Bailey and Australian Postal Corporation
[2004] AATA 713
•2 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 713
ADMINISTRATIVE APPEALS TRIBUNAL ) No. S2000/346 &
) No. S2001/468
GENERAL ADMINISTRATIVE DIVISION ) Re HELEN JANE BAILEY Applicant
And AUSTRALIAN POSTAL CORPORATION Respondent
DECISION
Tribunal Deputy President D G Jarvis Date2 July 2004
PlaceAdelaide
DecisionThe Tribunal
(a) varies the decision under review in matter number S2000/346 in relation to the applicant’s claim in respect of her shoulder injury insofar as the Tribunal decides that the respondent is liable to the applicant for compensation for the period from 17 to 31 May 2000;
(b) sets aside the decision under review in matter number S2001/468 in relation to the applicant’s claim for a major depressive disorder, and in substitution for that decision decides that the respondent is liable to pay compensation in respect of the applicant’s psychological disorder;
(c) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(d) orders that in the absence of any such application, the respondent pay the costs of the proceedings.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – shoulder injury – diagnosis of frozen shoulder – not work related – aggravation of shoulder condition - decision to reject claim for compensation varied – acute depression – industrial relations issues – perception of victimization by management – distrust of management – whether reaction to disputes regarding rehabilitation policy was compensable – psychological disorder not result of failure to obtain benefit in connection with employment – psychological disorder contributed to in a material degree by employment – decision set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 14, s 4(1) and s 4(9)
Lees v Comcare (1999) 56 ALD 84
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Comcare v Mooi (1996) 69 FCR 439
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Suters v Australian Postal Corporation (1992) 28 ALD 320
Wiegand v Comcare (2002) 72 ALD 795
Vanderdoes v WorkCover Corporation and VAAC Insurance Worksafe (Seanco Pty Ltd) [1998] SAWCT 68
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Re Smith and Comcare [2002] AATA 249
REASONS FOR DECISION
2 July 2004
Deputy President D G Jarvis Introduction
1. The applicant, Helen Jane Bailey, has made two claims for compensation against her employer, the Australian Postal Corporation. The first claim is for an injury to her right shoulder, and the second claim is for a major depressive disorder. Each claim was rejected by the respondent, in the case of the first claim on the grounds that the delegate of the respondent was not satisfied that the shoulder injury arose out of or in the course of the applicant’s employment, and in the case of the second claim, because the delegate was not satisfied that the applicant’s employment contributed in a material way to her psychiatric illness. Those determinations were subsequently affirmed on reconsideration in separate reviewable decisions. The applicant applied to this Tribunal for review of those decisions, and the applications for review were heard together.
2. Mr T Bourne from Bourne Lawyers appeared for the applicant, and Mr T McRae of counsel appeared for the respondent. The applicant gave evidence, and evidence was also given in support of her claims by her husband, Gary Bailey; her general practitioner, Dr Izidor Valentincic; an orthopaedic surgeon, Mr Gregory Ian Bain; a psychiatrist, Dr Karl Lashchuk; and a physician rheumatologist, Dr Gary Champion. The respondent called Peter Julius Kesting, an industrial physiotherapist; Dr Geoffrey James Graham, an occupational medicines specialist; Mr Andrew David Saies, an orthopaedic surgeon; Dr Zsolt Lukacs, a psychiatrist; and also a number of witnesses who were employees of the respondent at the relevant time, namely Traci Abraham, Gerhard Volmer, Mary Wotton, Maria Payne, John Sean Rush, Mark William Crowe, Kym Gregory Altman, Vivian Francis Baker and Vicki Anne Jacobs. In addition, the documents lodged in respect of each application pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) were tendered, together with a large volume of supplementary s 37 documents relating to both applications. Both parties also tendered a number of further reports and documents, to which I will refer as appropriate later in these reasons. Further submissions were received from the respondent’s solicitors on 29 October 2003 and from the applicant’s solicitors on 3 December 2003. I have carefully considered all of the evidence before the Tribunal in determining the applications.
Issues
3. The issues before the Tribunal were:
(a) whether the applicant’s shoulder injury arose out of or in the course of her employment;
(b) whether there was an aggravation of her right shoulder condition which arose out of or in the course of employment;
(c) whether the applicant’s psychological disorder was contributed to in a material degree by her employment by the respondent;
(d) whether the applicant was incapacitated for work as a result of her shoulder injury or her psychological disorder, or both; and
(e) whether the psychological disorder was suffered as a result of a failure by the applicant to obtain a benefit in connection with her employment.
Claims made by Applicant
4. The applicant lodged with the respondent an incident report dated 7 March 2000 in respect of an injury to her right shoulder. I accept the evidence of the then manager of the post office, Mr Volmer, that she gave him this form on 21 February 2000, and it was apparently later dated 7 March 2000. In this form the applicant states that the date of the injury, or when the symptoms were noticed, was 22 October 1999. She described the nature of the injury as “shoulder muscular pain” and described how the incident happened in the following terms:
“Right shoulder pain ongoing 2 months duration. No specific injury but felt right shoulder pain and stiffness when needing to reach with right shoulder & lift with right shoulder at work.” (exhibit A1, T3, page 5).
5. She then made a claim for compensation dated 2 May 2000 for injury to her right shoulder. She asserted that the injury happened in August 1999. She described the events which led to the injury as follows:
“Shoulder pain and stifnes (sic) in right shoulder. No specific injury / then when reaching under counter for cash tin on floor came up to (sic) soon and hit shoulder hard. Hard enough to bring tears and pain. (This was noticed by staff members).” (exhibit A1, T8, page 11).
6. By a determination dated 22 May 2000, the respondent rejected the claim for compensation on the basis that it had not been established that the applicant suffered an injury to her right shoulder that could be attributed to her employment. The applicant sought a reconsideration of this determination by letter dated 28 July 2000, and in a reviewable decision dated 15 August 2000, the respondent affirmed the determination to reject the claim for compensation. By an application dated 31 August 2000 the applicant applied to this Tribunal for review of that decision.
7. The applicant lodged a further incident report dated 8 August 2001 in respect of symptoms from October 1997 to May 2000 described as “stress/anxiety disorder” (and I note that the additional words “right shoulder – muscular pain” had also been inserted apparently in the applicant’s handwriting, but were deleted). In describing how the accident happened, the form reads:
“Stress/anxiety from shoulder pain and stifnes (sic) in R shoulder. No specific injury / then when reaching under work bench-counter for cash tin on floor I came up too soon and hit my R shoulder hard. Hard enough to bring tears and pain. (This was noticed by all staf (sic) members. One staff member finished serving for me as I went out the back to recover. + as attached.” (exhibit A2, T4, page 13).
8. The applicant lodged a further claim for compensation dated 8 August 2001, in which the applicant described her “injury/illness” as “right shoulder. Stress/anxiety disorder”. The claim form also records that the injury happened or she first noticed symptoms from October 1997 to May 2000, and she first sought treatment for the “injury/illness” on 2 February 1998 (exhibit A2, T5, page 15). The applicant stated that the injury happened at the Prospect East Post Office and the Elizabeth Post Office. She provided the following details when asked to give details about the events which led to the injury/illness:
“Stress at work as attached. Shoulder pain and stifnes (sic) in R shoulder. No specific injury / then when reaching under counter for cash tin on floor came up too soon and hit R shoulder hard on above counter. (This was noticed by other staff member as one finishe (sic) serving customer.”
9. Certain documents were attached to the incident report form and the claim form. The first was a lengthy undated letter from the applicant to a Commissioner Lewin of the Australian Industrial Relations Commission (“AIRC”), and the second was a two-page statement apparently prepared by the applicant which contained much of the same material as appeared in the letter to Commissioner Lewin. The letter and the statement referred to a number of matters going back to 1997, including the applicant’s grievances arising from certain experiences at the Prospect East Post Office (to which she referred in detail in her evidence before me, and to which I will refer later in these reasons), her having been victimised over several months and her going on unpaid leave because she was unable to work during the altered hours which the respondent had required of her but without going through a process of prior consultation. It appears that a copy of a medical report dated 14 June 2001 from a psychiatrist, Dr Lashchuk, was also attached to the incident report form and the claim form.
10. In a determination dated 7 September 2001, the respondent rejected this claim for compensation on the basis that it was not established that her employment had contributed in a material degree to the causation of her illness. By a letter dated 12 September 2001, the applicant’s solicitors requested a reconsideration of this determination. This letter made brief submissions in support of the applicant’s claim. In a reviewable decision dated 12 December 2001, the respondent affirmed the determination to reject the claim for compensation in respect of the mental disorder. By an application dated 17 December 2001, the applicant applied to this Tribunal for review of that decision.
Legislation
11. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Act”) provides for compensation for injuries, and provides as follows:
“14(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.”
The respondent, having been licensed to manage claims under s 108 of the Act, is liable under s 14 in place of Comcare (see s 108(1)).
12. Section 4(1) of the Act includes definitions of “injury”, “disease” and “ailment”. It states:
“injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
“Disease” is defined to mean:
“disease means:
(a) any 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 by the Commonwealth or a licensed corporation.”
The word “ailment”, which is used in the definition of disease, is defined in s 4(1) to mean:
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
13. The concept of incapacity for work is defined in s 4(9), which provides as follows:
“4(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a resulting 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.”
Background - Evidence of Applicant
14. The following background findings are based on the evidence given by the applicant either in her oral evidence or in her witness statement (exhibit A4) which was not contested, or which I accept, and are also based on certain documents tendered by the parties.
15. Mrs Bailey was born on 3 December 1958. She was married on 22 November 1980 and her son, Alex, was born on 13 September 1987.
16. She commenced working for the respondent on 1 February 1995. For about 12 months she worked as a receptionist/telephonist at the GPO, in the section containing the General Manager and Public Relations. This position was almost full-time, the hours being 8.30am to 3.00pm on Mondays to Fridays. This suited the applicant because she took her son to school and picked him up afterwards, and she did not want to have a permanent job which would prevent her from doing this. After about 12 months in this position, the applicant worked for the same hours as a clerk in the Network Support section at the GPO for about two years. Her managers were aware of her need to finish work by 3.00pm.
17. The Network Support section was then phased out, and in August 1996 she was transferred to the Prospect East Post Office as a postal service officer, doing counter work. She then worked less hours, from 9.00am until 2.00pm, and these shorter hours suited her because it made it easier for her to take her son to school and pick him up afterwards. Basically, her work involved selling stamps, taking letters or parcels and receiving the payment of bills.
18. Certain events occurred at the Prospect East Post Office in the second half of 1997 which were very distressing to Mrs Bailey. I will refer to these events later in these reasons.
19. In September 1997 the applicant injured her knee in an accident unrelated to her work, and she was off work for about four weeks. Soon after her return to work she was advised that her hours of work at Prospect East had been changed and entailed working on Thursday and Friday afternoons. These alterations did not accommodate the applicant’s need to leave work by 3.00pm each day so that she could collect her son from school.
20. The applicant claimed that she had not been previously consulted regarding this change in her hours. There were then various discussions regarding other positions, but the applicant’s concerns were not resolved. She went on leave without pay in November 1997, and when her concerns remained unresolved notwithstanding a number of further discussions and communications with Australia Post, she took proceedings in AIRC claiming that in November 1997 she had been constructively dismissed by the respondent, and that that dismissal was unfair.
21. Early in March 1998 Mrs Bailey commenced work at the Elizabeth Post Office in a recently created position as a permanent part-time Postal Services Officer (Unattached) (25 hours per week). Her application to the Commission was later resolved at a conciliation conference on 9 April 1998. The terms of settlement were confirmed in a letter dated 20 April 1998 from the respondent to the applicant, a copy of which is attached to exhibit A4, at page 54. It was agreed that Mrs Bailey would continue to be employed at the Elizabeth Post Office in her part-time position, which would continue until the position was occupied on a permanent basis, and that if Mrs Bailey unsuccessfully applied for this position once it had become permanent, her Area Manager was to arrange for her to be employed at 25 hours per week at an alternative facility, after full discussion with her prior to relocation and after making every endeavour to cater for her stated working preferences.
22. The applicant continued to work at the Elizabeth Post Office, and in July 1998 her position was made permanent. She continued working at the Elizabeth Post Office until 16 May 2000 when she was told that she could no longer work until she had recovered from her shoulder condition, which is the subject of the first compensation claim in issue in these proceedings. She has not worked since then.
Applicant’s Evidence as to Events at Elizabeth Post Office
23. Mrs Bailey said in evidence that when she first started work at the Elizabeth Post Office she was not made to feel welcome, and received a number of obscene phone calls and an anonymous letter suggesting that it would be beneficial for her to work elsewhere (see exhibit A4, page 64). She said that there was some ongoing friction between staff at Elizabeth about the number of hours of work that were available. However, she said that after the first month or so her manager told her that he was very happy with her work.
24. In her witness statement, Mrs Bailey said that she first consulted a doctor about stress or anxiety in the course of the dispute in the AIRC. She said further:
“66. Although I realized that things had worked out reasonably satisfactorily, I still had a chip on my shoulder. I felt that I was blacklisted as far as any advancement or promotion was concerned. I felt that I probably had no long-term future with Australia Post, but that I was a “marked woman”.
67. I had no trust in management at all. I had been brought up to believe that if you worked hard and did your best in a workplace, you would be supported by management when difficulties arose. Instead, I felt absolutely betrayed by Australia Post.
…
70. I don’t believe that emotionally I ever got over the way I had been treated at Prospect, and the difficulty I had had afterwards, and the hostility and lack of trust which it caused.” (exhibit A4, pages 13 and 14).
25. The applicant worked behind the counter serving customers of the Elizabeth Post Office. Her duties were set out in a Duty Statement appearing at page 30 of exhibit A4. She said her duties included handling parcels weighing up to 20 kilograms, and if a parcel was heavier, two people had to lift it. However, she did not know a parcel was over this limit unless it had been weighed. The Duty Statement included “clear[ing] front posting boxes and despatch[ing] 1.30pm mail”. She referred to this as “bagging the mail”. This task entailed emptying two large postal boxes, each of which contained a canvas bag held in place on couplets. When the canvas bag was full of letters, she had to lift it from the postal box and replace it with an empty postal bag. This involved stretching over to unhook two rear eyelets of the four eyelets from which each bag was suspended, taking the weight of the bag with one hand in order to unhook it. She would then drag the canvas bag to the back of the Post Office, and secure the top of it with rope or string ready for collection. She said that when the postal truck arrived, she would help the driver load the canvas bags into the back of the truck, and there may have been six to eight canvas bags at any one time.
26. The applicant is right handed. From about August 1999 she started having pain and discomfort in her right shoulder, and this appeared to develop gradually over a couple of months. At about the time when her pain started she became busier with parcels, because that was approaching the busy time of the year for sending parcels overseas, and she also became busy then selling AFL paraphernalia. She thought that her shoulder seemed to be aggravated by the work she was doing. However, she thought she had already had quite enough problems with Australia Post and did not want to claim worker’s compensation.
27. The applicant said that she consulted her family doctor, Dr Valentincic, who did some tests and said that she had bursitis. He suggested that she should fill out a worker’s compensation claim form, but she did not want to do so. Dr Valentincic arranged for an ultrasound examination and referred her for a cortisone injection. He also referred her to Mr Bain, an orthopaedic surgeon, who gave her a further cortisone injection, but the injections did not seem to help much, if at all. She continued working, but with some difficulties, and avoided the heavier aspects, such as bagging the mail.
28. The applicant also described a specific incident when she knocked her shoulder. She said she reached under the counter to slide out her cash box, and as she lifted it up, she stood up too quickly and knocked her shoulder on the under side of the counter. She said she immediately felt pain in the shoulder and a sharp pain down her arm, and this was so severe that it made her cry. She said that she was serving a customer at the time, and could not continue, and another staff member took over the transaction involving the customer. According to the incident report dated 7 March 2000, this incident happened on 22 October 1999, but she conceded in cross-examination that she could not recall when the incident actually happened; and she said that the incident report was made some months after the occurrence of the incident, and she could only now say that it had occurred before Christmas that year (1999).
29. Mrs Bailey said that her shoulder remained very tender, she felt a dull ache, it was sore and it kept her awake at night. Her shoulder then started to get stiff. She then filled out the incident report form dated 7 March 2000. After that she was then referred to Australia Post’s occupational physician, Dr Geoffrey Graham, and saw him on 7 March 2000. The respondent then referred her to Mr Andrew Saies, an orthopaedic surgeon, and she saw him on 13 March 2000. She says that he told her that whilst her shoulder was almost totally seized up and her limitation of movement was so acute, he could (or would) not manipulate her shoulder under anaesthesia (this being a procedure sometimes adopted in the treatment of a frozen shoulder). Mrs Bailey arranged to see him again in a couple of months’ time.
30. Mr Saies referred her for x-rays, and although she was not claiming worker’s compensation, the respondent paid the account. However, she understood that if she had an operation, this would be at her cost.
31. The applicant then had two weeks on holidays (and this was from 14 to 28 April 2000, according to the leave report at page 69 of exhibit A4), and she said she felt much improved while she was off work. On the day she was due to resume work she saw Mr Saies again and he said that she was then fine to have the operative procedure and this was booked for a week or two later. The applicant understood that the operation would be at her cost, but understands that the respondent was contacted about the cost of the operation and she was then told by the occupational health, safety and welfare officer of the Post Office, Mary Wotton, that she should submit a compensation claim form. The applicant did this on 2 May 2000 (exhibit A1, T8, pages 11 – 13). She was then sent back to see Dr Graham.
32. She said that after three days or so back at work, her shoulder became worse and almost totally seized up, and so she went to see Mr Saies again. He then advised that there was no reason why she could not still have the operation, but there was no guarantee that the surgery would help. His advice then appeared to Mrs Bailey to be inconsistent with what he had told her earlier, and she lost confidence in him and cancelled the operation.
33. On 16 May 2000, the applicant was told by the manager of the Elizabeth Post Office, Mr Volmer, that she could not keep working, and this made her extremely upset. She says in her witness statement:
“101. I was extremely upset that I was not being allowed to work. I did not want to be off work or to claim compensation. I immediately thought that this was Australia Post’s way of getting around the agreement which had been reached after Commissioner Lewin’s intervention in the AIRC. I was convinced that I would be unfairly treated and ultimately lose my job. As it turns out, this is effectively what has happened.” (exhibit A4, pages 19 and 20).
She has not worked since 16 May 2000.
34. The applicant was subsequently advised that her claim for compensation was rejected. She said she found the situation extremely distressing. In her witness statement she said: “I thought that despite the AIRC intervention in my situation, Australia Post was determined to have the upper hand. I did not want to claim compensation. I did not want to be off work.” (exhibit A4, page 20). She said that the respondent seemed to be saying that as far as her compensation was concerned, the problem had nothing to do with her work, but as far as her work was concerned, the respondent would not allow her to continue in employment because the problem was or might be connected with her work. She became increasingly stressed by the situation, and had a continuous headache, stomach upset and felt continually tired. Sometimes she would vomit after or even when speaking to the respondent’s management about her situation.
35. The applicant continued her attempts to return to work at the Elizabeth Post Office. In the period soon after she was told that she could not work, she saw her family doctor, Dr Valentincic and when he later went on leave, she saw his partner Dr Czechowicz. At the request of Australia Post she also saw Dr Graham again; and a physiotherapist, Mr Kesting.
36. Dr Czechowicz issued various certificates of sickness in which he referred to a specified duties form dated 22 June 2000. He said in this form that the applicant’s restrictions on her capacity to work comprised an inability to lift weights of more than one kilogram with her right arm and an inability to raise her right arm above shoulder level at all (exhibit A3, page 314).
37. Mrs Bailey then wanted Mr Kesting to treat her. She said that Mr Kesting asked her detailed questions about her work, but the doctors had not previously done this. She said he told her he would be able to fix her shoulder within three weeks. However, she had to wait until he received permission from Australia Post to treat her privately. Australia Post finally agreed on 17 July 2000 that Mr Kesting could treat Mrs Bailey, and he did so. She said this resulted in an enormous improvement. Following this, Mrs Bailey thought that she was fit for 95% or more of her former duties, and that her only problem would have been in bagging the mail.
38. The applicant made a significant number of further contacts with Australia Post to advise that she wanted to return to work, but these were to no avail. Her attempts to return to work are set out in detail in paragraphs 105 to 115 and 122 to 132 of her written statement, exhibit A4. She refers to specific communications with various officers of Australia Post and with Mr Kesting (to whom in the initial stages she had been referred by Australia Post) on 19/6/2000, 28/6/2000, 5/7/2000, 7/7/2000, 11/7/2000, 12/7/2000, 17/7/2000, 24/7/2000, 8/8/2000, 11/8/2000, 14/8/2000, 15/8/2000, 8/9/2000, 11/9/2000, 1/10/2000 and 31/10/2000. She said she understood from a discussion with Mr Kesting on 11 August 2000 that he had told Australia Post that she was coming along fine and her shoulder was improving, but that her situation was worrying her, particularly because she felt that she would not have a job (paragraph 124 of exhibit A4). It is significant in this context that in a letter of 8 June 2000, which was apparently copied to Ms Abraham, the rehabilitation officer of Australia Post, Dr Graham had said:
“It is my opinion that Ms Bailey is not at this stage fit to resume her full normal duties. I have placed restrictions on her stating that she should avoid forceful or repetitious use of the right arm or use of the right arm above mid chest height. Her manager is attempting to find appropriate duties for her but at this stage she is off work on sick leave.” (exhibit A3, page 203).
In a later letter dated 4 July 2000 to Mrs Payne (who by then had taken over as the rehabilitation officer of Australia Post), Dr Graham referred to the opinion of Mr Kesting that Mrs Bailey could do “some counter work in standing with limited use of the right arm possible” (exhibit A3, page 223), and said that this reinforced his previously stated review that Mrs Bailey was not fit to resume her normal duties. However, he did not say in that letter that he disagreed with the proposition that Mrs Bailey could carry out the more limited duties referred to by Mr Kesting.
39. Mrs Bailey said that in the discussion on 8 September 2000, she told Australia Post’s representatives that she could take parcels heavier than 1 or 1.5 kilograms with her left hand, as she had been doing for the last six months or so. She said that at a subsequent meeting, on 1 October 2000 with persons from Australia Post, Ms Abraham only then became aware that her shoulder had improved. She told those present that she felt that she could do 90% of her job which was mostly bill pay processing and receiving letters, and she said that not too many bills weighed more than 1.5 kilograms. She said further that she was confused because even Mr Saies had allowed her to work when she had severe restriction of movement in her shoulder, but by then she was much improved and almost back to normal, but she was not being allowed to return to work.
40. Mrs Bailey said that on a lot of occasions after she had been put on unpaid leave she was sent pay slips about money that had either not been paid or had been paid incorrectly. She then had to contact Australia Post to say that she was on unpaid leave, and this caused her a lot of anxiety.
41. The applicant said in her witness statement that she has been extremely distressed by not being allowed to work and at the financial detriment to herself and her family. She also said:
“133 I believe that I have been targeted for unfair treatment in that Australia Post has refused or failed to comply with its own rehabilitation policy.
134 Australia Post’s attitude towards my rehabilitation – irrespective of whether my shoulder problem is compensable or not – has caused me enormous distress. I have been angry, anxious and so frustrated. I find it hard to describe just how badly affected I have been.
…
138 My distress has been maintained by Australia Post’s steadfast refusal to provide rehabilitation and to allow me to return to work, despite numerous requests by myself or my solicitor.” (exhibit A4, pages 28 and 29).
42. Mrs Bailey said that in December 2000, Dr Czechowicz diagnosed that she was suffering from major depression, and he referred her to Dr Lashchuk. He prescribed anti-depressant medication and recorded that on questioning she had had suicidal thoughts and had taken an overdose of two kinds of tablets. She said that she delayed making an appointment to see Dr Lashchuk; she was afraid as she had never seen a psychiatrist before, and still did not like to think that she needed a “shrink” to cope with the problems which the respondent had caused her.
43. In cross-examination, the applicant conceded that in June 2000 there may have been discussions with Ms Abraham regarding a clerical position in Adelaide, but she said she was not prepared to agree to work there because she did not want to go “anywhere near” any of the managers in the city, even though she understood that this clerical position would not involve any lifting.
44. The applicant was also cross-examined about earlier visits to her family doctor concerning her right shoulder. These earlier visits are referred to in the case notes kept by Dr Valentincic. She was asked, in particular, about consultations with a Dr J Meegan (then of the Hope Valley Family Practice) when she complained of pain in the right shoulder; a consultation on 29 July 1992 with Dr Valentincic when she complained of right shoulder pain with a past medical history of capsulitis of 10 years (although in cross-examination she said that her pain was not like it was at the time of the hearing and she did not remember having problems for 10 years); and a consultation on 26 October 1998 when she consulted Dr Valentincic regarding right shoulder pain in the previous week, and on examination there was found to be crepitus and the right shoulder was tender interiorly.
Evidence of Gary Bailey
45. The applicant’s husband, Gary Bailey, gave evidence, which I accept. He recalled that Mrs Bailey first showed signs of anxiety when she was at Prospect East. He said that she appeared to be very frustrated with the situation at work, as well as moody and stressed. He explained that her emotional state was fine when she first commenced at Prospect East, but it deteriorated as the employment dispute escalated and led to an action in the Industrial Commission. He said Mrs Bailey’s stress increased when she commenced at the Elizabeth Post Office as she felt unwelcome, but he said that it improved as people came to know her there and she settled in.
46. Mr Bailey also said that later, at about the time when she was having problems with her shoulder, she would be very moody and touchy after work, and then she started to withdraw into herself and would not go out. He confirmed that she has trouble going to sleep and gets up a couple of times during the night, and this had occurred after the respondent had asked her to fill out forms in connection with her shoulder.
47. Mr Bailey also said that on about 12 occasions the respondent had sent his wife a pay slip when she was on unpaid leave, and then a week or so later she would get a letter asking for the money back. He said that she became very upset about this.
48. Mr Bailey also explained that Alexander, their son, engages in a swimming training program that involved two hours of swimming each weekday morning, from 5.30 to 7.30, and two hours each night of the week, from 4.30 to 6.30. In all he has around 9 to 11 sessions a week including one from 7.00 to 9.00 on Saturday mornings, depending on competition times. Alexander is initially taken to swimming training by his mother and both Mr Bailey and Alexander would be picked up by Mrs Bailey at the conclusion of the session. Mrs Bailey did not refer to these matters in her evidence, (although it appears from the evidence led by the respondent that Australia Post was aware of Mrs Bailey’s involvement, at least with the morning lessons).
49. In cross-examination, Mr Bailey said that to start with, his wife’s problems with her shoulder were not bad but they gradually got worse, and he noticed this when she was carrying things or doing various household chores. He said that there was a time when she was very heavily restricted, namely after the “knock at work”, and after that her shoulder got very bad.
50. Mr Bailey further said that although Mrs Bailey was eventually quite settled and happy at the Elizabeth Post Office, she did have a residual anxiety that had continued on. He said that he believed her personality had changed and that the circumstances surrounding how she came to be at the Elizabeth Post Office continued to come up in conversation. Mr Bailey said that Mrs Bailey still has upper right arm pain and has developed left arm pain because she favours her left arm.
Medical Evidence from Applicant regarding Shoulder
Evidence of Dr Valentincic
51. Dr Valentincic is a member of the Hope Valley Family Practice and confirmed that the applicant was a patient of the practice from 1990. He further confirmed the reference in the practice’s notes to the earlier consultations of the applicant in relation to her right shoulder problems (see paragraph 44 above).
52. He also said that Mrs Bailey saw him on 2 February 1998 complaining of stress at work, that she had been offered unreasonable hours which she could not work, and she was distressed and teary and lacked appetite. Dr Valentincic made a diagnosis of stress related anxiety disorder and prescribed tablets. There were further consultations in respect of stress and her anxiety disorder over the ensuing four months, in which the applicant again complained of stress at work and poor sleep, headaches, being teary and decreased appetite, and anti-depressant tablets were prescribed. The notes also record that there had been no past history of depression.
53. Dr Valentincic said that he saw the applicant with reference to her shoulder problem on 26 October 1998, when she saw him complaining of a “right shoulder pain last week” (exhibit A3, page 119). He advised rest and prescribed Voltaren tablets and physiotherapy treatment if the shoulder was not settling.
54. Dr Valentincic said that according to his notes, the applicant next consulted him with reference to her shoulder almost 12 months later, on 22 October 1999. She then said that she had had right shoulder pain for the past few months with no specific injury, and that on examination, she was quite a lot worse than at the time of his examination almost 12 months earlier. He found that her right elbow was also tender.
55. The applicant next consulted Dr Valentincic on 19 November 1999 and complained that her right elbow and shoulder were no better. From an ultrasound which had been carried out, he considered that she had bursal impingement of the right shoulder. He said that she continued to see him frequently until June of 2000, and after that Dr Czechowicz took over her treatment.
56. Dr Valentincic said that he did not discuss her work duties with the applicant, and had focused more on her injury and treating it, and he did not think that he went into specific causes of the injury. However, in evidence he said that the applicant’s work at the post office of reaching into the post box to unhook bags of mail weighing in the order of 20 kilograms as a regular part of her work was the sort of activity which would cause a swollen bursal.
57. Various medical certificates issued by the Hope Valley Family Practice are included in exhibit A3, commencing at page 156 with a certificate dated 4 May 2000. Most of the forms appear to have been issued by Dr Czechowicz. They refer to restrictions on lifting weights of more than 1.0 kilogram. A certificate issued on 6 September 2000 refers to a restriction on lifting of the right arm of 1.5 kilograms. Whilst the doctor’s writing is hard to read, this weight appears to be repeated on various certificates issued after that up to and including 18 June 2001. On 11 July 2001, the certificate referred to a weight of 2.5 kilograms, and that weight appears to have been repeated in certificates issued after that date.
58. In cross-examination, Dr Valentincic said that the applicant was also suffering from a frozen left shoulder which had reached its worst and was probably on the way to recovery. He thought that both shoulders would eventually heal but at an unpredictable time. He said that according to the ultrasound of the right shoulder, there were two pathologies going on, namely bursal impingement as well as frozen shoulder. As regards bursal impingement, this entailed the shoulder being inflamed, quite often from overuse, and that then restricted movement. He agreed that frozen shoulder was an idiopathic condition, and that it could arise for no apparent reason. He said he could not be sure that frozen shoulder could be caused by a minor trauma. He said that on the occasion of her last visit to him (which according to exhibit A3 was on 4 September 2003) she presented in a depressed manner and was going to talk about something but then became teary and did not want to say anything further; he said that there is “something there”.
59. Dr Czechowicz of the Hope Valley Family Practice prepared a letter dated 31 July 2000 to the applicant in which he summarised in detail her consultations with his partner Dr Valentincic and the subsequent referrals and consultations following the time in March 2000 when she lodged the incident report form. He then expressed the opinion that there were a number of pathologies contributing to her right shoulder condition, namely frozen shoulder or adhesive capsulitis, subacromial bursitis and “long head of biceps pathology, likely a tendonitis”. He further considered that the dominance and severity of all three components had fluctuated since September/October 1999. He thought that the diagnoses were interrelated and were unlikely to be of spontaneous onset, but were likely to be connected with her work environment, and he therefore supported her claim that her condition should be accepted as arising out of or in the course of her employment with the respondent (see exhibit A3, pages 545 – 548).
Evidence of Mr Gregory Bain
60. The applicant also called Mr Bain, an orthopaedic surgeon who first saw Mrs Bailey in December 1999. He prepared reports dated 8 December 1999 (exhibit A3, page 535), 19 May 2000 (exhibit A3, page 538), 6 December 2000 (exhibit A3, page 561) and 24 April 2001 (exhibit A3, page 569).
61. Mr Bain confirmed the opinion expressed in his reports that the applicant was suffering from a frozen shoulder. He said he had seen probably hundreds of cases of frozen shoulder. Whilst he acknowledged that there was some controversy regarding the causation of frozen shoulder, he said he agreed with the opinion expressed by Mr Saies that the applicant’s shoulder problem had occurred spontaneously. He further considered that the incident when the applicant struck her shoulder on the counter after picking up her cash tin from the floor would not have caused her shoulder condition, because a substantial trauma such as an iron bar falling across the shoulder, breaking the arm and tearing all of the tendons would be required in order for the condition to have been caused by a trauma. He had noted the suggestion of a subacromial bursitis in the ultrasound examination on 13 November 1999, but did not agree with this diagnosis. He said using ultrasound in the diagnosis of frozen shoulder was notoriously unreliable, and in his experience, the majority of patients who do have a “frozen shoulder who have an ultrasound are recorded as having subacromial bursitis”. He thought that the reference to subacromial bursitis in the ultrasound was an incorrect diagnosis which could arise because the doctor doing the ultrasound was not actually examining the patient. He also said that he did not agree with a diagnosis referred to by Dr Champion of rotator cuff tendonitis, because on his examinations, there was no marked difference between her passive range of movement and the range of movement which was demonstrated when he moved her arm to the limits of her range of motion.
62. Mr Bain did, however, agree that the sort of work which the applicant had been doing would have aggravated the condition from which she was suffering. He accepted that her shoulder would have felt better after she had been on two weeks’ annual leave. He said that it would be a temporary aggravation, in that her symptoms of pain would have been aggravated for periods of time after the “minor use” of her arm. He added that there would have been an aggravation in the sense also of a temporary reduction in function. However, he described this as a minor aggravation, which would not change the natural history of the condition, and would not make any major difference to the long term outcome of the applicant’s condition. He said that if the applicant stopped work, the aggravation from her work activities “would have resolved over a few weeks and that ultimately her condition would have gone back to its natural steady state, maybe as late as 1 or 2 months, but not certainly a much longer time”. Mr Bain said elsewhere in his evidence that he would have estimated the worsening of her pain from work related activities to last for a few days or maybe a week.
63. In his report of 24 April 2001, Mr Bain said that he expected that the applicant could return to work on duties which involved no heavy repetitive or above-head activities with the affected shoulder, and that it would be reasonable for her to have a weight restriction of up to five kilograms. He acknowledged that this was more than the figure of 1.5 kilograms suggested by Dr Czechowicz, but said that this was an arbitrary figure which he, however, regarded as safe and appropriate.
Evidence of Dr Gary Champion
64. The respondent sought advice from Dr Gary Champion, but he was called by the applicant. Dr Champion is a consultant physician rheumatologist. He first provided a report dated 17 January 2002 (exhibit A3, page 1). He later examined Mrs Bailey and provided a further report dated 1 September 2003 (exhibit A3, page 4). It appears that the first report was prepared following his review of reports provided by Doctors Saies and Bain. He concluded that the applicant did not have a work related condition.
65. However, in his second report, following a physical examination of the applicant, he confirmed that she appeared to have a resolving right frozen shoulder. He described in his report the nature of her duties, including in particular the process involved in emptying the large postal box and moving the canvas bags. He also referred to the incident when she struck her shoulder on the counter. He confirmed that most cases of adhesive capsulitis of the shoulder arise spontaneously or in the course of general medical illnesses such as diabetes, but he goes on to say that in the applicant’s case, as well as a bursitis, she may have had a rotator cuff tendonitis, and further traumatised the shoulder when it was somewhat “vulnerable” to injury. He says:
“This may have been enough to set off a scenario leading to a frozen shoulder. Therefore, despite my initial concerns, discussion and physical examination today raises the possibility, on the temporal relationship and type of work in which Mrs Bailey was involved, that her shoulder was injured by her work at Australia Post, with the subsequent development of a frozen shoulder.” (exhibit A3, page 8).
66. Dr Champion confirmed his views in his oral evidence, and said that having regard to the work the applicant described, he came to the opinion that she was suffering from subacromial bursitis, in which the bursa is very commonly inflamed in repeated movements of the shoulder. He said: “… so it would not be uncommon for a worker to develop the condition of subacromial bursitis in the circumstances that she described to me”. Dr Champion further said:
“Well, I certainly was of the opinion she had a subacromial bursitis. On the history, I have no doubt about that and that was supported by ultrasound. Then she had this history of having a trauma to her shoulder when she came up and banged it against a bench. Then she went on to develop, according to the two orthopaedic surgeons, features of frozen shoulder, which is restricted movement, severe pain, restricted movement in all directions of the shoulder.”
67. However, in cross-examination Dr Champion was not prepared to say that it was more probable than not that the applicant’s shoulder was injured at work with the subsequent development of a frozen shoulder; he said he had to rely upon the orthopaedic examination and reports, and said that this scenario was a possibility rather than a probability. He also said that Mr Kesting’s emphasis on the muscles would not in his opinion have any significance.
Medical Evidence from Respondent regarding Shoulder
Evidence of Mr Andrew Saies
68. The respondent called Mr Saies to confirm the opinions expressed in his reports dated 19 March 2000, 1 May 2000, 10 May 2000 and 21 March 2001, which are included in exhibit A3, commencing at page 303. Mr Saies gave evidence that he was an orthopaedic surgeon with a special interest in surgery related to the shoulder and upper limb. He said that he had practised in orthopaedic surgery since 1998 and over his total years, including his period as a trainee, he would have seen 2,000 to 2,500 patients. He provided a curriculum vitae which detailed his career appointments and publications in a variety of journals where he was a co-author, and a number of specialist presentations he had made to various meetings or associations, as well as listing a large number of conferences he had attended and his involvement in various research projects (exhibit R3).
69. In his evidence Mr Saies confirmed his opinion that the applicant was suffering from adhesive capsulitis (or frozen shoulder) with spontaneous onset, and that the applicant’s condition was not related to her work with the respondent.
70. In a letter dated 17 September 2003 to the respondent’s solicitors (exhibit A3, page 10) Mr Saies provided a detailed overview of the literature in relation to causation of adhesive capsulitis or frozen shoulder. This indicated that the cause of the condition is not fully understood, and it has been described as enigmatic and controversial. His overview states that in approximately 80% of patients there is no obvious contributing factor present, and there is no known cause for the condition. In the remaining 20% of patients the condition develops as a secondary consequence to some other pathology which can include significant rotator cuff pathology or a significant traumatic event, such as a fracture of the humerus or dislocation of the shoulder, and it can also occur in association with, but not necessarily caused by, factors such as diabetes, heart disease, chest surgery and other conditions. His overview also says that there is only brief discussion in the literature of the role of minor trauma in the development of frozen shoulder, and while a few authors mention that patients report an association with minor trauma, he could find “no series” in the literature that correlated use, over-use or minor trauma with an increased risk of onset of frozen shoulder. He does not accept that minor trauma is causative of the condition, although he accepts that this issue is controversial.
71. Mr Saies also referred in his evidence to his experience that bursitis is not usually present as an isolated entity in the shoulder unless there is some other pathology present in the shoulder. He also said that in his experience, very few patients have the diagnosis of frozen shoulder made by GPs, physiotherapists or specialist physicians before seeking the opinion of an orthopaedic surgeon.
72. In the case of the applicant, Mr Saies said that there had been no evidence that she had suffered from rotator cuff tendonitis, although he conceded the possibility that the type of work she did to the extent that it involved removing the bags from the post box would put the cuff “at risk”. He was informed of the applicant’s consultations with Dr Valentincic over the period prior to when he first saw her, and whilst he noted that there had been an injection with cortisone to the shoulder under ultrasound control on 23 November 1999, the note of the consultation on 3 December 1999 indicated that there had been no persisting benefit, and this suggested that the problem with her shoulder was not due to rotator cuff tendonitis.
73. Mr Saies also explained the progress of the condition of frozen shoulder and said that it customarily entailed three phases of four to six months in any one phase; the first phase being where the shoulder is inflamed; the second phase being the scar tissue phase, where the shoulder becomes stiff with movement significantly restricted; and the third phase being the recovery stage, where there is a reorganisation of the tissue back towards normal capsular tissue. He said that the natural history of the condition is for spontaneous resolution over a period of usually 18 months.
74. Mr Saies agreed that the applicant had had the condition for an unusually long time. He said that the longest period that he could remember was one patient who took five years before the condition resolved, and he could only remember perhaps two patients who had taken as long as four years for the condition to resolve, although there may be more than this as he had not followed up on all of his patients. He said that whilst he did not make any psychological diagnosis, all of the cases with a recovery period of four or five years had been workers’ compensation cases.
Evidence of Dr Geoffrey Graham
75. Dr Graham, an occupational medicines specialist, from whom the respondent first sought advice in March 2000, considered that the applicant’s duties involving the mail bag would not have aggravated the frozen shoulder in the sense of the degree of tightening, but accepted this could aggravate the degree of symptoms from the frozen shoulder, or render it symptomatic.
76. He said that when he first saw the applicant on 7 March 2000, he considered that she was not fit for her full normal duties, and provided her with a certificate to that effect. Dr Graham said in evidence that he did not think that her condition was work related, but he preferred not to express a view on that issue, and deferred to Mr Saies’ opinion as an independent specialist. He accordingly referred her to Mr Saies.
77. Dr Graham reported to the respondent that the applicant had a frozen shoulder possibly resulting from a bursitis in October 1999, and that her range of movement was markedly reduced and she was clearly in a significant degree of discomfort. He did not consider that there was any evidence of rotator cuff tendonitis.
78. When Dr Graham saw Mrs Bailey later in May 2000, he said he could not support leaving her at work in a situation where she was “rendering herself symptomatic by her duties”. He agreed that her improvement over her two weeks leave and then her marked deterioration with three days of resuming work probably meant that her increase in symptomatology was probably related to the work she was doing.
Evidence of Peter Kesting
79. A rehabilitation consultant for the respondent referred the applicant to Mr Kesting, who was also called by the respondent. Mr Kesting is an industrial physiotherapist who had worked in this area since about 1990. He carried out a functional capacity evaluation of Mrs Bailey on 28 June 2000, using a computer to test her strength and flexibility in numerous postures.
80. Mr Kesting reported the outcome of his evaluation in a letter to Ms Payne of Australia Post dated 28 June 2000 (exhibit A3, pages 326 – 327). He suggested a diagnosis of a long head of biceps and muscle involvement and thought that her symptoms were often associated with a “frozen type of shoulder”. He thought that her work restrictions would involve no frequent above chest height work, and work should involve limited, and no forceful, use of her right shoulder. He also reported that the “issue of a compensatable injury and associated perceived industrial issue need to be addressed”.
81. In his oral evidence, Mr Kesting said that he had noted a significant difference between Mrs Bailey’s active and passive ranges of movement, and other than a frozen shoulder, other diagnoses might be a rotator cuff strain, a supraspinatus tear, or a bursal impingement. Mr Kesting suggested another ultrasound, and this was carried out on 17 July 2000 (exhibit A3, page 324). He said that the subsequent ultrasound test “ruled out somewhat” the diagnosis of the long-headed bicep, although he added that it was not uncommon to get varying opinions on those from different operators. Mr Kesting said further that he found that the applicant had a very significant weakness and he would class her as having a fairly major injury.
82. Mr Kesting also considered that her work activity involving the removal of the canvas bags from the post box was highly likely to aggravate her shoulder condition, because he thought the muscles would get tighter and stiffer and the range of movement would reduce even further from whatever the frozen shoulder range would have been. He thought that this would be an at risk activity. He further thought that from his understanding of her work with the respondent, the injury could have been accommodated quite easily by some alternative duties around the office area with some sensible restrictions on movement.
83. As mentioned above, after obtaining the approval of the respondent, Mr Kesting proceeded to treat the applicant with acupuncture and some massage, and he said she then showed a moderate improvement. He thought that this, of itself, suggested that the diagnosis of frozen shoulder was somewhat simplistic and her improvement with minimal treatment indicated that there were possibly other things that were a problem.
Psychiatric Evidence
Evidence of Dr Karl Lashchuk
84. As mentioned above, Dr Lashchuk saw the applicant on referral from Dr Czechowicz. He provided a report dated 14 June 2001 to the applicant’s solicitors (exhibit A3, page 374). He first saw the applicant on 8 March 2001 and saw her on two subsequent occasions before preparing that report. He saw her on subsequent consultations until 16 September 2001, and after that Mrs Bailey stopped seeing him. He did not see her again until September 2003, when he was asked to review her prior to giving evidence.
85. In a letter of 9 March 2001 to Dr Czechowicz, Dr Lashchuk made a diagnosis of major depression, and thought that there was a high risk of Mrs Bailey acting out suicide in the future and that “her significant depression began way back after she was initially ‘shafted’ by Australia Post”. He said that she was clearly hurt and angry that her painful shoulder injury had not been accepted and found it very difficult to trust people, as she felt she had been betrayed repeatedly in the past. He “endorsed” Dr Czechowicz’s increased dose of an anti-depressant medication.
86. Dr Lashchuk referred to various issues involving the respondent in his report of 14 June 2001, as well as the applicant’s family situation and personal history, and the manner of her presentation and symptoms. He made a diagnosis of major depression with possible underlying personality dysfunction, with paranoid traits. He thought that her psychiatric problem “relates to her shoulder problems as well as work-related issues”. He also referred to an atmosphere of “intense anger, some degree of paranoid ideation and intense hostility towards her employer”.
87. In evidence Dr Lashchuk said that he would not be able to give any prognosis as to her improvement or recovery until the present proceedings had been concluded and there was a known outcome, and until then she would require regular psychiatric and general practitioner support. He further said that during the period between his first consultation on 8 March 2001 and his consultation on 19 September 2001, the applicant was psychologically incapacitated for work in view of her depression and her unresolved hostile feelings towards the respondent. He said that he disagreed with an opinion by Dr Lukacs as to her incapacity for her regular employment on the grounds that unless there was a satisfactory resolution of problems between her and the respondent she would inevitably be at great risk of aggravation of her psychological disorder, if not also at risk of aggravating her physical condition because she could not be working in a calm, relaxed, friendly environment. He said further that he would have provided a certificate of incapacity at the time of his most recent consultation, 16 September 2003, and he did not think that there was any significant change in her condition on that date compared with September 2001.
Evidence of Dr Zsolt Lukacs
88. Dr Lukacs provided a report dated 14 November 2001 to Australia Post (exhibit A2, T11, page 33). After setting out a careful and detailed history, he made a diagnosis that Mrs Bailey had:
“An obsessional/controlling nature associated with a paranoid like predisposition. Mrs Bailey has a pain disorder affecting her right shoulder complicated by depressive/paranoid like functional elements of a chronic, mainly reactive nature (hence could be considered as involving symptoms on (sic) an Adjustment Disorder).” (exhibit A2, page 37).
89. He further described her condition as follows:
“Ms Bailey’s psychological ailment or disorder can be considered as involving a chronic pain disorder influenced by functional and probable minor medical/surgical factors as summarised above. The functional aspects of Ms Bailey’s ailment involve significantly internalised anger resulting in a depressive paranoid like reaction involving symptoms of an adjustment disorder.” (exhibit A2, page 38).
90. Dr Lukacs referred to Mrs Bailey’s “considered injustice and prejudice” with her employment circumstances, and said that she had also been “disappointed and to some degree angry in relation to some of her provided treatment”. He also referred to a degree of breakdown of working relationships between Mrs Bailey and her employer. He said:
“There is a degree of a ‘stand-off’ situation whereby Mrs Bailey has declared herself fit to attend to marginally restricted employment duties (as prior to May 2000) and Mrs Bailey has an expectation of being provided the opportunity to return to her original employment. Ms Bailey’s extended absence from employment is maintained by the lack of opportunity/offer to return to original duties on the basis of marginal restrictions mainly related to lifting.” (exhibit A2, page 38).
He considered that her evolved psychological state had been of a chronic/extended nature. However, he also said that Mrs Bailey’s emotional reaction was essentially of a reactive nature which may resolve following resolution of her conflicts. He considered that Mrs Bailey’s emotional concerns mainly required industrial relationship resolution.
91. Dr Lukacs further commented in his report:
“The focus of the functional aspects of Ms Bailey’s pain disorder has centred on industrial and management disputes/conflicts as summarised above. … Ms Bailey’s industrial concerns have materially contributed to Ms Bailey’s psychological ailment as summarised above. The main contributing factors have been related to industrial grievances/conflict including Ms Bailey’s expected extended absence from employment until ‘100%’ recovery.” (exhibit A2, page 38).
He further commented that Mrs Bailey’s right shoulder condition had only been a minor compounding factor in relation to her psychological ailment or disorder.
92. Dr Lukacs’ view of the effects of the applicant’s psychological disorder on her capacity for employment differs from Dr Lashchuk’s view. Dr Lukacs considered that there was not a psychiatric incapacity for her to return to work, provided that she was given suitable employment from the point of view of her experience and training and taking into account any physical restrictions on what she could do.
93. In cross-examination, Dr Lukacs acknowledged that her psychological component had an effect on her perception of pain and the symptoms of her physical condition, but he did not consider this effect to be severe or marked.
94. Whilst Dr Lukacs thought that it would be very difficult to assess Mrs Bailey’s psychiatric incapacity for work in the period from September 2001 to September 2003 during which Dr Lashchuk had not seen her, he acknowledged that if her industrial grievances continued during that two-year period then her psychological ailment would probably have remained the same.
Evidence of Australia Post Officers
95. The employees of Australia Post who were called by the respondent fell into two categories. The first category comprised people who were called to provide information relevant to Mrs Bailey’s claim for compensation in respect of her shoulder injury. The second group comprised people who provided information in relation to events in 1997 and 1998 arising out of Mrs Bailey’s employment at the Prospect East Post Office.
96. Ms Abraham was employed as a senior health safety environment consultant from January 1996 to June 2000, and in this role managed a small team of OHS professionals who oversaw occupational health and safety and environmental requirements of Australia Post in South Australia and the Northern Territory. In July 2000, she was promoted to Manager, Injury Prevention and Management. Ms Payne was employed by the respondent as a rehabilitation counsellor, and her involvement with Mrs Bailey commenced on 14 June 2000, when she met with Ms Abraham regarding Mrs Bailey’s case, because Ms Abraham thought that her intervention was required. Ms Abraham and Ms Payne were both involved in dealing with the possibility of rehabilitating Mrs Bailey in some form of restricted duties in the period after 17 May 2000, when she was told that she could not continue her duties and she should take sick leave.
97. Mr Volmer was the manager of the Elizabeth Post Office during Mrs Bailey’s employment there, and gave evidence as to Mrs Bailey’s working requirements, her attitude to work and progress, and her relationship with other staff at the post office, particularly early in the period when she worked at the Elizabeth Post Office. He also gave evidence of his involvement after he became aware of the development of her shoulder condition. Ms Wotton worked at the Elizabeth Post Office throughout the period of Mrs Bailey’s employment there. She refuted Mrs Bailey’s assertions that the staff at the Elizabeth Post Office were nasty to her when she first arrived there, and on the contrary, said that the staff went out of their way to make her feel welcome. She further disputed that there was any friction between her and other staff at Elizabeth Post Office about the working hours that were available for Mrs Bailey and other part-time staff. She also gave evidence as to her knowledge of the development of Mrs Bailey’s shoulder condition, and the duties which Mrs Bailey performed.
98. Mr Crowe was the manager of the Prospect East Post Office when Mrs Bailey commenced training there as a postal services officer on 26 August 1996. He commenced a staffing review in the second half of 1996, but it had not been completed by about May 1997, when he was appointed as Acting Manager, Adelaide GPO. Mr Baker commenced as the relieving postal manager of the Prospect East Post Office on 26 June 1997. Ms Jacobs had been the acting postal manager at the post office, when he arrived she reverted to her position as second in charge. Mr Baker prepared a new proposed roster in September 1997, but this was not approved by the Area Manager. After discussion with Ms Jacobs, a further roster was prepared in October 1997 to commence on 12 November 1997. This is annexure D to Mr Baker’s statement (exhibit R16). Mr Rush was formerly the State Manager, Retail for six years until 1999. Mr Altman was the Relief Area Manager for the northern area which at that time had control of the Prospect East Post Shop during September and October 1997. Messrs Rush and Altman both became involved in the grievance process initiated by Mrs Bailey when Mrs Bailey did not accept the proposed new roster which altered her working hours.
99. I will refer further to the evidence of the witnesses from Australia Post later in these reasons.
Consideration
100. It was accepted by both parties that the issue before the Tribunal is restricted to the issue of compensability under s 14 of the Act, and that the Tribunal has no jurisdiction in the present proceedings to consider issues arising under other sections, such as s 19, which provides for incapacity payments, or s 24, which provides for compensation for injuries resulting in permanent impairment. This is because the only issues determined by the respondent at first instance and on reconsideration were the issues of the compensability of the right shoulder condition and the psychological disorder. The Tribunal cannot go beyond these issues: Lees v Comcare (1999) 56 ALD 84.
101. Section 14 itself does, however, entail a consideration of whether the asserted injury or psychological disorder resulted in incapacity for work. It was not necessary for the earlier decision-makers to consider that issue, in view of the conclusions that they reached. However, the issue of incapacity for the purposes of s 14 was the subject of evidence and submissions before me, and I will consider this issue below.
Compensability of the Right Shoulder Condition
102. I find on the evidence before me that the applicant developed adhesive capsulitis (or frozen shoulder) with spontaneous onset, and that this condition did not arise out of or in the course of the applicant’s employment with the respondent. I further find that there was no other pathology present which might have arisen out of or in the course of the applicant’s employment with the respondent. In making these findings, I place significance on the opinion of Mr Bain, who first saw the applicant on referral from her general practitioner in the reasonably early stages of the development of her condition. He is firmly of the opinion that Mrs Bailey’s condition is a frozen shoulder.
103. This diagnosis was also made by Mr Saies. Messrs Bain and Saies both have considerable experience in treating frozen shoulder conditions. In view of their experience and expertise, I prefer their views to the contrary opinions expressed by Dr Valentincic, Dr Czechowicz and Mr Kesting, insofar as they refer to other diagnoses or pathologies. I have also taken into account that while Dr Champion refers to the possibility of other conditions, his conclusion on the balance of probabilities was that the shoulder condition was not work related. In any event, Dr Champion was not in as good a position as the two orthopaedic surgeons to diagnose Mrs Bailey’s condition or assess whether it was work related because he first examined her so long after the onset of the condition.
104. I also find on the evidence of Mr Bain and Mr Saies that an incident of the kind described by Mrs Bailey when she said that she knocked her shoulder on the counter after picking up her cash tin would not have caused the onset of her frozen shoulder. In view of this, it is not necessary for me to decide whether this incident did in fact occur. I note the submission of counsel for the respondent that on the state of the evidence before me, I should view the applicant’s account of this incident with “caution and scepticism”, although I also note that there was some evidence from Ms Wotton and Mr Bailey to confirm that the incident did occur.
105. It is next necessary to consider whether there was an aggravation of the applicant’s shoulder condition which arose out of or in the course of her employment. In this regard, I note that according to Mr Bain, the applicant’s work would have caused some temporary aggravation in the sense that her symptoms of pain would have increased, and there would have been a resultant temporary reduction in function. However, he also considered that this would be a minor aggravation which would not change the natural history of the condition of frozen shoulder, or make any major difference to the long-term outcome of this condition (see paragraph 62 above). In expressing this opinion, Mr Bain was referring to the episode when Mrs Bailey struck her shoulder on the counter after picking up her cash tin, and also to the bagging of the mail. Dr Graham also appeared to acknowledge that her work might result in an increase in symptomatology. The evidence of Mr Bain and Dr Graham suggests that Mrs Bailey did not suffer an aggravation of her shoulder condition arising out of or in the course of her employment.
106. However, the test of aggravation for medical purposes does not necessarily accord with the test for the purposes of the definition of “injury” in the Act: Tippett v Australian Postal Corporation (1998) 27 AAR 40. In that case, Finkelstein J said (at page 44):
“… the symptom of an injury, that is the experience of the injury, is part of the injury in respect of which compensation is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corp v Percival (1998) 20 FCR 176; 9 AAR 206 where it was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it that is not so for compensation law where it is fundamental that the symptom of an injury is a part of that injury.
Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury: Commonwealth Banking Corp v Percival (1988) at 179-180; 209-210.”
107. On this analysis Mrs Bailey suffered an aggravation of her shoulder condition because her work increased her pain and the symptoms arising from that condition. Whilst that aggravation therefore constituted an injury, the respondent is only liable for that injury if it resulted in incapacity for work, or impairment: see s 14(1) of the Act. The applicant referred to three situations which in my view might have resulted in incapacity for work, namely the bagging of the mail, the incident when she struck her shoulder on picking up her cash tin, and the significant increase in her symptoms early in May 2000, within a few days of her return to work from leave.
108. I note from the statement of the applicant’s absences on leave which appears at page 69 of exhibit A4, that she was absent from work due to her shoulder injury from 23 to 26 November and from 8 to 10 December 1999, and on 7 February 2000. The applicant was unable to say when the cash tin incident occurred, or when she stopped bagging the mail, and she did not say that she had any time off from work as a result of either of these matters. I am not therefore satisfied that her absences on sick leave in 1999 or on 7 February 2000 were due to a work-related aggravation of her shoulder condition.
109. I have referred above to the applicant’s evidence that her shoulder symptoms became much worse when she returned to work following her fortnight’s leave in the latter half of April 2000. She was assessed by Dr Graham on 16 May 2000, (exhibit A1, T12, page 17), and he then certified that she was unfit for her normal duties, and said nothing to indicate that she could perform restricted duties. The respondent then sent her home on sick leave. I find that her work activities caused an aggravation of her condition at that time with a resulting temporary incapacity for work. On the evidence of Mr Bain and Dr Graham, referred to above, and taking into account that by then Mrs Bailey was not bagging the mail, I find that her work at that time caused her to be incapacitated for work for a further 14 days. The applicant is therefore entitled to compensation for the period from 17 to 31 May 2000 in respect of her shoulder injury.
Compensability of the Psychological Disorder
110. I have referred above to the diagnoses made by Dr Lashchuk and by Dr Lukacs. These diagnoses differ, although Dr Lukacs appears to acknowledge that there is a depressive component to the applicant’s condition. Nevertheless, on either diagnosis, I find that as from December 2000 Mrs Bailey was suffering from a disorder which would meet the definitions of “disease” and “ailment” in s 4(1) of the Act in that her condition was outside the boundaries of normal mental functioning and behaviour: Comcare v Mooi (1996) 69 FCR 439. It is therefore necessary to determine whether her condition (which I have referred to in these reasons as a “psychological disorder”) was contributed to in a material degree by her employment by the respondent.
111. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323, the Full Federal Court said when considering the 1971 Act:
“The use of the word “material” in conjunction with the words “contributing factor” in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
This case is treated as authoritative on the meaning of the word “material” when interpreting the reference to that word in the 1988 Act : Suters v Australian Postal Corporation (1992) 28 ALD 320, and see also Wiegand v Comcare (2002) 72 ALD 795 at [23].
112. It is apparent from the evidence before me that Mrs Bailey’s psychological disorder has been caused by a variety of factors which are referred to by Dr Lashchuk and Dr Lukacs. Some of those factors could not in my opinion give rise to an entitlement to compensation, because they do not satisfy the requirement that the applicant’s psychological disorder was contributed to in a material degree by the applicant’s employment; rather, the factors concerned were matters arising from a claim for compensation and associated disputation: Vanderdoes v WorkCover Corporation and VACC Insurance Worksafe (Seanco Pty Ltd) [1998] SAWCT 68. I refer in this regard to the applicant’s reaction to the rejection of her compensation claim for her shoulder injury, and her grievance at the diagnoses reached by the doctors to whom she was referred by Australia Post.
113. However, both Dr Lashchuk and Dr Lukacs refer to the grievances and conflicts which Mrs Bailey has had with Australia Post. In my opinion, at least some of these conflicts and grievances did not arise as part of the compensation process, but are such that I am satisfied that her disorder was contributed to in a material degree by her employment.
114. I refer in particular to certain events which occurred at the Prospect East Post Office and their aftermath. In this regard, I again refer to Wiegand v Comcare (supra), where the applicant claimed that he had been victimized in the work place. Von Doussa J decided that it was not appropriate to consider the reasonableness or otherwise of this perception, provided that the events on which the perception was based had, in fact, occurred. His Honour said (at [31]):
“In my opinion it was open on the evidence for the tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.”
115. There was considerable evidence in the present matter in relation to the events at Prospect East. It is apparent from her evidence that Mrs Bailey became most distressed by these events to the point where she thought she had been victimized and unfairly treated and had been the subject of false accusations. Mrs Bailey consulted her family doctor as a result of the stress which these events caused, and she was diagnosed with depression and was treated for some four months (see paragraph 52 above). Further, Mrs Bailey said that she does not believe that emotionally she ever got over the way she had been treated at Prospect East, the difficulty she had had afterwards, and the hostility and lack of trust which it caused (see paragraph 24 above). Mr Bailey’s evidence was to the same effect (see paragraph 50 above).
116. I accept Mrs Bailey’s evidence as to her perception of these matters, and on the authority of Wiegand, it is not necessary for me to decide whether her perceptions were reasonably held. When she gave evidence before the Tribunal it was apparent at times that she was distressed and emotional, but I accept the truth of all of the matters to which she deposed, except where I expressly find otherwise. As regards the events which gave rise to Mrs Bailey’s perceptions to which I referred in the preceding paragraph, I find as follows.
(a) After Mr Baker was made the relieving manager at the Prospect East Post Office, Ms Jacob’s niece, Penny Tilley, commenced to undertake unpaid training as a postal services officer. She was a university student and apparently went to the post office on work experience. This placement was arranged by Ms Jacobs but with the approval of Mr Crowe. Mr Crowe said in evidence that Ms Tilley’s engagement was, however, irregular in that the relevant paperwork had not been done through head office; and he could see how it could appear to people that because of Ms Tilley’s position as the niece of the second in charge of the post office, and the daughter of another member of Australia Post’s staff, that she was being given treatment not usually afforded to people in this situation.
(b) Mrs Bailey was aware at that time that one of the counter staff at Prospect East was moving to Kangaroo Island, so that her position would become vacant. She was concerned that Ms Jacobs intended to assist Ms Tilley to obtain employment with Australia Post, and in fact Ms Tilley applied unsuccessfully for the vacant position when it arose. Ms Tilley was, however, later put on a casual fixed term contract for a minimum of 25 hours per fortnight at Prospect East from 25 August 1997 to 31 December 1997 (see the copy contract included in annexure A to the statement of Mr Altman, exhibit R12).
(c) Mrs Bailey believed that Ms Jacobs, and to some extent Mr Baker, then embarked on a course of victimising herself and other staff for the purpose of causing one of them to transfer so that there would be another vacancy for which Ms Tilley could apply. She said that in her case, she was accused of mistakes which she knew she had not made, and this went on for several months and she found it very distressing. She said that mostly the mistakes of which she was accused could not be proved one way or the other. However, one major allegation related to a deficiency of $110.00 in her takings. Mrs Bailey obtained the cash register transaction roll for the relevant day and found that this discrepancy had occurred because a credit card entry had been declined by the relevant bank, but the charge had not been made to the customer. I note that a subsequent letter by Mr Baker to Mr Altman, dated 26 November 1997, in which Mr Baker addressed issues relating to the applicant’s employment at the post office, referred to a deficiency of $110.00 on 25 October 1997, even though by then Mrs Bailey had discovered and explained the basis of the apparent discrepancy. Mr Baker’s letter also refers to other criticisms of Mrs Bailey’s practices which she disputes.
(d) Mrs Bailey’s position at the Prospect East Post Office as a permanent part-time postal officer was covered by an interim award, a copy of which is part of annexure D to the statement of Mr Rush (exhibit R13). Clause 4 of the award provides for hours of duty, and relevantly provides as follows:
“(c) The normal daily and weekly hours of duty, including starting and finishing times, shall be specified in writing by Australia Post before the employee commences part-time duty.
(d) Subject to sub-clause (e), the hours of duty of part-time employees may be varied to meet Australia Post’s operating requirements, following consultation with the employee and having regard to the needs of the employee.” (emphasis added)
(e) As mentioned above, Mr Crowe commenced a staffing review at the Prospect East Post Office in the second half of 1996. Mr Crowe arranged for the staff then working at the post office to sign the proposed staffing review, which incorporated an acknowledgment by them that they had had the opportunity to participate in the review and there had been a process of full consultation. Mrs Bailey was not asked to sign this staffing review, apparently because she was then only in training at the post office (paragraph 13 of the witness statement of Mr Crowe, exhibit R16).
(f) The staffing review project then became protracted, and after Mr Crowe left Prospect East, Mr Baker submitted a new proposed roster to the Area Manager on 29 September 1997. This roster also did not proceed and would not in any event have affected Mrs Bailey. However, a new roster was prepared in October 1997 for trial to commence on 12 November 1997. A copy of this is annexure D to the witness statement of Mr Baker (exhibit R16). The only person at the post office who was affected by this roster was Mrs Bailey. The roster entailed morning hours on Monday, Wednesday and Friday, but would have required her to have worked on Thursday and Friday afternoons, without working at all on Tuesdays. Having regard to the evidence of Mr Baker and Ms Jacobs in cross-examination, I find that Mrs Bailey was not consulted about these changes to her hours either by Mr Baker or by Ms Jacobs. Mr Baker had left it to Ms Jacobs to speak to Mrs Bailey. Ms Jacobs wrote out the altered hours on a piece of paper and handed it to Mrs Bailey at a time when the proposed commencement date of the new hours was imminent, and indicated to Mrs Bailey that a decision had been made and told her what her hours would be as from the proposed commencement date. Mrs Bailey refused to accept the changed hours and made it clear that she would not accept the changed hours. The matter was of such concern to her that she then went on unpaid leave. She was offered limited work at some other post offices, but this other work did not meet her concerns. She instituted grievance procedures against Australia Post.
(g) Following a number of further communications, Mrs Bailey attended a meeting on 2 February 1998 with Australia Post personnel following receipt of a letter from Mr Altman of 28 January 1998 which referred to possible positions which would be offered to Mrs Bailey, and included a paragraph headed “Northern Network” and reading: “Apart from the position at Prospect East that you previously occupied, there are no 25 hour positions vacant in this Network.” Mrs Bailey interpreted this as being an offer of her old position, and became very distressed when she was told that this was not what was intended by the letter.
(h) The applicant was also told at the meeting on 2 February 1998 that she would be required to work the new hours at the Prospect East Post Office, and if she did not attend as requested then this would become a “Code of Conduct issue”. Mrs Bailey refused to attend for work on this basis, and elected to continue on leave without pay.
(i) The notes of the meeting on 2 February 1998 also record that “we would continue to provide Jane with vacancy notices for all 25 hpw positions advertised in SA circulars” (attachment J to the statement of Mr Altman, exhibit R12). However, Mrs Bailey herself discovered the circular advertising the two new jobs at the Elizabeth Post Office, one of which involved the morning hours which suited her, and which she then took up.
(j) Mrs Bailey claimed that when she first went to Elizabeth Post Office there was friction between staff at Elizabeth about the number of hours for which she was working, and that there was a lot of other nastiness, apparently from the other staff there. I am not satisfied that this was so. However, I find that Mrs Bailey did receive an anonymous letter reading:
“This is not very easy for us to tell you this
But it would be beneficial for both the staff and the office if
you were to work elsewhere
Your type does not make for harmonious relations in a office this size
We do not want the same strife here that you caused at your last office
You are more suited to work at a lpo” (exhibit A4, page 64).
This caused her distress, and she tried unsuccessfully to have this letter traced through Australia Post Security. I further find that in the period when she first started at Elizabeth, she also received a number of upsetting telephone calls.
117. Counsel for the respondent submitted that the applicant’s disputation over her rehabilitation process/provision of alternative modified duties did not arise out of or in the course of employment, but merely arose out of the process of claiming workers’ compensation, (although I note that in the context of the claim for a psychological disorder, the issue is whether her ailment was contributed to in a material degree by her employment).
118. I accept that the onset of a psychological disorder in consequence of disputes over rehabilitation would ordinarily not be compensable. In the present matter, however, the applicant sought rehabilitation not only because she had claimed workers’ compensation, but also because the respondent had adopted a policy to assist the rehabilitation of employees who had been injured or who had developed an illness or disease in circumstances not related to workers’ compensation claims. A copy of the policy as in force on 24 March 2003 is contained in exhibit R11. A similar policy was in force at the time when Mrs Bailey went on sick leave with her shoulder condition, and was summarised in a letter dated 10 August 2000 to Mrs Bailey from Brian McGlaughlin, the Area Manager for the Northern Retail Network of Australia Post. Nevertheless, any breach of this policy may not satisfy the requirement that employment must be a contributing factor. I refer in this regard to Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641, where Windeyer J said:
“When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.”
119. On the evidence before me I find that Mrs Bailey perceived that Australia Post was not willing to rehabilitate her and that its rehabilitation policy was not being implemented in a fair or reasonable manner. In particular, Mrs Bailey became aware that her own GP, Dr Graham, and Mr Kesting considered that she would be able to return to work, albeit subject to a restriction that she could not lift weights exceeding 1 kilogram (and this limit was subsequently increased). She thought that this limitation would still enable her to perform 95% of her ordinary duties, and if she had received parcels of a greater weight, she could use her left hand. She retained a deep distrust of Australia Post management following the Prospect East events, and her above perceptions regarding the issue of rehabilitation exacerbated this distrust and caused her extreme distress and anger, and was a further factor which led to the depressive illness diagnosed by Dr Czechowicz in December 2000. Whilst the issues arising out of the applicant’s wish to be rehabilitated are not in themselves compensable, I find that the events at the Prospect East Post Office, and their aftermath, did materially contribute to the applicant’s psychological disorder, and these events and their aftermath did occur in the course of the applicant’s employment by the respondent. It is not therefore necessary to decide whether Mrs Bailey’s perception of the rehabilitation/return to work issues in the context of the respondent’s rehabilitation policy satisfied the requirement that the applicant’s employment was a contributing factor.
120. I have referred above to the conflict of opinion between Dr Lashchuk and Dr Lukacs as to whether or not the applicant was incapacitated for work in consequence of her psychological disorder. On this topic, I prefer the evidence of Dr Lashchuk. He referred to the severity of her depressive condition. Whilst Dr Lukacs does not agree with Dr Lashchuk’s diagnosis, he does refer to her emotional reaction and internalised anger which he finds had taken a “depressive paranoid-like personal toll”. I have had the opportunity of observing Mrs Bailey giving her evidence during the hearing, and I have received evidence also from her husband, as well as copies of correspondence from Dr Czechowicz. I accept the evidence relating to her psychological disorder, and that this includes an extreme degree of anger towards Australia Post and a deep sense of distrust of management. Mrs Bailey’s work as a postal officer involves her working in close proximity to other postal officers, and entails dealing extensively with customers of Australia Post. Dr Lashchuk had the opportunity to observe Mrs Bailey on a regular basis during the period whilst he was her treating psychiatrist, and then observed her again in September 2003 and thought that her condition was similar to when he had previously seen her. Having regard to the above matters, I accept Dr Lashchuk’s opinion in preference to that of Dr Lukacs, and find that she has been incapacitated for work in consequence of her psychological disorder.
121. I also find in evidence before me that the applicant’s psychological disorder has protracted her recovery from her non work-related right shoulder condition. Mr Saies’ experience was that in most cases, patients recover from a frozen shoulder in 12 to 18 months. Dr Champion referred to a period of two to three years. I am satisfied that if Mrs Bailey had not been affected by her psychological disorder, she would have recovered from her frozen shoulder sooner. It is reasonable to infer from the evidence before me, and I so find, that she would have recovered from her right shoulder condition by no later than the end of August 2001, being two years after the time when she noticed the development of her symptoms. She therefore continued to be incapacitated for work after that date as a result of her psychological disorder, in that that condition prevented her from engaging in work at the same level at which she was engaged by Australia Post immediately before the injury happened. In this regard, I consider that the reference in s 4(9) to engaging in work “at the same level” as was the case immediately before the injury happened refers to work in the sense of the work activities which the applicant was previously undertaking, including in this case her ability to receive parcels over the counter of varying weights, and to attend to bagging the mail: Re Smith and Comcare [2002] AATA 249 at [85].
122. I therefore find for the reasons referred to above that the applicant has suffered an injury resulting in incapacity for work within the meaning of s 14 of the Act. I do not, however, make any finding as to the duration of her psychological incapacity for work, because this matter has not been fully investigated in the proceedings before me. It seems to me that this matter could be further elucidated by obtaining further evidence from the applicant’s GP, Dr Czechowicz, and the applicant herself. Further, whilst I consider that the applicant was also incapacitated for work because her recovery from her shoulder injury was protracted by her psychological disorder, the extent and duration of that aspect of her incapacity for work has not been the subject of detailed evidence or submissions before me, and it is inappropriate to make any finding as to those issues. Those issues will, of course, be relevant to an investigation of Mrs Bailey’s rights under s 19 of the Act, but that matter is not before me in these proceedings.
123. I do not agree with the submission of counsel for the respondent that any psychological disorder arising from the change of hours at the Prospect East Post Office would be excluded from the definition of “injury” by the exclusionary provisions of that definition. The change of hours did not, of course, arise from disciplinary action. Nor, in my opinion, did it arise from a failure by Mrs Bailey to obtain a “promotion, transfer or benefit” in connection with her employment. On the contrary, when the respondent varied the then operative hours during which the applicant was working at the post office, it thereby effected a change which was detrimental to the employee (even though the respondent would have been able to effect that change legally if it had complied with the provisions of the award). A failure by the respondent to reverse this detriment would not, in my opinion, amount to a failure by the employee to obtain a “promotion, transfer or benefit” in connection her employment, within the meaning of the exclusionary provision. In any event, this was only one of the incidents which caused the applicant’s sense of distrust and anger against the respondent.
Decision
124. For the above reasons:
(a) I vary the decision under review in matter number S2000/346 in relation to the applicant’s claim in respect of her shoulder injury insofar as I decide that the respondent is liable to the applicant for compensation for the period from 17 to 31 May 2000;
(b) I set aside the decision under review in matter number S2001/468 in relation to the applicant’s claim for a psychological disorder, and in substitution for that decision decide that the respondent is liable to pay compensation in respect of the applicant’s psychological disorder;
(c) I reserve liberty to apply within 14 days in relation to the costs of the proceedings; and
(d) I order that in the absence of any such application, the respondent pay the costs of the proceedings.
I certify that the 124 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 30 September 2003 and 1, 2, 8, 14 and
24 October 2003
Date of Decision 2 July 2004
Counsel for the Applicant Mr T Bourne
Solicitor for the Applicant Bourne Lawyers
Counsel for the Respondent T McRae
Solicitor for the Respondent Thomson Playford
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