Perry and Australian Postal Commission

[2005] AATA 712

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 712

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/371

GENERAL ADMINISTRATIVE DIVISION		)
Re		PATRICIA PERRY

Applicant

And AUSTRALIAN POSTAL COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date28 July 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

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

M J Carstairs
  Member

CATCHWORDS

WORKERS’ COMPENSATION – claim for compensation for workplace stress – injury – failure to obtain a benefit

Safety Rehabilitation and Compensation Act 1988 s4, 14

Trewin V Comcare (1998) FCR 171
Hart v Comcare [2005] FCAFC 16

REASONS FOR DECISION

28 July 2005 Ms M J Carstairs, Member

1.      This is an application by Patricia Perry (the applicant) for review of a decision rejecting her claim for compensation in relation to work-related stress occurring in 2002 after she returned to work following surgery for a non-work-related foot condition.

2.      At the hearing the applicant was represented by Mr J Plettell, delegate with the Communication Electrical and Plumbing Union – Post and Telecommunications Branch (the union). The respondent was represented by Mr C Clark of counsel, instructed by Sparke Helmore Solicitors.

3. The Tribunal had before it documents lodged under s37 of the Administrative Appeals Tribunal Act1975 (numbered T1-T31) as well as exhibits marked A1-A14 for the applicant and R1-R4 for the respondent.

BACKGROUND

4.      The applicant is aged fifty-nine.   The background to this matter was set out in the decision on a preliminary issue on 20 August 2004 (Patricia Perry and Australian Postal Commission [2004] AATA 873) and the following facts are not disputed. The applicant works at the Northgate Mail Centre as a postal officer and has been employed by the respondent since 1993. She has had several operations on her foot, for a non-work-related medical condition. Her last foot surgery took place in September 2002. Before the surgery the applicant was working restricted duties by her employer; following the surgery she took sick leave and recreational leave entitlements for some two months, returning to work in November 2002.

5.      Shortly after her return to work the applicant was allocated to a work roster where penalty rates were not paid.   Her usual shift was one that attracted penalty rates. This upset the applicant who, with union assistance, then commenced negotiations with her employer in an attempt to resolve her concerns.  She contended that she was singled out as other workers on restricted duties were not prevented from working shifts that attracted paid penalty rates. There was an internal investigation and a report was completed on 21 January 2003 (T20). The report included recommendations that Northgate Mail Centre provide the applicant with safety shoes and organise a return to penalty rate shifts after she was fitted with safety shoes.

6.      On 26 December 2002 (T13), the applicant completed a claim for work related stress (the “compensation claim”) and stated that she first noticed her illness on 22 November 2002, culminating on 20 December 2002. She attached a medical certificate from Dr M Bokarier, her general practitioner dated 20 December 2002 (T12), who said that she was suffering from work related stress which, he stated, the applicant had attributed to perceived discrimination.

7.      On 13 January 2003 (T18), the applicant’s claim for compensation for work-related stress was refused on the basis that her injury resulted from being unable to obtain a benefit in connection with employment. That decision was affirmed on review on 4 April 2003 (T31). The benefit identified in the decision was that the applicant had missed out on obtaining her preferred morning shifts, where penalty rates were paid.

8. On 6 March 2003 (exhibit R5), the applicant lodged a complaint with the Human Rights and Equal Opportunity Commission (“HREOC”). That claim was settled between the parties. In the preliminary decision ([2004] AATA 873) the Tribunal decided that the HREOC claim and the compensation claim were distinct and separate and the applicant’s compensation claim was not precluded by s48(1) of the Safety Rehabilitation and Compensation Act (1988), (the “Act”).

ISSUES

9.        The issues for the Tribunal on the compensation claim concern the nature (and duration) of any psychiatric condition suffered by the applicant, and whether this condition was caused or contributed to by her employment.  If so, is this medical condition excluded for compensation purposes under the Act because the condition resulted from a failure to obtain a benefit in connection with her employment?

EVIDENCE

10.      The applicant, in written statements and oral evidence, referred to a number of matters that arose in the workplace after she returned to work in November 2002.  She agreed in her oral evidence with Dr Alcorn’s assessment of the significance of the work issues given in his report (exhibit R1).  Dr Alford identified the workplace issues as: her being allocated to the 8:24 am shift; the refusal to agree to her transfer to another section that did not require the wearing of safety shoes; and the delay in approving the supply of specially-fitted safety shoes, paid for by her employer.

11.      In oral evidence the applicant said that when she returned to work in November 2002 she was told by Ms Mary-Anne Scott, human resources manager with Australia Post, that she would be allocated to the 8:24am shift. The applicant said that previously when she had foot surgery she had worked in the manual sorting area on her usual shift without the need for safety shoes.   The applicant also said that Ms Scott had told her that Australia Post would soon be conducting an assessment of those on restricted duties, but this did not happen.  The applicant said that she was very upset and that she felt singled out and treated differently as a result of this.

12.      In regard to her request to be issued with safety shoes, the applicant said that her doctor had certified in December 2002 (T9) that she could return to normal duties if she had specially fitted safety shoes.  The applicant stated (exhibit A8) that the respondent organised for a boot maker to come to her home for a fitting. The applicant agreed in her oral evidence that Australia Post eventually provided her with safety shoes, but she reiterated that she was upset by the delay in providing them and by being informed initially that she must pay for her own shoes.  She said that telephone calls to her employer about this issue were not returned. She said she only learned when she accidentally overheard a conversation at work that there were delays by the boot maker who originally fitted her and that she needed to be refitted by another boot maker. 

13.      The applicant had raised an additional matter regarding her request to commute leave. She acknowledged that this refusal did not concern her unduly because others also missed out, however she noted that she was spoken to abruptly by Ms Scott when she enquired about the refusal. 

14.      Ms Scott gave oral evidence that Australia Post’s Occupational Health and Safety Policy (OH&S Policy) covers all work areas where moving equipment is involved and the policy requires that safety shoes be worn in those areas.  Ms Scott said that she had commenced at Northgate Mail Centre in January 2002 as acting HR manager, and became aware that local practice at the Centre had allowed persons in the past to work without safety shoes in the manual sorting area.  She said that this practice was in conflict with the OH&S Policy.

15.      Ms Scott said that she had a meeting with the applicant when she returned to work in November 2002, and discussed a medical service review with her.  Ms Scott said that she understood that when the applicant returned to work she was on medical restrictions preventing her from wearing safety shoes (T6, T8).  On 17 December 2002, Dr M Dickinson, orthopaedic specialist provided a report stating that the applicant could return to normal duty if fitted with special safety shoes (T9).

16.      Ms Scott said that there are limited opportunities to provide duties for those who are unable to wear safety shoes and there were few at the end of 2002 because of the number of other workers who were on restricted duties, some of them for work-related conditions.  In her written statement dated 16 May 2005 (exhibit R1) Ms Scott stated that the applicant could not be placed in the taxing section (one of the other sections where there is no requirement to wear safety shoes and which otherwise might have accommodated the applicant) as the available positions were occupied by other employees who were on restricted duties due to work-related injuries, whereas the applicant’s foot injuries were not work-related.  Ms Scott said that she allocated the applicant to the dead letter office for a period of six weeks. This entailed placing her on the 8:24am shift as that office does not open until 8:30am.  Ms Scott said that in placing the applicant her main concern was to find suitable work, as the applicant had exhausted her sick leave entitlements and would otherwise have to take leave-without-pay. 

17.     The Tribunal heard evidence from a number of the applicant’s work colleagues who had prepared written statements in support of the applicant (exhibits A1-A6): Ms P Stephenson, Mr M Delisser, Ms T Kent, Mr M Meakins, Ms D Rinaldi and Ms S Houghton.  They agreed in their evidence, based on their observations of her, that the applicant was distressed at work at the end of 2002.  They expressed various views about how the applicant was treated by management, past practice at Northgate Mail Centre concerning those on restricted duties, and their understandings of operational matters at the mail centre.   It can be fairly stated that they agreed that the applicant believed that she had not been treated fairly, or that others with similar problems were treated differently from her. 

18.     However, there was no dispute, from the medical evidence, that the applicant suffered from an adjustment disorder as a result of workplace matters.  Therefore the evidence of co-workers on her distressed behaviour at the end of 2002 added little to that undisputed evidence. 

19.     Where their evidence on operational issues, or what OH&S policy applied during 2002, conflicted with the evidence of Ms Mary-Ann Scott, the Tribunal preferred the evidence of Ms Scott.  She was better able to address these issues from a managerial perspective, based upon up-to-date knowledge of the OH&S practice in place at Northgate Mail Centre in 2002.

20.      In a report dated 21 January 2003 (headed Investigation of Complaint: Pat Perry – Mail Officer – Northgate Mail Centre) Ms M Keene, Manager, Human Resources stated:

Northgate Mail Centre has approximately 41 employees on restricted duties.  This includes 11 on restricted duties for work related conditions, 22 on restricted duties to non work related conditions…these cases are being reviewed on a progressive basis….

Some people who were unable to wear safety shoes were allowed to work in the manual sort area until June 2002 when advice was obtained from Darryl Francis (Senior Consultant in Occupational Health and Safety) that this should be a safety shoe area….

21.      Dr M Pokarier, general practitioner, prepared several reports (T12, T13, T22, and T26).  In his oral evidence he said that the applicant had been his patient since 1997 and that prior to 2002 she had made no complaint of a psychiatric nature.  In his report dated 25 January 2003 (T22) he certified her fit to return to her pre-injury duties, with the proviso that she have counselling until 25 March 2003.   Dr Pokarier stated that he knew of no factors other than her employment that accounted for the applicant’s distress in December 2002.

22.     In a report dated 12 November 2003 (exhibit R2) Dr D Alcorn, psychiatrist, diagnosed the applicant as having suffered an adjustment disorder with depressed and anxious mood from mid-November 2002 until about March 2003.  Dr Alcorn said that the applicant had recovered fully and required no further medical treatment.  Dr Alcorn considered that a number of factors led to the development of the condition:  mainly her perception that she was treated inequitably when allocated to the 8:24am shift when others were allocated to areas where safety shoes were not required; and her feelings that she was discriminated against in regard to early approval for specially fitted safety shoes.  He stated that her condition remitted when the issues of the safety shoes and her preferred shifts were resolved.

CONSIDERATION OF THE ISSUES

23.     Section 14 of the Act is the central provision for liability to pay compensation, creating the liability, subject to other provisions of the Act, to pay compensation in respect of injury which is a term defined in s4 of the Act.

24.      The medical evidence in the applicant’s case is undisputed.  The Tribunal accepts the evidence of Dr Pokarier and Dr Alcorn that the applicant suffered from work-related stress, and accepts the diagnosis of Dr Alcorn that this was an adjustment disorder with depressed and anxious mood which lasted between mid-November 2002 and March 2003.   The Tribunal accepts that this medical condition comes within the definitions of ailment and disease within s4 of the Act.  The question is whether it comes within the definition of injury in s4, as is required for liability for compensation to arise, within the terms of s14.   Not every affront or loss that a person may suffer in connection with employment is an injury. 

25.     Section 4 of the Act provides the following definition of injury:

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of … failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment…

26.     Mr Plettell submitted the exclusionary provisions in s4 of the Act, that is excluding injury as a result of failure to obtain a benefit, should not apply here.   He submitted that the applicant never acted to obtain a benefit and this was demonstrated by her not seeking the maximum penalty rate shifts available in her employment.  Mr Plettell submitted that what the applicant was pursuing was an entitlement not a benefit.  He submitted (exhibit A8) that the applicant’s psychiatric injury led to incapacity for work for a period of five weeks (20 December 2002 to 24 January 2003) and was the direct consequence of being singled out and harassed about her employment and a consequence of the failure to provide her with safety shoes.  

27.     Mr Clark submitted that the applicant in oral evidence had agreed that the three workplace issues, identified in Dr Alcorn’s report were the issues that concerned her and he noted that she had agreed that the refusal of her compensation claim in January 2003 had been stressful to her as well.  Mr Clark said that the Tribunal should conclude on the basis of the evidence that these identified workplace issues were benefits of her employment, and her adjustment disorder arose from the failure to obtain these benefits.   He submitted that it did not matter if the applicant incorrectly perceived that certain benefits were available when they were not, for OH&S reasons.

28.     The Tribunal does not accept Mr Plettell’s submission that this matter can be decided by characterising the issues in the workplace as matters of the applicant’s rights or entitlements, so as to differentiate them from the benefits excluded from the definition of injury in s4 of the Act.  In Trewin v Comcare (1998) FCR 171 at 171 the Federal Court stated that the benefit referred to in the s4 definition should not be limited by excluding from its compass those things to which an employee is entitled as a matter of right.  The Court said that :

..the concept of failure..to obtain a promotion transfer or benefit in connection with …employment has to be applied in the context of Commonwealth employment where there is a complex regime of industrial regulation with Awards, workplace agreements and appeal systems.  Sometimes employees might have career-related legal rights, at other times no more than understanding and expectations.  I think that the intention to be deduced from the exception to the definition of ‘injury’ in s4 is that parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified disappointment in Commonwealth careers but concluded that injuries so arising were, for policy reasons, not to be compensable.

29.      The Tribunal accepts the applicant’s evidence that she was not seeking maximum penalty shift payments.  Nevertheless she wanted a particular shift or shifts, not the 8:24am shift, and this was denied to her (for operational reasons, according to the evidence of Ms Scott).  The Tribunal finds that her preferred shifts were a benefit in connection with her employment. 

30.      The delay and problems in obtaining her safety shoes also related to a benefit that she was seeking in connection with her employment, that of obtaining safety shoes at the employer’s cost, and the Tribunal so finds.   The Tribunal was satisfied that the applicant’s adjustment disorder arose as a reaction to her failure to obtain benefits in connection with her employment, namely to obtain the work on the shift that she preferred (and in a work location where this could occur) and her failure to obtain the paid safety boots in a timely way. 

31.      As set out by the Full Federal Court in Hart v Comcare [2005] FCAFC 16 once the injury is one that answers the description of being suffered as a result of the applicant’s failure to obtain a benefit it will not meet the description of an injury as defined in s4 of the Act and no liability to pay compensation arises under s14 of the Act. 

32.      For these reasons the applicant’s claim must fail.  The Tribunal notes Mr Plettell’s other submissions that at no time was a change to the OH&S rules during 2002 communicated to staff at Northgate Mail Centre. He submitted that the applicant’s medical condition was contributed to by the employer’s failure to adequately communicate changes to the safety rules. However it is not for this Tribunal to offer comment on these issues of workplace management and practice and having found that the applicant’s medical condition resulted in whole or in part from the failure to obtain a benefit the claim fails even if it had been shown that other causes were present and contributed.

DECISION

33.      The Tribunal affirms the decision under review. 

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:         Jeff Mills
  Legal Research Officer

Date of Hearing  23 and 24 May 2005
Date of Decision  28 July 2005
For the Applicant  Mr J  Plettell, CEPU Delegate
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent     Sparke Helmore