that the Respondent could not give him work if he did not have the AMSA certificate.
When the Applicant saw Dr St George on 5 February 2020, he said that he felt depressed and that he had done “everything asked of him”. Dr St George prescribed medications and diagnosed him with “adjustment disorder with anxious and depressed mood”. To give further context to the Applicant’s consult with Dr St George, it did not appear to be for a purpose related to the AMSA certification.
When the Applicant saw Dr Samuell in April 2021 and was asked by Dr Samuell how he felt at his worst, the Applicant said he had been “frustrated, sad, confused and angry” with Dr Huynh.
It is clear from the evidence of both the Applicant and Ms Lawrence, that the Applicant could not return to work with the Respondent without the requisite AMSA certificate. In fact, the Applicant needed the AMSA certificate in order to work in the industry, regardless of who was the employer. It was the Applicant’s personal responsibility to obtain the certificate.
Quite properly, in my view, the Respondent’s only involvement was to remind the Applicant that he needed the AMSA certificate if he was to be given work with the Respondent. On the evidence, I find that the Applicant failed to provide a psychiatric report as requested by Dr Huynh, which was essential for him to certify his medical fitness as required for the issue of the AMSA certificate. The Applicant’s frustration and anger, directed towards either Dr Huynh or the Respondent, in this context, seems somewhat misplaced. Dr St George’s reports were provided to Dr Lim. There was no evidence they were ever provided to Dr Huynh and in any case, were unlikely to assist the Applicant.
On the basis of the evidence, and in particular, the medical evidence from Dr Roberts and Dr Samuell, I find that the Applicant had a psychological condition which was diagnosed by Mr Carmody as an adjustment disorder from 2017. It is likely that the symptoms of that disorder continued, as evidenced by the reports of Dr St George dated 5 February 2020, 17 July 2020, 20 July 2020 and 11 September 2020, but were ultimately resolved by February 2021. I note that the Applicant’s psychologist called him to arrange a date for his next appointment when he was with Dr Huynh for the purposes of the AMSA assessment on 5 December 2019.
I accept that the Applicant may have felt frustrated, angry and confused about the AMSA assessment and the requirement that he obtain a psychiatric report. However, it was the Applicant’s responsibility to obtain the AMSA certificate, and whether he failed to meet Dr Huynh’s requirement for a psychiatric review due to confusion or unwillingness to obtain such a report, the evidence from his treating psychologist was that any symptoms of psychiatric disorder suffered by the Applicant were not due to his employment, but “emanates from a history of an abusive relationship with his partner” as per the report of Mr Carmody dated 10 December 2018.[6]
[6] T-Documents, 114.
I accept the evidence of Ms Lawrence that the Respondent was willing to offer employment to the Applicant, but was unable to do so because of the requirements of the Navigation Act 2012, which necessitates that a person is only qualified to perform seafarer duties if they possess the appropriate certification, which includes an AMSA certificate of medical fitness.
The Applicant was certified as fit for work following his back injury. The Respondent was prepared to offer him work, but could not do so because of the Applicant’s failure to obtain the requisite AMSA certificate. In these circumstances, it is not possible to find that the Applicant’s mental illness arose in the course of his employment. He was not employed by the Respondent at the time he was seeking AMSA certification, and in fact, he had never been a full-time employee of the Respondent, but rather, at his own request, worked as a casual, with flexible rosters. The Respondent was willing to offer the Applicant work but could not do so without the required AMSA certification, which it was the Applicant’s responsibility to obtain. In fact, no potential employer could offer the Applicant work as a seafarer without an AMSA certification.
Further, if it were found that the Applicant’s psychiatric injury did arise in the course of his employment, it cannot be said to have been a factor that contributed to his condition to a ‘material degree’.
This conclusion is supported by relevant case law. In Comcare v Sahu-Khan[7], Finn J at [16] said as follows:
“what contribution to a material degree requires is an evaluation of all relevant contributing factors for the purposes of asking whether the employee’s employment did contribute to the suffering of the ailments. Whether this is so will be a question of fact…
something more than a mere contributing factor is required to satisfy a material degree”
[7] (2007) FCA 15.
Further, Windeyer J in Federal Broom Co Pty Ltd v Semlitch[8] stated as follows:
“when the Act refers to employment as a contributing factor, it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor, must in my opinion, be either some event or occurrence in the course of employment, or some characteristics of the work performed or conditions in which it was performed”
[8] (1964) 110 CLR 626.
The comments of Nevis J in Australian Industry Development Corporation v Boyd[9] at [60] are also informative. His Honour stated as follows:
“neither of the passages cited from the two cases mentioned, nor anything else said therein, supports the proposition that the employment of a worker is a contributing factor to the aggravation or acceleration of a disease if all that is established is that the worker was, while he or she was at the place of employment, informed that the contract of employment was to be terminated in accordance with its terms. Such an event cannot in my view, properly be described as an incident or state of affairs to which the worker was exposed in his duties, nor can it be described as a characteristic of the work performed or a condition in which the work was performed”
[9] (1990) 95 ALR 149.
There are also a number of decisions of this Tribunal which are relevant to the current case.
In Re Pedersen and Comcare,[10] the Applicant suffered an aggravation of PTSD where Comcare gave notice that her weekly incapacity payments and medical treatment expenses would no longer be paid. The Tribunal found there was clearly a separation of functions between Comcare and Centrelink, the Applicant’s employer. Actions taken by Comcare were clearly not those of her supervisors at Centrelink. In this case, an analogous degree of separation existed between the Respondent’s role as the Applicant’s casual employer, and the Applicant’s responsibility to provide evidence of AMSA certification in order to work as a seafarer.
[10] [2016] AATA 449.
Similarly, in Re Jones v Comcare,[11] an ATO employee claimed compensation for an adjustment disorder that arose out of an unsuccessful application to CommSuper for a partial invalidity pension. The Tribunal considered there to be an association between the employee’s application for that pension and her employment, given that she would not have been entitled to apply for the pension if she hadn’t been employed by the Commonwealth. However, ultimately the Tribunal found that any actions by CommSuper regarding the assessment of an employee’s entitlements had no connection with their employment with the Commonwealth under the SRC Act, since CommSuper managed the assessment of her application for the pension and engaged medical practitioners from an independent panel to assess the employee. The Tribunal held that the ATO was merely a participant in the process, providing guidance and advice to its employee, and it was not the responsibility of the ATO to progress the Applicant’s claim with CommSuper.
[11] [2013] AATA 334.
The case of Re Jones is clearly analogous to the current case, where the obligation of the Applicant to obtain a new AMSA certificate was quite separate from any obligation of the Respondent as his employer.
In the current case, the only involvement of the Respondent was to direct the Applicant to obtain a new AMSA certificate, as the Applicant’s previous AMSA certificate had expired. The Respondent could not engage the Applicant without the AMSA certificate. The Respondent’s role was limited to arranging the assessment and encouraging the Applicant to attend.
Overall, I find on the basis of the evidence that:
(a)the Applicant had a pre-existing psychological injury that existed prior to his employment with the Respondent;
(b)the Applicant’s psychological injury did not result from or arise in the course of his employment with the Respondent;
(c)to the extent the Applicant’s psychological injury was exacerbated by issues regarding the process of obtaining an AMSA certificate, it was not work-related, but rather, was due to the Applicant seeking to be re-engaged as a seafarer, which required him to obtain an AMSA certificate; and
(d)to the extent that obtaining an AMSA certificate could be characterised as a process within the course of employment, it did not contribute to the Applicant’s psychological condition to a material degree.
DECISION
The correct or preferable decision is to affirm the decision under review, that being the reconsideration determination of the Respondent dated 7 August 2020, by which it affirmed its determination dated 23 June 2020, declining the compensation claim of the Applicant for psychological/psychiatric injury.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
.............................[SGD]...........................................
Associate
Dated: 14 January 2022
Date of hearing: 20 October 2021 Counsel for the Applicant: A Coombes, Second Floor Wentworth Chambers Solicitors for the Applicant: D Hill, McNally Jones Staff Lawyers Counsel for the Respondent: B Kelly, 4th Floor Wentworth Chambers Solicitors for the Respondent: N Sanderson, Sparke Helmore Lawyers
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