Boyd and Australian Postal Corporation
[2007] AATA 1107
•14 February 2007
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WRITTEN REASONS FOR ORAL DECISION [2007] AATA 1107
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/794
GENERAL ADMINISTRATION DIVISION )BRIAN BOYD
Applicant
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly
Date of oral decision 14 February 2007
Date of written reasons 8 March 2007
Place Sydney
DirectionThe decision under review is affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
WRITTEN REASONS FOR ORAL DECISION
At the conclusion of the hearing of this matter in Newcastle, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent.
CATCHWORDS
WORKER’S COMPENSATION – claim for work-related stress and depression – Tribunal not satisfied Applicant suffered stress or major depression – decision under review affirmed.
CASES
Comcare v Mooi (1996) 42 ALD 495
LEGISLATION
s 14, 16, 19 Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
| Senior Member, Mrs Josephine Kelly |
Mr Brian Boyd worked for Australia Post for many years in the central west of New South Wales and then in the east Maitland area and resigned on 16 January 2004. There have been previous proceedings in this Tribunal and in the Federal Court which concerned injuries to his knees. In these proceedings the case for Mr Boyd is that his knee condition and how that was dealt with by management led to work-related stress and depression. The issues are therefore whether Mr Boyd has suffered the alleged condition or conditions and if so whether Australia Post is liable pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), and consequential incapacity and medical costs pursuant to sections 16 and 19.
These proceedings initially appeared to be limited to two incident reports on 29 October 2003 relating to depression, and 20 November 2003 which referred to work-related stress. However, Mr Vincent, counsel for Mr Boyd, expanded the claim on the morning of the hearing to include other incidents or periods of time, only one of which had been included in an amended statement of facts and contentions sent to the respondent, Australia Post, the afternoon before the hearing. In any event, Australia Post has agreed not to take any legal objection in relation to this Tribunal’s jurisdiction to deal with the various dates sought to be argued and accordingly I deal with all of them.
They are: 2 May - 5 May 2003 inclusive, 14 May - 28 May 2003 inclusive, 30 June 2003, 11 August – 29 August 2003, 27 October – 30 October 2003, 18 November to 28 November 2003. During the above periods Mr Boyd was a postal delivery officer. He used a motorbike to deliver the mail after having sorted it using a V-sort frame. There was a considerable body of documentary evidence before me including a report from Mr Boyd’s general practitioner, Dr Bergin, dated 30 December 2003 and his records relating to Mr Boyd from July 2003 to February 2004; what I might describe as clinical notes from Mr Paul Kennedy, psychologist; medical certificates for some of the periods claimed but not all; various work records including leave records, incident reports and compensation claims; my decision in previous proceedings dated 24 August 2005; consent orders in the Federal Court dated 7 February 2006; and police records of criminal and traffic charges in respect of Mr Boyd.
I also had the benefit of a medico-legal report from Dr Walden, a psychiatrist, prepared at the request of Australia Post. Also in evidence was correspondence between the solicitors relating to particulars and various extracts from the proceedings I heard in August 2005. Mr Boyd gave oral evidence. In summary, Mr Vincent put Mr Boyd’s case in the following terms. In relation to each incident, when one pieces together the available documentary material, together with Mr Boyd’s oral evidence, Mr Boyd was complaining of stress or depression relating to his employment at each particular occasion now claimed and took time off work during each of those periods as a result of his knee condition and management’s failure to properly manage him.
Consideration
Mr Boyd conceded that his memory was not good and I agree. However, I accept that during 2003 and until his resignation in January 2004 he was angry, frustrated, and felt victimised by management and particularly by one individual. It follows that in coming to my conclusion I rely principally on the contemporaneous documents in the material before me.
The period 2 - 5 May 2003: there is an incident report citing work-related stress but no medical certificate to support it, giving a medical diagnosis. Mr Boyd did have a dispute with management at that time and in part it related to a concern by management that he had been drinking alcohol.
14 May - 28 May 2003: Mr Boyd took 15 days long service leave. There was no report or other reliable material about the reasons for that leave. The mere fact he took time off is no evidence of him suffering the condition. There is a P66 form, filed for 26 - 28 May but that refers to ongoing knee problems and the medical certificate from Dr Singh for the same period refers to gout. So relevantly there is nothing in relation to that period that refers to stress or depression, although Mr Boyd did state in oral evidence that one of the reasons that it was principally because of his stress at work that he took leave during that period.
I should clarify that during that period on 21 May, Mr Boyd saw Mr Kennedy following a request made about 6 May 2003 and Mr Kennedy’s notes record Mr Boyd’s complaining about management and reporting feeling physically sick about going to work, feeling angry at everyone and that he may need medical assistance. Mr Kennedy also wrote: “? Alcohol consumption”. I note that Mr Kennedy worked for a firm in a program offered by Australia Post to help employees. There is no report from Mr Kennedy providing a diagnosis. On 20 June Mr Boyd saw Mr Kennedy again, who noted as best I can decipher his notes, that Mr Boyd was stressed about job, feels job conditions are degrading, been worrying about being at work but prefers to work, gets very upset and depressed, anxiety.
On 30 June Mr Boyd’s self reported symptoms were stomach cramps, vomiting, pains in joints over weekend. The medical certificate of Dr Ubeya stated: “Tired, run down”. There was no reference to depression or stress. Mr Vincent argued these symptoms were consistent with the latter condition or states of mind.
11 ‑ 29 August 2003: there is a self reported chemical imbalance causing severe depression and fatigue. Dr Bergen’s medical certificate refers to “personal illness” and nothing more. The doctor’s clinical notes during this period indicate that the doctor prescribed Lovan, an anti-depressant, and diagnosed major depression. No history was noted.
Mr Kennedy’s notes on 4 September 2003 are difficult to read but doing the best I can, relevantly he notes that Mr Boyd got the clearance from the doctor to return to work but feels he can’t. Says doctor has told him not to cut alcohol consumption too quickly. He feels he does a good job when at work but feels under scrutiny. He has been on Lovan for three weeks. He had some anxiety problems, alcohol-related. Knee is good, had a game of golf.
Mr Kennedy’s notes for 8 October 2003:
Drinking a lot less and still on anti-depressants, feels extreme pressure from work, stress-related cold sores, not sleeping.
That gentleman’s notes for 20 October 2003 state:
Says alcohol level is okay but admits to three to four, then two more on bad days. Work says upset by manager about being two minutes late and various complaints about work and manager. Okay when out on run.
27 - 30 October 2003: the claim form has self reported severe depression due to consultation about times involving previous injuries or problems that were work-related. They are related to indoor and outdoor work. Incident report similar but also referred to what I understand to be “chemical imbalance”. Dr Bergin’s certificates “exacerbation of major depression” and in relation to a management plan: “continue full duties at work, medication adjusted”. The doctor described “reactive process caused by serious knee condition”, but I do note the reference to exacerbation of major depression in Dr Bergin’s certificate.
Period 18 - 28 November 2003: Dr Bergin noted:
Reactive process caused by serious knee condition. Not as a result of disciplinary action taken by management. See my certificate of 27.10.03. Diagnosis: exacerbation of major depression (my emphasis).
The incident report stated:
On ceasing delivery I was asked to approach the manager. On doing this I was told that (something about) I would have to change runs due to the size, increase to my run and that the racks were too close and I have to go to another run that suited my height.
Mr Boyd went on leave, claiming major depression.
I find that Mr Boyd has discontinued taking Lovan after the end of November 2003. In his evidence he said that it had helped him for a while but then made no difference. I note that Mr Vincent criticised Dr Walden’s report because she did not consider the particular periods in claims other than October and those of October and November. However, I do not consider that this criticism assists Mr Boyd’s case. On the evidence I find that Mr Boyd has had a significant consumption of alcohol during 2003 and over many years before and since, including when he saw Dr Walden and Dr Sambrook in relation to the earlier proceedings. At that time he told Dr Sambrook that he drank six schooners of beer a day religiously and during the previous proceedings Mr Boyd admitted to, I sort of stick to a program.
In those previous proceedings he also admitted to having been advised that his alcohol consumption contributes to his gout, but before me in these current proceedings, he denied that he had been so advised. I also note the references to his alcohol consumption referred to earlier in this decision. I further note that he has had convictions for offences in which his alcohol consumption has been a relevant factor. It is important to my consideration that Dr Bergin prescribed Lovan in August 2003, when Mr Boyd was off work, for what Dr Bergin stated rather cryptically as “a personal illness”.
Later Dr Bergin describes a work-related depression in October and November as exacerbations of depression. In the absence of oral evidence from Dr Bergin, and a detailed history and causation of what he found to be depression in August and again in October and November, I do not accept that the diagnosis set out in Dr Bergin’s medical certificates and in his report of 30 December 2003 is an accurate one. I would like to have heard Dr Bergin’s explanation of “personal illness”. It may be that the “depression” was caused by Mr Boyd’s alcohol consumption or some other personal circumstances. In saying that, I note the references to the reduction in alcohol consumption in Mr Kennedy’s notes after the August leave.
I am supported in my finding by Dr Walden’s detailed report in which she considers Mr Boyd’s most likely psychiatric diagnosis is one of alcohol dependence, which impairs his motivation and affects his concentration and lowers his mood. She did not consider that condition causally related to work and I share that view. To be clear, I am not satisfied that any of the incidents before August 2003 fall into the category of dysfunction so as to satisfy the test, if I can call it that, discussed in Mooi. I am also not satisfied on the evidence that Mr Boyd suffered major depression on or after August 2003, as already stated.
For the above reasons, I am not satisfied that Mr Boyd suffered stress or major depression which was work-related as alleged, and accordingly I affirm the reviewable decision.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly
Signed: Ms P Nimmagadda
Associate
Date of Hearing 13 February 2007
Date of Oral Decision 14 February 2007
Date of Written Reasons 8 March 2007
Solicitors for Applicant Bale Boshev & Associates
Counsel for the Applicant Mr Mark Vincent
Solicitor for the Respondent Graham Jones Lawyers
Counsel for the Respondent Mr Grant Elliott
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