Riccardo Vittiglia and John Holland Pty Ltd
[2013] AATA 493
[2013] AATA 493
Division General Administrative Division File Number
2012/4894
Re
Riccardo Vittiglia
APPLICANT
And
John Holland Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 12 July 2013 Place Perth The decision under review is affirmed.
.......................[sgd].................................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – employee of licensed corporation – applicant suffered compensable mental injury in March 2011 – respondent liable to pay compensation to applicant for incapacity for work to 26 June 2012 – applicant did not provide workers' compensation medical certificate from 27 June 2012 – applicant not incapacitated for work as result of injury from 27 June 2012 – applicant able to earn in suitable employment – respondent not liable to pay compensation to applicant for incapacity for work from 26 June 2012 – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 5, s 8, s 14, s 19 and s 54
REASONS FOR DECISION
Deputy President S D Hotop
12 July 2013
Introduction
Riccardo Vittiglia (“the applicant”), who is presently 48 years of age, was employed by John Holland Pty Ltd (“the respondent”) as a “Trades Assistant” from 8 December 2010 to 25 November 2011.
On or about 20 May 2011 the applicant lodged with the respondent a form of claim for compensation, signed by him and dated 19 April 2011, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of a mental condition which he claimed was related to an incident which occurred at his workplace on 29 March 2011. The applicant had earlier provided to the respondent a “Workers’ Compensation FIRST Medical Certificate”, issued by Dr Iryna Oleshko on 31 March 2011, which (inter alia):
·referred to the applicant’s account of having been “threatened and verbally assaulted” by a senior colleague at work on 29 March 2011;
·described the applicant’s presentation as “severely distressed, extremely anxious and depressed”; and
·certified that the applicant was totally unfit for work from 29 March 2011 to 5 April 2011.
The applicant subsequently provided to the respondent various “Workers’ Compensation PROGRESS Medical Certificates”, issued by Dr Oleshko, regarding his incapacity for work in specified periods.
On 13 April 2012 the Tribunal made a decision under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) as follows:
“ … pursuant to s 14(1) and Part VIII of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the respondent is liable to pay compensation, in accordance with that Act, to the applicant in respect of a mental injury, namely, aggravation of depressive/anxiety condition, suffered by him on 29 March 2011” (see Re Vittiglia and John Holland Pty Ltd [2012] AATA 212).
The respondent subsequently made determinations under s 19 of the SRC Act that it was liable to pay compensation to the applicant in accordance with that section for incapacity for work, resulting from the abovementioned mental injury, from 29 March 2011 to 25 June 2012.
By letter dated 28 August 2012 an officer of the respondent informed the applicant that, on the basis of the medical information provided by him, it could not be determined that the respondent was liable to pay compensation to the applicant for incapacity for work from 26 June 2012.
By letter dated 24 October 2012 an officer of the respondent informed the applicant that she had made a “reviewable decision” under s 62 of the SRC Act in the following terms:
“ In accordance with the provisions of the SRC Act, I have decided to vary the determination dated 28 August 2012 to the extent that I have found that:
You are not entitled to compensation for incapacity under section 19(3) of the SRC Act in respect of the injury during the period from 27 June 2012 to the date of this decision and as at the date of this decision.”
On 30 October 2012 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable decision.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T24, pp 1–280) lodged by the respondent in accordance with s 37 of the AAT Act;
·Exhibits A1–A4 tendered by the applicant;
·Exhibits R1 and R2 tendered by the respondent; and
·the oral evidence of the applicant and of Dr Iryna Oleshko.
The Applicant’s Evidence
The applicant confirmed that he had signed a witness statement, dated 1 May 2013, for the purpose of this proceeding and that its contents are true and correct.
The applicant’s witness statement is as follows:
“ …
2. I received an Achievement Certificate at Bunbury Senior High School.
3. My qualifications are as follows:
3.1 Certificate 2 in Process Plant Operations;
3.2 Certificate 3 in Process Plant Operations;
3.3 Process Control for Plant Operators;
3.4 Confined Space Entry;
3.5 Conduct Skid Steer Loader Operations BCCPO3008B (2005);
3.6 Construction White Card (2010);
3.7 Operate Overhead Crane MNMG236A (2005);
3.8 Operate from Elevated Work Platforms MNCG1049A (2005);
3.9 Trade Skills Training for Pendant Operated Overhead Crane (2004);
3.10 OHS Certification Australia for Class WP, LF (2006);
3.11 Forklift Operator Capacity 10T (2003);
3.12 Zero Incident Process Training;
3.13 Step Star Observer and Coach at Worsley Alumina;
3.14 WASP Observer for John Holland Group;
3.15 Western Power Induction to enable site entry and onsite work (2004);
3.16Woodside Induction to enable site entry and onsite work and gas turbine maintenance for individual onsite work (2004);
3.17Marcsta qualified (2004);
3.18Fatigue Management;
3.19Yellow Belt Business Excellence Six Sigma – Training in problem solving techniques;
3.20Western Australia Police and CIB training concerning armed holdup situations; How to determine threatening situations;
3.21Security Officer’s Licence (15 years +);
3.22Firearm training.
4.A brief summary of my work history and experience is as follows:
4.1June 2012 to September 2012
Protector Fire Services, Bunbury WA
Position: Fire Portables Technician
4.2January 2012 to May 2012
Dynea Australia, Dardanup WA
Position: Relief Operator and Assistant
4.3November 2010 to November 2011
John Holland Group, Worsley Efficiency and Growth Project
Position: Trades Assistant
4.4November 2005 to September 2010
BHP Billiton Worsley Alumina Pty Ltd, Collie WA
Position: Process Plant Operator
4.5May 2003 to October 2005
TGE Energy Services, Bunbury WA
Position: Trade Assistant
4.6October 2001 to May 2003
Leschenault Security Services and Mayne Logistics – Armaguard, Bunbury WA
Position: Armed Guard
4.7February 1991 to September 2001
Mayne Logistics – Armaguard, Bunbury WA
Position: Armed Guard
4.8August 1998 to February 2001
Rose Hotel Bottle Shop, Bunbury WA
Position: Additional part-time employment as Bottle Shop Attendant/Customer Service
4.9August 1989 to January 1991
Nightguard Security, Bunbury WA
Position: Security Guard
4.10August 1988 (whilst travelling around Australia)
TNT Security – Strategic Response Group for the World Expo, Brisbane
Position: Security Guard
4.11May 1985 to August 1987
Karridale Liquor and General Store, Karridale
Position: Assistant Manager.
5.I commenced my employment with John Holland Group in November [sic] 2010.
6.My duties and responsibilities as a Trades Assistant with John Holland Group involved both assisting trades and duties in the store.
7.I would ensure the equipment and work area was safe both for trades and myself to conduct the work task.
8.Other duties included spotting for work groups, working from EWP and also traffic management.
9.Working in the stores I had to keep check of all outgoing and incoming equipment, record all their movements and conduct safety checks on all the equipment as they were being returned.
10.I am also a member of WASP (Worker Applied Safety Process) which involved doing safety observations on work groups on site.
11.I received a letter dated 14 November from John Holland Group advising me that due to operational reasons, my role as Trades Assistant at the Worsley Efficiency & Growth Project was no longer required, and that they were unable to redeploy me.
12.Consequently, I would be made redundant from my position at John Holland Group and my employment would terminate with effect at close of business 28 November 2011.
13.I was certified as totally unfit for work from 29 March 2011 to 16 February 2012.
14.I joined South West Personnel on or about 9 January 2012.
15.South West Personnel is an employment agency which provides both permanent and temporary placements.
16.South West Personnel placed me with Dynea Australia at Dardanup, WA, as a Relief Operator and Assistant on a temporary basis between January 2012 to May 2012.
17.Although Dr Oleshko certified me as unfit until 16 February 2012, I accepted this position in the hope that I would be able to cope and also because of my financial obligations.
18.My duties and responsibilities as a Relief Operator and Assistant involved the production of mining coagulant HX 200, HX 300, HX 600 and also Methoxide and the pesticide Determite, all of which include control room operation.
19.My other duties included dispatch and inwards if [sic] goods, computer data entry, general contracting, yard work and also trade assisting onsite trade personnel.
20.As a result of my applying directly, I gained employment with Protector Fire Services at Bunbury WA as a Fire Portables Technician.
21.This employment was for the period between June 2012 to September 2012 when I resigned, as I was not coping.
22.My duties as a Fire Portables Technician involved checking, maintaining, servicing and fitting of all fire safety devices to Australian standards throughout the South West and regional areas, and the reconditioning of fire extinguishers including pressure testing and refilling to Australian standards.
23.In my role I also carried out all the relevant administrative duties.
24.Further, since May 2012 I have applied continuously for jobs, with no success, and I list them below:
Company
Position
Date Applied For
Gold Security Group
Security Guard
May 2012
Hanson Cement Group Agitator Driver May 2012 Hanson Cement Group Concrete Batch Plant Operator May 2012 Iluka Resources Shift Process Operator May 2012 Protector Fire Fire Equipment Technician May 2012 Rio Tinto Trainee Controller May 2012 BHP Billiton Refinery Process Operator Traineeship May 2012 Alcoa Process Operator Traineeship May 2012 Coogee Chemicals Shift Operator June 2012 Department of Fisheries Fisheries and Marine Officer July 2012 Bond Personnel Plant Controller July 2012 DHL Supply Chain Delivery Service Officer July 2012 Kinetic Health Medical Screener August 2012 Skill Hire WA Consultant, Group Training And Labour Hire August 2012 AGC Materials Controller September 2012 Cleanaway Driver September 2012 SEEK Services Driver Multi Systems Operator Waste Management Company September 2012 Water Corporation Trainee Water Industry Operator September 2012 Dardanup Shire Shire Ranger or Trainee Ranger September 2012 Australia Post Motorcycle Postee [sic] November 2012 QR National Trainee Locomotive Driver November 2012 BHP Billiton Operator Refining Process November 2012 Chevron Production Operator January 2013 Q7 ATM Group ATM Technician February 2013 Momentive Specialty Chemicals Process Technician February 2013 Workforce International Storeman February 2013 Cleanaway Driver March 2013 25.Unfortunately, as stated above, I have been unsuccessful in these applications for employment.
26. Further, I registered with the following agencies in the hope of a placement:
27.1 [sic] South West Personnel;
27.2 [sic] Skilled;
27.3 [sic] SEEK;
27.4 [sic] AQIS.
27.I received a letter from John Holland Group dated 2 May 2011 referring me to WorkFocus Australia for Early Intervention for a rehabilitation initial assessment, which I attended.
28.I believe a report was produced, but nothing occurred.
29.I understood from Dr Oleshko that I was able to perform alternative duties agreed between her and the rehabilitation provider, except at the place where I had been bullied, as is stated in her Progress Medical Certificate dated 16 February 2012.
30.When I attended Dr Oleshko for my consultation on 26 June 2012, she said that as I would have received payment by now, it was time to end these proceedings.
31.She then issued the final medical certificate which stated her recommendation as being as described in paragraph 30 [sic] above; that I was able to perform alternative duties agreed between her and the rehabilitation provider, except at the place where I had been bullied.
32.I have seen Ernst Dr [sic] De Jong on 18 January 2013 and 8 March 2013. Dr De Jong’s recommendation to me was to try part-time work to begin with, to see how I would cope.
33.I have also continued trying to progress action with rehabilitation providers. I suggested Fresh Start to Dr Oleshko and she referred me accordingly.
34.However, John Holland Group did not allow their involvement.
35.Instead, John Holland Group referred me to People Sense for a Vocational Rehabilitation Assessment on 21 February 2013.
36.People Sense issued John Holland Group the assessment with an Action Plan dated 28 February 2013, of which I received a copy.
37.I e-mailed Sarah Bone of People Sense on 10 April 2013 asking about progress, and I am still awaiting a reply.
38.Notwithstanding all my efforts since September 2012, unfortunately I have been unsuccessful at all attempts to undertake further paid work. I continue to apply for employment.
39.I have worked all of my adult life. It is very important to me both personally and as a member of the community.
40.I understand that different workplaces have different cultures. I understand that I have emotional difficulties, but I try to do the best that I can.
41.The incident at John Holland Group did intimidate me, even though my work colleagues there and Dr Mander thought that it was minor and acceptable banter. It was not minor to me.
42.I was very grateful that the Tribunal found in my favour, as I felt that they understood that what had happened to me did matter.
43.Since then, I have applied for 27 jobs, as listed above, and have not been successful.
44.I am 49 years old and seem unable to find employment even though I am skilled and willing.
45.I am also trying to progress assistance with the rehabilitation provider, People Sense.
46.I have also attended a further assessment required by John Holland Group with Professor Aleksander Janca on Friday 12 April 2013.
47.I am thankful that my partner, my family and friends and [sic] very supportive.
48.These injuries have cut me very deeply, and I am at a loss at what else I can do to become a productive worker and member of the community again.
49.My main hope is to re-enter the workforce, to be able to support my partner and myself and to be a productive member of the community again.
50.I may not have understood the AAT process, but I feel that my case seems to have gone on for a very long time, which has the impact of making me feel unable to properly move forward.
51.I have done everything asked of me by John Holland.
52.I hope that my case will finalise soon, and that the final outcome will be fair and that rehabilitation will be provided.” (Exhibit A1)
[The Tribunal notes that the applicant’s application for employment with “Protector Fire”, referred to in para 24 of his witness statement, was, in fact, successful and he was so employed from June to September 2012.]
In examination-in-chief the applicant gave evidence to the following effect:
·as regards paras 20–21 of his witness statement, he resigned from his employment with Protector Fire Services in September 2012 in the following circumstances: he was asked to do a job at a large trucking company; when he arrived, the woman there asked him where “the other man”, whom she wanted to do the job, was; he then returned to the office and told his boss; the boss “went nuts” and yelled at him and said “a few horrible things” to him; he “broke down” on the way home and resigned the next morning;
·he has just started another job with a business which sells car parts and mining parts, and he has worked 7 days there to date;
·his position is described as “Team Leader” but his duties are really those of a storeman;
·he is not really sure of his income in this new job because he is paid fortnightly and he has not yet worked there for a fortnight but he thinks it is about $800 per week, before tax.
In cross-examination the applicant gave evidence to the following effect;
·his duties at Protector Fire Services included going around to various premises and checking their fire safety equipment such as fire extinguishers;
·he was previously employed by South West Personnel, and was working at Dynea Australia, until May 2012;
·he applied for the job at Protector Fire Services on 23 May 2012 and started work there on 11 June 2012;
·while working for South West Personnel and for Protector Fire Services he was applying for other jobs (as indicated in para 24 of his witness statement);
·he did not see Dr De Jong in 2012, but saw him in January 2013;
·he continued to see Dr Oleshko during 2012 but less frequently than before, and he would see her to obtain fresh prescriptions;
·he commenced employment with John Holland on 8 December 2010 and worked as a tradesperson on the Worsley Project;
·he had previously worked for BHP on the Worsley Project from November 2005 to September 2010;
·he did not work from September 2010 until December 2010 when he commenced with John Holland;
·his work with John Holland on the Worsley Project involved a specific construction job and, when that construction job was completed, work as a tradesperson on that job was no longer available;
·his employment with John Holland was, according to the letter he received from them, terminated in November 2011 because work as a tradesperson on the Worsley Project was no longer available;
·although his employment with John Holland terminated in November 2011, he had not been at work since 29 March 2011;
·he actually worked for John Holland on the Worsley Project for just under 4 months;
·the day-to-day duties in his present job (which he commenced just over a week ago) include checking off stock when it comes in each morning, putting stock away, and preparing orders for drivers;
·his present working hours are from 8.00 am to 5.00 pm each day.
The Evidence of Dr Iryna Oleshko
Dr Oleshko has been the applicant’s treating general practitioner since January 2011 (see Exhibit A3). As previously mentioned (see paragraph 2 above), Dr Oleshko, on 31 March 2011, issued the first workers’ compensation medical certificate regarding the applicant’s incapacity for work as a result of the relevant mental injury suffered by him on 29 March 2011 and she has since periodically issued progress workers’ compensation medical certificates regarding the applicant’s incapacity for work as a result of that injury, culminating in a “Workers’ Compensation FINAL Medical Certificate” issued on 26 June 2012.
In the abovementioned progress workers’ compensation medical certificates Dr Oleshko consistently certified that the applicant was totally unfit for work from 29 March 2011 to 16 January 2012. Dr Oleshko confirmed, however, that on 24 May 2012 she certified that the applicant was fit for work but subject to the following restriction:
“ Able to perform any duties agreed between the Dr and Rehabilitation provider except at the place where he was bullied.”
[The Tribunal notes that that medical certificate is expressed to cover the period from 17 February 2012 (T15, p 188).]
Dr Oleshko also confirmed that, in the “Workers’ Compensation FINAL Medical Certificate” which she issued on 26 June 2012, she certified that the applicant had “partially recovered from the effects of the disability” which he suffered on 29 March 2011 “at the workplace” and that, as from 26 June 2012, the applicant:
“ is fit for alternative duties with the following limitations:
Able to perform any duties agreed between the Dr and Rehabilitation provider except at the place where he was bullied.”
Dr Oleshko explained that, if the applicant was fully recovered, he would be “able to work anywhere without any problems, without fear, anxiety or distress”.
Dr Oleshko said that, after 26 June 2012, she next saw the applicant on 26 November 2012 for a “discussion of his depression” and for renewal of his prescription. She added that she also wrote a letter to his rehabilitation provider. She said that, at the consultation on 26 November 2012, the position regarding the applicant’s capacity for work was “the same” as stated in her medical certificate of 26 June 2012. She added that she has not seen the applicant since 26 November 2012 and that she is unaware of his circumstances since that date.
Additional Medical Evidence
The applicant tendered in evidence a report of Dr Ernst De Jong, Consultant Psychiatrist, dated 7 May 2013 (Exhibit A4). That report, which is addressed to the applicant’s solicitors, states as follows:
“ Thank you for your request dated 19 April 2013 for a follow-up report about Mr Vittiglia. I have addressed your questions point by point 1–5.
This report is solely based on the information I have received from Mr Vittiglia and my assessment of his presenting symptoms.
1. The dates of his attendances upon you with respect to his injury;
(21 March 2011 (pre-injury), 31 March 2011 (email/phone call), 18 April 2011, 9 June 2011, 30 June 2011, 26 July 2011), 13 September 2011, 12 October 2011, 7 November 2011, 7 December 2011, no attendances during 2012, 18 January 2013, 8 March 2013.
2. Your findings at those attendances;
At the consultations from 13 September to 7 December 2011 Mr Vittiglia reported the following symptoms: tiredness, his mood being flat and depressed, being emotional and crying easily, at times have a short fuse to the point of feeling aggressive, his eyes being blurry a lot of time [sic] and variable degrees of sleep disturbance.
After the ATT [sic] hearing in January 2012 I had no further contact with Mr Vittiglia for twelve months until 18 January 2013. At that consultation he reported feeling overall better. He mentioned as well that around the middle of 2012 he had worked full time for about 2–3 months. My findings at that consultation are described in my letter to Dr Oleshko (see copy attached).
The most recent consultation with Mr Vittiglia was on 8 March 2013. He presented this time with his sister. He had applied for work in the mines but had become very anxious, panicky and overwhelmed and had developed again difficulty with sleeping. I felt that his increased anxiety was a clear sign that he was not ready to undertake such work with a schedule involving long hours and with day and night shifts that generally is regarded as stressful.
I increased his Lexapro to 20 mg per day and suggested a trial on Lorazepam 1–2 mg at night and to continue Dexamphetamine 50 mg per day.
3. Your summary of Mr Vittiglia’s current symptoms and complaints;
Overall I got the impression that Mr Vittiglia’s symptoms have improved in the period from June 2012 until January 2013. His GP Dr Oleshko whom he has consulted during this time period might be able to give a view of his mental state at the time. Mr Vittiglia had been able to handle full time work for a period of two to three months in 2012. However the stress of having to find and apply for work, his concerns about his financial situation and the protracted course of finalizing his worker compensation case have added to the fluctuation course of his symptoms.
4. Your diagnosis as to his injury/condition;
His symptoms of anxiety and depression have fluctuated in severity from mild to moderate but appear generally to have improved at least for extended periods of time. At the last consultation on 8 March 2013 he was very anxious and flat. During a phone consultation I had with Mr Vittiglia on 6 May 2013 he reported still feeling flat.
My current DSM-IV-TR diagnoses are: Generalized Anxiety Disorder (300.02) and Depressive Disorder NOS (311) [see copy DSM-IV-TR].
5.Your opinion to the extent that our client’s current symptoms and complaints:
(i)has impaired his capacity to carry out the full range of his pre-injury duties as a trade assistant from 27 June 2012 to the present;
I am of the opinion that Mr Vittiglia’s symptoms have not significantly impaired his capacity to carry out his pre-injury duties as a trade assistant (*).
(ii)currently impairs his capacity to carry out the full range of his pre-injury duties as a trade assistant;
I am of the opinion that Mr Vittiglia’s symptoms currently do not significantly impair his capacity to carry out his pre-injury duties as a trade assistant (*).
(iii) is likely to impair that capacity in the future.
I am of the opinion that Mr Vittiglia’s symptoms are not likely to impair that capacity in the future (*).
*Although Mr Vittiglia has the capacity to carry out the full range of his pre-injury duties as a trade assistant I am of the opinion that a return to work at John Holland would not be in the interest of Mr Vittiglia’s long term mental health in view of the past interactions with John Holland.”
[The Tribunal notes that Dr De Jong was not required by the respondent for cross-examination and he did not give oral evidence.]
The Tribunal notes that the medical records of Brecken Health Care (where Dr Oleshko practises) regarding the applicant, produced in response to a summons issued by the Tribunal at the request of the respondent, are in evidence (Exhibit A3).
Other Evidence
The Tribunal notes, furthermore, that the following documentation is also in evidence:
·three bundles of documents compiled by the applicant comprising:
– copies of applications for employment;
– copies of responses received; and
– copies of employment advertisements (Exhibit A2);
·copy of the transcript of proceedings before the Tribunal on 23 January 2012 in the matter of Riccardo Vittiglia and John Holland Pty Ltd (Application No 2011/2709) (Exhibit R1); and
·copies of Comcare claims for workers’ compensation forms and compensation medical certificate forms (Exhibit R2).
The Relevant Legislation
The SRC Act relevantly provides:
“ Part I—Preliminary
…
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
claim means a claim under Part V.
…
Comcare means the body corporate established by section 68.
…
licensed corporation means a corporation that is the holder of a licence that is in force under Part VIII.
licensee means a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII.
…
normal weekly earnings means the normal weekly earnings of an employee calculated under section 8.
…
relevant authority means:
(a)in relation to an employee who is employed by a licensee – the licensee; and
(b) in relation to any other employee – Comcare.
…
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee’s age, experience, training, language and other skills;
(ii)the employee’s suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence – whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter; and
(b)in any other case – any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
…
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
(10A)For the purposes of the application of this Act in relation to an employee employed by a licensed corporation, or a dependant of such a person, a reference in this Act (except in section 28 or Part III, V, VI, VII or VIII) to Comcare is, unless the contrary intention appears, a reference to that corporation.
…
5Employees
(1)In this Act, unless the contrary intention appears:
…
employee means:
(a)a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or
(b)a person who is employed by a licensed corporation.
…
(9)A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.
…
8Normal weekly earnings
(1)For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH x RP) + A
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee’s average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
…
(9B)The normal weekly earnings of an employee before injury, as calculated under subsections (1) to (8) and as increased or reduced under subsection (9) must, if the employee has ceased, or ceases, to be employed by the Commonwealth or a licensed corporation, be further increased, with effect from each indexation date in relation to that cessation, by reference to the percentage of increase (if any) of an index that is prescribed for the purposes of this subsection over the year ending on the 31 December preceding each such indexation date.
(9C)For the purpose of subsection (9B), the indexation date, in relation to a cessation of employment, is:
(a) the 1 July next following:
(i) the date on which this Act receives the Royal Assent; or
(ii) the date of that cessation of employment;
whichever last occurs; and
(b) each subsequent 1 July.
…
Part II—Compensation
Division 1—Injuries, property loss or damage, medical expenses
14 Compensation for injuries
(1)Subject to this Part, Comcare 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.
…
Division 3—Injuries resulting in incapacity for work
19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
…
(3)Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
(Adjustment percentage x NWE) – AE
where:
adjustment percentage is a percentage equal to:
(a) if the employee is not employed during that week—75%; or
(b) if the employee is employed for 25% or less of his or her normal weekly hours during that week—80%; or
(c) if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—85%; or
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—90%; or
(e) if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—95%; or
(f) if the employee is employed for 100% of his or her normal weekly hours during that week—100%.
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
…
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self‑employment) – the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
…
Part V—Claims for compensation
…
54 Claims for compensation
(1)Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:
(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b) except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
(3)Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.
(4)Where a claim is given to Comcare, Comcare shall cause a copy of the claim to be given to:
(a) where the employee concerned is or was a member of the Defence Force at the time when the relevant injury or accident occurred—the Secretary of the Defence Department; or
(b) in any other case – the principal officer of the Entity, Commonwealth authority or licensed corporation in which the employee was employed at that time.
(5)Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
…”
The Issues
The ultimate issue for the Tribunal’s determination is whether the respondent is liable, pursuant to s 19 of the SRC Act, to pay compensation to the applicant for incapacity for work resulting from the mental injury (namely, aggravation of depressive/anxiety condition) suffered by him on 29 March 2011 (“the compensable injury”), in the period from 26 June 2012 to the present date, and, if so, the amount thereof.
In order to determine the abovementioned issue, the Tribunal is first required to consider and determine the following issues which arise from the cases presented by the parties:
·whether s 54 of the SRC Act is relevant and applicable to the matter of the applicant’s entitlement to compensation for incapacity for work, pursuant to s 19 of the SRC Act, in the period from 26 June 2012; and, if so
·whether the applicant has sufficiently complied with s 54 of the SRC Act for the purpose of his entitlement to compensation for incapacity for work, pursuant to s 19 of the SRC Act, in the period from 26 June 2012; and, if so
·whether the applicant has been incapacitated for work (within the meaning of s 4(9) of the SRC Act), as a result of the compensable injury, in the period from 26 June 2012 to date, and is presently so incapacitated for work; and, if so
·whether the applicant has been “able to earn in suitable employment”, within the meaning of s 19 of the SRC Act, in the period from 26 June 2012 to date, and, if so, the amount per week that he has been so able to earn in that period, for the purposes of that section.
The application of s 54 of the SRC Act
There is no dispute that the applicant complied with s 54 of the SRC Act in making his initial claim for compensation, on or about 20 May 2011, in respect of a mental condition suffered by him on 29 March 2011 (see paragraph 2 above). The Tribunal notes that in the relevant claim form the applicant indicated that he was claiming compensation for “time off work” and “medical or treatment expenses” (T14, p 52).
The question presented for the Tribunal’s determination is whether the applicant is required to make subsequent claims, in compliance with s 54 of the SRC Act, for compensation for incapacity for work, pursuant to s 19 of the SRC Act, for the purpose of establishing his ongoing entitlement to compensation pursuant to s 19.
The Tribunal notes that, following the Tribunal’s abovementioned decision of 13 April 2012 that the respondent was liable under s 14 of the SRC Act to pay compensation, in accordance with that Act, to the applicant in respect of the compensable injury (see paragraph 3 above), the respondent made determinations under s 19 of the SRC Act, on 29 May 2012 and 16 July 2012, that it was liable to pay compensation to the applicant for incapacity for work resulting from that injury for the period from 29 March 2011 to 25 June 2012 (see T15, pp 153–158, 212–220). The Tribunal also notes that each of those determinations was made in response to a request by letter from the applicant’s solicitors and the provision by those solicitors of various workers’ compensation progress medical certificates regarding the applicant’s incapacity for work resulting from the compensable injury covering the abovementioned period (see T15, pp 131, 135–151, 186–188).
The respondent obviously did not dispute that the applicant had sufficiently complied with s 54 of the SRC Act in respect of the abovementioned claims for compensation for incapacity for work for the period from 29 March 2011 to 25 June 2012.
The respondent does, however, dispute that the applicant has sufficiently complied with s 54 of the SRC Act for the purpose of his entitlement to compensation for incapacity for work, pursuant to s 19 of the SRC Act, for the period from 26 June 2012 to date. The applicant, on the other hand, submits that, his initial claim for compensation on or about 20 May 2011 having been made in accordance with s 54 of the SRC Act, s 54 does not have ongoing application or relevance to his subsequent entitlement to compensation for incapacity for work pursuant to s 19 of the SRC Act. In particular, the applicant submits that the requirement of s 54(2)(b) of the SRC Act for the provision of a medical certificate in accordance with the specified form does not have ongoing application to his entitlement to compensation for incapacity for work pursuant to s 19 of the SRC Act. He also submits that s 19 of the SRC Act “merely provides the method of calculating the ‘amount of compensation’ when there is capacity for work as a result of an injury” and “does not stipulate that a ‘claim’ for incapacity must be made under that provision”.
The Tribunal does not accept the applicant’s submissions. The Tribunal instead accepts the respondent’s contention (as set out in para 4.13 of its Statement of Facts, Issues and Contentions filed and served in this proceeding) as follows:
“ … a medical certificate is required for each ‘claim for compensation’ that is made in respect of an injury suffered by an employee whether that be the initial claim for compensation (under s 14) or claims for periodical payments of compensation for incapacity (s 19), permanent impairment (s 24) or household assistance (s 29). This is made clear by s 54(2)(b) where it specifically states that medical certificates are required ‘except where the claim is for compensation under s 16 or 17’”.
In the Tribunal’s opinion, s 19 of the SRC Act does not (contrary to the applicant’s submission) merely provide a method of calculating the amount of compensation for incapacity for work; rather, it provides (in subss (2) and (3)) for liability to pay compensation for incapacity for work in the amount determined in accordance with that section. In the Tribunal’s opinion, compensation is not payable for incapacity for work unless a claim for such compensation, pursuant to s 19 of the SRC Act, is made in accordance with s 54 of that Act with respect to a specific period of incapacity.
The Tribunal notes, however, that, on 4 July 2012, the respondent received from the applicant the “Workers’ Compensation FINAL Medical Certificate” issue by Dr Oleshko on 26 June 2012 (T15, p 210), referred to in paragraph 15 above. The contents of that medical certificate are as follows:
“ …
Date and place of occurrence of disability: On 29/03/2011, at the workplace.
3. Medical Assessment
Having examined the worker, it is my opinion that as from: 26/06/2012
¨ the worker has wholly recovered from the effects of the disability.
X the worker has partially recovered from the effects of the disability.
¨ the worker’s incapacity is no longer a result of the disability.
It is also my opinion that as from 26/06/2012 the worker is:
¨ fit.
X fit for alternative duties with the following limitations:
Able to perform any duties agreed between the Dr and Rehabilitation provider except at the place where he was bullied
Grounds for the opinion in medical assessment:
Still has to be treated/observed by the specialist for the residual symptoms.
…”
The Tribunal is satisfied that the provision of that medical certificate to the respondent complies with the requirement of s 54(2)(b) of the SRC Act. The Tribunal notes, however, that that medical certificate is expressed to be a “FINAL” medical certificate for workers’ compensation purposes and, accordingly, it does not specify either a finite future period of incapacity for work or a date on which the applicant’s capacity/incapacity for work is to be reviewed. Notwithstanding that that medical certificate is expressed to be “final”, it purports (inconsistently, in the Tribunal’s opinion) to certify the applicant’s ongoing partial incapacity for work from 26 June 2012. In the Tribunal’s opinion, however, that medical certificate should be regarded as medical evidence regarding the applicant’s capacity/incapacity for work only as at 26 June 2012 and not beyond that date.
As regards the requirement of s 54(2)(a) of the SRC Act that “a written claim in accordance with the form approved by Comcare for the purposes of this paragraph” be given to the respondent, the Tribunal regards the initial claim for compensation (including compensation for “time off work”) by the applicant on or about 20 May 2011 (T14), and the subsequent letters from his solicitors to the respondent in the period from May 2012 to August 2012 (T15, pp 131, 228) pursuing his claim for ongoing compensation for incapacity for work, as sufficiently complying with that requirement (see s 54(5) of the SRC Act).
Accordingly, the Tribunal finds that, as regards the applicant’s claim for compensation for incapacity for work, pursuant to s 19 of the SRC Act, for the period from 29 March 2011 to 26 June 2012, and as at 26 June 2012, there has been sufficient compliance with s 54 of the SRC Act. The Tribunal finds, however, that, as regards the applicant’s claim for compensation for incapacity for work, pursuant to s 19 of the SRC Act, for the period from 27 June 2012, there has not been sufficient compliance with s 54 of the SRC Act by reason of the failure to give to the respondent (“the relevant authority”) a medical certificate in accordance with s 54(2)(b) in relation to any period after 26 June 2012.
Notwithstanding the latter finding, the Tribunal will consider whether the applicant was “incapacitated for work” (within the meaning of s 4(9) of the SRC Act) as a result of the compensable injury in the period from 27 June 2012.
Has the applicant been “incapacitated for work” (within the meaning of s 4(9) of the SRC Act) as a result of the compensable injury in the period from 27 June 2012 to date?
The applicant does not contend that he has been totally incapacitated for work (within the meaning of s 4(9)(a) of the SRC Act) as a result of the compensable injury at any time in the period from 27 June 2012. He contends, however, that he has been partially incapacitated for work (within the meaning of s 4(9)(b) of the SRC Act) as a result of that injury on and from 27 June 2012 and continues to be so incapacitated for work.
The Tribunal is satisfied, on the basis of Dr Oleshko’s medical certificate of 26 June 2012 (T15, p 210 – set out in paragraph 29 above), that the applicant was “incapacitated for work”, within the meaning of s 4(9)(b) of the SRC Act, as a result of the compensable injury, on 26 June 2012 because, as at that date, he had not fully recovered from the effects of that injury and, as a result of that injury, he remained mentally less capable of engaging in the same kind of work in the same environment as that in which he was capable of engaging immediately before that injury happened.
The Tribunal, however, is not satisfied, on the basis of Dr Oleshko’s medical certificate of 26 June 2012 and her oral evidence, that the applicant has been “incapacitated for work”, within the meaning of s 4(9)(b) of the SRC Act, as a result of the compensable injury, in the period from 27 June 2012 to date. As previously mentioned, the Tribunal regards Dr Oleshko’s medical certificate of 26 June 2012 as evidence only that the applicant was “incapacitated for work” as a result of the compensable injury as at that date. As regards Dr Oleshko’s oral evidence, she said that, since 26 June 2012, she has seen the applicant only once, namely, on 26 November 2012, and that, on that occasion, the position regarding his capacity for work was “the same” as stated in her medical certificate of 26 June 2012, but that she is unaware of his circumstances since 26 November 2012. The Tribunal notes that the applicant’s consultation with Dr Oleshko on 26 November 2012 was not for the purpose of workers’ compensation in respect of the compensable injury and that Dr Oleshko did not issue a workers’ compensation medical certificate regarding incapacity for work as a result of the compensable injury on that occasion (or, indeed, on any occasion since 26 June 2012). The Tribunal is not satisfied, having regard to Dr Oleshko’s oral evidence regarding the abovementioned consultation on 26 November 2012, and in the absence of a medical certificate in the proper form that the applicant was wholly or partially incapacitated for work as a result of the compensable injury on that date or at any time in the period from 27 June 2012, that the applicant was “incapacitated for work”, within the meaning of s 4(9)(b) of the SRC Act as a result of the compensable injury, on 26 November 2012 or at any time in the period from 27 June 2012 to date.
Dr De Jong, Consultant Psychiatrist, in his report of 7 May 2013 (Exhibit A4 – set out in paragraph 17 above), relevantly stated that he has seen the applicant on two occasions in 2013, namely, on 18 January and 8 March, and had a telephone consultation with him on 6 May 2013, but that he did not see him in 2012. In that report Dr De Jong expressed the opinion that the applicant’s depressive/anxiety symptoms “have not significantly impaired his capacity to carry out his pre-injury duties as a trade assistant” in the period from 27 June 2012 to the present, and as at the present time (7 May 2013), but he added the following rider:
“`Although Mr Vittiglia has the capacity to carry out the full range of his pre-injury duties as a trade assistant I am of the opinion that a return to work at John Holland would not be in the interest of Mr Vittiglia’s long term mental health in view of the past interactions with John Holland.”
The Tribunal is not satisfied, having regard to the opinions expressed by Dr De Jong in his abovementioned report, that the applicant has been “incapacitated for work”, within the meaning of s 4(9)(b) of the SRC Act, as a result of the compensable injury in the period from 27 June 2012. In the Tribunal’s opinion, the abovementioned rider does not materially qualify his expressed opinion in that rider that the applicant “has the capacity to carry out the full range of his pre-injury duties”. Furthermore, in that report Dr De Jong does not expressly attribute the applicant’s current symptoms to the compensable injury; rather, he appears to attribute those symptoms to “the stress of having to find and apply for work, his concerns about his financial situation and the protracted course of finalizing his worker compensation case”.
Having regard to the medical evidence before it, the Tribunal is not satisfied that the applicant has been “incapacitated for work”, within the meaning of s 4(9)(b) of the SRC Act, as a result of the compensable injury in the period from 27 June 2012 to date.
Was the applicant “able to earn in suitable employment” (within the meaning of s 19 of the SRC Act) on 26 June 2012, and, if so, in what amount?
On the basis of a Labour Market Analysis report of Nicholas Janides, Occupational Rehabilitation Consultant/Vocational Advisor, Healthe Work, dated 16 October 2012 (T22), the Tribunal finds that “suitable employment” (as defined in s 4(1) of the SRC Act) for the applicant includes the following occupations:
·trades assistant;
·stores/forklift driver;
·workshop assistant; and
·weighbridge operator.
The Tribunal also finds, on the basis of that report, that hourly rates of pay in those occupations range from $20 to $35, and that the employment outlook in relation to each of those occupations in 2012 was favourable.
In the case of the applicant, having regard to his age, training, qualifications and experience (as stated in his witness statement set out in paragraph 10 above), the Tribunal regards it as reasonable to find, and does find, that, as at 26 June 2012, the applicant was “able to earn” a minimum amount of $925 per week (37 hours x $25 per hour) “in suitable employment”, within the meaning of s 19 of the SRC Act.
Is the respondent liable to pay an amount of compensation for incapacity for work, pursuant to s 19 of the SRC Act, to the applicant in respect of 26 June 2012?
The Tribunal finds, on the basis of the evidence before it, that the applicant was in full-time employment as a “Fire Portables Technician” with Protector Fire Services from June 2012 to September 2012 and was so employed on 26 June 2012. However, the amount per week that the applicant earned in that employment is, unfortunately, not in evidence. In any event, the Tribunal has had regard to that employment in determining the abovementioned minimum amount of $925 per week that the applicant was “able to earn in suitable employment”, for the purposes of s 19 of the SRC Act, as at 26 June 2012.
The Tribunal understands that, as at 26 June 2012, the amount of the applicant’s “normal weekly earnings” (“NWE”) reduced by the application of the “adjustment percentage” of 75% for the purposes of s 19(3) of the SRC Act, was $888.84 (see T15, pp 212–220), and the Tribunal so finds.
Accordingly, the Tribunal finds that, as at 26 June 2012, the “amount per week that the [applicant was] able to earn in suitable employment” (“AE”), within the meaning of s 19 of the SRC Act, namely, a minimum of $925 per week, exceeded the amount of his NWE (as reduced by the application of the “adjustment percentage” of 75%), namely, $888.84.
It follows that, as at 26 June 2012, the amount of compensation per week which the respondent is liable to pay to the applicant for incapacity for work resulting from the compensable injury, in accordance with s 19(3) of the SRC Act, is nil, and the Tribunal so finds.
The Tribunal finds, therefore, that, pursuant to s 19 of the SRC Act, the respondent is not liable to pay an amount of compensation to the applicant for incapacity for work resulting from the compensable injury in respect of 26 June 2012.
conclusion
Accordingly, the Tribunal concludes that the respondent is not liable, pursuant to s 19 of the SRC Act, to pay compensation to the applicant for incapacity for work resulting from the compensable injury, in respect of the period from 26 June 2012 to the present date, and as at the present date.
Decision
For the above reasons, the decision under review is affirmed.
47. I certify that the preceding 46 (forty- six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.
………[sgd D Brodie]………………….
Administrative Assistant
Dated 12 July 2013
Date of hearing
6 June 2013
Date of last submissions
3 July 2013
Representative of the Applicant
Mr A Stewart
Solicitors for the Applicant
Chapmans
Representative of the Respondent
Mr B Dube
Solicitors for the Respondent
Sparke Helmore
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