Dennis Borg and Australian Postal Corporation
[2013] AATA 363
[2013] AATA 363
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2009/4702
2011/5281
2012/02782012/1209
Re
Dennis Borg
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal J L Redfern, Senior Member
Dr W Isles, MemberDate 31 May 2013 Place Sydney The decisions under review are affirmed.
....................................[sgd]....................................
J L Redfern, Senior Member
CATCHWORDS
COMPENSATION - claims for compensation for physiological and psychiatric injury as a result of work duties- whether causal connection between the applicant’s conditions and his employment - consideration of the nature of applicant's physical and mental conditions and when they arose - not satisfied that the applicant sustained a compensable injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the physiological and psychological injuries alleged. Decisions under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 - ss 4, 5B, 7(4), 14, 53
CASES
Von Stieglitz and Comcare [2010] AATA 263
Tsiamis and Comcare [2013] AATA 319
Borg and Australian Postal Corporation [2002] AATA 796
Borg and Australian Postal Corporation [2003] AATA 221
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705REASONS FOR DECISION
J L Redfern, Senior Member
Dr W Isles, Member31 May 2013
Mr Dennis Borg joined Australian Postal Corporation (Australia Post) as a mail officer in 1988, and worked there for over 20 years. He was terminated on 21 May 2009 after extended absences from work. Mr Borg has made a number of applications to this Tribunal for review of decisions made by Australia Post to reject various claims for compensation, four of which are the subject of these proceedings.
On 21 October 2009, Mr Borg made an application for review in respect of the rejection of his claim for compensation for thoracolumbar back strain and left and right epicondylitis. He made two further applications for review in December 2011 and January 2012; the first in respect of an injury alleged to affect his right shoulder and right elbow as a result of a work-related incident on 18 February 2002 and the second in respect of the claim that the ‘nature and conditions’ of Mr Borg's employment contributed to pain and injuries to his neck, shoulder, elbow and wrists. Mr Borg made a further application for review on 28 March 2012 in respect of the denial of compensation for his claim for paranoid schizophrenia, stress, anxiety and depression.
Australia Post denied liability for Mr Borg's physical conditions on the basis that liability for any injury on 18 February 2002 had ceased on 24 February 2002, as confirmed by a decision of this Tribunal on 7 March 2003, and there was no evidence that other injuries alleged were work-related. Australia Post also denied liability for Mr Borg's psychiatric condition on the grounds the condition was not caused by his employment with Australia Post. At the hearing, Counsel for Australia Post contended that, if Mr Borg’s psychiatric condition was so caused or aggravated, liability was nonetheless excluded on the basis that any injury arose as a result of reasonable disciplinary action or reasonable administrative action, depending on when the injury was said to have arisen.
Mr Borg contends that his physical injuries were caused by his duties at Australia Post and, in particular, the duties of ‘indexing’ the mail. Australia Post knew this yet made no effort to retrain or reassign him. Mr Borg also contends that his psychiatric condition, and in particular his psychosis in 2009, was caused by his employment with Australia Post and the manner in which he was treated over the years.
LEGISLATIVE FRAMEWORK AND ISSUES FOR DETERMINATION
The relevant legislation that governs this review is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Section 14 provides that compensation is payable for an injury suffered by an employee which results in incapacity for work. There were significant amendments to the Act effective from 13 April 2007 affecting the definition of “injury”. As Mr Borg alleges that his injuries were sustained over an extended period, it is relevant to consider the legislative provisions both before and after 13 April 2007.
Prior to 13 April 2007 injury was defined in section 4(1) of the Act as a disease, physical or mental injury (other than a disease) or aggravation of a physical or mental injury arising out of or in the course of employment but excluded any disease, injury or aggravation as a result of reasonable disciplinary action. A disease was defined as an ailment, or aggravation of an ailment, that was contributed to in a material degree by the employee’s employment. The definition of ailment was unaffected by the amendments and is set out in section 4(1). The definition is broad and means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). The definition for aggravation is also unchanged and includes acceleration or recurrence.
Following the amendments to the Act, injury is now defined in section 4(1) and section 5A(1) of the Act. Liability is excluded where the disease, injury or aggravation is suffered as a result of reasonable administrative action taken in a reasonable manner. In addition, there is a higher threshold in the causal connection to employment for a disease to be compensable. After 13 April 2007, the disease must be contributed to a significant degree (rather than in a material degree) by the employee’s employment. Relevantly, subsection 5B(2) of the Act sets out a number of matters which may be taken into account in determining whether the requisite contribution exists and subsection 5B(3) states that a significant degree is substantially more than material.
A description of the nature of Mr Borg’s claims about his injuries is contained in his various claims for compensation. Apart from the second claim, Mr Borg does not nominate a date or particular event leading to an alleged physical or mental injury. Furthermore, Mr Borg’s description of his symptoms, as reported to his doctors and the specialists who examined him, do not point to a physical or mental injury sustained at a particular point of time. While this issue was not specifically addressed by either party, the medical evidence and oral submissions were consistent with the contention that Mr Borg’s physical and psychological conditions were properly characterised as an ailment or ailments rather than a frank injury (von Stieglitz and Comcare [2010] AATA 263 and Tsiamis and Comcare [2013] AATA 319).
Having regard to these matters, he key issue was whether Mr Borg's various ailments, or any one of them, are a disease within the meaning of the Act and therefore compensable under section 14 of the Act. To determine this question, it is relevant to consider which version of the Act applies. Under section 7(4) of the Act, an employee is taken to have sustained an injury, being a disease, or an aggravation of disease, on the day when the employee first sought medical treatment for the disease or aggravation, when the disease or aggravation first resulted in incapacity for work, or impairment of the employee, whichever happens first.
In summary, for Mr Borg to succeed, we must be satisfied that Mr Borg's various ailments, or their aggravation, were contributed to in a material degree by Mr Borg's employment with Australia Post, if before 13 April 2007, or to a significant degree, if after this date. If we are so satisfied, a further question arises as to whether liability is excluded on the basis that the injury was sustained as a result of reasonable disciplinary action or reasonable administrative action, depending on when the injury was said to have arisen.
As such, the issues for determination were:
(a)What is the nature of Mr Borg’s physical and mental conditions and when did they arise?
(b)Is there a sufficient causal connection between those conditions and Mr Borg's employment with Australia Post within the meaning of the Act?
(c)If so, is liability nonetheless excluded?
BACKGROUND FACTS
Mr Borg is a 53-year-old man who commenced work at Australia Post in 1988 after previously working in factory and warehouse jobs. He worked as a mail officer at various locations within Australia Post. His job was to process the mail and included the task of indexing, which involved observing large letters on a conveyor belt and keying data about the post code into a numeric key pad.
On 2 November 1997, Mr Borg was in the kitchen at work preparing his lunch when a can of sardines on the stove nearby exploded, spraying hot oil onto his arm. Mr Borg made a claim for compensation for burns to his arm and for anxiety. Australia Post accepted liability for the burns but initially did not accept the claim for anxiety. Liability was subsequently accepted until 4 May 1998, after which time it was declined following a report from Dr Leonard Lee, psychiatrist. Mr Borg sought reconsideration of this decision but was unsuccessful. He complained about what he considered to be an unsatisfactory response by Australia Post in investigating the circumstances of the exploding can. His complaint was rejected by the Australia Post Board of Reference but Mr Borg continued with his complaints regarding the accident and in September 1998 Mr Borg was referred to psychologist, Mr Peter Jones, for assessment.
Mr Borg made a claim for compensation on 21 January 2001 arising out of the incident in November 1997. This claim was denied by Australia Post. One of the issues raised by Mr Borg was the failure of Australia Post to disclose the report of Mr Jones to him. Mr Borg applied to this Tribunal for a review of the decision to deny liability for his claim. The report of Mr Jones was disclosed to Mr Borg as a consequence of the Tribunal ordering access. The Tribunal considered the matter but ultimately dismissed the application for want of jurisdiction on the basis that Mr Borg's claim had not properly been made in accordance with section 54 of the Act as there was no accompanying certificate from a qualified medical practitioner (Borg and Australian Postal Corporation [2002] AATA 796 (the 2002 Borg proceedings)). However, it is relevant to note that the Tribunal nonetheless concluded that even if it had jurisdiction to determine the merits of the case, it would have concluded that Mr Borg’s case would have failed as there was insufficient evidence of a psychiatric condition.
Mr Borg made another claim for compensation in respect of an injury suffered on 18 February 2002, which was accepted until 24 February 2002, after which time Mr Borg returned to work on normal duties. Mr Borg made a claim for compensation for pain in his right shoulder, upper arm and elbow for incapacity beyond 24 February 2002. This issue was considered by this Tribunal, which accepted the injury was work-related but found that Mr Borg's musculoligamentous pain in his right elbow, arm and shoulder ceased as an injury on 24 February 2002. The Tribunal affirmed the decision of Australia Post on 7 March 2003 (Borg and Australian Postal Corporation [2003] AATA 221 (the 2003 Borg proceedings)).
While there were numerous ‘incident reports’ lodged with Australia Post by Mr Borg during 2002 and 2003 about injuries and significant sick leave or unauthorised absences from work in the period between 2002 and mid 2005, there are no records of any workers’ compensation claims being made by Mr Borg during this period.
Mr Borg was referred to Dr Kathryn Lovric, consultant psychiatrist, for review following a work related incident in December 2004. Dr Lovric opined that she could find “no definitive evidence of psychotic illness”. This report was not provided to Mr Borg at the time and there is no record of any further issues raised in respect of this report or the incidents in early 2005.
On 20 February 2008 Mr Borg presented a medical certificate from general practitioner, Dr Con Paleologos, to the effect he was only fit for restricted duties from 21 to 26 February 2008 because of thoracolumbar back strain. On 7 March 2008, Dr Paleologos certified Mr Borg as fit for restricted duties until 14 March 2008 in respect of a cervical strain reported to have been suffered on 5 March 2003. He also noted bilateral epicondylitis and tenosynovitis with an injury date of “approximately 2 years”. Notwithstanding these certificates, Mr Borg did not make a claim for workers’ compensation at this time.
Australia Post produced documents recording an interview on 5 March 2008 between Mr Borg and Ms Wilkins, manager at Australia Post, about the duties Mr Borg could perform. It was noted that Mr Borg would be unable to perform a number of his normal duties because of the restrictions certified. Mr Borg was asked about redeployment and was recorded in that interview as stating he “could not see any point” as it may result in another injury. There was a further interview on 14 March 2008 between Mr Borg and Mr Roman Drab, another of Mr Borg's managers. Mr Borg refused to sign the record of the interview but it was recorded in the interview notes that no duties were available that complied with the restrictions certified. By letter dated 18 March 2008, Mr Borg was directed by Australia Post to use his sick leave on the basis that he was “unlikely to be able to meet the inherent requirements of a Mail Officer within three (3) months”. On 8 April 2008 Mr Borg made an application for leave until 29 September 2008.
By letter dated 22 September 2008, Australia Post wrote to Mr Borg noting that he had been absent from work for six months and advised him about various options in the event he remained unfit for work. The letter attached an employee declaration form that requested the employee to tick one of the four option boxes. One of the options was to the effect that if Mr Borg believed he would meet the inherent requirements of his position, he should obtain a medical report but before doing so he should contact the Medical Assist Unit. Mr Borg denies receiving this letter and noted that the postcode used in the address was incorrect. Australia Post conceded that this was the case, although the address was otherwise correct. There are no records that the employee declaration form was completed and/or returned to Australia Post and the question of whether Mr Borg received this letter remained an issue in dispute.
On 29 September 2008, Mr Borg obtained a certificate from his treating doctor, Dr Safwat Soliman, to the effect that he was fit for his normal duties and hours. He returned to work at the Sydney West Letters Facility on 30 September 2008 and presented this certificate. It appears that management at the Facility were not expecting Mr Borg on that day and he was asked to leave the premises. Mr Borg refused to do so and police were called. Mr Borg later willingly left the Facility accompanied by police.
According to a letter dated 30 September 2008 from Tony Stavropoulos, Human Resources Adviser at Australia Post, notwithstanding the receipt of the certificate from Dr Soliman, Mr Borg was requested to remain on leave until clearance was provided by the Medical Unit. On 9 October 2008, Mr Borg was referred to Dr Michael Gliksman, occupational physician, for review. The appointment did not proceed because Mr Borg did not sign and return an acknowledgement attached to the letter. Mr Borg denies receiving much of this correspondence from Australia Post at this time and cites the possible reason as the incorrect post code being used by Australia Post on these letters. Examination of the letters shows that the post code being used by Australia Post on letters sent to Mr Borg in September 2008 until early December 2008 was 2762 rather than 2767, which is the post code for Doonside. As previously noted, it is unclear whether Mr Borg did in fact receive any of these letters, although there was evidence that the letter from Mr Stavropoulos of 30 September 2008 was hand delivered by one of Mr Borg’s work colleagues on that day.
A second appointment was organised for Mr Borg to be examined by Dr Gliksman which he attended on 14 November 2008.
On 10 November 2008 Mr Borg made a claim for compensation for thoracolumbar back strain and left and right epicondylitis. His claim was rejected by Australia Post by letter dated 3 December 2008. Mr Borg returned to work in about mid November 2008 but did not attend work for various extended periods between 3 March and 20 May 2009. In March 2009 a disciplinary inquiry was commenced in respect of Mr Borg’s alleged “failure to attend for duty without authority” which was said to be in breach of the Australia Post Code of Ethics. Little information was provided by either party about the nature or conduct of the inquiry. By letter dated 21 May 2009 from Australia Post Mr Borg was notified that breaches of the Code of Ethics were proven in respect of extended unauthorised absences between 3 March and 27 April 2009 and that it was decided to dismiss Mr Borg from Australia Post on the basis of these breaches.
Mr Borg became depressed after his dismissal and, according to Mr Borg and several psychiatrists who later examined Mr Borg, he developed suicidal ideation. Three weeks after Mr Borg was terminated from Australia Post he took his handgun and two rifles from his gun club and drove to Port Macquarie, where he stayed overnight. According to Mr Borg it was his original intention to kill himself. He went to McDonalds for breakfast the following day and took the handgun into the store. He started firing the gun at the roof and subsequently told the forensic psychiatrists who examined him that he hoped the police would kill him in a shootout. The police arrived, there was a stand-off for many hours and Mr Borg eventually gave himself up to the police. Mr Borg was sentenced to a term of imprisonment with a non-parole period of 18 months. He was released in December 2010 and has been unemployed since this time.
Mr Borg made an application to Fair Work Australia for unfair dismissal on 16 June 2011 and also made an application for an extension of time to appeal. This application was heard on 16 September 2011 and was dismissed.
Mr Borg lodged claims for compensation on 10 November 2008, 4 August 2011, 18 October 2011 and 13 December 2011.
His claim of 2008 was for thoracolumbar back strain and epicondylitis. Mr Borg did not nominate a date of injury but stated that the injury resulted from his “large letter work” at Australia Post and that “it was gradually getting unbearable to cope”. He did not provide any medical certificates to support his claim at that time but relied on previous certificates provided, presumably the certificates provided by Dr Paleologos in February and March 2008. The claim was rejected on 3 December 2008 on the basis that there was no evidence to establish a link between Mr Borg’s reported injuries and his employment. Mr Borg requested reconsideration of the determination and on 14 May 2009 the determination was affirmed.
In his claim of 4 August 2011, Mr Borg claimed “pain & injury to back, neck, shoulders, elbow and wrists” and nominated 18 February 2002 as the date of the injury. The claim was rejected on the basis that the claim had already been determined by the Tribunal. Mr Borg then made a claim for the same injuries as a result of the nature and conditions of his employment, in particular indexing, again from 18 February 2002. This claim was rejected on the basis that there was no medical evidence of any compensable injury relating to his employment with Australia Post.
The most recent claim for compensation relates to Mr Borg’s claim for his psychiatric condition. Liability was denied by Australia Post by letter dated 14 February 2012 on the basis that there was insufficient evidence that Mr Borg’s psychiatric condition was caused, or contributed to a significant degree, by his employment at Australia Post. Mr Borg relied on the report from Dr Soliman dated 30 October 2009 and a report from Dr Zareena Anantharaman PhD, dated 15 August 2011.
LIABILITY FOR PHYSICAL CONDITIONS CLAIMED BY MR BORG
Submissions and Evidence
Mr Borg contends that he has had long-standing issues with pain in his neck, back, shoulder, elbow and wrists as a result of his employment with Australia Post and, in particular, the task of indexing. This had been an ongoing problem while he was at Australia Post yet liability had been denied. Mr Borg contends that it was particularly relevant he had failed the Indexing Training in 2003. He was too slow, made errors and, on his account, this was the reason he was sustaining injuries and experiencing pain in his back and upper body. Australia Post should have reassigned him to another role and this was an “occupational health and safety issue” that he tried to bring to the attention of management on numerous occasions through lodging incident reports.
Mr Borg gave evidence that his problems started when he was transferred to the South West Letter Facility at Strathfield West in about 2000. He was assigned to the role of processing large letters. One of his tasks was to key in the postcodes of the large letters as they proceeded on the conveyor belt. According to Mr Borg he was incompetent in doing the job and because of the way he was performing the role he kept on getting injured. He brought this to the attention of Australia Post on numerous occasions by completing incident reports. Despite this, Australia Post did not do anything and according to Mr Borg he received counselling and disciplinary action because he was slow. When asked whether Mr Borg had requested retraining or to be transferred to another job he gave the following evidence:
I had a facility manager, and there was other managers. I couldn’t approach her. I mean, I thought, just putting..... on a incident reported actually telling them I failed my test, that I'm getting injured on the indexing, would be important enough, good enough, to let them know the situation. Once you give them the incident report and they know the safety hazard, its for them people then to organise and come to a decision what to do, from way back.
Mr Borg said that he had been trying to find employment for the past 18 months but it had been difficult. He tried to keep himself fit by doing regular exercise. He confirmed that the information given to Dr McGill about his symptoms was accurate, namely that he continued to experience stiffness in his lower back, his neck was stiff when rotated in both directions, he sometimes felt pain in the posterior neck region and his upper left arm, together with numbness, and he was aware of his left shoulder when abducting his arm. Mr Borg said that he believed he had suffered “permanent injuries” as a result of the indexing.
For Mr Borg to succeed in his claim in respect of his physical conditions, we must be satisfied, based on the available evidence, that Mr Borg sustained a work related injury that resulted in incapacity for work.
There is evidence that Mr Borg suffered physical injuries arising out of his employment with Australia Post in February 2002. This issue was the subject of a previous review by the Tribunal which concluded, having regard to all of the available evidence at the time, that incapacity for these injuries ceased on 24 February 2002. It was further noted by the Tribunal that if Mr Borg had continuing problems similar to those he had in February 2002, he should obtain medical evidence confirming that these problems had arisen from his work. Mr Borg does make this assertion and relies on his own evidence and on the medical certificates and reports provided by his treating doctors, Dr Soliman and Dr Paleologos, and the reports of Dr Liew.
The Tribunal was provided with four medical certificates from Dr Soliman for short periods of incapacity between February 2002 and January 2003 due to musculoligamentous pain in Mr Borg's upper body. There were further certificates provided by Dr Paleologos for the period 21 February 2008 to 26 February 2008 and 7 March 2008 to 14 March 2008. Dr Soliman also provided two reports dated 30 October 2009 and 11 January 2012.
According to the first report, Dr Soliman has been treating Mr Borg since early 2000. In his opinion Mr Borg sustained musculoligamentous strain of both wrists, elbows, shoulders and his upper and lower back due to the nature of his work at Australia Post. Dr Soliman noted that that Mr Borg’s condition had been complicated with “post-traumatic stress disorder which was aggravated by the non-supportive co-workers at his workplace”. Dr Soliman also noted that Mr Borg took a few days off “every now and then” but when he returned to work his multiple joints pain worsened and this was said to exacerbate his depression. Mr Borg was being treated with antidepressants and non-steroidal anti-inflammatory medications but his condition was stable until his termination.
In his report of 11 January 2012 Dr Soliman repeated the opinion expressed in his previous report and noted the results of various investigations which showed minor degenerative change in Mr Borg’s lumbar spine and narrowing of his cervical spine. He concluded that Mr Borg suffered from mild neck and lower back pain due to musculoligamentous strain and from mild bilateral shoulder muscular pain. Mr Borg’s depression was said to be well controlled and according to Dr Soliman, Mr Borg was medically fit to work with lifting ability up to 15 kg.
The Tribunal was provided with four reports from Dr Mark Liew addressed to Dr Soliman dated 22 October 2002, 6 November 2002, 12 February 2004 and 25 July 2011. Dr Liew is a rheumatologist. He examined Mr Borg around the time of each of his reports.
In his first report Dr Liew noted tenderness in Mr Borg's right paracervical muscles extending to his right shoulder and tenderness around his right elbow. Mr Borg described the onset of pain in his right shoulder extending to his arm and elbow from February 2002. He told Dr Liew that he later developed pain in his neck and weakness in his wrist. Dr Liew reported as follows:
His symptom complex is most consistent with the regional pain syndrome. I believe the nature of his work could be incriminated as a causative factor for this condition. I consider early cervical spondylosis contributing to his symptom complex as a possibility.
Dr Liew organised x-rays of Mr Borg’s cervical spine and reviewed Mr Borg two weeks after this assessment. According to Dr Liew’s report of 6 November 2002, Mr Borg reported a “significant improvement in his condition” since taking Endep. There were no abnormalities noted and Dr Liew recommended physiotherapy and a supervised exercise program.
Mr Borg was examined by Dr Liew in February 2004 for pain to his left wrist. Dr Liew reported as follows:
He appears to have sustained stress injury to the wrist with a resultant ganglion. Apart from avoidance of specific aggravating activities, in particular heavy lifting, I do not feel it is necessary to institute any therapeutic intervention at this stage. However, should his condition exacerbate a trial of local steroid injection would be in order.
There is no record of any further treatment by Dr Liew until he examined Mr Borg on 22 June 2011 at the request of Dr Soliman. According to Dr Liew’s report of 25 July 2011, Mr Borg had some limitation of movement in his cervical and lumbar spine with full range of moment in his shoulders and hips. Dr Liew noted that there was “mechanical neck, live shoulder and arm and back pain” and reported that it was “not unreasonable to relate his ongoing symptoms and disabilities, at least partly, to injuries sustained during the course of his employment at Australia Post”. He reported that Mr Borg was suitable for retraining but not sustained repeatedly work such as indexing.
As previously noted, after the incident at work in September 2008, Mr Borg was referred to Dr Michael Gliksman, occupational physician. Dr Gliksman examined Mr Borg on 14 November 2008. He reported that Mr Borg told him he did not suffer from any symptoms at the time of assessment. Dr Gliksman expressed concern that he had received a “very incomplete history” from Mr Borg but noted as follows:
...based on the history obtained (bearing in mind the incompleteness thereof) and particularly the results of today's clinical examination, I cannot find any physical reason for restrictions and doubt that investigations would have revealed any.
Mr Borg was referred to Dr Neil McGill, consultant rheumatologist, by the lawyers acting for Australia Post. He provided two reports, dated 25 March 2011 and 6 June 2012. He also gave evidence.
In first report, Dr McGill relevantly opined as follows:
There is no current physical diagnosis with respect to the upper limbs. Whether he had any physical abnormality of the upper limbs in the past I cannot determine. The letter prepared by Dr Liew in October 2002 may provide insight in regard to the nature of Mr Borg's symptoms at that time.
His spinal symptoms are non-specific. They are widespread involving the neck, upper back and low back. He today demonstrated normal spinal function. He expressed certainty that he would be able to perform his previous full normal work duties. Minor spinal symptoms are experienced by the majority of the population. The level of those symptoms is substantially influenced by psychological factors. There is no evidence that he has any disorder of the spine outside the normal situation for a 51 year old man. Most 51 year old men have some radiological evidence of degeneration in the spine and that is likely to be the case for Mr Borg.
Whether he experienced some soreness in his muscles or some other disorder previously when he was working with Australia Post, I cannot determine with certainty. There is no current condition related to his previous work.
Dr McGill re-examined Mr Borg on 6 June 2012 and opined as follows:
There is no current physical musculoskeletal condition.
I think it is possible that from time to time when he was performing his work with Australia Post that he experienced muscle or tendon insertion pain related to his physical activities of work. I do not think that he ever suffered a substantial work related injury. I think psychological factors are likely to have been of most importance in regard to his symptom reporting throughout.
On the basis of probability, I think that he did not previously suffer physical injury caused or contributed to by his employment in which the employment contribution was material or significant.
I think there is no possibility that his work duties have had any influence on his musculoskeletal system since he ceased work.
There is no indication for treatment along physical lines. He reported that he currently performs regular exercise, mainly through exercise walking. He had excellent muscle development in the upper and lower limbs. He should continue his current approach... He is physically fit to perform all forms of employment without restriction.
Dr McGill was questioned about both reports. He said that after the examination in March 2011, he had formed the view that Mr Borg was fit to return to normal duties and Mr Borg agreed with this. When Mr Borg was examined on the second occasion, he described symptoms he had not previously reported, which suggested to Dr McGill that there was no relationship between Mr Borg’s current symptoms and his work at Australia Post. Dr McGill confirmed the conclusions at his previous reports, namely that Mr Borg did not suffer from any current physical musculoskeletal condition and that he did not previously suffer from any physical injury which was material or significant.
According to Mr Borg's leave records, from 24 February 2002 until the time he took extended leave at the direction of Australia Post from March 2008, Mr Borg is recorded as having taken over 60 days “sick leave/family leave” in addition to nine days “unauthorised leave”. His illnesses were recorded variously as respiratory related, headaches, eye infections and leg or heel injuries but relevantly there were short periods of incapacity, often a day, attributed to pain in Mr Borg's joints, shoulder and neck. From 30 June 2003 to about September 2004, there were numerous references to absences, about 20 in total, due to pain in Mr Borg's elbows, shoulder and neck. There were also references to “muscular pain” but given Mr Borg was a runner and there are references to knee bruising, heel spurs and muscular thigh pain during this period it is not possible to distinguish between those muscular injuries that were recreational and those that are alleged by Mr Borg to be work-related. There were occasional references to joint, shoulder and neck pain during 2005 and none during 2006 and 2007.
Mr Borg provided the certificates in February and March 2008 from Dr Paleologos that led to Mr Borg's extended leave until November 2008. From 3 March until 20 May 2009, Mr Borg’s extended absences from work are described as “unauthorised”. He worked approximately two and a half weeks during this period.
Consideration and Findings
As previously noted, to assess whether Mr Borg’s physical conditions are casually connected to his employment we must identify which test applies. This requires us to consider when Mr Borg’s conditions arose.
The earliest injuries alleged by Mr Borg are, in effect, ‘nature and conditions’ claims from 2002 for pain to his back, neck, shoulders and joints. These claims were lodged on 4 August and 18 October 2011. There is evidence that Mr Borg sought treatment for these conditions from 2002 until about mid-2005 and that he took time off work from time to time, citing these ailments as the cause for his absence. Mr Borg did not make any claim at this time for these absences. Section 53 of the Act provides that an employee must give notice in writing of an injury as soon as practicable after the employee becomes aware of the injury. Mr Borg contended that he kept lodging incident reports with Australia Post and that this was sufficient. Australia Post does not press any argument about this, however, we note that this delay makes Mr Borg’s claims difficult to assess given the time that has passed. It is relevant to note there is no evidence that Mr Borg took time off work in respect of these alleged conditions from about mid 2005 until his claim in early 2008.
Mr Borg was self-represented and did not clearly articulate the basis for his second and third claims. Nonetheless we infer that Mr Borg’s claim is for an aggravation of the injury he allegedly sustained in February 2002 or, in the alternative, an aggravation of the pre-existing degenerative changes in his lower back and cervical spine. Given the date of the injury alleged, we must be satisfied that Mr Borg’s condition in respect of these claims was contributed to in a material degree by his employment.
Mr Borg’s further claim in November 2008 was for strain to his lower back and epicondylitis. The certificates from Dr Paleologos diagnose a lumbar strain and refer to pre-existing injuries said to have been sustained two years previously. Notwithstanding this reference to “two years”, there is no evidence that Mr Borg took time off work in relation to these conditions in 2006 and 2007. We therefore find that the date of any injury or aggravation for this claim was after 13 April 2007. Given the later date of the injury alleged, we must be satisfied that Mr Borg’s condition in respect of this claim was contributed to in a significant degree by his employment.
Having regard to all of the evidence, we are not satisfied that the physical conditions alleged by Mr Borg to his joints, shoulder, back and neck are causally connected to Mr Borg’s employment to a material, degree in respect of the earlier claims, or to a significant degree, in respect of the later claim.
Mr Borg’s evidence of ongoing pain in his neck, shoulders, back, elbows and wrists and his assertion that these injuries were contributed to by his employment is inconsistent with the weight of the medical evidence and with the evidence of his work history and leave records.
Dr Soliman notes that Mr Borg took time off work from time to time, which is consistent with his leave records, but also notes that Mr Borg’s condition was stable until his termination. He expresses a view that Mr Borg’s injuries were due to the repetitive nature of his work at Australia Post but does not set out the basis of his expertise and does not explain how those injuries are said to be causally connected. Dr Paleologos’ certificates provide even less detail.
Dr Liew reported that Mr Borg’s condition had responded well to treatment over a two week period in late 2002 and he did not recommend any further therapeutic treatment when he saw Mr Borg in early 2004. Dr Liew does not conclude that Mr Borg is incapacitated for work but rather that he is not suitable for “sustained repetitive work”. He does not provide the basis for or reasoning behind this conclusion or his somewhat qualified opinion that it was “not unreasonable” to relate Mr Borg’s ongoing symptoms and disabilities “at least partly” to his employment with Australia Post.
In contrast, Dr Gliksman reported that Mr Borg did not have any ongoing incapacity or physical conditions as at November 2008. Dr McGill found that that there was no current physical musculoskeletal condition as at 25 March 2011 or evidence of previous physical injury that was caused or contributed to by his employment. Counsel for Australia Post submitted that the only authoritative medical opinion in respect of Mr Borg’s physical injuries is the opinion of Dr McGill, who undertook lengthy examinations of Mr Borg, reviewed other medical opinions and records relating to Mr Borg’s injuries and set out the basis for his opinion in his reports.
We accept that the evidence of Dr McGill presents a thorough examination of Mr Borg’s symptoms and history but we also note that Dr Soliman, Dr Liew and Dr Gliksman all examined Mr Borg while he was working at Australia Post and provide useful insight into Mr Borg’s capacity and symptoms at the time he was working. Close examination of the various medical reports reveals little substantive divergence in their views about Mr Borg’s diagnosis. Each practitioner accepts that Mr Borg has degenerative changes in his lower back and cervical spine but is fit for work. In his report of 11 January 2011, Dr Soliman, concluded that Mr Borg’s conditions were “mild” and certified him fit for work. Dr Soliman and Dr Liew recommend some restriction for work based on their acceptance of Mr Borg's description of pain following work, and in particular indexing. In contrast, Dr Gliksman and Dr McGill do not find any ongoing impairment or incapacity for work. Australia Post did not press this and the key issue identified was whether Mr Borg's physical conditions were causally connected to his employment. We note that if there is insufficient evidence to establish a causal connection with his employment, the issue of whether Mr Borg was incapacitated for work or is impaired is irrelevant.
There was divergence in the medical opinions on the question of the causal connection between Mr Borg’s physical condition and his employment. Dr Gliksman did not opine on this issue because he found no incapacity. Dr Soliman and Dr Liew reported, although Dr Liew’s opinion is qualified, that there is a connection between Mr Borg's symptoms and his work at Australia Post. Neither provides the basis for their opinion or, reluctantly, opine on whether Mr Borg's condition is contributed to in a material or significant degree by his employment.. At its highest, Dr Liew states that it is “not unreasonable” for Mr Borg's symptoms to be “at least partially” related to his employment. Having regard to their limitations, these opinions must necessarily carry little or no weight on what is the critical issue on this aspect of Mr Borg’s case (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705).
It is also relevant to note that Mr Borg’s work history and leave records are inconsistent with his complaints that his ongoing pain and incapacity are work related. He has not worked at Australia Post, or at all, since May 2009. Prior to this, he was on leave from work for about eight months, between early March and about November 2008, and thereafter only worked for a few months until early March 2009, after which time he worked for approximately two and a half weeks before his termination. After his break from working in 2008, Mr Borg was certified fit for his normal duties by his treating doctor and later by Dr Gliksman. He reportedly agreed he was fit and this is consistent with his efforts to return to work on 30 September 2008. Yet after a break from work for about four years, Mr Borg has given evidence of continuing pain and symptoms in his back, neck and arm. Mr Borg was working in the same job at Australia Post from mid-2005 until early 2008 but did not, according to his leave records, take any time off for pain to his joints, back and neck. This is unexplained.
As noted by Dr McGill, Mr Borg has reported musculoskeletal symptoms of a widespread nature over many years. Objective examination findings by his treating rheumatologist were normal, apart from degenerative changes, and when Mr McGill examined Mr Borg he reported that there was “no suggestion of a substantial physical problem that could possibly explain his widespread symptoms”. Dr McGill concluded that Mr Borg did not suffer any physical condition that was caused or contributed to by his employment that was either material or significant. Dr McGill's opinion is persuasive and furthermore it is consistent with Mr Borg's work history and leave records.
In summary, we are not satisfied that there is sufficient probative evidence that the physical injuries of which Mr Borg complains are causally connected to his employment with Australia Post to either a material or significant degree.. We are therefore not satisfied that Mr Borg has sustained a compensable injury under s 14 of the Act in respect of the physical injuries alleged.
LIABILITY FOR PSYCHIATRIC CONDITIONS CLAIMED BY MR BORG
Submissions and Evidence
Mr Borg contends that he has a psychiatric condition that was either caused or aggravated by his employment with Australia Post. The failure of Australia Post to accept that his injuries were work related, the lack of support shown when he complained, the fact that he had some underlying psychiatric problems that should have been identified and addressed, as far back as 2005, and the stress of Australia Post refusing to allow him to return to work in 2008 and his termination in 2009 led to his psychosis in mid-2009.
Australia Post contends that Mr Borg has underlying psychiatric conditions and there is no medical evidence that these conditions were caused, or aggravated, by Mr Borg’s employment, regardless of which test applies. Even if there was evidence that they were so caused, liability is excluded on the basis that any psychiatric condition was sustained as a result of reasonable disciplinary action or reasonable administrative action, depending on when the condition was said to have arisen.
There are a number of medical reports opining on Mr Borg’s psychiatric condition, including expert reports prepared for the purposes of his criminal proceedings. While these reports do not specifically address the question for determination in these proceedings, there is relevant commentary and opinion contained in those reports about the history, nature and extent of Mr Borg’s psychiatric condition. It is also relevant to note that Mr Borg had been experiencing psychiatric difficulties as early as 1998, after the work incident with the exploding can of sardines. It is useful to provide a summary of these various reports and the key findings of the health professionals who have treated and/or assessed Mr Borg since this time.
After the incident in November 1997, Mr Borg became anxious and seemingly frustrated with what he perceived to be a lack of action by management to properly investigate the incident. He was referred to Dr Neil Schultz for psychotherapy. By letter dated 5 February 1998 addressed to Australia Post, Dr Schultz reported that Mr Borg had developed an “adjustment disorder with depressed and anxious mood” which Dr Schultz believed was related to the incident with the exploding can.
Mr Borg was assessed by Dr Leonard Lee, consultant psychiatrist, on 27 April 1998. In his report of 30 April 1998, Dr Lee concluded as follows:
I believe that this man became resentful after he was splashed with hot oil as he felt that nobody took notice of him or attempted to investigate the matter. His main reaction was anger and I believe this caused him to express it through absenteeism. He began to perceive management as aggressive and incompetent and took what I consider to be an excessive period of leave, from November 1997 to January 1998. I believe he was exaggerating or malingering anxiety when he was angry and resentful.
Dr Lee also reported that Mr Borg was anxious about retribution against him by management. He responded to the specific questions posed by Australia Post as follows:
I do not believe that he has any current psychiatric condition. Rather he is a man who has indulged in anti-authoritarian behaviour by taking an excessive amount of sick leave as a result of his resentment.
I suspect that his reasons for behaving this way are related to issues in his developmental background that he has not revealed to me…
I do not believe that his present condition is linked with the incident work. It is rather due to his underlying personality issues…
I believe that he responds to limitations being set on his behaviour. He will probably remain resentful and if he sees an opportunity he may choose to take further sick leave…
I do not believe that he requires any further treatment…
I do not feel that his condition required him to take sick leave. I believe that this is more due to his personality functioning. In essence, he is acting out feelings of resentment as he feels that he has been treated unfairly.
Mr Borg was referred to Mr Peter Jones, consultant psychologist, for counselling and Mr Jones provided a report to Australia Post dated 17 September 1998. In his report, Mr Jones summarised Mr Borg’s complaints as follows:
Mr Borg said that he had earlier tried to “forget or ignore” what was said and to get on with his life but had found this impossible and from his self-report appears to have become somewhat obsessed with the matter at hand. His initial complaint in regard to a matter of safety, wherein a can left unattended on a hot stove exploded, apparently causing some burns to his body, has now expanded to include complaints regarding the handling of the investigation into the matter and into comments which are alleged to have been made to him by the Manager at the Mail Centre. His dissatisfaction has led to his complaint being considered by the Board of Reference and Mr Borg now expresses dissatisfaction with a number of aspects of the report of the Chairman of the Board of Reference. What is apparent is an escalation in the nature of Mr Borg's complaint, the number of parties involved and the clear unwillingness on Mr Borg's part to accept the findings of the grievance management process within Australia Post.
Relevantly, Mr Jones opined:
Mr Borg's beliefs are indicative of an individual with paranoid thinking who perceives in some way that he has been persecuted and singled out as a target of others’ malevolent behaviour. Nowhere in the available information is there sufficient evidence to support this personal interpretation.
In December 2000 Mr Borg referred himself to Ms Jennifer Braithwaite, psychologist, for counselling. She prepared a report for Australia Post dated 25 July 2001. In her report, Ms Braithwaite noted that she had been counselling Mr Borg over 11 sessions between December 2000 and July 2001. She referred to Mr Borg's frustration with the Australia Post investigation and action in respect of the November 1997 incident. According to Ms Braithwaite, Mr Borg wanted an apology and action to ensure such an accident did not re-occur. He reportedly became “highly distrustful of Australia Post” and believed Australia Post were “out to discredit him”. Mr Borg described a history of harassment by management arising out of the incident, which Ms Braithwaite accepted. She reported as follows:
From the way Mr. Borg described his symptoms following the canteen incident in 1997 it is likely he suffered an Acute Stress Disorder. This disorder appears to lasts for a minimum of two days and a maximum four weeks and occurs within four weeks of a traumatic event that contains the threat of death or serious injury....
Rehabilitation back to work is a tentative time for many people and to be accused at this time by management of “b...ing” about the accident and insulting the rehabilitation officer appears quite bizarre. These insults invalidated Mr. Borg and any attempt made to address the matter resulted in further humiliation and invalidation and in the end Mr. Borg felt he had been cast as a “psycho” and cut off from any avenues of recourse or indeed for employment elsewhere. Mr. Borg's symptoms appear understandable given the circumstances that suggest ongoing harassment in the workplace.
As noted, Australia Post denied liability for compensation after 4 May 1998 based on the report of Dr Lee and Mr Borg made a claim for compensation on 21 January 2001 for an aggravation of his psychiatric condition arising from the November 1997 incident. Liability was denied and this determination was subsequently affirmed by the Tribunal on 22 September 2002 (refer to the 2002 Borg Proceedings).
The opinion expressed by Dr Lee in February 1998 that Mr Borg may continue to take sick leave were prophetic and according to Mr Borg’s leave records he took over 140 days sick or unauthorised leave between May 1998 and early 2005. There are frequent references to leave for “depression”, “anxiety” and “tension headaches” from 1998 until early 2001. Thereafter there is only one recorded reference to absence resulting from a psychological condition, namely “stress” in October 2001.
Notwithstanding this, Australia Post was apparently concerned about Mr Borg following an incident in December 2004 when Mr Borg refused to wear his safety shoes. He was referred to Dr Kathryn Lovric, consultant psychiatrist, in March 2005 for psychiatric assessment. Dr Lovric prepared a report at the request of Australia Post which was not provided to Mr Borg at that time. Mr Borg requested a copy of the report and this Tribunal directed that a copy be provided to Mr Borg on the first day of the hearing. Even though Counsel for Australia Post indicated the respondent did not seek to rely on the report, this report was provided to Dr Lee for review and was referred to in his report of 30 May 2012. As such, we formed the view that, as matter of procedural fairness, Mr Borg should be given access to the report. We also formed the view that this report was relevant to the issue in dispute.
Dr Lovric was asked to opine on Mr Borg's psychiatric condition. She reported as follows:
With regards to your specific questions, I could find no definitive evidence of a psychotic illness when I assess Mr Borg today but note his extreme lack of cooperation with the interview. In the absence of such evidence, I would note that he appeared to be somewhat paranoid in his personality type, focussing on litigious issues, legal forms and protocols. This most probably reflects a Paranoid Personality Disorder which is most likely of longstanding origin. There is, however, a possibility that he does suffer from a psychotic disorder, such as Delusional Disorder or Schizophrenia.
I was uncertain as to whether Mr Borg is currently receiving any psychological or psychiatric treatment. I cannot comment as to whether this condition is stable or under good control. In the interview today, I could not find any reason as to why Mr Borg would not be medically or psychologically fit to perform his usual duties despite his paranoid thinking and I would see him is able to perform his usual duties without restriction. I would think it likely that there will be future incidents, especially when it comes to legal protocol, and Mr Borg is of the fixed opinion that he has been treated poorly by management with regards to his Workers Compensation Claims.
According to the clinical notes of Dr Soliman, there is no record of Mr Borg seeking treatment for any psychological condition at this time. He sought treatment on 1, 10 and 20 October 2008 for insomnia and anxiety arising out of the work incident on 30 September 2008 but thereafter (until his incarceration) all other consultations with Dr Soliman are recorded as relating to his physical complaints.
At some stage after Mr Borg’s termination, there is no evidence as to exactly when, Mr Borg clearly became mentally unstable and engaged in the McDonalds siege three weeks later. As part of the criminal process, he was examined by forensic psychiatrists, Dr Scott Clark, Dr Jonathan Carne and Dr Bruce Westmore. All three psychiatrist prepared reports for Mr Borg's criminal proceedings.
In his report dated 6 August 2009, Dr Clark referred to the problems Mr Borg experienced in around 1998 when the can of sardines exploded. He also referred to the incident in September 2008 when Mr Borg was removed from the workplace. According to Dr Clark, Mr Borg told him that he had increasing problems at work over the last year and said that supervisors told him he was inefficient and incompetent. After being dismissed Mr Borg stated that he felt more and more anxious because he was not working. Dr Clark reported as follows:
It is the writer’s opinion that Mr Borg is suffering from a depressive disorder, with depressed mood, hopelessness, rumination, anxiety, and vegetative signs (decreased sleep and appetite) all figuring prominently in his current state. The onset of these symptoms appears to be related to his recent loss of employment and his inability to accept this. Mr Borg's lack of good interpersonal connections and apparent isolation apart from his mother suggests that he has few supports to helping manage the loss of his employment.
Mr Borg is also currently experiencing psychotic symptoms which may signify the onset of schizophrenia or maybe the exacerbation of a more longstanding personality disorder that includes mild referential thinking, some degree of confusion and/or disorganisation, and vague ideas of receiving messages.
Overall he manifests symptoms of a mood and psychotic disorder. Differential diagnosis would include schizoaffective disorder, schizophrenia, or psychotic depression. It is difficult to make a definitive diagnosis at this stage. Consideration should be given to an underlying Schizotypal or Schizoid Personality Disorder.
Dr Carne examined Mr Borg in July 2009. He provided two reports, dated 24 July 2009 and 24 August 2009. The key difference between the two reports is that in the second report, Mr Dr Carne expressed opinions about the defence of mental illness and the recommended treatment plan for Mr Borg. Relevantly, Dr Carne opined that Mr Borg has a “personality with schizoid paranoid traits” and “recurrent depressive episodes following injury at work in 2008 and dismissal from work in 2009”.
Dr Westmore examined Mr Borg in November 2009 and prepared a report dated 25 November 2009. Dr Westmore noted that after Mr Borg was dismissed from Australia Post he became preoccupied with the loss of his job. On Mr Borg’s account, he became depressed in mood and two weeks after he was dismissed he developed suicidal ideation. Dr Westmore was of the view that at the time of the incident at McDonalds, Mr Borg was suffering from a “major depressive disorder with early onset psychotic symptoms”. Dr Westmore did not specifically express an opinion about the connection between Mr Borg's employment and the development of his very severe psychiatric condition but relevantly noted as follows:
The issue of his dismissal from Australia Post and the circumstances of his dismissal is certainly something that should be considered at some later stage.
Prior to his sentencing, Mr Borg was referred to Mr John Machlin, clinical psychologist, for assessment. Mr Machlin prepared a report dated 8 April 2010 and reported as follows:
Mr Borg suffered a severe depressive condition at the time of the offence, consistent with a Major Depressive Episode. He experienced apparently unprecedented psychotic symptoms in the week leading up to the incident and immediately beforehand, which appear to have been a feature of his severe depressive condition.
His relative social isolation throughout much of his history is suggestive of the schizoid or schizotypal personality style depending on whether associated with restricted emotion (schizoid) or distorted thinking/ eccentricities (schizotypal). Personality testing using the PAI [Personality Assessment Inventory] highlighted a depressive style and entrenched somatic concerns. The PAI also supported the idea that he is characteristically socially detached, but not severely, whereas his lack of a strong sense of identity is possibly more aberrant. Overall his profile does not give strong indication as to the presence of severe clinical or personality pathology.
Mr Machlin concluded:
Mr Borg's offence occurred in the context of a severely depressed and suicidal state, triggered by work related stress and conflict, and the loss of his job which he had held for 20 years. He experienced psychotic symptoms which, to an extent, set the stage for his bizarre actions. Mainly, he was intent on suicide but ultimately ambivalent about the final act of shooting himself, resulting in his reckless conduct and his perpetuation of the siege in which he entertained being shot by police.
After his release from incarceration, Mr Borg was provided with case management and support by the Blacktown Mental Health Team. He was reviewed by Dr Carlos Zubaran, psychiatrist, from the Blacktown Hospital, during 2011 and 2012. Dr Zubaran provided reports to Dr Soliman dated 13 December 2011 and 27 February 2012. He noted that Mr Borg was being treated successfully with Risperidone and later Paliperidone. Dr Zubaran reported to Dr Soliman that it was his impression Mr Borg had a major depressive disorder, probably in conjunction with a paranoid personality disorder.
Dr Zubaran provided a report to the Tribunal dated 3 July 2012 in response to a letter from the District Registrar dated 14 June 2012 in respect of which Dr Zubaran was requested to respond to the following questions:
1.Whether this condition [referring to Mr Borg's past and current psychiatric condition] was contributed to by his employment with Australian Postal Corporation;
2.Whether (if there was such contribution) the contribution was
a) material and/or
b) significant;
3.If there was a contribution by the employment, when did it occur; and
4.Whether any psychiatric injury identified has, or has had, in effect on the applicant's ability to work and/or need for medical treatment.
Dr Zubaran responded as follows:
1.In light of clinical evidence obtained during several psychiatric interviews with Mr. Borg in our local outpatient clinic, Mr. Borg presents – in my opinion – symptoms which are consistent with Major Depressive Disorder, of mild to moderate severity, and recurrent in nature, in conjunction with Paranoid Personality Disorder. Although I cannot rule out the possibility that factors associated with his employment in the Australian Postal Corporation may have contributed to an aggravation of the former disorder (Major Depressive Disorder), the latter diagnostic proposition (Paranoid Personality Disorder) cannot be explained solely on the basis of a series of occupational incidents or difficulties.
2.Although Mr. Borg has alluded to unfavourable experiences in his workplace while at Australian Postal Corporation, it would be impractical to determine the magnitude of any possible adverse influence that the experiences mentioned above may have exerted on Mr. Borg's mental status.
3.Similarly, based on the available clinical evidence, it would be in my opinion infeasible to determine whether there is a temporal dimension to the hypothetical association considered above (Response 1).
4.Taking into consideration the diagnostic proposition is mentioned above (Response 1), it is my opinion that Mr. Borg should benefit from psychiatric treatment. On the other hand, I have not observed unequivocal evidence to postulate that Mr. Borg is currently incapacitated to work.
Mr Borg was referred by the lawyers acting for Australia Post to Dr Leonard Lee for assessment. He provided a report dated 30 May 2012, gave evidence in the Tribunal and was cross-examined by Mr Borg. Dr Lee was asked to comment on particular questions and he responded as follows:
1. What is your opinion about his [Mr Borg’s] past and current psychiatric condition?
He past psychiatric condition appears characterised by widespread complaints of pain for which there was no physical cause and uncooperative behaviour.
Presently there is no objective evidence of psychosis although he does report that he is being treated with antipsychotics and antidepressants.
Nonetheless, it would appear that his reporting of psychiatric symptoms is unreliable and makes a precise diagnosis uncertain. My review of the records suggests that the most likely condition is an underlying personality dysfunction, although it is interesting that he does not present currently in a paranoid manner. I have, however, to express concern about his past firearms behaviour which may have occurred in the context of alcohol consumption.
2. Was his condition contributed to by his employment with Australia Post?
It would not appear to me that it was on the available evidence although I would acknowledge that I do not have corroborative information as to why he was escorted off the premises by police. This would obviously be helpful to have.
3. Has any psychiatric injury affected his ability to work or caused the need for medical treatment?
If is accepted that he has underlying schizophrenic condition, then I would see this as constitutional and it is consistent with having affected his ability to work and relate. On the other hand, it is also likely that he would have an underlying paranoid personality disorder which would have affected his ability to work and need for treatment.
4. If he has a psychiatric disease, has it been contributed to by failure to obtain a promotion, transfer or benefit or reasonable administrative action?
It is possible that it arose from reasonable administrative actions.
Dr Lee gave further oral evidence about Mr Borg’s diagnosis and whether his employment at Australia Post either materially or significantly contributed to his psychiatric condition. The following passage of transcript is apposite:
MR JOHNSON: So, it seems to – what you’re saying doctor that there are indications both ways as to whether it’s an underlying schizophrenic disorder or an underlying paranoid personality disorder; is that correct?---Yes. that’s right.
And taking on board all that you now know are you able to say which is of those two is more likely than the other?---The report from his treating psychiatrist would suggest that he had a paranoid personality disorder primarily sways me a great deal. I have to say that’s consistent with initial formulation and I take the view that his treating psychiatrist would be thinking about diagnostic issues and management issues particularly acutely. I have noticed he doesn’t make the diagnosis of schizophrenia so I would be swayed towards the personality disorder but it’s hard to explain those ideas of reference that we talked about before. The only compounding issue, I suppose, is the fact that he was drinking more alcohol in that period and maybe that could have contributed towards how he behaved and interpreted events. Yes, I think it’s still – I would probably go towards a personality disorder rather than schizophrenia, but it has to be said that he, as I understand it, is much better on anti-psychotic medication.
And that points towards schizophrenia - - -?---Which is yes, like I said, you can get better with medication even if you don’t have schizophrenia but it does point towards it, yes.
Well, assuming for the moment that the diagnosis is underlying paranoid personality disorder?---Yes.
What is the genesis of that?---Constitutional, largely constitutional. In many cases that’s the best theory we can come up with. It’s constitutional as well as a combination of early life experiences.
Again, on the assumption that that’s the diagnosis, from when would that have been present are you able to say?---You would really expect it from early on in adulthood and this situation as far as I can understand it there’s no evidence of that until about 10 years into his employment with Australia Post.
And do you think that his employment with Australia Post has materially contributed to that?---5 No, I do not.
Do you think that it has significantly contributed to that?---Well, I think it has been the area in which his ideas have gathered apace but I don’t think it has materially contributed to it.
When you say “gathered apace” has the employment contributed in any kind of causal sense or has it simply been a vehicle for expression of something else?---I think it’s the latter.
And assuming that the diagnosis was underlying schizophrenic condition for how long do you think that has been in place?---It’s very difficult to say for certain but sometimes people with schizophrenia can have underlying – what we call prodromal features before an acute psychosis becomes evident. It’s in retrospect with the wisdom of hindsight you could say that the somewhat paranoid interpretation of events after the sardine tin incident may be the expression of this schizophrenia, the paranoid interpretation of it. Some people, depending on how you define schizophrenia, again if you look at social isolation, if you look at – some psychiatrists have referred to schizoid tendencies for example. Some authorities would say that itself is a feature of the underlying schizophrenia. So, you know, it’s possible to come up with different ideas as to when his schizoid started depending on how you applied the diagnostic rules.
If someone already has an underlying schizophrenic condition will that drive their interpretation of events?---Yes.
And if events are interpreted in a malign way is that an indicator of that process occurring?---Yes.
Is the condition – what is the usual, what is the aetiology, what is the causation of an underlying schizophrenic condition?---There is so much research going on but essentially it is constitutional. There have been lots of theories about virus infections but genes seem to play some significant part, but in many cases we don’t really know much more than saying it is probably constitutional.
And to the extent that he has expressed grievances about things that have happened in the workplace do you see those things as being expressions of his underlying personality or of his underlying schizophrenic disorder or as things which have somehow made that disorder worse?---The first, the first option.
Dr Lee was asked to review the opinions of Dr Soliman, Mr Machlin, Dr Westmore and Dr Carne and was asked a series of questions, to which he responded as follows:
Firstly, taking on board those reports; do you, nonetheless, maintain the opinion that you expressed, in earlier evidence today, as to diagnosis and aetiology or contribution?---Yes.
And insofar as others have seen features as indicative of depression, do you think that what they saw as depression is also explicable in terms of underlying personality disorder?---Yes.
And which do you think is the more likely explanation?---I’m sorry, between which options?
Between depression and underlying personality disorder?---Well, underlying personality disorder can present – can cause depression.
Yes?---Losing one’s job – all those issues can certainly cause depression. I think that the personality disorder is the likely cause of this.
Mr Borg cross-examined Dr Lee about the fact that he had looked at a media article on the internet in relation to the incident and had recorded the description of the incident by Port Macquarie news online dated 19 June 2009 in his report. In particular, Mr Borg took issue with Dr Lee including the reference in the online article to a “pump action shotgun under his bed at his Doonside residence”. Mr Borg said he had never owned a pump action shotgun and it was inappropriate for Dr Lee to research and accept information from an online article. Dr Lee accepted Mr Borg’s concern and said that even if he disregarded this evidence, it did not change his opinion about Mr Borg’s illness or its causes.
For completeness, we note that Mr Borg was receiving counselling from Dr Anantharaman from March 2011. She provided a report dated 15 August 2011 but did not express an opinion about his psychiatric condition or the cause of his illness, other than noting that Mr Borg’s “psychotic symptoms are resolved on medication”.
Mr Borg gave evidence that he had problems with the management and staff at Australia Post in the last 10 years that he was working there, in particular following the incident in 1997 with the exploding can. He also said that they were issues about the “mentality and culture of the staff” prior to this time. Mr Borg said that he did not raise issues about his injuries or retraining with his managers, other than in the incident reports, because he could not “approach” or “rely” them. He was concerned about the contents of the report of Dr Lovric and contended that Australia Post and/or Dr Lovric had an obligation to take some action in relation to his mental health that could have averted the events of June 2009.
Consideration and Findings
As previously noted, for Mr Borg to succeed we must be satisfied that he sustained a work related injury. There is no dispute that Mr Borg has a psychiatric condition, either schizophrenia or an underlying paranoid personality disorder, and that this condition is stable when Mr Borg is medicated. The key issue in dispute is whether Mr Borg’s psychiatric condition was caused or contributed to by his employment with Australia Post, in a material degree or to a significant degree, depending on when the condition, or its aggravation, was said to have arisen.
There is evidence that Mr Borg suffered anxiety as a result of the work incident in November 1997 which escalated from 1998 until early 2001. Mr Borg was frustrated with Australia Post’s investigation of the incident and believed that management was harassing him following his complaints. Dr Lee characterised Mr Borg's reaction as “anti-authoritarian” and was of the view that Mr Borg did not have a psychiatric condition at this time, although it is relevant to note that he referred to the possibility of “underlying personality issues”. Mr Jones also referred to Mr Borg's paranoid thinking. Ms Braithwaite appeared to accept that Mr Borg's psychological illness at this time was work-related but she based this assessment on Mr Borg's description of his harassment at work. She did not independently test his statements and her opinion on this issue therefore carries little weight.
As observed by the Tribunal in the 2002 Borg proceedings, there was insufficient evidence at that stage to support a finding that Mr Borg had an ongoing psychiatric condition. Furthermore, the medical evidence and the employment records of Mr Borg suggest that any anxiety arising out of the November 1997 incident had resolved by at least 2001. Despite this, Mr Borg remained distrustful of Australia Post after this incident.
While there were no records of complaints or sick leave relating to anxiety or depression from about mid 2001, there was an incident in December 2004 that led to his referral to Dr Lovric, who noted in her report of March 2005 that Mr Borg appeared to be “somewhat paranoid in his personality type”. She did not find evidence of any psychotic illness and it appears that Mr Borg's various conditions remained stable until early 2008, when Mr Borg presented medical certificates that he was not fit for his normal duties. This was attributed to physical rather than psychiatric conditions.
Mr Borg was directed to take leave and when he attempted to return to work on 30 September 2008, without prior notice to management, Mr Borg was forced to return home. From this time, until his termination in late May 2009, there is evidence of some conflict between Mr Borg and management. Mr Borg was not allowed to return to work until he had been certified fit by the Australia Post doctor. He initially refused to attend and made a claim for workers compensation for his physical injuries on 10 November 2008. Dr Gliksman assessed Mr Borg as medically fit and his claim was rejected by Australia Post on 3 December 2008. It appears Mr Borg returned to work for a short period but failed to attend from early March 2009 for anything other than a few weeks in March and April 2009. After these absences, a disciplinary process was commenced. Mr Borg only participated in one of the interviews and was terminated on 25 May 2009. He stated that he could not recall what happened during this period.
It is not in dispute that following these events and his termination, Mr Borg developed a psychotic illness which led to his criminal offending on 17 June 2009.
As with his physical conditions, Mr Borg did not articulate the basis for his claim but we infer from his submissions that Mr Borg alleges his psychiatric conditions were either caused or aggravated by the actions taken by Australia Post from at least September 2008 when he tried to return to work, was sent home and then subsequently terminated after a disciplinary process. Given that the date of the alleged injury, the question is whether Mr Borg’s psychiatric condition, or its aggravation, was contributed to in a significant degree by Mr Borg's employment.
It is clear from the evidence, and we do not understand Mr Borg to dispute this, that his work related anxiety arising from the incident involving the exploding can and his dissatisfaction with Australia Post’s subsequent handing of his complaints resolved from 2001. He remained distrustful of management and was very upset after the incident on 30 September 2008. Dr Soliman’s clinical notes record that he treated Mr Borg for anxiety and insomnia for a few weeks after this incident but there are no references to any psychological complaints or treatment for these complaints after this incident until June 2009. This was the case notwithstanding Mr Borg consulted Dr Soliman on at least 13 occasions during this period, his last consultation being recorded as 9 June 2009, six days before the siege at McDonalds.
While there are numerous experts reports commenting on Mr Borg's psychiatric illness, there are only two reports that specifically address the critical question about causation.
Dr Zubaran reported that Mr Borg had a recurrent major depressive disorder together with a paranoid personality disorder. He stated that he could “not rule out” the possibility that Mr Borg's employment may have contributed to an aggravation of Mr Borg's depressive disorder but doubted whether Mr Borg’s paranoid personality disorder could be explained “solely” on the basis of Mr Borg’s work. He was unable to determine the magnitude of any contribution. Dr Zubaran did not express a view about whether Mr Borg was fit but rather that he had not observed unequivocal evidence that Mr Borg was currently incapacitated.
Dr Lee did not express a view about whether Mr Borg had current incapacity to work but he noted that, regardless of whether Mr Borg had an underlying schizophrenic condition or an underlying paranoid personality disorder, both would affect his ability to work. In his oral evidence, Dr Lee gave evidence to the effect that these underlying conditions would have driven Mr Borg's interpretation of events such that Mr Borg's employment, including his termination and the events leading to the termination, would not have contributed in a material or significant degree to Mr Borg's psychiatric condition. Dr Lovric, Mr Jones and Dr Lee (in his earlier report) make reference to an underlying personality disorder and paranoid thinking well before the events of 2008 and 2009.
While it is apparent there was a temporal connection between Mr Borg's termination and his psychotic illness, which was noted by the psychiatrists who reviewed Mr Borg for his criminal proceedings, none opined that these events caused or contributed to Mr Borg's psychiatric condition or any aggravation of this condition. At its highest, Dr Westmore noted that Mr Borg's dismissal from Australia Post and the circumstances of his dismissal was “something that should be considered at a later stage”. Dr Lee did consider this issue and did so after interviewing Mr Borg and examining the various experts’ reports, other medical evidence and Mr Borg's work history. It is also relevant that he reviewed Mr Borg in 1998.
We are persuaded by the opinion of Dr Lee and note that there is no authoritative medical opinion to the contrary. Dr Soliman does not have the relevant expertise to opine on this issue and Dr Zubaran, who has been Mr Borg's treating psychiatrist since his release in December 2010, was unable to express a definitive view on this matter.
We are therefore not satisfied that there is sufficient probative evidence that the psychiatric conditions of in respect of which Mr Borg has been diagnosed, or indeed any aggravation of these conditions, were contributed to in a significant degree by his employment with Australia Post As such, we are not satisfied that Mr Borg has sustained a compensable injury under s 14 of the Act in respect of injuries alleged. This being the case, it is not necessary for us to consider whether liability for these conditions was excluded on the basis that they resulted from reasonable disciplinary action or reasonable administrative action.
CONCLUSION
Having regard to our findings that Mr Borg did not sustain a compensable injury under the Act, the decisions of Australia Post are affirmed.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of J L Redfern Senior Member and Dr W Isles, Member. ..................................[sgd]......................................
Associate
Dated 31 May 2013
Date(s) of hearing 29 and 30 November 2012, 31 January 2013 Applicant In person Counsel for the Respondent Geoffrey Johnson Solicitors for the Respondent Graham Jones Lawyers
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