Bone and Australian Postal Corporation (Compensation) - [2020] AATA 5104

Bone and Australian Postal Corporation (Compensation) [2020] AATA 5104 (17 December 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2016/0193
GENERAL DIVISION  )
Re: David Bone
Applicant

And: Australian Postal Corporation
Respondent
DIRECTION
TRIBUNAL:  A G Melick AO SC, Deputy President
DATE OF CORRIGENDUM:            4 May 2021
PLACE:           Hobart

The Tribunal DIRECTS:

That the corrigendum of 30 April 2021 and 3 May 2021 are revoked; and

The Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, is directed to alter the text of the decision in this application as follows:

At paragraph 58, ‘104’ is replaced with ‘28’.

At paragraph 32, the text ‘which was paid for by Australia Post’ and ‘because it was too expensive’ is deleted.

At paragraph 34, ‘compensation’ is replaced with ‘sick leave’.

At paragraph 77, the text ‘not only could he not afford to see a psychologist, but’ is deleted.

The Tribunal notes the submissions made by Mr Bone and counsel for the Respondent and appreciates the effort made by both parties. The Tribunal has taken the time to review the evidence and notes that it is not straightforward.
.............................[sgd]......................................

A G Melick AO SC, Deputy President
Division:GENERAL DIVISION
File Number:2016/0193
Re:David Bone
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:17 December 2020
Place:Hobart

The Tribunal affirms the decision under review.
[sgd]........................................................................
A G Melick AO SC, Deputy President
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 - whether the Applicant suffered an injury defined by the Act – was the injury a disease as defined by the Act – was the disease significantly contributed to by employment – result of reasonable administrative action – was the action undertaken in a reasonable manner – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Racial Discrimination Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 [79]
Comcare v Martin [2016] HCA 43
Comcare v Martinez [2013] FCA 439
Comcare v PVYW [2013] HCA 41
Drenth v Comcare [2012] FCAFC 86
Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34
Georges and Telstra Corporation [2009] AATA 731
Humphrey Earl Ltd v Speechley (1951) 84 CLR 133
JQWK and Comcare [2017] AATA 1965
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000
Perry and Australian Postal Commission [2005] AATA 712
Prain and Comcare [2014] AATA 593
Re Jones and Comcare [2013] AATA 334
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
RSBQ and Comcare [2017] AATA 1965
Telstra Corporation Ltd v Bowden [2012] FCA 576
Wiegand v Comcare [2002] FCA 1464
Secondary Materials
Australian Transport Council Standards
REASONS FOR DECISION
A G Melick AO SC, Deputy President
17 December 2020
BACKGROUND

The Applicant commenced work with the Respondent in August 2007 as a permanent part-time postal transport officer at the Hobart Mail Centre with rostered hours of 50 hours per fortnight.
Some of his duties required him to drive a heavy rigid motor vehicle (HRV) which in turn required a certain standard of vision to be confirmed by biannual eye tests.
The Applicant passed all relevant eye tests until 22 March 2013 when the examining doctor deemed he did not meet the vision criteria to drive HRVs.
On 23 April 2013 the Applicant met with his supervisor during which he maintained that, because his vision had not changed since previous eye tests, he should not have failed the vision test.
The supervisor disagreed and prohibited the Applicant from driving HRV's which meant that several overtime shifts were not available to him, causing him financial loss.
The Applicant maintains that from the date of that meeting his mental health deteriorated. On or about 12 October 2015[1] he submitted a claim for compensation which was rejected.
[1] T6, T documents, p 19.
The matter became very complicated with an accompanying claim for a frank injury, which was settled, and claims to the Human Rights Commission and the Federal Court. The hearing of this matter was fragmented and further delays were caused by illness within the Tribunal.
CHRONOLOGY
The Applicant capably represented himself and dealt with issues in great detail. I set out below the course of events as I have found them, although I understand there was no dispute between the parties about much of the factual history. I note that I have included extracts from the Respondent’s final submissions which I find accurately summarise some aspects of the evidence:
[3] The Applicant commenced employment with the Respondent as a part time Postal Transport Operator (PTO) in August 2007 at the Hobart Mail Centre. He is rostered to work Monday to Friday driving a postal van for 25 hours a week (the substantive duties).
[4] In 2008, in addition to his substantive duties, the Applicant joined a pool of Sunday relief drivers on a rotating roster who are available to perform additional, optional shifts if the regular Sunday shift drivers are absent or on leave (the relief pool). The regular Sunday shift is comprised of 5 van shifts and 3 heavy rigid vehicle (HRV) heavy rigid vehicle (HRV shifts (ST 15 pg 90). In 2008, there were 5 drivers in the relief pool (ST33 pg 142), by February 2013 the relief pool increased to 12 drivers and by 2014 to 14 drivers. In 2008, the Applicant held a HRV licence so he could undertake either van or HRV shifts depending on what was available and offered to him on the Sunday shift (ST11). Any overtime or change in shifts were subject to Managers discretion.
[5] The Respondent requires all HRV drivers to undertake medical assessments every 3 years to determine fitness for work in accordance with the Australian Transport Council Assessing Fitness to Drive for Commercial and Private Drivers - Medical Standards for Licencing and Clinical Management Guidelines 4^th Ed 2012 (ST23 pg 118 and ST 14). Once a driver is aged 50 years of age medical assessments are required to be undertaken yearly (ST56 pg 217).
[6] The Respondent published Staff Information Bulletins (ST23 pg 111) and held Tool Box talks (ST23 pg 114) informing drivers of the Australia Post Fitness to Drive Medical Policy (the Policy) and the requirement to attend medical assessments. The Applicant attended the Tool Box talk and training (ST 23 pg 114 and 116).
[7] The Policy states that a driver will not be permitted to undertake HRV driving duties if they do not have a current medical clearance (ST23 pg 111).
[8] The Applicant’s vision had been assessed in 2006 and 2007. The results of those assessments were;
125 July 2006, Dr Soliman Rowville Medical Clinic assessed the Applicant’s uncorrected vision as; right eye 6/18, left eye 6/12. (Exh 13).
218 July 2007, Dr Lickiss assessed the Applicant’s corrected vision as; right eye 6/9, left eye 6/9 (Exh 9).
[9] On 22 January 2010, in accordance with the requirement to undergo a medical assessment to determine fitness to drive, the Applicant attended Dr Barnes GP, a Facility Nominated Doctor (FND). Dr Barnes provided a Final Driver Medical Certificate dated 22 January 2010 which cleared the Applicant to undertake HRV driving with no restrictions or conditions.[2] At this examination, Dr Barnes recorded the Applicant’s uncorrected vision as; right eye 6/18, left eye 6/6 (Exh. 8 pg 11).
[10] In 2013, the Applicant was required to undergo a further medical assessment to determine fitness to drive. The Applicant was provided with a Drivers Health Kit with documentation to take to the doctor and a medical appointment was made in consultation with the Applicant (ST 23 pg 109). The Applicant had a choice to attend his own GP, the costs of which would be met by the Respondent up to the sum of $165 or to attend a FND (ST14 pg 77). On 22 March 2013, the Applicant attended Dr Barnes GP, FND. As Dr Barnes was an FND the costs of the Applicant’s attendance with Dr Barnes was paid by the Respondent (ST 23 pg 112).
[11] On the Clinical Examination Proforma dated 22 March 2013 Dr Barnes recorded visual acuity uncorrected; right 6/18 left 6/12, on re-testing right 6/18 left 6/7.5 (Exh 8 pg 5). This assessment demonstrated a change from the assessment undertaken in 2010 (Exh 8 pg 11).
[12] On 22 March 2013, Dr Barnes provided an Interim Driver Medical Certificate (ST 34 pg 153). Dr Barnes stated in this certificate that:
1He required further information and referred the Applicant to a specialist.
2He cannot get the Applicant’s vision better than 6/18 in the right eye.
3This did not meet the Heavy Rigid Commercial Drivers work criteria.
4He needed to review the Applicant following specialist review. Dr Barnes did not complete paragraph 3 as to whether the Applicant was fit to continue truck driving duties pending receipt of this information and further review.
[13] The Australia Post Assessing Fitness to Drive Policy and Procedures provides that where a medical practitioner considers that additional information is required to assess the fitness of the driver, that while this information is being obtained the driver will be removed from HRV duties and provided with alternative duties for a period of up to two weeks. The driver will not be permitted to undertake HRV until assessed as medically fit (ST28 pg 129).
[14] Dr Barnes referred the Applicant to Dr Wise ophthalmologist for assessment and opinion on 22 March 2013 stating ‘...could not get his right eye vision better than 6/18. I understand this does not meet with commercial driving licence standards and request your specialist opinion.’ (ST 34 and Exh8 pg 10).
[15] The Applicant did not attend a medical examination with Dr Wise.
[16] The Applicant did not attend for review by Dr Barnes and Dr Barnes has not issued a Final Driver Medical Certificate.
[17] The Applicant has not presented a report, information, verification or certification from his optometrist or any other eye specialist or doctor in respect to the assessment of his vision since 22 March 2013.
[18] A Final Driver Medical Certificate which cleared the Applicant to undertake HRV driving with no restrictions or conditions, or with conditions, has not been provided by the Applicant to the Respondent since 22 March 2013.
On 22 April 2013 a meeting was held with Nigel Richardson (Transport Manager). During that meeting, the results of a mandatory vision test were discussed. The Applicant was advised he could not drive a HRV until he had been reviewed further by a specialist.
[27] On 1 May 2013, Nigel Richardson was advised by Luci-Anne Ottaway, Human Resources Department, that as the Applicant suffered from a non-work related medical condition the Respondent would not cover the cost of the specialist appointment. The Applicant was not permitted to drive HRV until his vision was assessed as being within the standards (ST3 pg 11). [28] On 3 May 2013, Nigel Richardson had a further meeting with the Applicant. He advised the Applicant the Respondent would not pay for the specialist appointment as his condition was non-work related. He advised the Applicant he was not permitted to drive HRV but he could perform his nominal duties and work any Sunday overtime shifts that did not involve HRV duties (ST 3 pg 10).
[29] On 7 May 2013, Nigel Richardson wrote to the Applicant and confirmed that Dr Barnes’s assessment on 22 March 2013 identified a vision issue in his right eye which did not meet the HRV legislative requirements and the Applicant was legally unable to drive HRV. This medical condition was a non-work related condition and removal from HRV was in accordance with Australia Post Non-Work Related Medical Condition Policy (ST4 pg 15).
[30] On 9 May 2013, the Applicant advised Nigel Richardson he intended to appeal the circumstances surrounding his failure to meet the HRV criteria (ST 1 pg 3).
[31] On 12 June 2013, Nigel Richardson again advised the Applicant that, as his Manager, he was required to enforce the doctor’s advice that he was not fit to drive HRV due to his eye sight (ST 2 pg 5).
[32] On 13 June 2013 in accordance with the Applicant’s request to view his personnel file and to look at his previous vision assessments, the Respondent made arrangements for the Applicant to attend and have access to his file (ST1 pg 1 & 2).
[33] On 14 June 2013, the Applicant advised Nigel Richardson he would no longer be pursuing the HRV licence issue (ST 1 pg 1).
[34] By late 2013, the number of drivers in the relief pool who were available to perform additional optional shifts increased to 12 people (T36).
[35] On 30 December 2013, the Applicant wrote to Stephen Foster (Manager Letters) and stated that he considered he had been discriminated against due to a vision disability and a direction to cease driving HRV (ST7). The Applicant alleged his vision had not changed since undergoing laser surgery in 2000 and this discrimination had caused financial loss. It was his opinion that the requirement by the Respondent for him to meet the cost of the specialist review was disappointing and disrespectful. He also referred to discomfort and embarrassment because he is unable to accept or swap HRV shifts due to the decision.
[36] The Respondent advised that the costs associated with a specialist referral are payable at the discretion of the Respondent (ST 54 pg 198). The Respondent meets the cost of the initial medical assessment and the reasonable costs of any tests, x-rays or referrals made for the purpose of completing the medical assessment. In this case, as the Applicant’s vision issue was not work related, and the HRV duties were not part of the Applicant’s substantive duties, the Respondent had exercised its discretion and elected not to pay the costs of the specialist appointment.
[37] On 6 February 2014, Stephen Foster wrote to the Applicant and advised that the Respondent was bound by the legislation and the Applicant did not meet the vision requirements for HRV (ST8 pg 21).
[38] On 25 February 2014, the Applicant requested compensation for past and future lost shifts and loss of job opportunities as he cannot apply for HRV jobs. The Applicant acknowledged that he understood the Respondent’s position and he understood that it is a privilege to receive additional shifts, whether as rostered overtime or swapped shifts. Stephen Foster advised the Applicant that as the condition was non-work related no compensation was applicable (ST9).
[39] On 5 March 2014, the Applicant lodged a claim with the Anti-Discrimination Commission alleging disability discrimination in employment (ST11 and 33). On 29 April 2014, this claim was referred to the Australian Human Rights Commission (AHRC) (ST11). The Applicant stated that the discrimination had made him frustrated, embarrassed and irate. He sought financial compensation (ST11 pg 39). On 2 December 2014, the AHRC advised that the requirement to meet visual acuity medical standards is not discrimination (ST39).
[40] On 12 July 2014, during the AHRC proceedings a report was sought from Dr Barnes GP. Dr Barnes stated that in 2013 when the Applicant was assessed ‘although he was able to read our visual chart at 6/18 with his right eye, in my opinion it was a struggle and he was ‘just’ meeting the standards and I preferred to get an expert ophthalmology opinion before fully signing him off as fully fit.’ Dr Barnes said it was the intention of the interim medical certificate that the Applicant could drive commercially until such review had taken place (ST 29 pg 131/132).
On 27 February 2015 the Respondent offered to resolve the Applicant’s complaint by paying for a new medical assessment (by either the Respondent or Applicant’s medical practitioner) and pay for obtaining additional medical information where required.[3]
[3] ST 53, Supplementary T documents, p 190.
The Applicant declined the Respondent’s proposed resolution and asked that the Respondent provide the following to resolve his complaint:
Recognition of what has occurred (refer to complaint form, regarding knowingly being hired with a vision disability in 2007);
A letter of apology regarding the events giving rise to the complaint;
Work with him to find a scenario in which he is happy;
Compensation;
Adjustments to be able to recommence certain Sunday shifts.[4]
The Applicant’s proposed resolution was not accepted by the Respondent.[5]
[4] ST 52, Supplementary T documents, p 189.
[5] ST 53, Supplementary T documents, p 190.
The Respondent further outlined in their submissions:
[42] On 2 April 2015, the Applicant bought a Human Rights complaint in the Federal Court seeking financial compensation, punitive damages and reasonable adjustment (ST53 pg 196).
[43] On 1 September 2015, the Applicant attended Dr Klonaris, GP, and reported that he was sleep deprived stressed out over Court action congenital loss of vision. He also reported right elbow muscle strain. Dr Klonaris provided a medical certificate noting he had examined the Applicant on 1 September and again on 17 September 2015. The Applicant had been prescribed Temazepam (for insomnia related to court case re his eyesight) and voltaren rapid (anti-inflammatory for his arm/shoulder). He had been referred for an ultrasound of his arm. The Applicant was certified as fit for work from 1 September with no restrictions (T5 pg 18).
[44] On 2 September 2015, the Applicant emailed Peter Richardson reporting that his sleeping disorder and agitated state has escalated lately due to Court matters relating to issues with the Respondent, lawyers and legal help. He had been prescribed a mild sedative. (PT7 pg 24) (Exh 19)
[45] On 4 September 2015, the Applicant emailed Peter Richardson regarding his sleeping disorder, he mentioned feelings of stress, anxiety, being irate, discomfort and feelings of embarrassment. ‘The vision situation has dragged on for 2 1/2 years and correspondence with Human Rights Commission, Federal Court or legal people my sleep pattern goes haywire. In relation to my lack of sleep I am not tired and function normally’ (T17 pg 44) (Exh 19).
A Health and Safety Incident Form completed on 6 September 2015 states:[6]
Incident Date: 22-Apr-2013
…
Provide details of Injury / illness sustained: Slightly depressed during day and trouble sleeping at night.
What work activity were you doing at the time of the incident? I was at a pre-arranged meeting with Transport Manager Nigel Richardson before commencement of my shift
Why do you think this happened? A combination of misdiagnosis by the doctor and arrogance from human resources.
A medical certificate marked received on 14 October 2015 and prepared by Dr Dimitrios Klonaris (Facility Nominated Doctor) noted visits from the Applicant on 1 and 17 September 2015 and indicated that the Applicant was fit for work from 1 September 2015, full hours (including overtime) with no restrictions. It also indicated medication details including “Temazepam (for insomnia related to Court case re his eye sight)”.[7]
[6] T4, T documents, pp 10-17, 11.
[7] T5, T documents, p 18.
A Claim for workers' compensation completed on or about 4 October 2015 and lodged on or about 9 October 2015 states:[8]
What type of injury/illness do you have and what part of the body has been affected? Head
When did the injury happen or when did you first notice the illness? Date: 22/4/13. Time: 2:45pm
Date you first had medical treatment for the injury/illness? 1/9/15
Have you ever had a similar injury/illness? Yes - In November 2005 employed ‘@’ [sic] Dept of Health & Human Services took 7/8 days off work due to stress & anxiety. Attended my personal GP, Gregg Pitt.
[8] T6, T documents, p 19.
In the Supervisor's Supplementary Statement dated 12 October 2015[9], Supervisor Peter Richardson (Manager Transport) states:
Between the claimed incident date of 3/5/13 and the 2/9/15 (date of attached email) David Bone never reported being fatigued or suffering from lack of sleep. David hasn't had any time off work, in fact he requested not to take recreation leave this year but to "cash" it in instead.
[9] T7, T documents, p 23.

The Respondent further submitted:
[48] The Applicant continued to work his normal part time hours and undertake his substantive postal van duties between April 2013 and October 2015. In addition, the Applicant continued to undertake significant overtime between April 2013 and October 2015, as part of the relief pool undertaking van shifts.
[49] The Applicant did not seek medical treatment for any psychological symptoms or conditions between April 2013 and 1 September 2015 nor have any incapacity for work between April 2013 and 28 October 2015 due to any psychiatric symptoms or conditions.
The Initial Decision dated 22 October 2015 denied that the Respondent had a liability to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for the Applicant’s claimed psychological condition.[10]
[10] T10, T documents, p 31.
The Applicant emailed the Respondent on 12 November 2015 indicating that he would be seeking a reconsideration of the decisions and requested an extension of time to prepare correspondence.[11]
[11] T14, T documents, p 37.
The Respondent wrote to the Applicant on 1 December 2015, granting the Applicant an extension until 14 December 2015 to provide further reasons and/or supporting evidence with respect to a request for reconsideration of the decision relating to this claim and also a decision relating to the claim now settled.[12]
[12] T15, T documents, p 38.
The Applicant wrote to the Respondent on 10 December 2015 seeking review of the Determination dated 22 October 2015.[13]
[13] T17, T documents, p 41.
The Reviewable Decision dated 16 December 2015 affirmed the Respondent’s earlier Determination of 22 October 2015, which found that there was no liability to pay compensation under the Act in respect of the Applicant’s claimed psychological condition.[14]
[14] T20, T documents, p 54.
The Respondent further submitted:
[50] On 21 October 2015, the Applicant attended Dr Pitt reporting ‘upset problem at work, insomnia, [indecipherable] anxiousness, mind preoccupied, seen by Dr Klonaris, prescribed Temaze at night, Court case pending, anti-discrimination, April 2013, can’t drive truck, didn’t meet standards but hasn’t changed. Dr Pitt noted talk with Applicant and discussed options. No medication was prescribed or medical certificate certifying incapacity for work was issued (Exh 15 pg 1). In oral evidence Dr Pitt said the Applicant reported being tense, anxious, preoccupied when he saw him on 21 October 2015 (Tr. Pg 132).
[51] On 22 October 2015 liability was denied for the Applicant’s claim for head injury sustained 22 April 2013 (T10). The Applicant received this Determination by mail on the 28 October 2015.
[52] On 28 October 2015, the Applicant attended a telephone conference/mediation in the Federal Court proceedings. The Applicant suffered what has been described as a ‘panic attack’ (Dr Loftus Tr. Pg 169). The Applicant contacted the Respondent seeking time off work, at this time he was advised that his claim for workers’ compensation had been rejected. The Applicant says when he arrived home he received the letter dated 22 October 2015 denying liability for his workers’ compensation claim.
[53] On 29 October 2015, the Applicant attended Dr Pitt reporting he had a ‘teleconference yesterday – upset him, tense agitated, anxiousness, insomnia broken pattern. Spoke to work manager Peter Richardson 1 day ago workers’ compensation claim denied’. Dr Pitt provided a medical certificate certifying incapacity for work from 29 October 2015 (Exh 15 pg 2) (T19 pg 48).
[54] On 16 December 2015, a Reviewable Decision was made affirming the Determination dated 22 October 2015 denying liability pursuant to s14, s16 and s19 of the SRC Act for the claimed injury sustained 23 April 2013 (T20).
[55] In December 2015, the Applicant discontinued the Federal Court proceedings against the Respondent and on 12 January 2016 a formal Order was made to this effect in matter No LNG14/2015.
[56] Dr Pitt has continued to provide medical certificates certifying incapacity for work from 29 October 2015 to the present date.
THE APPLICANT’S EVIDENCE
The Applicant’s evidence consisted of a witness statement dated 24 August 2017 which he adopted at the hearing. As he made extremely detailed closing submissions covering all the evidence, and noting the facts set out in paragraphs [1] to [21] above, at this stage I will summarise his evidence as follows:
It was a requirement that employees had to pass an eye test check every two years (although I note that the Applicant’s checks seemed to be every three years) and on 22 March 2013 he attended upon the FND, Dr Tim Barnes, for the required eye test to enable him to continue driving HRVs.
At the time of his commencement with Australia Post, the Applicant’s test indicated that his right eye just met the required standard at 6/18, but his left eye was well within limits.
Nothing changed with the Applicant’s vision in either eye over subsequent tests or again on 22 March 2013 when he saw Dr Barnes. However, on this occasion Dr Barnes noted that the Applicant only just met the standard and referred him for a specialist opinion. This was despite the fact that the test results were the same as those conducted by the same doctor on 22 January 2010 when the Applicant was deemed fit to drive HRVs.
The Applicant contacted his transport manager, Nigel Richardson, by email on 25 March 2013 noting that his eyesight had not changed since he gained his HRV licence in 2008 and asking Mr Richardson “to look into it”. Mr Richardson told him that he would look into it as soon as possible, but the next thing that occurred was a meeting on 22 April 2013 without any further discussions.
At that meeting the Applicant was advised that he would not be able to continue driving HRVs until he obtained a clearance from a specialist at his own cost. The Applicant insisted that under Australia Post’s policies they were obliged to pay for the specialist consultation, resulting in an impasse.
The Applicant complained that at the meeting on 22 April it was evident that Mr Richardson had not viewed previous medical assessments, sought clarification from the FND, contacted the pre-employment area, viewed the Australian Transport Council standards or sought approval to use his discretion in offering to pay for a special report that would have provided the necessary data for the examiner to complete the examination.
The Applicant claimed that as a result of the meeting on 22 April he became agitated, which led to his present medical condition diagnosed as anxiety stress disorder. He claimed that being unable to partake in shifts involving the driving of HRVs placed him in an embarrassing and stressful situation having to explain to work colleagues that he could not accept or swap certain shifts.
The Applicant also claimed that he had suffered a minor injury (the agitation and embarrassment) and reported to Mr Richardson at the next available opportunity, being 3 May 2013.
He attended a psychologist, Dr Elida Assenheimer, on 4 November 2015, which was paid for by Australia Post. The Applicant found the results helpful but did not continue treatment because it was too expensive.
The Applicant provided evidence of cash assets exceeding several hundred thousand dollars and noted his taxable income was $67,910 in 2013/14, $70,913 in 2014/15, and $52,558 in 2015/16.[15]
[15] Exhibit 12.
Evidence elicited in cross examination included:
·The Applicant resigned from a position as a payroll officer with the Department of Human Resources in 2005 after bringing up an issue with the manager about which they failed to take any action. He stated that he “…just threw up my hands and left”.
·On that occasion he suffered anxiety for seven days. He was agitated and just could not believe some of things that were going on. He discussed those symptoms with Dr Pitt, who was his GP at the time. The Applicant did not seek or receive any treatment.
·The Applicant received a medical certificate from Dr Pitt and claimed compensation for seven or eight days off work.
The Applicant contended that he was unfit for work due to his psychological condition rather than his poor eyesight. Despite his psychological injury, he was able to work until October 2015 but he had been unable to work since due to the same injury.
Later in his cross-examination the following exchange took place:
DEPUTY PRESIDENT: Mr Bone, if you went along to a specialist now who rated your eyesight is appropriate to be able to drive heavy rigid vehicles would you be able to return to work or do you say your psychiatric condition may now prevent that?
APPLICANT: Well, I say that I will undertake a mandatory medical assessment when I go back to work when I eventually get back to work to drive heavy rigid vehicle trucks, but I think they pointed out yesterday the truck driving is not part of the area that I work, so probably pointless. But if there was any managerial positions also transferred to another area, obviously, would go for the mandatory medical assessment.[16]
[16] Transcript, Bone and Australian Postal Service (2016/0192) dated 12 October 2017, p 72 [41]–[50].
The Applicant maintained that Dr Barnes did not use the flexibility available to him and hence did not abide by the guidelines set out at page 54 of the Australian Transport Council Standards which states:
There is also some flexibility for the commercial vehicle drivers, depending on the driving task, provided the visual acuity in the drivers better or like, with or without corrective lenses, is 6/9 or better.
The Applicant confirmed that he initially declined to go and see a specialist after the 2013 eye examination because Australia Post were not going to pay for the appointment. He stated that when the Respondent did offer to pay some 20 months later, he still did not go to see a specialist because as far as he was concerned there had been no change in his eyesight since he commenced with Australia Post and they were aware of the condition of his eyesight at the commencement of his employment.
The Applicant was not concerned about his safety when driving or Australia Post’s obligation to the public because he had been driving since he was 16 or 17 and had not had an accident. He maintained that Australia Post had a duty of care to consider what he was saying at the meeting with Mr Richardson and review all records in their possession about his eyesight.
When asked why Australia Post should pay for the specialist appointment, the Applicant contended that the flexibility provided in the guidelines provided for such payment.
The Applicant gave no satisfactory explanation as to why he did not apply for a job driving heavy vehicles elsewhere if he maintained that his eyesight met the appropriate standards.
The Applicant conceded that he accepted all optional additional shifts not involving HRVs up until he ceased work in 2015 and that there was very little financial loss for driving a van as opposed to a truck.
The Applicant did not check with Dr Wise to see how much the examination would cost, but thought it would be about a couple of hundred dollars. He did not check with Medicare to see if he would get any of that money back.
The Applicant submitted that management should have allowed him to continue driving HRVs because when he started at Australia Post he told them about his vision, and that had not been a problem up until now. He also relied upon the fact that his vision had not changed.
The Applicant accepted the obligation of Australia Post to ensure that he underwent a medical every two years before he was 50 years old. Now that he is over 50, he would have to undergo a medical test every year.
When asked why he did not go to see Dr Wise in 2014 when Australia Post changed position and said they would pay for that medical, the Applicant said:
I guess I was a bit peed off that the only reason I found out that I'd passed the… medical assessment was inadvertently through the intervention of Australia (post)…[17]
[17] Transcript, Bone and Australian Postal Service (2016/0192) dated 12 October 2017, p 72 [26].
I interpose here that the Applicant always maintained that he had passed the medical because he met the bare minimum standard and what concerned him was that Australia Post told him that he had failed the medical.
The Applicant contended that, all things being equal, he could have worked 60 additional shifts if he had been able to drive HRVs, but in fact he only worked 37 additional shifts. However, he conceded that the decrease in the number of shifts could have been attributed to more people being available to do the extra shifts.
The Applicant conceded that prior to stopping work on 29 October 2015 he had not had one day off work with insomnia or any psychiatric type of symptom.
He also conceded that he told Dr Loftus, in October 2015, that his insomnia worsened as a result of engagement in court and legal proceedings and that things escalated when he went through the Workers Compensation process. He participated in a conference in the Federal Circuit Court that, combined with a subsequent receipt of correspondence denying his claim, resulted in chest tightness and difficulty breathing, and he thought he was having a heart attack. That was also the outcome of what he regarded as being unsatisfactory legal processes in the Human Rights Commission and the Federal Circuit Court.
The symptoms he described to Dr Loftus spiked in respect of various steps in the litigation. He stated that prior to September 2015 he had not been prescribed any medication in respect of any symptoms that could be thought to be indicative of a psychiatric condition.
In the meeting of 3 May 2013, the only symptoms he reported were that he felt embarrassed and stressed because of the situation in which he found himself.
He conceded that he was familiar with the system whereby incident reports were put in writing and had made written reports on approximately 10 instances between 5 February 2009 and 8 August 2014.
He explained that he did not follow an incident report in 2013 because a psychological injury was completely different to the types of incidents he had formally reported in the past, in that they were physical incidents.
He was recommended a health care plan, but after attending the first appointment with a psychologist and not getting a Medicare rebate because they coded it as workers compensation, he did not seek another visit to a psychologist.
When asked why he did not continue to have the treatment recommended by Dr Kolaris he said that was waiting for the claim, which he made in 2015, to go through.
The Applicant stated he conceivably had a bit more than $900,000.00 on term deposits and that he had no financial reason to work. The whole tenor of his evidence was that he wanted to work but apparently on its own terms.
The Applicant has submitted certificates of total incapacity and despite the fact he wants to return to work, he has not asked Dr Pitt if he could give him a certificate enabling him to return to work. The Applicant appears to have seen Dr Pitt 104 times.
MEDICAL EVIDENCE
In a report dated 26 May 2016 Dr Joanna Loftus, consultant psychiatrist, diagnosed the Applicant with an adjustment disorder with anxiety arising as a result of stress experienced during the course of employment with Australia Post.
The only previous reported history was a difficulty causing the Applicant stress and anxiety in 2005, but those difficulties were not persistent.
Dr Loftus noted that of relevance was that the Applicant showed long-term obsessional personality traits, which may contribute to a degree of inflexibility in terms of managing the difficulties that have arisen as a consequence of the workplace stress. However, she did not believe that to be because of his work-related condition, but rather a vulnerability factor as to its development.
Dr Loftus obtained a detailed history in the report of 26 May 2016 which included the following:
Mr Bone stated that he developed symptoms of anxiety, stress, agitation and insomnia commencing in March 2013. He stated these symptoms fluctuated at times but became significantly worse on two occasions; firstly, in October 2014 when he stated that he discovered certain things that his employer had been holding back, and again in about October 2015, at which time he took sick leave from his work. In particular, Mr Bone stated that his insomnia had escalated markedly over the past 12 months ... Mr Bone stated that his symptoms have been better overall since commencing sick leave.
…
He retires at 10:00pm when he feels tired, then lies awake until 1:30 to 2:00 am, feeling wide-awake and churning over thoughts, ruminating about issues with Australia Post. He stated this got worse as “more people” came into the scenario and revealed that various time he had dealings with the Human Rights Commission, his Union Lawyers, Anti-Discrimination Commission and with Australia Post lawyers. He became increasingly confused and agitated as various personnel talked to each other and to him, exacerbating his sleep problems. As stated above, the insomnia commenced in March 2013, but deteriorated further twelve months ago.
Mr Bone stated that he was first prescribed “a sleeping tablet” in September 2015. He was given the hypnotic, temazepam 10 mg at night initially, increasing to 20 mg at night. He stated this proved very beneficial to his sleep and continued taking medication for two or three months. However, he was concerned about the possibility of dependence and felt there must be an alternative way of managing his problems, and stopped taking it on a regular basis at that time. He now takes temazepam once or twice a month when is particularly agitated, or is facing particularly stressful occasions.
Given his reluctance continue the temazepam or consider other medication, Mr Bone was then referred to a psychologist in November 2015. He found the single session he accessed very beneficial. However, the cost of the treatment was prohibitive for him; Mr Bone stated Australia Post would not pay for further sessions and so was unable to continue accessing treatment. He tried to access psychological therapy through his own doctor, but was again told that he would need to pay for treatment and so felt unable to pursue this option.
Mr Bone views his current symptoms of anxiety, stress and insomnia as having arisen from ongoing problems related to vision test in 2013 in which the results were borderline. Mr Bone stated that he works as a van driver and had occasion undertaken overtime during truck driving through his work at Australia Post. In 2013, he underwent a two-year mandatory medical assessment. The doctor undertaking the assessment stated that he had a problem vision in his right eye and it did not meet standards. Mr Bone stated that, in his opinion, his eyesight had not changed since he had surgery 12 years previously, and that he had no previous eye tests to suggest it had changed. The doctor assessing him stated that he recommended he see a specialist for a further opinion. I note that the enclosed documentation provided showed that Mr Bone’s vision just met the standard required, but the doctor recommended specialist review as he could not be “100%” sure. Mr bone stated that he discussed this with his manager. The outcomes was that Mr Bone was required to see the specialist, and would need to pay for such a consultation himself. Mr Bone queried this which led to a further meeting in due course, in which was stated that he would not be allowed to drive a truck unless she saw a specialist. Mr Bone stated that he was not willing to do this unless Australia Post paid for the consultation. This impasse continued for about two months when Mr Bone stated he thought “b**ger it” and thus he decided not to pursue the option of truck driving but would just do van driving. This occurred in June 2013. Mr Bone stated his normal hours were 50 hours per fortnight. He considered that he would still be able to overtime driving in a van. He stated that he “let it go” but this issue remained on his mind. What he found particularly difficult is that as he had never previously refused overtime, he was obliged to offer an explanation to his colleagues which triggered a sense of discomfort and embarrassment on each occasion when refused overtime. He said that this triggered the rumour mill which he found uncomfortable.
Another cause of stress for him at around the same time was that his mother had died in October 2012. He had been appointed her executor, and he continued to have to manage issues relating to this in the background of the time these events were occurring. It was for this reason that he decided to let things drop at the time.[18]
[18] Medical Report of Dr Loftus dated 26 May 2020, p 3.

At later stages in her report Dr Loftus noted that the Applicant agreed that he was a person who needs order and needs things to be done in the right way.
She also assessed the Applicant’s symptoms as having emerged in light of the initial trigger where he was advised to get further assessment for his vision, and the legal and compensation process undertaken since. This experience was highly stressful, with the outcomes being unsatisfactory to him. The Applicant had also developed a suspicious view of the truthfulness of his workplace management.
Dr Loftus's opinion as to Mr Bone’s prognosis included the following:
It is concerning that Mr Bone has had symptoms persisting for the length of time which he outlined. However, Mr Bone has not accessed treatment specific to anxiety other one session with a psychologist. He reports some benefit from undertaking his own self -taught medication exercises on occasion. Given that he reports a positive response to the single session of psychology he attended, it is possible Mr Bone may see a resolution of symptoms of anxiety if he undertakes regular treatment.[19]
[19] Ibid, p 10.
In a report dated 31 July 2017, Dr Luke Murphy, consultant psychiatrist, opined that the Applicant suffered a condition outside the boundaries of normal mental functioning and behaviour, namely a panic disorder. He noted there was no psychiatric capacity for the Applicant’s ability to work and that he could return to work full-time. He also noted the Applicant had no ongoing anxiety symptoms unless he had to interact with Australia Post.
Dr Murphy found the Applicant to be a “candid and forthright historian” who would not attempt to overstate symptoms and that he was essentially stuck at an impasse with his employer of negotiations as to who should pay for his ophthalmology appointments and cognitive behavioural therapy.
The history obtained from the Applicant included the following with the Applicant's words in quotation marks:
“Australia Post have a mandatory medical assessment for heavy rigid vehicle drivers. The doctor said that my vision didn't meet the standards.
Australia Post will wear because I disclosed it when I applied.”
Mr Bone has congenital loss of vision in his right eye. He never remembers having better eyesight and he has had a lot of time to adjust, so feels unimpaired by the loss of vision.
“I was told that I need to see a specialist but I shouldn't have to. I had laser surgery in 2000 was improved with the standard possible.
I sent some emails to manage saying that I had an issue with the doctor in his report. I sent for email to follow-up.
In 2013, I had a meeting with Mr Nigel Richardson. He told me that I can't drive heavy rigid vehicles until I see a specialist that I have to pay the medical bill. That's where the cyber started. I started getting upset saying that discriminate against me as a missionary out on shifts and penalties.”
Mr Bone said that Mr Richardson was professional during the meeting but did not offer a agenda ahead of the meeting was opportune to bring a support person or union representative.
Mr Bone reports somatic anxiety syndrome is in 2015: “I feel tense. I was worried it might be a heart-attack social my doctor”. His doctor diagnosed him with an anxiety disorder.[20]
[20] Medical Report of Dr Murphy dated 31 July 2017, p 5.
The Applicant noted that he had to see a psychologist and would like to complete treatment but was not prepared to pay $150.00 per session. Dr Murphy noted that the Applicant did not seem to be aware that he could get a Medicare refund.
Dr Loftus also noted that the Applicant never saw the ophthalmologist to have his eyesight tested.
Dr Murphy noted that the Applicant had not taken any medication, but that he might benefit from a low dose SSRI (eg Zoloft 25 mg mane increasing to 50 mg mane). He also opined the Applicant would benefit from cognitive behavioural therapy which could be delivered by a clinical psychologist. The psychologist could be paid through either Medicare or WorkCover depending on liability or, alternatively, cognitive behavioural therapy is available free on the internet and can be supervised by the nominated treating doctor.
The only past psychiatric history obtained was when the Applicant took seven days sick leave in 2005 but did not seek any formal treatment. He made a full recovery.
I note that the history given to both psychiatrists is entirely consistent with evidence given by the Applicant and his submissions at all times in this matter. Local doctors found Mr Bone to be a candid an honest reporter who did not tend to exaggerate matters to advance his case.
Cross-examination by counsel for the Respondent elicited the following information from Dr Murphy:
The Applicant's symptoms initially worsened on two occasions in October 2014 and October 2015, which related to aspects of litigation and his matter before the Human Rights Commission. He reported that his symptoms had been much better since he stopped working in October 2015.
The Applicant reported the symptoms he suffered in October 2015 as being so severe that he thought he was having a heart attack and that those symptoms seemed fairly consistent with a panic attack.
The Applicant was first prescribed temazepam in September 2015, which was the first time he attended upon his GP. He reported that not only could he not afford to see a psychologist, but he thought his work should be paying for it.
One of the stressors in October 2012 was the death of his mother with whom he was not particularly close, but he did not discuss any difficulties arising from the death in December 2014 of his grandmother, who had raised him.
After a referral from his GP, Dr Dimitrios Klonaris, the Applicant saw Dr Elida Assenheimer, psychologist, on 4 November 2015. She noted the reason for contact as:
2.5 dispute with employer now court action. Loss sleep, withdraw, broken sleep pattern.
At the request of the Respondent, the Applicant was examined by Dr Luke Murphy, consultant psychiatrist, on 17 July 2017.
Dr Murphy diagnosed the Applicant as having a panic disorder noting the following diagnostic criteria:
(a)recurrent unexpected panic attacks (characterised by an abrupt surge of discomfort during which the following are present: accelerated heart rate, sweating, trembling, shortness of breath, chest pain);
(b)the attacks have been followed by a month or more of persistent concern or worry about having additional tax and significant and maladaptive change of behaviour (such as avoidance of work);
(c)the disturbance is not due to the psychological effects of substance or medical condition;
(d)the disturbance is not better explained by another mental disorder.
Dr Murphy noted that the Applicant suffered a condition outside the boundaries of normal mental functioning and behaviour. He attributed the cause of the disorder to managerial action, prolonged litigation and long-term unemployment.
Dr Murphy noted:
There is no psychiatric incapacity for Mr Bone's ability to work. No medical restrictions are appropriate.
He can work full-time and can return to work immediately.
Mr Bone is willing to return to work and would be better off if he did so whilst waiting for the matter of fitness to drive heavy rigid vehicles being determined, he could return to any other suitable role with Australia Post such as driving a postal then doing a walking route or working in the office.
…
Mr Bone is essentially stuck at an impasse with his employer over negotiations as to who should pay for the ophthalmology appointment and cognitive behavioural therapy.[21]
[21] Ibid, pp 8–9.
When asked to explain the difference between the diagnosis that he had made and the diagnosis made by Dr Loftus, Dr Murphy noted that he would not disagree that the Applicant had a chronic adjustment disorder and that an adjustment disorder emphasises the patient is having trouble coping with a particular stress in their life. He noted that an adjustment disorder implies that once the stress is resolved, the symptoms will also disappear.
When cross-examined by the Applicant, Dr Murphy did not agree that a return to work would exacerbate the Applicant's condition. He agreed that the Applicant would have no ongoing anxiety symptoms at all unless he needed to interact with Australia Post.
The Applicant was not a regular attender upon general practitioners although he was familiar with Dr Pitt who is a long-term friend. Dr Pitt continued to supply medical certificates stating that the Applicant was unfit for work.
Dr Pitt gave the following evidence:
·The Applicant only attended upon him on a very infrequent basis and there were no sustainable problems with mental health prior to the current issue.
·The Applicant had a situational problem when he worked for his former employer, the State Health Department, but there was no long-term issue. When the Applicant gets agitated, he walks away from the job.
·He first saw the Applicant in relation to the current matter on 21 October 2015 and reported symptoms appreciated that attendance including sleep, he felt tense, anxious, his mind was preoccupied and couldn't mix. He was reclusive.
·He told Dr Pitt that he had an antidiscrimination court case pending and the problems stemmed from April 2013. Dr Pitt’s contemporary note read: “he was upset, problem at work, insomnia, … anxiousness, mind preoccupied, seen by Dr Klonaris, prescribed Temaze at night, Court case pending, anti-discrimination, April 2013, can’t drive truck, didn’t meet standards but hasn’t changed.”
·He saw the Applicant again on 29 October 2015 after he had participated in telephone conference and he noted:
…. Teleconference yesterday, which upset him, tense, agitated, anxiousness, insomnia. the pattern. Spoke to work manager, Peter Richardson. Workers comp claim denied, so appointment unable to be made.
Dr Pitt noted in his evidence that he saw the Applicant again on 4 November 2015 when he noted:
·He did not pass his eye test, and this “p’ed him off”.
·The Applicant never asked Dr Pitt to assist his vision but Dr Pitt was adamant that Dr Barnes was wrong to say the Applicant failed his eye test, stating “He said he failed; he didn't fail. He actually passed.”[22]
[22] Transcript, Bone and Australian Postal Corporation (2016/0192) dated 14 October 2017, p 141 [16].
He later noted that “you either pass the test or you didn't” and when asked if it was his opinion that Dr Barnes was not within his rights to be concerned enough to send the Applicant for review with a specialist, Dr Pitt responded:
Well, he’s sitting on the fence. If that’s the sort of doctor he is, he is entitled to it.[23]
[23] Ibid, p 142 [34].
The following comment from the Applicant was also noted by Dr Pitt:
My sleep pattern goes haywire when there is correspondence with the Human Rights commission, Federal Court, union or legal people.[24]
[24] Ibid, p 135 [1].
Dr Pitt stated that he first certified the applicant incapacitated for employment on 29 October 2015. He made the Applicant aware of mental health plans pursuant to which he could get at least five attendances upon a mental health professional, part of the payment for which could be recovered from Medicare.
The Applicant told Dr Pitt that the attendance made upon a psychologist was helpful and Dr Pitt was surprised that the Applicant did not continue, but the Applicant thought injustice had been done, his work was unsupportive and they were refusing to pay for his mental health plan.
When asked about the Applicant refusing to see Dr Wise, Dr Pitt responded:
David is a person of strong principle. If he feels there is an injustice- like that all that job he had with the state health, he couldn't put up with the way things were run there. He thought it was- it would reflect poorly on him, it was dishonest so he walked away from it. He thought there was an injustice done here by the employer and reinforced the fact that his vision had changed at all.[25]
[25] Ibid, p 140 [25].
When asked about the condition diagnosed in October 2015 Dr Pitt expected it would have been a stress disorder, in the early throes.
When cross-examined by the Applicant, Dr Pitt noted:
David, you get fixed on something and it is an injustice then you can't let go. You're just like a dog at a bone to be honest.[26]
[26] Ibid, p 152 [43].
The Applicant also attended Dr Klonaris with the first relevant attendance appears to have been on 1 September 2015 when he attended in relation to frank injury to his right elbow. During that attendance Dr Klonaris noted stress over court action, congenital loss of vision and sleep deprived.[27]
[27] Medical record of Mr David Bone, Stoke St. Family Medical Centre, p 3.
The Applicant saw Dr Klonaris again on 17 September 2015 when no psychiatric condition was identified, and he was certified fit for employment.
On 3 November 2015 Dr Klonaris prepared a mental health plan and referred the Applicant to Dr Elida Assenheimer. The Applicant was not prescribed any medication because he stated that he preferred to see a psychologist rather than take medications. The Applicant was, however, prescribed Temazepan by Dr Klonaris on 17 September (for insomnia, related to court case re his eyesight).
RELEVANT LEGISLATION
Section 14 of the Act outlines Compensation for injuries as follows:
1Subject 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.
Section 5A of the Act defines injury:
1In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
2For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B of the Act defines disease as:
1In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
2In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
3In this Act:
significant degree means a degree that is substantially more than material.
In Comcare v Mooi,[28] Drummond J noted at [11-12]:
[11.] There may be difficulties in a particular case in determining whether a bodily condition, ie, one not involving any effect on a person's mental faculties, amounts to a disease; it can also be difficult to determine whether a worker is suffering from a disease in the sense of a mental ailment. Medical opinion changes too: regularly encountered signs may eventually come to be acknowledged as comprising a disease or as symptomatic of an underlying disease when previously, medical opinion rejected that notion. But these considerations, in my opinion, provide no ground for disregarding the meaning given by the various definition provisions to the term "injury" for the purposes of s 14(1) of the Act.
[12.] The definition provisions, which bring within the concept of "injury" mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee's mental condition is within the concept of an "injury" within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe. Legislation providing for the committal to care of mentally ill persons generally avoids defining what is meant by the term. Cf Re Magavalis (1983) 1 Qd R 59 at 63 and RAP v AEP (1982) 2 NSWLR 508 at 509-510. Faced with the equally unhelpful English legislation, Lawton LJ, in W v L (1974) 1 QB 711 at 719, said that the statutory expression "mental illness" consists of ordinary English words of no particular medical significance; in order to decide whether a person was mentally ill and thus liable to be kept in protective care under the English mental health legislation, his Lordship said that the right test was to ask whether an ordinary sensible person, aware of the patient's behaviour, would say that he was obviously mentally ill. In his article, "The Meaning of 'Mentally Ill Person' in the Mental Health Act 1958-1965 of New South Wales" (1968) 42 ALJ 207, Mr O V Briscoe, a forensic psychiatrist, referred to the absence of any definition of mental illness in the New South Wales statute and suggested that, for the purposes of that Act, the term was probably intended to have a pragmatic and common-sense meaning. He observed, at 209: "there are varieties of abnormal behaviour and appearance, that most responsible adults from all walks of life can quickly recognise as falling within contemporary conceptions of the province of psychiatry. It is in this general sense that mental illness, it is suggested, is probably intended to be used in this Act." There is good reason for such an approach in the context of mental health legislation, which provides for mentally ill persons to be taken into protective care by laymen such as police officers. But in my opinion, the expressions used in the Safety Rehabilitation and Compensation Act 1988 to define the various forms of mental condition that can amount to "injuries" compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.
[28] [1996] FCA 1587.

The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition, or an aggravation of a mental condition, suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence – whether personal or professional, direct or indirect, real or imagined – is beside the point.
Applying the matters set out above, I find it was reasonable for the Respondent to refuse to allow the Applicant to drive HRVs absent a certification that his vision met the required standard, bearing in mind that its own Assessing Fitness to Drive Policy and Procedures provides that where a medical practitioner considers that additional information is required to assist fitness to drive, that while that information is being obtained the driver will be removed from HRV duties.
In view of Australia Post’s obvious duty of care to the general public not to allow an employee to drive a heavy vehicle if there was any doubt about that person having the appropriate standard of eyesight, I find it was reasonable for them to accede to the recommendation that the Applicant be examined by a specialist. Of particular note was the fact that Dr Barnes noted that the Applicant had some difficulty in reaching the required standard.
Was the administrative action undertaken in a reasonable manner?
The Respondent submitted that the question as to whether administrative action was undertaken in a reasonable manner was a question of fact and referred to Drenth.
I assume the reference was to [26] of Drenth v Comcare where the court held:
Whether something is reasonable or not is ordinarily a question of fact. A decision-maker does not make an error of law simply in making a wrong finding of fact: Corporation of the City of Enfield v Development Assessment Commission.[40] No error of law in what the Tribunal found has been established. Indeed, its finding quoted above has a ring of common sense.
[40] [2000] HCA 5; (1999) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ.
They then submitted as follows:
1The Applicant was advised of the Respondent’s decision in a meeting on 23 April 2013 with Transport Manager Nigel Richardson.
2A further meeting on 3 May 2013 between the Applicant and Nigel Richardson again confirmed the Respondent’s decision (ST3 pg 10, ST4). This was also confirmed in an email by Nigel Richardson to the Applicant on 7 May 2013 (ST4 pg 15).
3The Applicant did not give evidence of any issues he had with the way the decision was communicated to him. He told Dr Murphy that Mr Richardson was professional during the meeting (Exh.18 pg 5).
[105] The Respondent submits that the administrative action was undertaken in a reasonable manner; a rational and objective manner with nothing untoward. It was based on the medical opinion of Dr Barnes and the application of the Respondent’s policy governing driving. The Applicant does not suggest that the meeting was undertaken in an unreasonable manner, only that he disagreed with the Dr Barnes’s assessment and the Respondent’s acceptance and reliance on it. The Applicant also disagreed with the Respondent’s decision to not exercise their discretion and pay the costs associated with him attending Dr Wise for assessment.
[106] ‘Reasonable’ allows the possibility that there may be more than one way of doing things ‘reasonably’, the judgement to be made is not whether things could have been done more reasonably. It will depend on the administrative action, the facts and circumstances giving rise to the requirement for administrative action, the impact of the administrative action on the employee, the circumstances in which the administrative action was implemented and any other relevant matter to determine whether the administrative action was taken in a reasonable manner Comcare v Martinez (No 2)¹³; Keen v Workers Rehabilitation and Compensation Corporation¹⁴; Re Georges v Telstra Corporation Ltd¹⁵. It is an objective assessment. It was administrative action taken in accordance with the Respondent’s policy framework and the medical evidence from Dr Barnes.
[108] The administrative action related to a failure to retain, or obtain, a benefit in connection with employment. The Applicant was not able to undertake HRV driving in the relief pool on Sunday shifts if it was available to him, as a result of the Respondent’s decision based on Dr Barnes’s medical assessment and its policy. The Applicant acknowledged that he understood that it is a ‘privilege to receive additional shifts, whether as rostered overtime or swapped shifts’. It was a benefit in connection with his employment. The Applicant perceived he had suffered financial loss as a result of the decision. As Dr Pitt said, the Applicant was upset by what he had lost (Tr. Pg 148).
[111] If it is accepted by the Tribunal that the Applicant suffered a disease that was significantly contributed to by the Applicant’s employment, the Respondent submits the taking of the administrative action was an event without which the employees’ ailment, or aggravation, would not have been a disease that was contributed to, to a significant degree, by the employees’ employment Martin² [47]. There was no other employment factor relied on by the Applicant. The exclusion in s5A (1) of the SRC Act must operate and the Applicant is not entitled to compensation.
The Respondent also submitted the following:
[61] In applying the application of the exclusionary provision in S5A (1) together with S5B of the SRC Act what is required to meet the casual connection is that the employee would not have suffered that disease as defined in S5B (1) SRC Act (an ailment that was contributed to, to a significant degree, by the Applicant’s employment), if the administrative action had not been taken Comcare v Martin² [47] (Martin).
[62] The administrative action need not be the sole cause; – Comcare v Martin² [47] [45] Hart v Comcare¹ Lim v Comcare ³(Lim).
[63] In Lim, the Full Court identified the statutory question in the context of only employment related factors being identified as contributing to the ailment; whether the ailment (or aggravation of the ailment) would not have been suffered if the performance appraisal had not been taken [40-42].
[64] In obiter, the Court in Lim observed that where both employment and non-employment factors contributed to an ailment, or the aggravation of an ailment, in order to determine whether s5B of the SRC Act applied, a finding would need to be made that the ailment, or aggravation of the ailment, was contributed to, to a significant degree, by the employee’s employment. If the answer to this question was ‘yes’ then consideration of; whether there was reasonable administrative action taken in a reasonable manner, and if so, whether or not the disease would have been suffered if the administrative action had not been taken. If the Tribunal was satisfied that the answer to this question was in the affirmative, then the exclusion in s5A (1) SRC Act would apply [45].
[65] Lim reiterates what the High Court said in Martin in respect to the question of the degree of causation required from an administrative action before the S5A (1) SRC Act exclusion will apply.
[66] The Respondent must demonstrate that the injury was a direct and foreseeable consequence of the reasonable administrative action Martin, Lim.
[67] In Hart v Comcare ¹ the Full Court held that where there are multiple causative factors, if one of those factors falls within the exclusion, the employee is wholly disentitled to compensation in respect of the injury.
[68] The Tribunal raised the recent decision in Walker Kaye v Comcare⁴. In Walker Kaye, it was conceded that the Applicant’s employment had significantly contributed to the claimed psychological condition and that the employee had an impaired capacity for work. The Tribunal in that case considered that the application of Hart following the decision in Martin would mean that an insignificant excluded causative factor would not be sufficient to cause the injury to be excluded. In that case four separate matters, or events, were relied upon. The Tribunal found that in fact, it was a single matter with four parts, all four matters were part of a continuum. The Tribunal found that the administrative action in that case was not reasonable and not carried out in a reasonable manner.
The Federal Court in Comcare v Martinez (No 2),[41] approved the findings of the South Australian Supreme Court in Keen v Workers Rehabilitation and Compensation Corporation. Robertson J in Martinez approved the reasoning of Lander J in Keen where his Honour had opined:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
[41] [2013] FCA 439.
In Martinez, Robertson J stated that:
...the word "reasonable" allows the possibility that there may be more than one way of doing things "reasonably", and the judgment required is not whether the thing could have been done more reasonably.[42]
[42] [2013] FCA 439 [82].
This decision drew on the reasoning of French J, as he then was, in the Full Federal Court matter of Bropho v Human Rights and Equal Opportunity Commission. Although French J was interpreting the concept of reasonableness in the context of the Racial Discrimination Act 1975 (Cth), his Honour's remarks have application in the present matter. French J wrote:
There are elements of rationality and proportionality in the relevant definitions of reasonably ... it does allow the possibility that there may be more than one way of doing things 'reasonably'. The judgment required ... is whether the thing done was done 'reasonably' not whether it could have been done more reasonably or in a different way more acceptable to the court.[43]
[43] [2004] FCAFC 16 [79].
I note that this reflects submissions made by counsel for the Respondent, who indicated, in effect, that just because things could have been done in a better way or another way did not necessarily mean it was not reasonable administrative action for the purposes of the exclusionary provisions. In Georges v Telstra Corporation, the Tribunal considered the meaning of “reasonable manner”:
...while the assessment of "in a reasonable manner" relates to the administrative action contemplated and does involve the possible consideration of a variety of circumstances, the underlying assessment standard must remain an objective assessment of all the material that has been collated or should have been collated. I would also recognise that particular administrative action as pertaining to an individual employee are usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instructions that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action is taken.[44]
[44] [2009] AATA 731 [23].
Also relevant are the following paragraphs from Commonwealth Bank of Australia v Reeve (supra):
per Gray J at [33]
1. In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. This meaning may have been the one the Tribunal was attempting to express in its reasons for decision, when it referred to “legitimate human resource management actions”. Although inapt, the description used by the Tribunal is not far removed from the proper construction of the exclusion. As the Tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.
And Rares and Tracey JJ at [60]
60.The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties: cf John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; (2010) 185 FCR 566 at 586 [72]- [73] per Dowsett J, with whom Spender J agreed. An analogy, although taken from a different statutory context, can be seen from the facts in The Commonwealth v Rutledge [1964] HCA 63; (1964) 111 CLR 1. Thereafter working in her job for over four years, an employee, who was latently susceptible to developing paranoia, was required to perform new duties that involved her spying on fellow employees. Within two weeks the employee developed into an active psychotic. As Menzies J put it (111 CLR at 11):
“... it is sufficient, however, if the spying which was her employment for the time being, had in its nature something to aggravate a pre-existing condition of latent paranoia or to accelerate a change from that condition into that of active psychosis. Here I think the evidence did have the requisite generality.” (emphasis added)
Australia Post’s guidelines in relation to payment for medical examinations were that the employer would meet the costs of initial medical examinations and the reasonable costs of any tests, x-rays or referrals made for the purpose of completing the medical assessment.
Australia Post took the view that because the Applicant’s vision issues were not work related and, significantly, as he was not required to drive an HRV for his substantive duties, it was up to him to pay for the specialist examination. I find this approach to be reasonable.
Although not relevant to my considerations, I do not accept as reasonable the Applicant's reasons for not having follow-up visits to a psychologist being, inter-alia, his concerns for being out of pocket for a moderate amount of money. However, there is no evidence to suggest that he approached his employer for assistance for such visits and the advice contained in reports from both Dr Loftus and Dr Murphy was to the effect that such a course would be beneficial. I also note that the Applicant, who had at least $900,000 in savings, was not prepared to consider paying $150 per visit.
Applying the legislative framework, case law and findings set out above, I find that it was reasonable for the Respondent to require the Applicant to pay for the specialist opinion bearing in mind a specialist clearance was not required for his substantive duties.
Furthermore, any lack of reasonableness was dissipated when the Respondent offered to pay for the specialist referral as set out at paragraphs 10 to 11 above.
Accordingly, I find that the administrative action was carried out in a reasonable manner.
DECISION
The decision under review is affirmed.

I certify that the preceding one hundred and eighty-one [181] paragraphs are a true copy of the reasons for the decision herein of Deputy President A G Melick AO SC.

[sgd]................................................
Associate
Dated:    17 December 2020
Dates of hearing:  14 and 15 February 2018
Applicant’s Representative:  Self-represented
Respondent’s Representative:  A McMahon of counsel, instructed by Clarke Legal