Garry Kelly and Australian Postal Corporation

[2014] AATA 779

[2014] AATA 779

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/5908
Re	Garry Kelly
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Mr D Letcher, QC, Senior Member
Date	24 October 2014
Place	Sydney

The decision under review is affirmed.

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Mr D Letcher, QC, Senior Member

CATCHWORDS

COMPENSATION – Employee of licensed corporation – Whether no present entitlement to compensation – Adjustment disorder with mixed anxiety and depressed mood – Decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 14

CASES

Comcare v Mooi (1996) 69 FCR 439

REASONS FOR DECISION

Mr D Letcher, QC, Senior Member

24 October 2014

1. The applicant seeks review of the decision of his employer (Australia Post) made 20 September 2013 that he did not have further entitlements to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) as at 11 July 2013 in respect of “adjustment disorder with mixed anxiety and depressed mood”. Adjustment Disorder is a recognized psychiatric illness characterised by reactions to identifiable stressors by anxiety, depression or traumatic stress or a mixture of those symptoms.

2. The applicant had made a claim for compensation for adjustment disorder with mixed anxiety and depressed mood with date of injury 28 December 2011 which had been accepted by the respondent in May 2012. However, the respondent came to the view in 2013 that the applicant no longer suffered from the disorder. There is no issue concerning the earlier claim. The respondent concedes that the applicant’s work was a substantial contributing element to the applicant’s disorder.

3. The applicant believes that the attitude of his immediate superior and the management team of Australia Post has continued to cause him anxiety and depression rendering him unable to work. He insists that his concern be addressed by reviewing past incidents and grievances even if the other people concerned do not wish to do so. He maintains that he is unable to return to work until some prolonged process of discussion and acknowledgement of his concern is completed. He says that he does not trust senior management at Australia Post and that “to return to his previous position, without his concerns being resolved would be like jumping into a swimming pool that had a shark in it”.

   THE APPLICANT’S EVIDENCE

4. It is a feature of this case that the applicant complains of disabling stress over 20 years but has always striven to remain in his position of Delivery Manager in the same North Coast centre. The applicant, now 57 years, has been employed by Australia Post in the one area for the whole of his working life. In 1999, the applicant was found to be suffering anxiety and depression and it was believed that he “will only effectively return to work if management issues as outlined below are addressed” and then followed a list which included very specific measures to inform the applicant if other employees made complaints about him (ST14, p. 380). The applicant has maintained this same fixed attitude ever since.

5. In his evidence, the applicant said that when he returned to work after his time off in 2011 he felt that nothing he could do would please his superior, “I was sitting there waiting for [the superior] to jump on me” and without the past issues between them being discussed and resolved he felt threatened. Mediation was attempted but the superior refused to co-operate by discussing the past. In January 2013 a graduated return to work (“GRTW”) was attempted by sending the applicant to work in a non-managerial role at Wauchope, a small town located close to the applicant’s home.

6. The applicant expressed in an email (Exhibit 9) concern at being sent to Wauchope:

   I see this option as some sort of ‘punishment’, both of my treating doctors and myself believe I am fit to return to Port DC… My issue is with my Area Manager, not my staff or Port DC… I see this proposal as a chance for my Area Manager to “screw” me again and AP saying “we will hold him for you”.

7. The applicant complained that he was not provided with the administrative work he was supposed to receive. He was then requested to go on a walking route to hand-deliver mail in Wauchope town. The applicant refused saying that before he did that there had to be an assessment of the physical characteristics of the route, a medical assessment of himself, approval of the rehabilitation adviser and provision of proper protective equipment (hat and shirt). He did not attend for work the next day.

8. Subsequently, after further time off the applicant was transferred back to his original workplace to work under a different superior. He said that the first few weeks were “very stressful, I felt targeted” but he continued in that position. It is noteworthy that the applicant identified that superior as the only member of the Australia Post management team that he trusted. After that superior took long service leave the applicant was sent back to Wauchope for a time but then he was told that Australia Post had ceased to accept liability and that he should return to his original position. He did so but on 30 July 2013 received a letter from management making complaints about his performance and shortly thereafter went off on sick leave. He said that he had requested formal retraining in new procedures adopted while he was away from his position, that management were unreasonable and prejudiced in the complaints and that he felt he was being set up to fail.

9. For many years the applicant’s complaints were about a particular superior but after that individual moved away, the applicant has continued to allege discrimination and harassment by management including the Area Manager and State Manager. He continues to insist that he requires “closure” with those individuals before he can work effectively without anxiety and depression.

10. The applicant also insists that he needs “a carefully planned and implemented return to work program. That is what I told Dr Shaw and Mr Campbell and it is consistent with their comments that my return to work must be managed carefully” (Exhibit 1, [32] of the Applicant’s statement). Both of the people named are psychologists. In fact, Dr Shaw’s reports of 15 February and 9 September 2013 find that the applicant then had no psychological condition and Mr Campbell’s report of 6 July 2013 says “I now see no sign of that condition [Adjustment Disorder]” although each point out that the applicant is very reactive to events and people and requires careful management.

    MEDICAL EVIDENCE

11. The applicant was seen by psychiatrists for the purpose of obtaining medico-legal reports. Dr Parsonage believed that the applicant was experiencing “exacerbations and recurrences of his Adjustment Disorder” to which his employment with Australia Post was a substantial contributing factor. In oral evidence, he identified the “shark” in the swimming pool as senior management. He also noted that the applicant did not have a personality disorder, his condition was like a “phobic disorder” where the problems and distress were confined to the work scene. He thought that the applicant could return to work “in a role without managerial responsibilities” but a problem was that he was not sure that the applicant would accept such a lower level position. He agreed that a lack of trust or faith in management did not of itself produce a psychiatric condition. A lack of confidence might affect managerial ability and be so highly distressing as to be disabling. He agreed that personality traits short of a personality disorder could determine behaviour but might also pre-dispose a person to contracting a psychiatric disorder. He did not find the applicant to be obsessional or demanding of standards when he saw him on 10 January 2014.

12. Dr Selwyn Smith, psychiatrist, assessed the applicant on behalf of Australia Post and gave the opinion that he did not suffer from incapacity from any psychiatric condition. In his opinion, “Mr Kelly’s current incapacity is not due to a formal psychiatric disorder but is rather related to attitudinal factors closely underpinned by personality attributes”. By this he meant that the applicant had an unrealistic perception of what was needed to get him back into work. He agreed with Dr Shaw that the applicant showed “dependent personality characteristics and other characteristics associated with individuals who demonstrate a paranoid personality disorder” and also agreed with Dr Lovell, psychiatrist, who had found him to be “an obsessional man who likes to be in control”.

13. Dr Smith’s opinion was that the applicant did not display “clinically significant symptoms that would preclude him from engaging in appropriate work”. He did not think the applicant was functionally impaired and his distress was within normal limits. He believed that the applicant’s rigidity, suspicion and obsessive thinking made conflict at work occur and also increased difficulty in coping with change. His view was that the applicant’s insistence on a review of past grievances and a precisely planned return to work were not stressors that would satisfy the criteria for Adjustment Disorder.

14. Records and reports of the local treating doctor and the psychologists who had seen the applicant were in evidence but the authors did not give oral testimony. Records showed that the applicant had been prescribed anti-depressant medication on and off from 1994 onwards and continuously with increasing doses from 1998 onwards. He had been appointed to the position of Delivery Manager in 1992.

    DISCUSSION

15. The respondent’s case is that from 11 July 2013 the applicant may have been annoyed and upset by his continued inability to force his superior to discuss and analyse events of the past but such feelings are not symptoms or substance of a psychiatric disorder. In this case they arise from the personality structure and inflexible attitudes of the applicant rather than from outside stressors. When the particular superior moved away the applicant’s grievances were redirected to all of the state management team. He has retained those fears and grievances. He has insisted on formal retraining, elaborate graduated preparation and an uncritical atmosphere before he will return to work. He is distressed when others decline to agree with his program but this does not constitute continuation of an Adjustment Disorder. The applicant’s case is that he reacts with extreme anxiety to direction and correction by his superiors and the Adjustment Disorder continues.

16. I prefer the opinions of Drs Smith and Shaw that the effects of the Adjustment Disorder had dissipated by 11 July 2013 and were supplanted by the effects of the applicant’s personality traits and fixed attitudes. Dr Smith regarded his presentation as showing a “normative stress reaction”, that was not a reaction “outside the boundaries of normal mental functioning and behaviour” (Comcare v Mooi (1996) 69 FCR 439 at 444). Dr Parsonage and Mr Campbell are of the contrary view but I prefer the other explanation given the long history of inability to adapt to change, the extension of his anxieties to include all of the state management and the difficulty in putting into practice any program of return to work.

    CONCLUSION

17. The applicant was not entitled to compensation under the Act for Adjustment Disorder as at 11 July 2013.

    DECISION

18. The decision under review is affirmed.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher, QC, Senior Member

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Associate

Dated 24 October 2014

Dates of hearing	10-11 September 2014
Counsel for the Applicant	Mr M Gilbert
Solicitors for the Applicant	Mr B Gilbert, North Coast Compensation Lawyers
Counsel for the Respondent	Mr M Gollan
Solicitors for the Respondent	Ms S Leembruggen, Sparke Helmore