Wawrowski and Comcare - [2001] AATA 135

DECISION AND REASONS FOR DECISION [2001] AATA 135

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1990/4

GENERAL ADMINISTRATIVE DIVISION       )
           Re      REINHOLD WAWROWSKI
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr C P Webster (Senior Member)

Date23 February 2001
PlaceHobart

Decision      The decision under review is affirmed.
  [Sgd C P Webster]
  Senior Member
CATCHWORDS
Compensation – no evidence of injury or disease on that injury or disease caused or contributed by employment.
Compensation (Commonwealth Government Employees) Act 1971.
Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

23 February 2001 Mr C P Webster (Senior Member)

Background and Issues

Mr Reinhold Wawrowski ("the applicant") seeks a review of a decision of Comcare ("the respondent") of 3 October 1989 which refused his claim for compensation for stress related problems allegedly caused by his employment with the Australian Maritime College in Launceston, Tasmania between 1984 and April 1987 when he was retrenched from his employment.
The claim for compensation was lodged by the applicant in August 1987.
The applicant subsequently made an application to the Human Rights and Equal Opportunity Commission (the HREOC) concerning his treatment by the Australian Maritime College which he alleged led to his medical condition for which he sought worker's compensation in his application of August 1987.
In detailed reasons for decision dated 8 June 1990 given by Sir Ronald Wilson, President of HREOC, the applicant 's complaint to the HREOC was dismissed.
The hearing of the applicant's application has been severely delayed mainly due to adjournments to enable the applicant, who has since the lodgment of the application for review been resident in Germany, time to save money and to recover his health sufficiently to enable him to attend the hearing of his application in Australia.
At one of the numerous directions hearings held by the Tribunal to decide how the hearing of the application would proceed, a determination was made by the Tribunal that unless the applicant personally attended any hearing before the Tribunal and was therefore available in person to be cross-examined, by counsel for the respondent, the applicant would not be able to rely on his own evidence whether oral or in writing.
The matter proceeded to a hearing. The applicant did not attend the hearing in person.
The issue to be determined by the Tribunal is whether the applicant has suffered a compensable injury or disease within the meaning of either Compensation (Commonwealth Government Employees) Act 1971 or the Safety Rehabilitation and Compensation Act 1988.
The Evidence
The applicant represented himself and did not adduce evidence from himself (due to the direction of the Tribunal that he had to attend the hearing in Australia before his evidence would be accepted).
Dr Praetorius gave evidence on the applicant's behalf by telephone from Germany.
Both parties relied on the T documents and the respondent tendered into evidence the applicant's personnel file with the Australian Maritime College. No other evidence was adduced.
The applicant's case is that his treatment by the Australian Maritime College has caused a disease or injury.   The specific matters of which he complains include:-
(a)      excessive working hours;
(b)      unfavourable working conditions;
(c)       driving between two campuses with little time to do so;
(d)      requirement to spend time at sea;
(e)      failure to promote him.
The only evidence to substantiate these allegations are the statement and complaints made by the applicant or his representatives in documents contained in the T documents or in the applicant's personnel file. On their face the applicant's allegations carry no less weight or more weight than the statements on behalf of the Australian Maritime College disputing these allegations.
The Tribunal however views the unsupported allegations of the applicant with suspicion as the submissions of the applicant and evidence adduced from independent sources shows that the applicant has not been honest and frank in his dealings with respondent and the Tribunal.
Direction hearings of the Tribunal which first commenced in 1991 dealt numerous times with the question of the applicant attending a hearing in Australia and attending a medical examination in Australia. The applicant continually stated that he was unable to do so due to ill health and lack of money.
The applicant in his closing submission now concedes that he worked in Pakistan and Korea since 1991.
The applicant's submission and allegations have always been that he has never been able to work since leaving his employment with the Australian Maritime College. The concession made by the applicant that he has, to some extent, worked in Pakistan and Korea after leaving his work in Australia only came after evidence had been produced by the respondent to indicate that he has worked in Pakistan and Korea.
The applicant has been shown to be a person who will make submissions and accusations without revealing the whole truth and will not disclose matters which do not advance his case.
The Tribunal does not accept the unsupported statements of the applicant in the T documents and his personnel file as necessarily truthful statements.
His statements are only accepted when they are supported by corroborative evidence.
In this matter there is no corroborative evidence supporting the applicant's case contained in the T documents and personnel file. While there is considerable evidence in those documents which support the respondent's case.
To a large degree the issues sought to be ventilated by the applicant have already been determined by the HREOC.
In the absence of further evidence the Tribunal should not look beyond the decision of HREOC in so far as that decision overlaps the matters to be determined by the Tribunal.
The only credible evidence adduced by the applicant is his doctor, Dr. Praetorius.
It is plain however that the doctor's opinions were based on his patient's account of the history. It was revealed that relevant matters such as the applicant in Korea and Pakistan after leaving Australia were not revealed to that doctor. No weight can be placed in the doctor's evidence as it was based on a tainted and incomplete history.
The Tribunal is not satisfied that the applicant suffered any injury or disease which was caused or contributed by his employment with the Australian Maritime College.
Determination
The decision under review is affirmed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  13 November 2000
Date of Decision  23 February 2001
Counsel for the Applicant        Applicant appeared on his own behalf.
Counsel for the Respondent    Mr Brian Morgan
Solicitor for the Respondent    Mr David Wilson (AGS)