Madden and Australian Postal Corporation

[2008] AATA 411

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 411

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/902

GENERAL ADMINISTRATIVE DIVISION		)
Re		RAYMOND MADDEN

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Mr R G Kenny, Member

Dr G Maynard, Member

Date20 May 2008

PlaceBrisbane

Decision The Tribunal affirms the decisions under review

..................[Sgd]............................

Mr R G Kenny
  Member

CATCHWORDS

COMPENSATION – Incapacity – stress from excessive overtime hours – applicant not suffering from a work related injury - respondent is liable to pay compensation to the applicant for incapacity or impairment – decision under review affirmed

Safety Rehabilitation and Compensation Act 1988 ss 4, 14

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] ALR 1031
Re Australian Telecommunications Commission and Tzikas (1985)5 AAR 173

Comcare v Mooi (1996) 69 FCR 439

REASONS FOR DECISION

20 May 2008 Mr R G Kenny, member
Dr G Maynard, member

BACKGROUND

1. Raymond Madden is employed by Australian Postal Corporation as a postal delivery officer. On 12 July 2006, when he was based at the Cleveland Delivery Centre (the Centre), he lodged a claim for rehabilitation and compensation in respect of “stress and anxiety/adjustment disorder with anxious and dysphoric mood”. He alleged that it occurred as a result of a build-up of stress and tension resulting from his work situation ie “overtime, workload imbalance and uncertainty of current work conditions”. On 22 August 2006, the respondent rejected his claim for liability under s14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).  That determination was affirmed in a reviewable decision on 9 November 2006.

ISSUES AND LEGISLATION

2. The issues for the Tribunal to determine is whether the respondent is liable, under section 14 of the Act, to pay compensation to Mr Madden for an injury which has resulted in incapacity for work or impairment. The term injury is defined in s 4(1) of the Act to include a mental injury arising out of, or in the course of, employment. 

The applicant’s evidence

3.      Mr Madden gave the following evidence.  He has been a postal delivery officer since 1995.  The usual hours of work for the position are from 6am to 2.30pm on Monday, 6am to 2.15pm on Tuesday and 6pm to 1.30pm on Wednesday to Friday.  In 2006, the Centre had 17 separate runs with a delivery officer allocated to each.  The runs were designed to equate with usual daily workload but, if the officer did not complete it within that time-frame, he was expected to complete deliveries for which he received overtime payments.  There was a rotation of runs on approximately a monthly basis.  In the event of an absence of a delivery officer, runs were split amongst the other officers.  In the months leading up to July 2006, there was much absenteeism and significant staff shortages.  This resulted in the need for officers to work substantial overtime hours in order to complete deliveries.

4.      Mr Madden considered that appropriate steps were not taken by management to address the shortages of staff and that there was an unequal division of work load with some runs involving more delivery points than others.  He felt the effects of increased overtime duties such as travelling to and from work in darkness, spending less time with his wife and becoming short tempered, tired and irritable.  He also became aware that there was to be a restructuring of arrangements at the Centre with the abolition of at least one delivery officer’s position.  He was concerned that there was the prospect of losing his position and that there might also be a further increase in workloads.

5.      On 10 July 2006, he told his team leader, Rob Tickner, that he needed to finish at 5pm.  At that time, his run was not finished and he returned to the Centre with undelivered mail.  He had an angry exchange with Mr Tickner and manager Andrew Elder and his anger increased when he was told to start earlier on the following morning to complete the delivery.  He sought to have the incident officially recorded and was advised that, if this was to be done, he had to attend for an assessment with an Australia Post nominated doctor.  He then drove to the Belmont Medical Centre where he was seen by Dr Parvaiz Khan who completed a Workers Compensation Medical Certificate in which he nominated work plan for Mr Madden as involving “rostered hours only”.  On returning to work on the following day, Mr Madden brought the certificate to Mr Elder’s attention.  He was conscious of the need not to make the employment situation worse for others and believed that this would happen if he insisted on working only rostered hours.  He reached a compromise with Mr Elder.  This was that he would complete one run only and would do so even if it involved working beyond his rostered hours.

6.      On 12 July 2006, Mr Tickner told him to prepare the mail for a run for which he was not rostered.  Mr Tickner told him that he was required to work the length of the roster but Mr Madden explained the arrangement he had come to with Mr Elder.  This resulted in another manifestation of angry feelings by Mr Madden.  He believes that he experienced the same symptoms as he had on 10 July 2006.  Mr Elder provided him with a compensation claim form which he completed and submitted.  He was then referred to a psychologist, Dr Peter Stebbins, whom he saw on 31 July 2006.  He believed that he was being sent to Dr Stebbins for treatment rather than a workplace assessment. 

7.      Mr Madden continued with the work arrangement that he made with Mr Elder until the respondent’s determination, on 22 August 2006, to reject his compensation claim.  He then completed rostered hours only.  This continued until a period when Mr Tickner was absent from the Centre and was replaced with a team leader who distributed workload more equitably and, as a result, Mr Madden cooperated with him and returned to the compromise arrangement of completing his run even if it went beyond rostered hours. 

8.      The restructuring of work practices at the Centre in November 2006 resulted in longer delivery runs with fewer staff to service them.  In November and December 2006, he again experienced stressful feelings and consulted his general practitioner, Dr Nitirut Srinkapaibulaya, who prescribed medication in the form of Zoloft and referred him to a psychiatrist Dr Aleksandra Isailovic.  Since November, Mr Madden has continued to complete a single run each the day and, in order to complete it, typically works for up to 1 hour overtime on a daily basis.

Medical evidence

Dr Khan

9.      The certificate completed by Dr Khan on 10 July 2006 was in evidence.  It provided the diagnosis of “stress and anxiety (adjustment disorder) with anxious and dysphoric mood”.  He described the details relevant to the condition as being “anxious and depressed mood”.

Dr Aleksandra Isailovic

10.     Dr Srinkapaibulaya referred Mr Madden to psychiatrist Dr Aleksandra Isailovic in December 2006.  She increased his dosage of Zoloft.  She completed a report, dated 10 January 2006, where she described Mr Madden as presenting with adjustment disorder with depressed and anxious mood.  She considered that this had developed in response to the build-up of significant work overload and management’s refusal to do anything about it.  She also described the rejection of Mr Madden’s workers compensation claim as another work-related stressor. 

11.     In a further report, dated 30 May 2007, Dr Isailovic described Mr Madden as suffering from major depressive disorder which had evolved from his adjustment disorder.  Her opinion was that this had a direct causal link with his employment with Australia Post.  She referred to the incidents of 10 July 2006 as well as Mr Madden’s deterioration later in 2006 after the rejection of his compensation claim.  However, she also considered that it was not the rejection of the claim, in itself, which was responsible for this but, rather, to his realization that, because of the decision, his work-related situation was not going to improve.

Dr Derek Lovell

12.     Mr Madden saw another psychiatrist, Dr Derek Lovell, in March 2007.  In his report, dated 29 March 2007, he referred to the events that occurred on 10 July 2006 and considered that it was likely that Mr Madden satisfied the criteria for an adjustment disorder with anxiety and depressed mood at that time.  However, he said that Mr Madden had not been incapacitated for work as a result of the condition.  Dr Lovell also referred to the presentation of symptoms in November 2006 and described these as being consistent with a major depression which, at the time when he saw him, was in remission.  In his report, he included the following account provided by Mr Madden:

“On 9 November 2006, the original determination was affirmed by reviewable decision.  He stated that when he read the letter, he experienced disbelief and felt that his submissions had been ignored.  Increasingly, he became agitated, his sleep worsened such that he would sleep only two to three hours a night, he would be awake between 12 pm. and 1 am for several hours, he stated that he would go through rewriting submissions in his head and ask himself where he went wrong.  His concentration worsened.  He lacked energy.  His mood deteriorated and by 4 December 2006 he felt anxious and apprehensive and could not face going to work.  He attended his local doctor who prescribed 50 mg of Zoloft on that day.”

13.     Dr Lovell described this condition as being related to the stressors involved in Mr Madden’s compensation claim.  Dr Lovell’s opinion was that Mr Madden did not suffer from any psychiatric condition at the time when he saw him in March 2007.

Dr Jill Reddan

14.     Dr Reddan completed a detailed and comprehensive report on 15 December 2007 after seeing Mr Madden earlier that month.  She also gave evidence.  Dr Reddan described the events of 10 July 2006 and recorded Mr Madden’s references to feeling depressed in November and December 2006 when he lost approximately 9 kg in weight, was prescribed Zoloft by his general practitioner and took a period of approximately 4 weeks off work.  Dr Reddan’s report recorded details of Mr Madden’s employment, personal and social history.  Her mental estate examination of him revealed an absence of difficulty in explaining his history, normal speech, normal mood limits, normal thought form with no evidence of disorganisation of thinking processes and no significant impairment in his judgment of day-to-day matters.  She described him as having a rather obsessional personality style but, at the time of her consultation with him, as not meeting criteria for a diagnosis of any psychiatric disorder. 

15.     Given Mr Madden’s personality style, Dr Reddan was of the opinion that the symptoms he demonstrated in July 2006 were within the normal range.  However, she considered it likely that he developed either an adjustment disorder with anxiety and depressed mood or an episode of major depression in late 2006.  She considered, particularly on the basis of the contemporaneous material, that this was not materially contributed to by Mr Madden’s employment circumstances but, rather, to issues relating to his compensation claim.

Dr Peter Stebbins

16.     Dr Stebbins is a clinical psychologist who has been involved with assessment and rehabilitation in relation to workers’ compensation matters for more than 10 years.  He saw Mr Madden on 31 July 2006 and completed reports on 18 August 2006 and 14 May 2007.  Dr Stebbins is not a medical practitioner but has a Bachelor of Applied Science degree, a coursework Master of Clinical Psychology degree and a coursework Doctorate. 

17.     In his first report, Dr Stebbins took a history of events that surrounded 10 July 2006 but concluded that the symptoms demonstrated by Mr Madden did not reach a threshold where a diagnosis of a psychiatric condition was warranted.  He described him as experiencing anger, disgruntlement and the build-up of mixed stress symptomatology but considered that these were of a sub-clinical threshold as evidenced by the lack of any significant decline in occupational functioning in the workplace.  In the second report and in his oral evidence, he confirmed that opinion and indicated that the shortfall in the diagnostic threshold of a psychiatric condition related to matters additional to workplace considerations and included Mr Madden’s levels of social functioning.

Other evidence

18.     Mr Elder and Mr Tickner were not called as witnesses but their statements, dated 17 August 2006, were in evidence. 

19.     Mr Tickner described Mr Madden as a good worker but one who was more vocal than others if he was dissatisfied with workplace matters.  He conceded that the Centre was understaffed and that it was a very busy environment in the period leading up to 10 July 2006 when he did not complete his run.  He described Mr Madden’s adverse reaction to being told to start early on the following day.  He was aware that, thereafter, Mr Madden had a certificate which restricted him to rostered hours.  However, despite that, Mr Madden had insisted on completing his run even though it might involve a period of overtime. 

20.     Mr Elder recalled concerns being expressed by Mr Madden earlier in 2006 concerning workloads and that he had input into the equitable division of work at that time.  He said that the general conditions of the employment award for postal delivery officers required reasonable overtime to be completed and considered that the overtime demands imposed upon Mr Madden were comparable to those of other delivery officers in the Centre.  Mr Elder said that, despite the medical certificate requiring him to restrict his work to rostered hours, he had insisted on completing his own run even though it involved overtime. 

21.     Evidence was given by Mr Paul Bartlett who worked at the Centre for several years.  He also completed a statement, dated 17 August 2006.  He was responsible for assessing and co-ordinating workflow in the Centre and said that it was one of high-volume.  He was aware of staff complaints about inequities in workload and said that Mr Madden had been involved in negotiations earlier in 2006 in relation to these matters.  He was aware of feelings of frustration by delivery officers because of the need to complete overtime hours but said that these were undertaken because of organizational needs.  Mr Bartlett said that there had been attempts to equalize the workload but that it always depended upon the availability of staff at particular times.  He said that, in November 2006, a restructure of practices at the Centre had resulted in some increases in workloads.  However, Mr Bartlett said that, as before, much depended upon staff shortages on particular days as to what the workload would be.

22.     In evidence was a letter, dated 17 July 2006, sent to Mr Madden advising him of the appointment with Dr Stebbins.  The letter clearly states that the purpose of the consultation with Dr Stebbins was for an examination and assessment to assist with the determination of Mr Madden’s compensation claim.

23.     Also in evidence was an Australia Post record of the overtime hours worked by Mr Madden in 2006 and 2007.  It reveals that, in the week prior to 10 July 2006, he completed more tham 11 hours overtime and the following hours in the period until he commenced leave on 4 December 2006: 

week commencing Monday:	total overtime
10 July	6.01
17 July	7.01
24 July	0.48
31 July	1.59
7 August	1.18
14 August	4.04
21 August	1.55
28 August	0.44
4 September	0.11
11 September	0.00
18 September	0.03
25 September	0.12
2 October	0.21
9 October	0.04
16 October	0.01
23 October	0.17
30 October	0.32
6 November	0.05
13 November	0.48
20 November	0.51
27 November	0.20

SUBMISSIONS

24.     Mr Madden submitted that both adjustment disorder and major depression were conditions which he developed as a result of his employment circumstances in 2006.  These included the excessive overtime which he was required to perform and the stated intention of the respondent to restructure the centre’s working arrangements in a manner which would for the increase workloads and which imposed a threat to his continuing employment. 

25.     Mr Dube submitted that the medical evidence did not support a diagnosis of adjustment disorder and that, although Mr Madden experienced an adverse reaction to workplace circumstances on 10 July 2006, this was not outside the boundaries of normal functioning and behaviour such as to meet the threshold diagnostic requirements.  He also submitted that, in any event, symptoms had resolved by the following day as indicated by Mr Madden’s returned to this employment with the continuation of an overtime component.   He conceded that there were references in the medical reports to major depression but submitted that the medical evidence was that this was related to the rejection of Mr Madden’s compensation claim and not causally associated with his employment.

CONSIDERATION

26.     Mr Madden challenged the accuracy of statements made by Mr Elder and Mr Tickner.  These were made prior to the initial determination to reject his compensation claim.  In so far as they describe Mr Madden’s circumstances between 10 July 2006 and 17 August 2006, their statements are consistent with each other.  They each refer to Mr Madden insisting on completing his run even though it involved overtime hours.  That is also consistent with the table of overtime hours listed above.  That table also indicates a change in Mr Madden’s practice after 22 August 2006, when his claim was rejected.  Only minimal overtime was recorded from then until the end of November.  We reject Mr Madden’s challenge to the accuracy of the evidence of Mr Tickner and Mr Elder.

27.     Mr Madden was critical of the report of Dr Stebbins.  In part, this was on the basis that he relied on the information provided to him by Mr Elder and Mr Tickner.  However, those statements were made available to Dr Stebbins as part of material received by him to investigate Mr Madden’s claim.  We consider that it was entirely appropriate for Dr Stebbins to utilize that material.  Mr Madden was also critical of Dr Stebbins’s capacity, as a psychologist, to diagnose conditions.  In her evidence, Dr Reddan made comment concerning the inappropriateness of psychologists engaging in the process of diagnosing psychiatric conditions.  This was on the basis that, unlike psychiatrists, psychologists lacked training in the practice of “mental state examination”.  Dr Stebbins was made aware of this.  He refuted the correctness of Dr Reddan’s comment in the case of those psychologists who, like himself, had undertaken coursework studies at the Masters and Doctorate levels which included the kind of training she referred to.  We found Dr Stebbins to be an impressive witness who completed detailed and carefully reasoned reports and we accept his observations on diagnostic matters as being reliable.

28.     The evidence is that Mr Madden no longer suffers from a psychiatric condition.  To the extent that he suffered from a depressive disorder in November or December 2006, we are satisfied that this was causally associated with the rejection by the respondent of Mr Madden’s compensation claim on 9 November 2006.  That was the opinion of Dr Lovell whose detailed reference to his symptoms at the time is recounted above.  This was also the evidence of Dr Reddan.  Dr Isailovic implicates rejection of Mr Madden’s claim as being causally associated with it but provided a qualification to this opinion.  This was that, rather than the rejection of the claim, in itself, his condition was due to a realisation that the decision meant that his work-related situation was not going to improve.  As we see that observation, it, nevertheless, focuses on the rejection of the claim and Mr Madden’s reaction to it as being responsible for the development of the condition.  We are satisfied, on the basis of the medical evidence, that any psychiatric condition suffered by Mr Madden in November resulted from the rejection of his compensation claim. 

29.     In Federal Broom Co Pty Ltd v Semlitch[1], Windeyer J referred to the need for the causal factor to be “some event or occurrence in the course of the employment or some characteristic of the work performed or conditions in which it was performed”.  In Re Australian Telecommunications Commission and Tzikas[2], this did not extend to resentment towards the employer because of lower earnings and delays in litigation which were described by the Federal Court as being remote from the employment in that case[3].  I am satisfied that the reactions of Mr Madden to the rejection of his compensation claim are of the same character and that this is not a causal association embraced by ss 4 or 14 of the Act.

[1] (1964) 110 CLR 626 at 641.

[2] (1985) 5 AAR 173.

[3] Supra at 187, 195.

30.     Dr Khan diagnosed adjustment disorder when he saw Mr Madden on 10 July 2006.  Dr Lovell considered that this was likely although he considered it to be significant that Mr Madden was not incapacitated for work at the time.  Indeed, the evidence establishes that he returned to work on the following day and, contrary to the terms of the certificate provided by Dr Khan, he worked his run even though it involved overtime.  We accept the evidence of Mr Elder and Mr Tickner that Mr Madden insisted on completing his shift in that manner.  Indeed, he continued to do that until the initial rejection of his claim on 22 August 2006 when he adopted the policy of completing his rostered hours with almost no overtime.  Dr Isailovic does not confirm a diagnosis of adjustment disorder in July 2006.  Clearly, her interest was in his presentation of symptoms when she saw him later in the year.  Nevertheless, she refers to the period in July and to Mr Madden’s description of a “breakdown” at the time and “an episode of acting out” when Mr Madden “briefly lost his temper and raised his voice at the workplace”.

31. The diagnosis of adjustment disorder is specifically rejected by Dr Reddan. She referred to Mr Madden’s personality style and was of the opinion that the symptoms he demonstrated in July 2006 were within the normal range of his behaviour. That was also the opinion of Dr Stebbins. While noting Dr Khan’s report, we accept the evidence of psychiatrist Dr Reddan and also that of Dr Stebbins in that regard. Such a description does not amount to a compensable injury or disease for the purposes of s 14 of the Act [4].  That was the basis on which the decision under review was made.

[4] Comcare v Mooi (1996) 69 FCR 439 at 444.

DECISION

32.     The Tribunal affirms the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny and Dr G Maynard, Members

Signed:         .....................................................................................
  Elizabeth Young, Research Associate

Dates of Hearing  1 and 2 May 2008
Date of Decision  20 May 2008
The Applicant was not represented
Counsel for the Respondent    Mr D Dube