Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 871
ADMINISTRATIVE APPEALS TRIBUNAL	)
	)	No 2007/1541 
GENERAL ADMINISTRATIVE DIVISION	)	
	Re	BARRY LAWSON 	
	Applicant
	And	STATESHIPS 	
	Respondent
DECISION
Tribunal	Deputy President R D Nicholson  	
Date	11 November 2009 
Place	Perth 
Decision	The Tribunal affirms the decision under review. 	

	
	.............(sgd Mr R D Nicholson)................
                                                                                        Deputy President 

CATCHWORDS
  COMPENSATION – Seafarer – claim for medical treatment – evidence claimant suffered mental ailment – whether ailment was contributed to in a material degree by claimant’s employment – whether any injury arose out of or in the course of the claimant’s employment

Seafarers Rehabilitation and Compensation Act 1992 (Cth) s3, s7, s26(1), s28(2), s49

Canute v Comcare  (2006) 226 CLR 535
Comcare v Canute  (2005) 148 FCR 232 at [63]-[67
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641
Hickox v Education Department (1974) VR 426 at 430
Jones v Dunkel (1959) 101 CLR 298

House of Representative Explanatory memorandum to the Bill for the Act 36090/92
REASONS FOR DECISION

 11 November 2009 	The Hon Robert Nicholson, Deputy President	

Facts
1.	The applicant is a 63 year old former seafarer, born 2 August 1945.
2.	On 27 July 1991 the applicant, whilst working as a cook on a ship, the MV Roberta Jull, in the course of his employment with the respondent slipped when carrying meat from the galley and badly twisted his right knee and caused the medial meniscus to tear.  The applicant was medically assessed and declared unfit for sea duties.  He received worker’s compensation until 24 September 1991 when he returned to work.
3.	The applicant’s right knee continued to deteriorate and on 9 June 1994 he was certified as unfit for further sea duties.
4.	On 10 June 1994 the applicant submitted a claim for worker’s compensation to the respondent and he has been in receipt of ongoing compensation payments with effect from that date.
5.	On 27 February 2006, the applicant’s treating orthopaedic surgeon, Dr Graham Forward, stated that the applicant had a limited ability for heavy physical work but would be able to carry out a wide range of clerical duties and would be fit for light duties such as storeman or sedentary attendant.
6.	The applicant’s Progress Medical Certificate of 20 April 2006 stated that a vocational rehabilitation assessment was required.  
7.	On 20 April 2006 the respondent requested the applicant to advise whether he was available to attend a vocational assessment.  The applicant responded on 28 April 2006 by facsimile dated 24 April in which he stated that in the past 15 years there had been twenty medical certificates with a request for a vocational assessment of which all but two had been ignored.  These two had been rejected outright.  He considered that taking into account this treatment of the previous applications for employment, there was no chance of his being employed.  Nevertheless, provided the respondent agreed to pay all costs he said “I have no difficulty in participating and look forward to attending a Vocational Assessment”.    On that day the respondent’s solicitors informed the applicant that it had arranged for the applicant to attend at Herdsman for a vocational assessment.
8.	There was disagreement between the respondent and the applicant as to where his vocational assessment should be carried out.  The applicant disagreed with the respondent’s choice of service provider, preferring the rehabilitation programme to be done by the Commonwealth Rehabilitation Service at Fremantle.  
9.	In the event, the applicant did attend on the respondent’s medical provider on 9 May 2006 to discuss his medical and vocational situation.  The report of Mount Injury Management Service contained a summary of the situation and made certain recommendations in relation to exploring suitable work options.  The report noted that the applicant reported that he had found it difficult to handle the stress related to the adversarial nature of his worker’s compensation claim, had become suicidal at one stage and that he had advised that he had received counselling at the Mary MacKillop Centre.  The report did not contain any reference to the applicant suffering from any psychiatric condition or mental injury, or that the applicant claimed he was.  
10.	By letter dated 4 July 2006 the applicant wrote to Elaine Duncan at Mount Injury Management stating that “because of Stateships’ new initiative I have been placed under more than usual stress and my doctor has referred me for psychiatric assessment.  This is to take place tomorrow the 5th of July at 11.45am”.
11.	On 12 July 2006 the applicant lodged a claim for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”).
12.	In answer to the question in the claim form, what was the nature of his claim, the applicant ticked the boxes “medical and related expenses” and “household and attendant care services”.  He described the nature of his injury or illness as “stress” and the part of his body injured as “mental”.  In answer to the question, when was he first injured or notice he was ill, the applicant wrote “1995” but following a letter from the respondent on 4 August 2006 asking why he did not report the stress in 1995, on 3 October 2006 he wrote to the respondent changing the date from 1995 to April 2006.
13.	In his claim for compensation the applicant described the events that led to his injury in the following terms:
“The continual legal litigation in respect to my compensation claim since 1994 and the fact that my employer refused to provide me with the opportunity to take part in any rehabilitation programme over the past twelve (12) years, effectively denying me the ability to rejoin the work force but are now demanding that I take part in a futile rehabilitation assessment.  This whole process has put me under a lot of stress causing me to drink alcohol heavily and has threatened my ability to cope with every day life.  Over the years I have received counselling from a psychologist but this latest initiative of Stateships has caused me to seek and receive psychiatric help from Dr Wu of WEIT Perth because I became frightened of the consequences of my state of mind.” 

14.	Ms B Kordanovski, a psychologist with Mount Injury Management Service in a Vocational Assessment report dated 24 July 2006 concerning the applicant following two vocational assessment sessions attended by him on 18 and 20 August 2006, said:
“Mr Lawson engaged in the vocational assessment sessions.  He was an active participant in the process and completed the administered questionnaires promptly.  Mr Lawson expressed that he felt anxious regarding participating in vocational rehabilitation and possibly returning to the workforce following such a long period since his injury.”

He also expressed the opinion that:
“There are numerous barriers which may impact upon successful vocational redirection for Mr Lawson, including his age, physical restrictions, lack of formal education and restricted employment experience.  In addition, Mr Lawson’s high level of anxiety, regarding a return to the workforce after 15 years may impact upon redirection success.”

15.	On 23 October 2006 the applicant wrote to the respondent stating that his claim for mental stress related to the fact that he was not allowed to undertake rehabilitation in 1995 and 2001 and a decade later the respondent wanted him to readjust to being employed, and at an unapproved rehabilitation provider.  The applicant repeated the substance of that letter in a subsequent letter to the Tribunal the following day, adding that he had seen psychiatrist Dr Wu who had prescribed the anti-depressant medication Lexapro. (It was the applicant’s general practitioner who prescribed Lexapro and there was no evidence that it was an anti-depressant).  By facsimile dated 27 October 2006 the respondent’s solicitor informed the applicant that it had, as requested by him, made arrangements to transfer his vocational rehabilitation from Mount Injury Management to a seafarers’ approved rehabilitation provider, namely CRS Australia Fremantle.
16.	On 11 April 2007, following a failure by the respondent to determine the claim, the applicant filed an application for review to the Tribunal to review the deemed reviewable decision of the respondent disallowing the claim.
17.	On 5 September 2007 the applicant’s general practitioner, Dr Knight, said there were no factors impacting on the applicant’s psychological condition other than the worker’s compensation process.
18.	Consistent with that medical advice, on 12 December 2007 and 13 December 2007 the respondent’s solicitors and the respondent respectively said that the respondent did not require the applicant to attempt to return to work and efforts to have the applicant return to work would not be progressed.
19.	Since that time the applicant has not been subject to any requests that he undertake a vocational assessment or rehabilitation programme.
20.	In previous proceedings before the Tribunal differently constituted, it held that the applicant had contracted a psychiatric disorder involving depression in 2006.  On appeal the Federal Court held that there was no probative evidence that the applicant contracted a psychiatric disorder involving depression.
Legislation
21.	The Act relevantly provides that if an employee suffers an injury that results in his or her death, incapacity for work or impairment, compensation is payable for the injury: s 26(1).  Section 28(1) of the Act provides that where an employee suffers an injury and obtains medical treatment for the injury, compensation is payable for the medical treatment for the injury.  By s 28 (2) of the Act subsection (1) applies whether the injury results in death, incapacity for work or impairment.
22.	By s 3 of the Act “injury” is defined to mean (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.
23.	Section 3 of the Act relevantly defines “disease” to mean (a) an ailment suffered by an employee; or (b) the aggravation of any such ailment, being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment Section 3 of the Act defines “ailment” to mean any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
24.	In the case of an injury, whether it be a physical or mental injury, other than a disease, it will be sufficient that the injury “arose out of” the employee’s employment.  However, by reason of s 3 of the Act, where, as here, the injury is a disease being a mental ailment, disorder, defect or morbid condition to be compensable the disease must have been “contributed to in a material degree by the employee’s employment”.
25.	Additionally, s 7 of the Act provides that for the purposes of the Act, an injury or ailment suffered by an employee as a result of medical treatment of an injury is taken to be an injury if, but only if (a) compensation is payable under this Act for the injury that was treated and (b) it was reasonable for the employee to have obtained that treatment in the circumstances.
Evidence
26.	The applicant gave evidence.  He called as witnesses in support of his application evidence from Sister Emilie Cattalini, Dr Boon Loke, Consultant Psychiatrist, Dr McCarthy and Dr Knight.
27.	The respondent did not call any witnesses.
Applicant’s contentions
28.	The applicant’s written submissions state that the essential issue is whether he is entitled to payment of the cost of medical treatment arising from an injury as provided in s 28 of the Act.
29.	The applicant contends “the injury” was either an adjustment disorder with depressed mood or an adjustment disorder.  The applicant submits that the evidence clearly supports the proposition that the injury resulted from the vocational rehabilitation assessment and its initiation.  Accordingly it is submitted that the applicant is entitled to the reasonable cost of treatment, including medication and doctors visits during the continuation of the injury.
30.	The second way in which the applicant contends is that “the injury” can be considered though the definitions contained in s 3 of the Act.  It is said these “boil down to” whether the injury (a) arose out of, or in the course of or (b) was contributed to in a material degree by the applicant’s employment.
31.	The applicant accepts that the injury is an ailment.  He submits that the question is whether the injury was contributed to in a material degree by the applicant’s employment.
32.	The respondent employer requested that the applicant undertake a vocational rehabilitation assessment and that is said to be a causal connection to the applicant’s employment: cf s 49 of the Act.  It is submitted that the initiation of the assessment and assessment process is within the course of employment: Hickox v Education Department (1974) VR 426 at 430.   It is submitted that if the employer had not made the direction then the applicant is unlikely to have suffered the injury.  Further, that the ability to give the direction and require compliance on the part of the applicant arose as a result of the employment relationship hence was a contribution by the employer in a material degree.
Respondent’s outline of contentions
33.	The respondent contends that the issue is whether the injury is a disease, being a mental ailment, disorder, defect or morbid condition and this must have been “contributed to in a material degree by the employee’s employment.”  The respondent argues that the effect of the evidence is such that it cannot be concluded that the employee’s employment did contribute “in a material degree” to the mental ailment constituting his injury.  Also that it did not arise from or in the course of the applicant’s employment.
Consideration of contentions
34.	The issues for consideration arise from the terms of s 28 of the Act.  The first issue arises under para (a) and is whether the applicant had in “injury” by way of a “disease.“ 
35.	There is evidence that the applicant suffered an “ailment” in the form of a mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).  Dr Loke gave evidence that the applicant suffered from an adjustment disorder.  Dr McCarthy gave evidence that the applicant suffered from an adjustment disorder with depressed mood.  I find that the applicant has established that he suffered from an “ailment” when he suffered from the circumstances referred to in the claim under consideration.
36.	In either case an ailment will be a “disease” if it was contributed to “in a material degree by the employee’s employment.”    I accept the submission of the respondent that the definition of “disease” in the Act and, in particular, the inclusion of the word “material” in it means that not every casual connection will be sufficient to satisfy the statutory description of “disease.”  Further, that the use of the term “material” serves to emphasise not only that it must be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of but also imposes an evaluative threshold beyond which a causal connection may be disregarded after consideration of all relevant contributing factors: Comcare v Canute  (2005) 148 FCR 232 at [63]-[67], especially at [67]; decision reversed Canute v Comcare  (2006) 226 CLR 535, but not on this point; Comcare v Sahu-Khan (2007) FCA 15 at [11]-[12], [16].  The contributing factor must be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641.  Regard must be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate or accelerate the disease: Comcare v Canute at 66. (Whilst Comcare v Canute concerned the interpretation of the provisions of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988, the provisions under the Act are in material respects the same and reflect the intention of the legislature that the Act be similar to compensation and rehabilitation compensation arrangements applicable to Commonwealth employees and that the definitions in the Act be consistent: House of Representative Explanatory memorandum to the Bill for the Act 36090/92 at p10 Hansard, House of Representatives, 14 October 1992 at p2145).
37.	The applicant’s assertion that he suffered from mental stress by reason of being required to undertake a vocational assessment is not consistent with the evidence.  When the applicant was informed on 20 April 2006 that he was required to attend vocational assessment he responded that he “had no difficulty” and “looked forward” to attending.  His disagreement concerned the provider of any rehabilitation programme.  He saw Dr Wu on 5 July but he did not call Dr Wu so that the evidence of Dr Wu would not have assisted him: Jones v Dunkel (1959) 101 CLR 298.
38.	Both Sister Cattalini and Dr Knight said that the request by the respondent that the applicant attend vocational assessment was not the cause of his stress.  Rather, the cause was being required to undergo a vocational assessment which he regarded as inconsistent with previous requests for rehabilitation by him, which had been refused.  
39.	The report dated 6 June 2006 of Elaine Duncan, a psychologist who conducted a vocational assessment of the applicant on 9 May 2009, did not discern that the applicant was or may have been suffering from any mental ailment or that the applicant claimed he was by reason of being required to undertake the vocational assessment.
40.	On 18 and 20 July 2006, shortly after the applicant saw Dr Wu, he attended on clinical psychologist Ms B Kordanovski for two vocational assessments.  He did not state he had seen Dr Wu or claim he was suffering from any mental ailment.  Nor did Ms Kordanovski discern he was so suffering.  On the contrary, she reported he was an active participant in the assessment process and completed the administered questionnaires promptly, though he was highly anxious in participating in vocational rehabilitation.
41.	Dr Loke’s evidence was that when the applicant saw the process proceeding from vocational assessment to vocational rehabilitation he became concerned, even angry.  The applicant’s evidence and documentary evidence establishes that the applicant did not wish to adjust his lifestyle to accommodate having to return to work.  When the provider requested by the applicant was appointed, there was not any improvement to the applicant’s asserted condition.
42.	On 17 March 2009 the applicant attended on Dr Loke for about an hour to obtain a report for the purposes of the proceeding.  Dr Loke accepted an account by the applicant that in 2006 he had reacted with anger and social withdrawal to the requirement that he attend vocational assessment.  This account given to Dr Loke is not consistent with the contemporaneous evidence just set out or the applicant’s oral evidence.
43.	On 7 May 2009 the applicant attended on Dr McCarthy for around 2 hours.  He concluded the applicant had developed an adjustment disorder with depressed mood in about June 2006, although not suffering from any active psychiatric disorder at the time of his consultation.  In response to a question as to what was the material cause of the applicant’s adjustment disorder, Dr McCarthy said the applicant had pointed out to him that prior to being “hassled” about rehabilitation in 2006, his life had been good.  He had a regular income and pension; he was in a house conveniently located; he travelled internationally; he had purposeful if unpaid work; he had supplied his own rehabilitation and found a comfortable and meaningful lifestyle; he was able to pursue his usual social, recreational and leisure activities that did not require any ongoing effort on his part.  Dr McCarthy did not consider that the applicant’s future psychiatric condition would be at all affected by his workplace injury.  He had no permanent or current psychiatric impairment so that no percentage of permanent psychiatric impairment was attributable to workplace injury.  The applicant disputed Dr McCarthy’s accuracy in recording some matters in his report.  I accept that, even if that was so, they did not individually or collectively materially affect Dr McCarthy’s opinion.  
44.	Accordingly, there were no features of the applicant’s employment that contributed to his adjustment disorder.  That was not contributed to by an event or occurrence in the course of the applicant’s employment or some characteristic of the work he performed in the course of his employment or the conditions in which the work was performed.  There is no evidence that his initial knee injury was the sine qua non for his contraction of the adjustment disorder.  
45.	Section 49 of the Act provides that if an employee suffers an injury that lasts, or is expected to last, 28 days, which results in an impairment or an incapacity for work, the employee’s employer must, within 28 days after receiving notice of the injury, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program.  If that assessment concludes that a rehabilitation programme is appropriate, the employee will be required to develop and conduct an appropriate rehabilitation programme in respect of the injured employee.  The respondent submits and I accept that it would be a curious result if, in fulfilling this legislative requirement, the employer should also assume a legal liability.
46.	The respondent submits that s 7 of the Act does not widen the scope of the application of the Act; that is, there must first be an “injury” or “ailment” suffered by an employee within the meaning of those words as defined in the Act.  The applicant submits that the word “injury” in s 7 refers to the same injury in each case.  I do not agree with this latter submission.  Section 7 posits, firstly, an injury which is treated; secondly, an injury or ailment suffered by a employee as a result of medical treatment of the injury.   The reference in para (a) of s 7 is read more naturally and plainly as referable to the principal injury which preceded the treatment.  The result is that s 7 cannot add to the applicant’s case because it does not widen the concepts invoked by the sections previously discussed.
47.	In all these circumstances I do not consider it is open to find that the applicant’s ailment was one which ”was contributed to in a material degree by the employee’s employment.”   The applicant’s case has not negated the respondent’s submissions on this effect of the evidence save in the most general way.
48.	The consequence is that it cannot be concluded on the evidence that the applicant had an “injury” as a result of having a “disease.”
49.	The second issue is whether par (b) of the definition of “injury” has any application.  The mental “injury” upon which the applicant relies did not arise out of, or in the course of, the applicant’s employment, so that the paragraph cannot have any application.  I reach that finding for the reason expressed in para 44 above.
50.	The third issue is whether para (c) of the definition of “injury” has application.  Again, if there was an “injury (other than a disease)” suffered by the applicant “whether or not that injury arose out of, or in the course of, the employee’s employment” it has not been established in the applicant’s case that it was “an aggravation that arose out of, or in the course of, that employment.”  I base this finding on the reasoning expressed in para 44 above.
51.	Because the applicant has not established that he suffered “an injury” within s 28 of the Act, he is unable to establish an entitlement to obtain compensation for the cost of medical treatment under para (b) or (c) of that section.
Conclusion
52.	For these reasons I conclude that the  decision under review must be affirmed.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President R D Nicholson 

Signed: ............. (sgd Ms L Huynh)...................................
		Associate

Date of Hearing	24 June 2009 
Date of Decision	11 November 2009
Solicitor for the Applicant	Mr G Stubbs 
Counsel for the Respondent	L. A. Tsankis 
Solicitor for the Respondent	Mr W Naseem