Wilson and Optus Administration Pty Limited (Compensation)

[2024] AATA 2919

Wilson and Optus Administration Pty Limited (Compensation) [2024] AATA 2919 (15 August 2024)

Division:GENERAL DIVISION

File Number:          2023/2313

Re:Brandon Wilson

APPLICANT

AndOptus Administration Pty Limited

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:15 August 2024

Place:Hobart

Being satisfied that the application has no reasonable prospect of success, pursuant to
s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, the application is dismissed.

...............................[signed].........................................

Senior Member D. J. Morris

Catchwords

PRACTICE AND PROCEDURE – application lodged for review of determination relating to accepted compensation claim – history of application – respondent sought dismissal on basis applicant had failed within a reasonable time to proceed with his application – in the alternative respondent sought dismissal on basis the application has no reasonable prospect of success – consideration of the principles – applicant has received state compensation for an injury – applicant seeks to use that injury as basis for this claim – no evidence of new ‘injury’ – law precludes compensation in such a case – tribunal dismisses application as having no reasonable prospect of success

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Filsell and Comcare; Re (2009) 109 ALD 198

REASONS FOR DECISION

Senior Member D. J. Morris

15 August 2024

1. On 10 January 2023, the Respondent made a determination denying liability to pay compensation to the Applicant, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’), for the claimed condition of “PTSD triggered from past and present verbal abuse related triggers from workplace at Optus.”

2. On 9 March 2023, a review officer affirmed the 10 January 2023 determination.

3. The Applicant lodged an application for review of the decision with the Tribunal on 5 April 2023.

4. On 22 April 2024 the Tribunal held an interlocutory hearing by telephone at the request of the Respondent to consider the Respondent’s request that Mr Wilson’s application be dismissed under either s 42A(5) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) on the basis that the Applicant had not within a reasonable time proceeded with the application or, in the alternative, that it be dismissed under s 42B(1)(b) of the AAT Act as having no reasonable prospect of success.

5. Mr Wilson represented himself and made submissions. Ms Emma O’Connor of Sparke Helmore appeared for the Respondent. At the conclusion of the hearing, the Tribunal issued a direction that the Applicant have until 6 May 2024 to make written submissions on why the matter should not be dismissed for having no reasonable prospect of success. The Respondent was given until 20 May 2024 to make submissions on its position. Mr Wilson subsequently sought leave of the Tribunal for extra time, and he provided a written submission on 8 May 2024. The Respondent provided written submissions on 21 May 2024.

6. The Tribunal also had before it:

   (a)       Reviewable decision dated 9 March 2023;

   (b)       A volume of documents lodged by the Respondent under s 37 of the AAT Act (TD);

   (c)       Workplace Psychological Treatment Notification Form, dated 3 December 2022;

   (d)       Letter from Vicky Horn, psychiatrist, dated 5 March (year unclear);

   (e)       Letter from Vicky Horn to Optus, dated 10 December 2022;

   (f)Letter from Vicky Horn to Applicant, Dr Peter Song (GP) and another, dated 24 February (year unclear);

   (g)Document titled ‘Draft medical report regarding workplace injury of the Applicant, by Dr Brendan Hyland, psychiatrist (but not signed), dated 24 March 2023;

   (h)Medical letter from Dr Manoj Ravindran, consultant psychiatrist, to Dr Peter Song, dated 13 June 2023.

   BACKGROUND

7. The Applicant was employed by the Respondent, Optus Administration Pty Limited, from 20 May 2022 as an Expert, Inbound Customer Service and Sales. He has since resigned from working for the Respondent and is now in other employment.

8. From 2019 to 2021, the Applicant was employed in an Optus franchise store owned by a company called Digital World. In May 2019, the Applicant was reportedly threatened by a customer at this shop.

9. The Respondent submitted that medical records produced under summons show that from March 2020 the Applicant commenced regular chiropractic treatment in relation to various body pains involving his neck, back and left shoulder. In an email to his manager at Optus, Mr Wilson attributed the body pain for which he sought chiropractic treatment to the May 2019 incident (in a letter to his Optus manager in November 2022, TD, p 72).

10. There is other medical information before the Tribunal including an October 2021 record that the Applicant had a history of some mental health issues which where not assisted by the lockdown owing to the pandemic, and also had a history of ADHD-type behaviour. The Applicant’s general practitioner prepared a mental health care plan and referred the Applicant to a psychiatrist and a psychologist for assessment of possible ADHD.

11. In December 2021 Dr Ravindran, a consultant psychiatrist, recorded a diagnosis of ADHD for the Applicant, and also an apparent diagnosis of (historical) social anxiety disorder (TD, p 18).

12. In April 2022, shortly before commencing with Optus, the Applicant saw Dr Julian Lee, general practitioner, seeking a medical certificate for stress leave. The medical notes recorded that the Applicant felt bullied at work, and gave Mr Wilson a certificate declaring him unfit for work on 7 and 8 April 2022. Dr Lee did not record any mention of the 2019 incident.

13. Dr Peter Song, general practitioner, signed a mental health care plan (TD, p 30) on 25 October 2022 and recorded diagnoses of ADHD and social anxiety disorder. On the same date, Dr Song referred the Applicant for opinion and management of these two conditions and for six sessions under the mental health care plan.

14. On 23 November 2022, Dr Song saw the Applicant and recorded in his notes that Mr Wilson “had a traumatic experience dealing with abusive client in 2019” (TD, p 16). The Respondent submitted that this is the first clinical note related to the claimed work issues. That day, the Applicant signed a claim for workers’ compensation relating to ‘stress symptom related nervous pain.’ In answer to the question on the form, ‘What happened and how were you injured?’ he wrote the following (TD, p 67):

    Anxiety/PTSD symptoms from incident dated back from 2019 in Optus retail. New flare up since due to Cyber attack interactions.

15. The Applicant wrote on the form that the injury/condition occurred on 30 September 2022 at 6 pm and that he reported the injury/condition to his employer by email on 21 November 2022. In response to the question: ‘If you did not report the injury/condition, or there was a delay, please explain why,’ the Applicant wrote (TD, p 68):

    Time to figure out if its ADHD or symptoms from retail abuse at Optus on 01/05/2019.

16. The Applicant lodged a further claim form with the Respondent on 28 November 2022. In response to the box on the form relating to ‘Diagnosed condition,’ he wrote:

    PTSD triggered from past and present verbal abuse related triggers from workplace at Optus

17. In this form, in response to the question ‘When were you injured or when did you first notice you were ill,’ the Applicant wrote “5/10/22”. In response to another question on the form, ‘Have you ever had a similar symptom, injury or illness before, work-related or otherwise?’ the Applicant wrote (TD, p 79):

    Long term build up of symptoms of stress from PTSD following on from Optus work incident in 2019, will be looking into back log of events from treaters seen for (neck stress body pains) post event to current date to collate how symptoms over time and in new triggers relate long term. New GP has said with new symptoms trigged [sic] PSTD from Cyber-Attack events and recent workplace interactions [referred] me to Psychologist to get treatment.

18. In the form, the Applicant said he first sought treatment from Dr Enyinnaya Nwaegerue, general practitioner, on 5 October 2022 but the Respondent submits that clinical notes from Dr Nwaegerue’s practice recorded Mr Wilson presented with a sore throat complaint and reported having been COVID-19 positive. Dr Nwaegerue thought he probably had a viral illness and wrote a medical certificate that he was unfit for work for the period 3 to 10 October 2022.

19. In January 2023, the Respondent denied liability to pay compensation to the Applicant under the SRC Act for the claimed condition of ‘PTSD triggered from past and present verbal abuse related triggers from workplace at Optus’, said to have occurred on 5 October 2022.

20. In April 2023, the Applicant saw Dr Hyland, psychiatrist, on referral from Dr Song. Dr Hyland reported ‘long standing ADHD which was formally diagnosed in 2022. Symptoms well controlled…’ Dr Hyland then relevantly wrote:

    Relevant incidents and dates

    In 2019 while working in Optus retail store he was threatened seriously by customer. Despite this he continued working in the store and reports there were no performance issues. On reflection, Brandon was unaware of the symptoms of PTSD and anxiety and did not seek treatment following the incident. In May 2022 he started work at Optus head office. Between June 2022 and September 2022 he reports he was a top performer in this role. In September 2022 there was a cyber attack on the Optus data base resulting in data leeks [sic]. He reports that with minimum training and supervision he had to take on a roll [sic] of taking phone calls from Optus customers. He reports there were multiple incidents of anger and abuse by customers. There was an incident while travelling to work on public transport of an Optus customer who was a passenger on the train confronting him about the cyber attack. This combined to cause significant distress and high levels of anxiety for which he did not have adequate support or supervision.

21. Dr Hyland referred to a medicolegal report by Dr Shashjit Varma dated 1 February 2023 which:

    …related to a previous claim of PTSD and anxiety citing the date of injury 01/05/2019 when he was threatened by a customer for his life while working for Digital World Proprietary Limited.

22. Dr Hyland referred to Dr Varma’s diagnosis of the Applicant as having ‘adjustment disorder with mixed mild anxiety and depression according to DSM 5 diagnostic criteria.’ Dr Hyland’s own diagnosis after seeing Mr Wilson twice in April 2023 was of ‘a generalized anxiety disorder according to DSM 5 criteria.’

23. The Applicant provided a letter dated 13 June 2023 from Dr Ravindran, consultant psychiatrist. Dr Ravindran stated that he diagnosed the Applicant with ADHD after he undertook a comprehensive assessment in December 2021. He wrote:

    Diagnostic impression

    Brandon presents with symptoms consistent of [sic] an adjustment disorder with comorbid fluctuating levels of mild to moderate anxiety and mild depression. Brandon attracts a diagnosis of ADHD which is currently managed well. Brandon attracts a diagnosis of Complex PTSD.

24. In his commentary on the patient’s history, Dr Ravindran wrote of the Applicant obtaining a job with Optus head office in May 2022, that he enjoyed the job and was doing well when his job role was changed after the September 2022 cyber-attack. He then wrote:

    Brandon talked about an incident in 2019 when he was a manager at Dandenong working for OPTUS. He talked about a chap who threatened to kill him. He stated that the company provided security to protect him while he walked to his car. Brandon was advised not to take out a restraining order as this particular chap was a dangerous criminal who could be provoked and take revenge. In Nov 2022 he informed me when he left work he saw a Sudanese homeless man which left him feeling hypervigilant. This brought back intrusive memories and thoughts about the 2019 incident…

25. It is relevant to note that, in his history narrative, Dr Ravindran referred to the Applicant working for Optus in 2019 when he was, in fact, working for Digital World.

26. After the 10 January 2023 affirmation of the determination denying liability, the Applicant sought review by the Tribunal. The matter was referred to a conference registrar for mediation. The Respondent submits that at the first conference, where Mr Wilson was represented by a law firm, Optus submitted that the application should be withdrawn. The Applicant’s lawyers sought time to seek advice.

27. The following month the law firm lodged a notice ceasing to act. In August 2023 there was a second conference. The Applicant appeared, representing himself, but advise that he had engaged new solicitors and they were considering the merits of the application. The conference registrar proposed eight weeks for Mr Wilson to obtain further legal representation and advice, and the parties both agreed. In November 2023 there was a third conference. The Applicant did not attend, and the Conference Registrar tried to contact him, without success.

28. In November 2023 there was a fourth conference. The Applicant appeared, advised he did not have legal representation and that he would not be withdrawing his application. The Respondent sought a directions hearing for the purposes of applying that the application be dismissed.

29. In December 2023, a directions hearing was held before SM Furnell. The learned Senior Member declined to dismiss the application and directed the applicant provide a Statement of Facts, Issues and Contentions, witness statements, and any documentary evidence on which he intended to rely by 30 January 2023. The matter was listed for a further directions hearing on 15 February 2024.

30. On 14 February 2024, the Applicant confirmed he would appear at the scheduled directions hearing the following day. On the following day, Mr Wilson did not appear. SM Furnell stood the matter over for six weeks to allow for compliance with a new notice under s 58 of the SRC Act, and for the Respondent to consider its position.

31. In April 2024, SM Furnell having completed his statutory term on the Tribunal, the matter was reconstituted to me, and a directions hearing was held. Parties were directed to make submissions, after which the Tribunal would decide whether the matter ought to be dismissed.

32. Initially, the Respondent submitted that the matter should be dismissed under s 42A(5)(a) of the AAT Act for Mr Wilson failing within a reasonable time to proceed with the application. However, the Respondent withdrew that submission, and instead contended that the application has no reasonable prospect of success and should be dismissed under s 42B(1)(b) of the AAT Act on this basis.

33. The Respondent submits that the Applicant has told various practitioners that his anxiety and PTSD symptoms date back to 2019, but there is no evidence of a complaint by Mr Wilson relating to the 2019 incident prior to him ceasing employment with Optus in October 2022. The Respondent further submits that Dr Hyland and Dr Ravindran accept that there was a previous claim and/or an injury as a result of the 2019 incident, when there was not.

34. The Respondent submits that Dr Varma noted that the Applicant’s manager at Digital World stated that he was completely unaware of Mr Wilson suffering from any medical conditions, and that he had handed in a resignation letter and indicated he wanted a job that he could perform from home with the intention to travel around Australia and work in his own time.

    CONSIDERATION

35. The Applicant lodged a workers’ compensation claim through WorkSafe Victoria for the injury sustained while he was working for Digital World in 2019. His then solicitors wrote in February 2023 (TD, p 174):

    Please note that our client has submitted a workers compensation claim with respect to injuries sustained due to the 2019 incident at Digital World. We are instructed that this claim has been accepted and that the events in September 2022 aggravated a pre-existing condition for which our client had not had any previous psychological treatment at that time.

36. As mentioned earlier, Digital World is not part of Optus and it not covered by Optus’s position as a licensee under the SRC Act. Accordingly, Optus is not liable for any injury that might have been sustained when Mr Wilson was working for that employer in 2019.

37. Section 118(1) of the SRC Act provides that if an employee recovers State workers’ compensation in respect of an injury or the loss of or damage to property used by the employee, compensation is not payable under the SRC Act to that employee in respect of that injury, loss or property damage.

38. Mr Wilson seeks compensation for an injury which he says manifested at the end of 2022. The Applicant himself claims that its principle causative factor is the 2019 incident, which is also supported, to the extent that he considered causation, by Dr Varma’s opinion. However, the Respondent submits, and I agree, that the injury for which State compensation was paid is not separate and distinct from the ‘injury’ for which Mr Wilson is seeking compensation under the SRC Act. On the evidence, it is the same injury. Compensation under the SRC Act is therefore not payable because of the operation of s 118.

39. Therefore, I am satisfied that any basis for Mr Wilson’s application falls away. The claimed condition of apparent PTSD would seem, on the force of medical evidence before me, to have been a long-established apparent condition, although whether there is a settled diagnosis seems ambiguous because some practitioners have accepted it without independent verification.

40. The Tribunal accepts that Mr Wilson was advised to lodge two claims for compensation, one through WorkSafe Victoria and one under the SRC Act. He succeeded on the first but cannot now seek compensation under the SRC Act for something for which he is already receiving compensation under State law.

41. In Re Filsell and Comcare (2009) 109 ALD 198 (‘Filsell’), DP Jarvis was considering a request for dismissal on the basis that the proceedings were frivolous or vexatious. In 2015 the scope for dismissal under s 42B was expanded so that a matter could be dismissed not on the basis of it being ‘frivolous’ or ‘vexatious’, which necessarily involve a mental element on the part of an applicant, but where there is no reasonable prospect of success. However, relevantly in Filsell, the learned Deputy President said, at [33]:

    (d) However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.

42. To dismiss a matter under s 42B(1)(b) of the AAT Act is not done lightly, because the general principle which guides the Tribunal is to allow applicants to challenge decisions with which they disagree. However, in this case the operation of law precludes Mr Wilson from succeeding. In short, there are two reasons for that: he has already received State compensation for the claimed condition and, to the extent that he claims an aggravation, that has not been made out and any aspect of it relating to his employment in 2019 does not fall within the ambit of the SRC Act, because it precedes his employment with Optus and, with that, coverage under Comcare (and jurisdiction by the Tribunal).

43. I am satisfied that there is no prospect of Mr Wilson succeeding, were his application to proceed to substantive review. To allow it to go forward would involve more time and expense by both Mr Wilson and the Respondent, and the time of the Tribunal, when there is no beneficial outcome foreseeable for the Applicant.

44. I note that Mr Wilson has new gainful employment and hope that this is a positive development for him.

    DECISION

45. Being satisfied that the application has no reasonable prospect of success, pursuant to s 42B(1)(b) of the AAT Act, the application is dismissed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.................................[sgn].......................................

Associate

Dated: 15 August 2024

Date of hearing:	22 April 2024
Date final submissions received:	21 May 2024
Applicant:	Self-represented
Representative for the Respondent:	Ms Emma O'Connor
Solicitors for the Respondent:	Sparke Helmore