Hook and Australian Postal Corporation

[2005] AATA 834

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 834

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/394, Q2004/611

GENERAL ADMINISTRATIVE DIVISION		)
Re		NOEL HOOK

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Senior Member P McDermott

Dr KP Kennedy, Member

Date30 August 2005

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

..............................................
   P McDermott

Senior Member    

CATCHWORDS

COMPENSATION – Disability support pension - multi-chemical sensitivity – asthma – anxiety disorder – workplace harassment alleged – decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 s 54

Ileris and Comcare (1999) 30 AAR 98

REASONS FOR DECISION

30 August 2005	Senior Member P McDermott
Dr KP Kennedy, Member

1. This is an application for review of two decisions of a delegate of the respondent. The first decision was made on 4 March 2004. In that decision the delegate denied the claims of the applicant for multi-chemical sensitivity, asthma, hypertension, osteoarthritis, tinnitus, vertigo, poor memory, gout, psoriasis, Dupytrems contracture hands, insomnia, gastro-oesophageal reflux and cramps with restless legs. The applicant has also sought review of a decision of a delegate of 29 October 2004 which denied his claim for anxiety disorder with panic attacks. The delegate on both occasions had indicated that the applicant had not satisfied s 54 of the Safety Rehabilitation and Compensation Act 1988.

2.      At the commencement of the hearing, Mr Clark, counsel for the respondent, submitted that the issues for consideration were whether the applicant continued to suffer from a condition contributed to by his employment and, if so, is he incapacitated for employment in respect of that condition.  The applicant, who was unrepresented, did not object to this submission.

Claims to be determined

3.      At the hearing the applicant sought only to press his claim for asthma and a psychiatric condition.  The applicant stated that these conditions had arisen because of his earlier employment with the respondent.

Background of applicant

4.      The applicant had elected not to give oral evidence.  He had also not provided a written statement.  A summary of his work history has therefore been provided from documentation provided to the Tribunal in the “T” Documents and other exhibits lodged by the parties.

5.      The applicant was born on 25 August 1949.  He had worked with the respondent from 1982 until December 2002.  Since 1986 he had been involved mainly as a driver.  In May 2001 he had lodged a claim for compensation, following what he described as harassment at his workplace over a long period of time but precipitated by a documented incident which had precipitated acute stress.

6.      Subsequently, in a report dated 26 June 2001 (T39), Frances Allyn (a Clinical Psychologist) diagnosed the applicant to be suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood which she stated appeared to have arisen from victimization in the workplace as well as workplace stress.

7.      In a determination dated 3 July 2001 (T42), liability was accepted for the above conditions as diagnosed by the Psychologist.  Subsequently in a determination of 12 October 2001, after considering a later report dated 14 August 2001 (T55) from another psychologist and reports from two Psychiatrists, compensation payments were ceased from 16 August 2001.

8.      The applicant had developed a marked intolerance to tobacco smoke since approximately 1995.  This intolerance had become so intense that he could not even tolerate the smell of tobacco remaining in the cabins of vehicles that other drivers had occupied the previous day.  He complained that he could smell tobacco in the vehicle cabins even when other smokers employed by Australia Post had declared specific cabins to be free of tobacco smell after personally checking the vehicles.

9.      The applicant had complained that even the smell of tobacco caused him to develop pain in the upper chest followed by coughing over some hours.  On occasions he described coughing episodes of such severity that some of the doctors who examined him had raised the possibility of cough syncope.  Cough syncope would of course be particularly dangerous for a long haul driver.

10.     The Tribunal is satisfied that there were many attempts by the respondent to provide rehabilitation for the applicant.  Despite these attempts, he continued to complain of symptoms related to stress or to the effects of tobacco smoke or tobacco odour and there were continued absences from work.  The applicant has been on a disability pension since December 2002.

Medical Evidence

11.     It has been earlier mentioned that before compensation payments for the Adjustment Disorder had ceased in August 2001, reports had been obtained from two psychiatrists: Dr Larry Evans and Dr Michael Leung.

12.     Dr Evans was of the opinion the applicant was not suffering from any psychiatric disorder but that he did show evidence of certain personality characteristics.  In the same month Dr Leung prepared a medico-legal report in which he stated that the applicant did not currently have any psychiatric diagnosis. He did however diagnose a paranoid personality disorder.

13.     On 23 November 2004 the applicant was seen by another psychiatrist, Dr Martin Nothling who also provided a full medico-legal report.  Dr Nothling also gave evidence in person.  At the hearing, he confirmed that he held to the opinion expressed in his report.  In that report he said that the applicant was not suffering from any diagnosable psychiatric disorder which could be related to, or having arisen, as a result of the incident on 10 May 2001.  Dr Nothling further noted that if the applicant did suffer from an Adjustment Disorder with Mixed Anxiety and depressed mood at the time, then this would have resolved within 6 months if the stressor for that disorder was the incident at work.  Dr Nothling noted that the applicant had claimed that a long period of harassment had culminated on 10 May 2001 with the insulting card revealed to him at work.

14.     Evidence was given by telephone by Dr Kathleen Armstrong, a general practitioner, and Dr Georgina Antoce, a psychiatrist.  These witnesses were called by the applicant.  Dr Antoce said that she had seen the applicant briefly in January 2004 and again briefly in August 2004.  Dr Armstrong and Dr Antoce each indicated that they were not in a position to express any causal link between the applicant’s symptoms and his employment at Australia Post.  Dr Armstrong had confirmed that the applicant does become frequently distressed, that this distress does vary from day to day and that he does suffer from a large number of medical conditions.

15.     In a written report dated 10 January 2002 ( T75 ) Dr Simon Bowler, a thoracic physician, recorded that he had explained to the applicant that contact with cigarette odour is not a well described cause for respiratory symptoms and that it was certainly not a cause for his asthma.

16.     Dr William Oliver, another thoracic physician, had also provided a written report and he gave evidence by telephone.  Dr Oliver stated that in 2001 the applicant had a positive histamine challenge test suggesting strongly that he had asthma.  The applicant does have hyperactive airways which react to irritants and in the case of Mr Hook the various chemicals in cigarette smoke could irritate his airways and could cause coughing.  Dr Oliver emphasized that exposure to cigarette smoke had not caused asthma but that exposure to cigarette smoke could temporarily aggravate the asthma.  Dr Oliver considered that the effects of such irritation would cease within hours of exposure to the smoke.

Review of Evidence

17.     It should be mentioned that “the fundamental obligation of the Tribunal is to base its decision on evidence which has such degree of probative value as is appropriate having regard to the nature of the decision”: see Ileris and Comcare (1999) 30 AAR 98 at 121. In deciding this matter we have considered the medical evidence before the Tribunal.

18.     The applicant claimed that his asthma is due to tobacco exposure when working for the respondent.  Both Dr Bowler and Dr Oliver, who are specialist thoracic physicians, have stated that his exposure to tobacco smoke or tobacco odour has not caused his asthma.  There was no medical evidence before the Tribunal to contradict that evidence.  The Tribunal accepts the opinions of Dr Bowler and Dr Oliver.

19.     In relation to a claimed psychiatric condition having persisted since the events leading up to and including 10 May 2001, there are three specialist psychiatric opinions between September 2001 and November 2004.  All of these specialists have concluded that the applicant does not have any diagnosable psychiatric condition which could be related to his work with the respondent.  The Tribunal accepts the evidence of the three specialist psychiatrists.

Decision

20.     The Tribunal affirms the decisions under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Dr KP Kennedy, Member

Signed:         .....................................................................................
  Legal Research Officer

Date/s of Hearing  13 and 14 July 2005
Date of Decision   30 August 2005
The Applicant appeared in person
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent     Sparke Helmore