Churn and Australian Postal Corporation
[2006] AATA 701
•16 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 701
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/25,
GENERAL APPEALS DIVISION ) N2005/918 and N2005/1220 Re LAURIE CHURN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr J Campbell, Member Date16 August 2006
PlaceSydney
Decision The decision in the three matters under review are affirmed.
..............................................
Dr J Campbell
Member
WORKERS’ COMPENSATION – work place disputation – claim for emotional stress – claim for stress/anxiety disorder – personality disorder – reasonable disciplinary action – claim for physiotherapy treatments to right elbow – found applicant did not suffer emotional stress/anxiety- applicant not entitled to physiotherapy treatment.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14 and 16
Comcare v Hart [2003] FCA 1067
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
16 August 2006 Dr J Campbell, Member 1. Mr Churn, born in 1952 commenced employment with Australia Post in 1983 as a Christmas casual at Hornsby. Following work as a relief post office worker Mr Churn transferred to mail processing on night shift work in 1986 at the St Leonards mail facility to accommodate his university studies. In 1990/91 Mr Churn transferred to the Eastern Suburbs mail facility at Alexandria, where he worked part time for several years prior to returning to full time work in 2000. Mr Churn was transferred back to St Leonards mail facility in late August 2002, where he continued to work until his resignation on 23 April 2004.
2. Mr Churn is seeking review of three matters namely:
·The issue of whether he suffers from an emotional stress condition as a result of his employment with Australia Post (N2005/25).
·The issue of whether Mr Churn suffers from an anxiety disorder as a result of his employment with Australia Post (N2005/918).
·The issue of whether Mr Churn is entitled to payment for physiotherapy treatments to his right shoulder as a consequence of increased symptomatology following bush regeneration activities in 2005 (N2005/1220).
issues
3. The issues to be considered in these matters are:
· Did Mr Churn suffer an emotional stress/anxiety disorder as a consequence of his employment with Australia Post, with particular reference to the incident of 29 July 2003?
· If so, was such a condition the result of or contributed to by reasonable disciplinary action?
· Did Mr Churn suffer an anxiety disorder as a consequence of his employment with Australia Post, with particular reference to events leading up to and including the meeting with Mr Corner on 23 April 2002 and subsequent happenings?
· If so was such a condition the result of or contributed to by reasonable disciplinary action?
· Was Mr Churn entitled to payments for physiotherapy treatment for his right elbow as a consequence of increasing pain arising from his bush regeneration activities in 2005 post his retirement on 23 April 2004?
decision
4. For the reasons detailed later in this decision, I find that:
(a)Mr Churn did not suffer a period of emotional stress/anxiety as a consequence of the incident of 29 July 2003.
(b)Even if a period of stress was occasioned by both Mr Churn’s actions and interactions in the work place on 29 July 2003 and his concerns that he was in breach of his warning counselling of 23 August 2002 the exclusionary provisions within s 4 of the Act as regards the definition of an injury exclude consideration as an injury, injury suffered by an employee as a result of reasonable disciplinary action.
(c)Mr Churn did not suffer an anxiety disorder as a consequence of his employment with Australia Post.
(d)Mr Churn is not entitled to payment for physiotherapy treatments to his right elbow for exacerbation of pain as a consequence of his bush regeneration activities in 2005.
background
5. In detailing the background, I have of necessity attempted to create the necessary scenario relevant to the considerations of the three matters in question from in excess of 1600 pages placed in evidence.
6. During his period of employment at Alexandria, Mr Churn was:
· Issued with a warning counselling on 29 January 1996 having been accused of disobeying instructions, an issue which he disputed.
· Issued with a warning counselling on 16 August 1996, having been accused of failing to carry out instructions, an issue which he disputed, alleging corruption and nefarious practices in the work place and unfair rostering practices for part time staff, while believing the intent of the counselling was to intimidate him and that the management response to his complaints was inadequate. Exchange of correspondence between Mr Churn and his shift manager continued for many months, with eventually Mr Churn referring the issues to his facility manager, Mr Wilson in May 1997. A further issue of taxing of unpaid mail was raised by Mr Churn with Mr Wilson and pursued by Mr Churn over some months in an effort to establish the nature of and consistency in implementation of the employer’s policy on this issue.
· Dispute concerning the revision of the part time employees roster in November 1998 leading to correspondence by Mr Churn to Mr Reynolds, facility manager, the request for a grievance hearing by Mr Churn pursuant to clause five of the Principal Determination of the Enterprise Bargaining Agreement, the investigation of the grievance and determination that the grievance should not be further pursued by Mr Wilson, Manager Letters (NSW/ACT), with the reasons for being provided by Mr Wilson to Mr Churn on 16 September 1999. Following further correspondence the issue was addressed at a Board of Reference hearing on 15 December 1999, with the Corporation indicating their intent to abide by the grievance procedure. Further disputation on the issue continued with Mr Reynolds confirming on 27 January 2000 his understanding of issues, with Mr Churn disputing the contents in subsequent correspondence over the ensuring months and referring the matter for resolution to the Employee Relations Unit on 13 April 2000. On 14 April 2000, Mr Churn was advised by the Grievance/Appeals Consultant that the issues he raised, had already been dealt with and that further representations in that regard could be interpreted as mischievous or motivated by frivolous intent. On 12 May 2000, following further representations by Mr Churn, Mr Wilson warned Mr Churn that any further representations may incur possible disciplinary action. Mr Churn made further representations on the issue to Mr Rourke, Grievance Consultant and Mr Reynolds, facility manager. On 6 October 2000, Mr Churn was advised by Mr Sadler, Manager Letters (NSW/ACT) that his continued representations are mischievous and that action will proceed under the Code of Ethics. A warning counselling was issued to Mr Churn by Mr Reynolds on 17 October 2000, which Mr Churn documented as failing to comply with oral and written directions and not agreeing with the findings of the Chairman of the Board of Reference, while noting the failure of the same person to rule on his grievances.
7. In June 2001, a further warning counselling was issued against Mr Churn by Mr Reynolds, facility manager, stating that Mr Churn had failed to follow a direction issued by a senior officer and failed to treat a senior officer in a courteous manner. Mr Churn disagreed with such actions and notified a grievance against the senior officer, Mr Hill, over his actions in the issues involved.
8. On 15 June 2001, Mr Wilson (Manager Letters (NSW/ACT)) wrote a letter to Ms So in response to a grievance raised by Ms So on 1 December 2000 that she had been intimidated and victimised over the issue of eating an ice cream while sorting small letters on the VSD. Mr Wilson acknowledged that there was inconsistency in how supervisory staff applied this policy and that in future it was to be strictly enforced. On 15 February 2002, Mr Churn lodged a grievance with the application of the Grievance Process, alleging to Mr Taylor the State Operations Manager, that Mr Wilson had used untrue grounds to produce written findings and further trivialised the grievance process by taking so long to reply. In so stating Mr Churn considered that Mr Wilson’s statement “As you are aware the consumption of food and/or drink on the mail processing floor is unacceptable” in his response to Ms So was not true. In response on 25 February 2002, Mr Taylor stated that all the issues had been resolved in a Board of Reference hearing, with all parties, including Ms So in agreement. Further Mr Taylor advised that he considered the matter closed and that no further correspondence will be entered into in this regard. On 6 March 2002 Mr Churn sought that the matter of his grievance go before a Board of Reference for hearing, as he disagreed with Mr Taylor’s response. Mr Churn also forwarded a letter to Mr Taylor on 13 March 2002 outlining his disagreement.
9. In response to Mr Churn’s letter of 6 March 2002, Mr Rourke, Complaints Manager, advised Mr Churn on 13 March 2002 that he was required to attend a meeting with Mr Corner on 22 April 2002, which was altered at Mr Churn’s request to 23 April 2002. In the interim, Mr Churn continued to pursue redress of his grievance and the meeting with Mr Corner held, with a union organiser in attendance. On 25 June 2002, Mr Churn raised the issue, including his meeting with Mr Corner, with Mr John, Managing Director Australia Post. In his letter to Mr John, Mr Churn stated that Mr Corner said the matter was closed and if Mr Churn persisted, he would be deemed to be acting mischievously and Australia Post would act accordingly. On 26 August 2002, Mr Churn wrote to Mr Corner asking whether he had been able to establish whether the rule referred to by Mr Wilson in relation to food did exist. Mr Churn continued to pursue the issue with Mr McDonald, National Manager, Human Resources, Australia Post and Mr John throughout 2003, 2004 and at Ministerial level in April 2005, claiming that necessary answers to issues raised had not been forthcoming from Australia Post.
10. On 11 June 2002, Mr Hill notified Mr Churn of an inquiry into his behaviour on 11 June 2002 and his suspension from that date, alleging that Mr Churn had engaged in disruptive activities, failed to follow lawful directions, manhandled the shift manager and failed to treat the shift manager with due courtesy. On 14 June 2002, Mr Churn raised a complaint against Mr Hill with Mr Reynolds, alleging intimidation, threatening behaviour, bullying, unmanagerly conduct and refusal to obey a direction. Mr Churn was referred to Dr Pryba, a clinical psychologist at Davidson Trehaire on 21 June 2002, as part of Australia Post Violence Management Protocol.
11. On 25 June 2002, Dr Pryba reported that Mr Churn does not present with any diagnosable psychological disorder. Mr Churn was advised on 5 July 2002 that following investigation, the charges alleged had been found to be proven. On 17 July 2002, Mr Churn was advised that a disciplinary decision had been made to dismiss him as from 18 July 2002. Earlier on 11 July 2002, Mr Churn had lodged a clause five grievance with Mr Prior (Acting Manager Letters (NSW)) concerning the actions of Mr Hill and Ms Mahoney on 11 June 2002 and for other failures prior to that date and against Mr Reynolds for his failure to respond to grievances nominated in June 2001.
12. A Board of Reference held on 23 August 2002, while noting that Mr Churn was an authorised union representative at the time in question (21 June 2002), concluded that Mr Churn was to be issued with a warning counselling in regard to the 11 June 2002 incident; be transferred to the Sydney North Letter Facility, commencing duty on 26 August 2002; that in future he will follow his supervisor’s direction, and if acting as an authorised union representative, his response to unresolved issues must involve the dispute resolution process by advising the supervisor that he is taking the unresolved issue to the next level rather than maintain a continuing argument; that the issue (rostering) in dispute between the parties on 11 June 2002 be further discussed between management and the Union to ensure resolution. Such a determination replaced the dismissal notice served on 17 July and enacted on 18 July 2002.
13. On 3 September 2002, Mr Churn sought amendments to the Board of Reference report of 23 August 2002, while in a separate letter of the same day to Mr Reynolds detailed that he had not received a response to his grievance letter of 14 June 2002, such a lack of response being inconsistent with earlier undertakings given by management following a Board of Reference hearing in 1999. Further discussion as regards giving consideration to or making amendments was denied to Mr Churn, notification of which being made to Mr Churn on 5 September 2002. Between 6 and 13 September 2002, Mr Churn was certified as medically unfit to attend at work because of work related stress symptoms. On 9 September 2002, Mr Churn was advised by Mr Wilson, Manager Letters (NSW/ACT), that all matters nominated in his letter of grievance to Mr Reynolds on 3 September 2002, had been addressed in the enquiry conducted and that further correspondence on such issues would not be considered.
14. Mr Churn completed an incident report and lodged a claim for compensation on 18 September 2002, alleging stress as a consequence of wrongful suspension and dismissal. Mr Churn continued to dispute issues surrounding the Board of Reference Report of 23 August 2002 in letters issued by him on 22 September 2002. On 24 September 2002 Mr Churn was advised that such letters will not be acknowledged, that they are considered vexatious and appropriate action under the code of ethics would be implemented by the Manager, Letters, in such circumstances. In further letters, Mr Churn continued to assert that he had not received responses to his grievance complaints to Mr Reynolds of 27 June 2001 and 14 June 2002. Mr Churn’s claim for compensation for stress was denied by Australia Post on 23 September 2002, a decision affirmed after reconsideration on 4 November 2002, with liability being admitted by way of a consent decision issued by the Administrative Appeals Tribunal on 12 June 2003.
the 29 july 2003 incident
15. Mr Churn, on a rostered day off, attended at his work place towards 6pm with the intention of attending a working party meeting, of which he believed he was a member. He was confronted by a Mr Garland (facility manager) who told him that he was not authorised to attend the meeting as the union had not informed Mr Garland of any change to the membership of the working party to include Mr Churn, and that protocols were expected to be followed. Mr Garland after further discussion with Mr Churn requested Mr Churn to leave for a second time. Following further discussion during which Mr Churn was alleged to have raised issues of discrimination against the 4pm shift, Mr Garland requested Mr Churn to leave the building as his presence was unauthorised and requested a Mr Liu to escort him from the premises.
16. As Mr Churn was being escorted from the premises it was alleged by a Mr Ngai that Mr Churn pointed his finger at him and stated “you’re a liar you were going to quit the working party. You don’t represent the 4pm shift”. Mr Churn was also alleged to have stated to Mr Liu “When I’m back I will get you for Chi Chi Datoc not working on the BCS. Her position was abolished and also Chau, why is he always doing the odd jobs?”
17. Dr Garber, Mr Churn’s attending general practitioner, certified Mr Churn unfit for work for the period 30 July 2003 to 1 August 2003 because of emotional stress. On 31 July 2003, Dr Afflick, the facility medical practitioner certified that Mr Churn suffered an injury on 29 July 2003, that the injury was “anxiety disorder and fatigue” and that Mr Churn was fit for normal duties from 31 July 2003. Dr Afflick also records that Mr Churn will comply with his own doctor’s advice, as he still feels “very stressed”, while recommending mediation to work through the issues arising from the events of 29 July 2003.
18. On 31 July 2003, Mr Churn was issued with notice of an enquiry into his behaviour towards Mr Ngai on 29 July 2003. In his statement to the Inquiry hearing on 11 August 2003, Mr Churn requested a formal inquiry into the behaviour of Mr Ngai, Mr Liu and Mr Garland, as each had, in his opinion, breached Australia Post Code of Ethics/Policy, with such breaches contributing to events and influenced and affected his behaviour in the incident on 29 July 2003. Mr Churn raised such issues in separate correspondence with the grievance co-ordinator on 18 August 2003, 22 August 2003 and again on 28 August 2003, having been advised on 25 August 2003 that he had an opportunity to raise such issues during the inquiry.
19. On 26 August 2003, Mr Churn was notified that the inquiry had found that he had breached the Australia Post Code of Ethics on 29 July 2003. On 27 August 2003, Mr Churn requested that Mr Wilson not participate in the issue of discipline because of conflict, involving a clause five grievance raised by Mr Churn. Following further correspondence, Mr Wilson, on 1 September 2003, advised Mr Churn that he would be dismissed effective 3 September 2003.
20. On 25 August 2003, Mr Churn sought transfer back to the Sydney East Letters Facility, the ability to request a transfer back after 12 months would be considered subject to merit and vacancy having been nominated in the Board of Reference Report of 3 August 2002. On 28 August 2003 the request was denied by Mr Reynold (facility manager at SELF), citing an absence of a vacancy and ongoing disputation with management at that facility.
21. Mr Churn lodged an unfair dismissal application with the Australian Industrial Relations Commission on 23 September 2003. On 1 October 2003 a Board of Reference concluded that Mr Churn will recommence duties on 7 October 2003, provided that prior to that date Mr Churn:
· Issued a formal apology to Mr Ngai
· Agreed not to represent staff for 18 months
· Be issued with a formal warning counselling, to be reviewed every three months for 18 months
Mr Churn lodged a notice of discontinuance with the Commission on 1 October 2003.
22. On 27 August 2003, Mr Churn lodged a claim for compensation for peptic ulcer, enclosing a certificate from Dr Khoury stating that Mr Churn was unfit for work for two days because of gastritis. The claim was denied by Australia Post on 8 September 2003 and again following reconsideration on 30 January 2004. On 10 June 2004, Mr Churn made application to the Administrative Appeals Tribunal with that Tribunal dismissing the application, following a letter of withdrawal lodged by Mr Churn on 5 October 2004.
the april 2004 inquiry
23. Mr Churn was served notice on 12 March 2004 and again on 2 April 2004 that an inquiry was to be held into alleged breaches of behaviour by him of Australia Post Code of Ethics. Such breaches by Mr Churn were nominated to involve his conduct towards a Mr Chou Nguyen from 29 February 2004 and thereafter to 8 March 2004 and Ms Frost in relation to an incident on 8 March 2004, the incident on 8 March 2004, which involved Mr Nguyen and Ms Frost, resulting in Mr Churn’s suspension with pay for misbehaviour.
24. On 16 April 2004, the officer conducting the inquiry found all allegations proven and recommended Mr Churn be dismissed. Mr Churn again raised the appropriateness of Mr Wilson being the officer that would decide his fate, an issue which was dismissed by Mr Wilson in a letter to Mr Churn on 20 April 2004. On 22 April 2004, Mr Wilson advised Mr Churn that he would be dismissed as from 23 April 2004. A Board of Reference, convened on 19 May 2004, dismissed Mr Churn’s appeal, with Mr Churn tendering his resignation effective from 23 April 2004.
claim for compensation
25. On 21 October 2004, Mr Churn lodged an incident report and a claim for compensation with Australia Post in which he ascribed his emotional stress/anxiety disorder, which resulted in him being found to be unfit for work by Dr Garber from 30 July 2003 to 1 August 2003. Mr Churn asserted that this injury arose as a consequence of unreasonable treatment by his employer at work on the evening of 29 July 2003, this being evidence of what had been going on for some time. Mr Churn’s claim was disallowed on 18 November 2004. In his request for reconsideration Mr Churn stated:
My stress, or distress, didn’t originate in the events of the evening of 29.7.04. These events helped cause it to overflow. The illness itself came from years of this, and many episodes of it. The ongoing dishonesty and unreasonable and unfair actions and behaviour Australia Post’s representatives partook in, and their failure to adhere to the Code of Conduct/Ethics and the failure of their representatives to adhere to their own personal commitments under the Statement of Ethics, and the double standards in practice over a period of years; that’s what made me sick, and has been making me sick for years, and continues to do so. (2T, p264)
Mr Churn’s claim for compensation for emotional stress/anxiety disorder was again denied by the reconsideration officer on 29 December 2004.
26. On 1 May 2005, Mr Churn lodged a claim for anxiety disorder arising from the incident of 23 April 2002 in which Mr Churn was directed by Mr Corner to withdraw “my clause 5 grievance with threats against my livelihood” (T398, p811). Liability for this claim was denied by Australia Post on 6 June 2005, that decision being affirmed following reconsideration on 13 July 2005 (1T410, p841).
27. On 9 February 2004 in a reconsideration decision, Australia Post determined that liability continued whereby Australia Post would continue to pay compensation pursuant to s 16 of the Act for aggravations due to work duties in relation to his right elbow condition (1T381). On 22 April 2005, Dr Garber referred Mr Churn to Mr Playford for further physiotherapy to his right elbow. In furtherance to a telephone call to Ms McGregor of 17 May 2005, Mr Churn requested approval to undertake such treatments on 18 May 2005 and again on 30 May 2005. Ms McGregor sought information from Dr Garber on 10 June 2005, with Dr Garber responding on 27 June 2005 that Mr Churn’s aggravation of pain in his right elbow was as a result of carrying out some bush regeneration work (1T407). On 5 August 2005, Australia Post advised Mr Churn that liability for the physiotherapy treatments does not exist as there is no evidence to support a relationship between the current symptoms and employment with Australia Post (1T413). This decision was affirmed upon reconsideration on 6 September 2005 (3T4).
consideration and findings
28. In dealing with the three matters in contention, I have been particular in detailing briefly the circumstances and the work environment in which and from which the claims for compensation are derived. A perusal of the considerable material in evidence would suggest that for the last six years of his employment Mr Churn was essentially in continual dispute and conflict, albeit in varying degrees, in the work place. I also note that Mr Churn was an authorised union representative for the period commencing shortly after his return to full time work in 2000 until his transfer to St Leonard’s Mail Facility on 23 August 2002, as a consequence of a Board of Reference hearing.
29. In assessing the evidence as presented, I conclude that Mr Churn is a person of strong and particular convictions in matters that pertain to the work place. I observe that his strident and often resilient prosecution of matters in the work place that he perceives to be in error, to be deficient or to be unfair have often placed him in a position of conflict and significant disputation with his supervisors, managers and co-workers. Further pursuit of such issues has often resulted in circumstances which have led to warning counsellings, inquiries, suspension and disciplinary proceedings. Concurrent with such happenings Mr Churn is noted to have pursued allegations by way of grievances against parties perceived responsible for initiation of circumstances leading to his disciplinary difficulties or alternatively against individuals who he saw as failing to properly address grievances he has raised. There is much evidence to suggest that Mr Churn pursues such matters in the face of much adversity, and that further pursuit is often taken in the face of repetitive denials by management, together with indications by management that disciplinary proceedings will be entertained if further pursuit continued.
30. It is neither my duty nor my intention to revisit each of the circumstances in this matter that has led to disputation and conflict between Mr Churn and his employer. I do note, as I have done earlier that such disputation between Mr Churn and his employer was essentially continuous and endemic from 2000 to his resignation in April 2004. I shall deal however, within that environment as described, with the circumstances that Mr Churn has particularised as significant in his claim for compensation.
the emotional stress claim
31. Mr Churn contends that he suffered emotional stress/anxiety disorder as a consequence of the incident of 29 July 2003, with the period of incapacity being three days. Mr Churn particularised his symptoms as sleep disturbance and nausea, symptoms which he awoke with about 1am the next day and when with further rumination re other events (Corner Affair), and when with further time to consider the issues came to the realisation that “I was being set up”. Mr Churn readily admits that he was angry, annoyed and frustrated at being evicted from the work place on 29 July 2003, but that it was his later realisation that his livelihood was threatened, as he had a warning counselling issued on 23 August 2002, which had effect for a 12 month period, that led to the symptoms he described as nausea and sleep disturbance.
32. Mr Churn relies upon the medical certificates of Dr Garber, his attending general practitioner, and Dr Afflick, the facility medical practitioner, to support his case. I note that Dr Garber certified Mr Churn unfit for work for three days from 30 July 2003 to 1 August 2003 because of emotional stress, Mr Churn having attended Dr Garber on 30 July 2003. I note Dr Afflick’s certificate that Mr Churn was suffering from an anxiety disorder and fatigue and that Mr Churn was fit to resume duties on 31 July 2003, the day the certificate was given. I note Mr Churn’s comment that he told Dr Afflick that he intended to keep with Dr Garber’s advice and not return to work until 2 August 2003. I also note the following:
· The history of the So matter commencing in 2000 and pursued by Mr Churn, with an interview with Mr Corner on 23 April 2002 and the continuing sequelae thereafter (paragraphs 8 and 9).
· The attendance at Dr Pryba by Mr Churn on 21 June 2002 and Dr Pryba’s opinion that Mr Churn did not have any diagnosable psychological disorder at that time. I also note that Mr Churn had attended at Davidson Trahaire at an earlier time (circa 2000) at his request because of difficulties in coping at work.
· Acceptance of liability for a stress reaction/anxiety with incapacity payments made for the period 6 – 13 September 2002. (Consent Decision Administrative Appeals Tribunal 12 June 2003).
· A letter from Dr Garber dated 10 March 2005, in which he states Mr Churn consulted him on a number of occasions between September 2002 and August 2004 in relation to aggravation of an anxiety state, which was directly related to issues and problems in his employment with Australia Post.
· A certificate from Dr Garber dated 22 April 2005 in which he states that Mr Churn has been suffering from residual emotional disturbance in relation to his former employment and it is advisable that he does not take up further employment with Australia Post.
· An attendance by Mr Churn at a psychiatrist on referral by his own doctor (? Shortly before or after April 2004), with the psychiatrist not completing the consultation, but informing Mr Churn that he had no psychiatric condition (Mr Churn T, p266).
33. In a report dated 1 February 2006, Dr Lovric, a consultant psychiatrist made the following comments:
Mr Churn impressed me as a very rigid, obsessional and inflexible man, prone to some paranoid beliefs and with poor interpersonal communication skills. I do not see these paranoid beliefs to be delusional (psychotic) in nature but rather a manifestation of Mr Churn’s personality style.
The issues which have developed in the workplace appear to be largely related to Mr Churn’s interpersonal difficulties, rather than job performance issues per se and I note that a number of issues he has had which had led to performance counselling were related to his repeated failure to behave in a socially-acceptable manner and to accept that his behaviour may be seen as intimidating or aggressive by others. Again, I see this as a manifestation of his obsessional and paranoid personality style….
I note that Dr Afflick did not make any formalised psychiatric diagnosis, and from Mr Churn’s account of his symptomology, I would not see his response as uncharacteristic for him at that time and nor would I see that his symptoms would have satisfied criteria for a DSM‑IV diagnoses, but were rather a normal reaction to Mr Churn’s perception of injustice and humiliation.
The psychological symptoms Mr Churn developed on 29 July 2003 were a response to his perceptions of poor treatment and humiliation at being escorted from the building. I see his symptomology at that time to be within the normal spectrum of human emotion to such a situation.
34. In oral evidence, Dr Lovric initially confirmed her written opinion that Mr Churn did not suffer from any psychiatric disorder and that his conduct and behaviour in response to the events of 29 July 2003 were quite within the bounds of normal human behaviour. Further Dr Lovric concluded that his symptomology at that time was not of sufficient clinical severity to keep him off work for other than the three days.
35. I note that following intensive cross-examination by Mr Churn of Dr Lovric on the particulars of many aspects of her report, Dr Lovric commented that following her further observations gained over a few hours that she would be prepared to make a diagnosis of personality disorder – obsessional and paranoid.
36. Further, I note the further comments in oral evidence from Dr Lovric:
· That such a condition was longstanding; that it is not the sort of personality that interacts well with other people; that his perception of events was largely coloured by internal factors, rather than external factors and that the way he saw particular events was very much related to him personally.
· That the interactions in the work place made the condition more manifest, but unlikely to have worsened his personality disorder.
37. In addressing the issue of whether or not Mr Churn suffered an emotional stress/anxiety disorder as a consequence of the work events of 29 July 2003, I conclude that he did not. The reasons for such a finding are detailed in the following paragraphs.
38. Mr Churn did not suffer an injury as defined by s 4 of the Act –
(1)In so finding I have noted Mr Churn’s symptoms (which as described by him involved initial feelings of anger, frustration and humiliation, following later in time (earlier next morning) by feelings of nausea and difficulty with sleeping as he became increasingly concerned with livelihood consequences as he believed he had been threatened by Mr Corner in relation to another issue and the 12 month period that arose as part of the warning counselling issued by the Board of Reference on 23 August 2002 had not expired within a context of further disciplinary consequences remaining an option for the employer.
(2)While I note the two certificates issued by Drs Garber and Afflick on 30 July 2003 and 31 July 2003 respectively, I observe the lack of any supporting clinical details provided to assist in clinically underpinning the statements made. I also observe that Dr Afflick was of the opinion that Mr Churn was fit to return to work on the evening of the day of consultation, namely 31 July 2003. Because of such observations I am left to consider such material in light of Mr Churn’s descriptions of his symptoms at that time. I conclude that such evidence must be given a limited weight because of the intrinsic deficiencies in such evidence, whereby assessment of statements on the medical certificates are unable to be explored, understood or analysed for want of detailed clinical appreciation by either doctors.
(3)I have given careful consideration to the evidence of Dr Lovric. I observed Mr Churn’s extended and intensive cross examination of Dr Lovric. I observed that Dr Lovric when questioned on particulars of and/or comments made in her report was able on many issues to support a statement made by reference to her contemporaneous clinical notes made at the time of consultation; that Dr Lovric was able to competently explain as to where quoted extracts in her report were derived and that on a few issues agreed that she may have misinterpreted or placed out of context some information contrary to what Mr Churn was trying to convey at the time of consultation. All such matters were considered by me in the evaluation of Dr Lovric’s evidence and I am satisfied that the opinions detailed by Dr Lovric were not disturbed as a consequence.
(4)In the light of such clinical evidence that has been adduced in this matter, I conclude that there is insufficient probative evidence to permit me to make a finding that Mr Churn suffered from a psychiatric disorder or that Mr Churn’s conduct and behaviour were outside of normal human behaviour as a consequence of the events of 29 July 2003 (Comcare v Mooi (1996) 69 FCR 439 considered).
(5)In so finding I note and clearly give greater weight to Dr Lovric’s opinion on account of her specialist expertise and the clinical detail and reasoning that underpin and support her opinion. I further note her comment that Mr Churn’s symptomology at that time to be within the normal spectrum of human emotion to such a situation. I also observe that some support for her opinion may be drawn from the opinion of Dr Pryba in June 2002 and from an unnamed psychiatrist with whom Mr Churn consulted briefly a year or so after the event.
(6)I am also mindful that Dr Lovric reassessed her opinion at the end of her evidence to conclude that Mr Churn may have a personality disorder. It is her opinion that the disorder has been longstanding; that the condition was made more manifest by interaction in the work place, but it was unlikely to have worsened his personality disorder. While such a diagnosis may help to explain the nature of the interactions that occurred between Mr Churn and others in the work place , and indeed may explain Mr Churn’s pursuit of fair and just causes in the work place, there is insufficient evidence adduced that would permit to make a finding that –
(a)Mr Churn’s personality disorder was aggravated by the specific events of 29 July 2003 or the general happenings of his employment; and/or
(b)that because of his personality disorder, Mr Churn misperceived or wrongfully perceived the events of 29 July 2003 leading to a period of incapacity for three days because of emotional stress/anxiety disorder.
(7)In making such a finding I am again relying upon the opinion of Dr Lovric on both issues, namely her evidence in relation to the finding (at 6(a)) and her evidence in relation to an absence of Mr Churn not demonstrating emotion, conduct or behaviour outside the normal spectrum of human emotion, conduct and behaviour in response to the circumstances of 29 July 2003. I also note that Mr Churn, as a self represented individual, was not particularly of a mind to accept Dr Lovric’s diagnostic label of personality disorder.
(8)Finally, there remains the issue that even were a finding made that an injury had occurred, namely emotional stress/anxiety disorder, the exclusionary provisions contained within s 4 of the Act would have to be considered. These include disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action. It is evident from Mr Churn’s evidence that he attributes his symptoms arising as a consequence of the events of 29 July 2003 to his later ruminations involving a threat to his livelihood made by Mr Corner in the context of a warning counselling issued on 23 August 2002, the terms of which remain active for a 12 month period.
(9)In such circumstances (Comcare v Hart [2004] FCA 1067 considered) the involvement in and continuance of the effects of a disciplinary process can in the circumstances of this matter and issue properly be seen and assessed as contributing to the symptoms experienced by Mr Churn as a consequence of the events of 29 July 2003. In such circumstances, it must be demonstrated that the disciplinary action undertaken was not reasonable. Mr Churn was a party to the disciplinary proceedings that led to a Board of Reference hearing and finding on 23 August 2002. While Mr Churn did seek to have amended some aspects of the Chairman’s report and did seek to raise a grievance against some of the initiators of his disciplinary process, there is no evidence adduced by Mr Churn, or evidence in the material before me that the disciplinary process ending in the Board of Reference decision on 23 August 2002 was other than reasonable disciplinary action. In such circumstances Mr Churn’s injury, disease or aggravation that was a result of the events of 29 July 2003, would have been excluded and an injury, disease or aggravation deemed not to have occurred, pursuant to s 4 of the Act.
(10)As a result of the foregoing findings and reasons nominated Mr Churn’s claim for compensation for emotional stress/anxiety disorder with a three day period of incapacity must fail as he has not suffered an injury as defined by s 4 of the Act. I conclude that the decision in the matter N2005/25 is affirmed.
anxiety disorder claim (N2005/918)
39. In his claim for this condition, Mr Churn stated that the condition arose because of Mr Corner’s directing him to withdraw a clause five grievance with threats against his livelihood. The history of this grievance was detailed earlier in this decision at paragraphs eight and nine. I note that the grievance had its origin in 2000 and continued through to 2005, long after Mr Churn left Australia Post. It would appear that the meeting with Mr Corner occurred on 23 April 2002.
40. In evidence Mr Churn indicated that his main concern and issue were the matters surrounding the events of 29 July 2003, which have already been detailed and discussed. The only evidence presented specifically in support of the claim for anxiety disorder was a letter by Dr Garber dated 10 March 2005 in which he states Mr Churn consulted him on a number of occasions between September 2002 and August 2004 in relation to an aggravation of an anxiety state, which was directly related to issues and problems in his employment at Australia Post. A certificate from Dr Garber dated 22 April 2005 states that Mr Churn has been suffering from residual emotional disturbance in relation to his former employment.
41. I again note that the meeting with Mr Corner occurred on 23 April 2002. I note Mr Brew (Authorised Union Representative) was in attendance and I note his summary of what was considered at that meeting and also Mr Churn’s letter to Mr Corner on 26 August 2002 as a follow up to the earlier meeting. All the material points to Mr Churn seeking resolution of a policy first nominated by Mr Wilson in relation to the Ms So matter. The matter continues to be addressed over a number of years with attempts by Mr Churn to seek redress at increasingly higher levels in the organisation, with Mr Churn’s concerns remaining in his view, unaddressed.
42. In addressing the issue of the anxiety condition in the context of the alleged circumstances which gave rise to the injury I note the evidence of Dr Pryba, in his report on 23 June 2002 that Mr Churn was not suffering from any psychological disorder. Further I note that despite voluminous correspondence between Mr Churn and management at Australia Post and the many disciplinary proceedings and grievances involving Mr Churn, that they are in general silent on issues of Mr Churn’s well being, and in particular as to whether or not he is suffering stress and/or anxiety as a consequence of these many interactions. Further I note that both Dr Lovric and Mr Churn’s unnamed psychiatrist stated that Mr Churn was not suffering from any psychiatric disorder, with an exception nominated by Dr Lovric during her evidence that Mr Churn in her view suffers from a personality disorder.
43. Earlier in this decision I considered the available medical evidence. This takes this matter no further. I recognise that Mr Churn did acknowledge that he was averse to taking medication or unnecessary referrals to a psychiatrist. Nevertheless in the absence of specific material being addressed which could lead me to forming an opinion that Mr Churn on the balance of probabilities was suffering from an anxiety disorder or that his conduct and behaviour was outside the boundaries of normal human behaviour, and that such a condition arose out of activities in the work place , then his claim must fail. I am satisfied that such evidence has not been adduced to allow me on the balance of probabilities to make such a finding.
44. Further even if there had been material to allow me to conclude a finite diagnosis of anxiety disorder, a persuasive argument would exist that such a condition has been contributed to by the many disciplinary events to which Mr Churn was subjected. In such circumstances the exclusionary provisions within s 4 of the Act would come into play. I find it unnecessary to carry this issue further. In such circumstances the decision in matter N2005/918 is affirmed.
claim for physiotherapy treatment (N2005/1220)
45. Mr Churn has a long history of epicondylitis in his right elbow. Right extensor tenosynovitis in right elbow and forearm was first accepted as a work related condition by Australia Post on 13 May 1993. Further episodes of epicondylitis in the right elbow occurred in 1994, 1995, 1996, 1998, 1999, 2000, 2001, 2002 and 2003 all work related and over the later years involving particular restrictions in duties. On 9 February 2004 in a reconsideration decision, Australia Post determined that liability continued whereby Australia Post would continue to pay compensation for medical expenses for aggravation due to work injuries in relation to the right elbow condition.
46. Mr Churn had left the employment of Australia Post on 23 April 2004. On 22 April 2005 Dr Garber referred Mr Churn for physiotherapy treatment to his right elbow. There is no argument between the parties that Mr Churn’s right elbow condition symptoms were made worse by activities undertaken over some days by Mr Churn undertaking work, as a volunteer in bush regeneration, and that he ceased this work because of increasing pain in his right elbow.
47. It is also noted that when Mr Churn left work with Australia Post in April 2003, his duties remained restricted to avoid repetitive use of his right arm, particularly duties which involved grabbing with his right hand. Mr Churn has seen a number of occupational and rheumatological specialists over the years and all have diagnosed a low grade right lateral epicondylitis. In a report dated 22 October 2003, Dr McGill, consultant rheumatologist stated that Mr Churn had a constitutional predisposition or susceptibility to right lateral epicondylitis and that the predisposition to producing pain with repetitive forceful activity is likely to continue in the long term.
48. In the matter to be addressed, Mr Churn suffered an episode of pain in his right elbow as a consequence of his bush regeneration activities. This exacerbation and/or aggravation arose from his bush regeneration activities which were unassociated with any Australia Post activities. His predisposition to experience pain when doing repetitive activities was a constitutional susceptibility (Dr McGill) and hence the non work related (Australia Post) activities (bush regeneration) must be viewed in that light, with Mr Churn’s claim for medical expenses (physiotherapy) failing because the activities which gave rise to the exacerbation/aggravation of the condition were non work related.
49. I have no evidence before me to take the matter further, and in such circumstances Mr Churn’s claim for physiotherapy expenses must fail, as a relationship with his Australia Post employment has not been established, I conclude that the decision in matter N2005/1220 be affirmed.
determination
50. The decision in the three matters under review are affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member.
Signed: .....................................................................................
AssociateDate/s of Hearing 23 February, 27 April, and 2 June 2006
Date of Decision 16 August 2006
Representative for the Applicant Self-represented
Representative for the Respondent Mr Elliott of counsel, instructed by
Mr G Jones, Graham Jones Lawyers
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