Phu and Australian Postal Corporation
[2008] AATA 491
•16 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 491
ADMINISTRATIVE APPEALS TRIBUNAL ) N2005/1018
) N2006/1703
GENERAL ADMINISTRATIVE DIVISION ) 2007/0983 Re NGOC LIEN PHU Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen Date16 June 2008
PlaceSydney
Decision 1. The decision in N 2006/1703 is set aside and the Tribunal substitutes in lieu thereof its decision, viz. THAT the Applicant is presently entitled to compensation pursuant to section 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 in respect of the work related back injury sustained on 28 June 2004.
2. The decisions in matters N 2005/1018 and 2007/983 are affirmed.
3. The Respondent is to pay the Applicant's costs in matter N 2006/1703.
...........[sgd].............
M D Allen
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – review of decisions of the respondent relating to compensation alleged injuries sustained at work in respect of anxiety, psychiatric illness and a back injury – applicant when challenged resorts to maladaptive behaviour but does not suffer from any work caused psychiatric illness or anxiety – undenied back injury followed by pain which was hitherto not present or an asymptomatic condition was made symptomatic – decision in matter N 2006/1703 is set aside – decisions in matters N 2005/1018 and 2007/0983 are affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 sections 16, 19, 24 and 27
REASONS FOR DECISION
16 June 2008 Senior Member M D Allen 1. Before the Tribunal were three applications for review in which the Applicant challenged decisions of the Respondent relating to compensation for alleged injuries sustained at work. They were:
i)N 2005/1018 in which the Applicant sought review of a reviewable decision rejecting her claim for compensation in respect of “anxiety”;
ii)N 2006/1703 challenging a reviewable decision affirming a prior determination that the effects of a back injury sustained at work on 28 July 2004 had ceased with effect from 11 April 2006; and
iii)2007/983 seeking review of a reviewable decision affirming a prior determination that the Applicant is not entitled to any payments pursuant to section 24 and 27 of the Safety Rehabilitation Compensation Act 1988 in respect of any psychiatric illness.
2. So far as the reviewable decision dealt with in matter 2007/983 is concerned that decision is affirmed, as even on the evidence of the Applicant’s own treating Psychiatrist, Dr Tran in his report of 27 February 2006, the Applicant’s condition had not stabilised but improvement could be expected.
3. So far as any psychiatric injury is concerned the Applicant’s evidence was that it was caused by the bullying and intimidation of her immediate supervisor Ms Janette Nguyen.
4. The Applicant’s evidence was that she had commenced employment at Australia Post in 1996. She had enjoyed her work until 2001 when Ms Nguyen was appointed (at that time temporarily) as Process Leader to Team C, the team to which the Applicant was then assigned.
5. On 28 July 2004 the Applicant injured herself at work, when one handle of a tray of mail she was holding broke. As a result of injury occasioned in this incident the Applicant was placed on light duties and she gave evidence that Ms Nguyen (who had by this time been appointed as the permanent supervisor of Team C) picked on her because of allocation to light duties and remonstrated with her to work harder.
6. On 8 October 2004 a specific incident arose, when the Applicant experienced back pain because she states Ms Nguyen forced her to work harder. She complained of pain in her back and Ms Nguyen took her to the first aid room and gave her a hot pack. Later Ms Nguyen returned to the first aid room and told the Applicant that as it was the end of the shift she had to get out of the room.
7. As a result of further harassment by Ms Nguyen, who accused the Applicant of not doing any work the Applicant on 9 December 2004 suffered an “anxiety attack” and fell to the floor. She was taken by ambulance to Concord Hospital and later discharged. After this incident she remained off work until 21 February 2005.
8. At other times Ms Nguyen has threatened the Applicant with Code of Conduct Violations. Evidence from Mr Stavropoulos, a Human Resources Advisor at Australia Post was that a notation of a Code of Conduct Violation is kept on an employees file for three months and then removed if no further violations occurred.
9. Mr Stavropoulos also investigated circumstances where by the members of Team C (the Applicant’s team) signed a petition to management regarding Ms Nguyen’s management. He found that the actions regarding which compliant was made were justified.
10. After the Applicant returned to work on 22 February 2005 she was placed on a different shift and so was no longer under the supervision of Ms Nguyen. Nevertheless she still complained of harassment by Ms Nguyen whom she alleges “looks for her” and uses her telephone to contact the Applicant’s current process leader to complain about the Applicant.
11. The Applicant added that due to presence of Ms Nguyen she is scared to go to work.
12. Cross-examined the Applicant conceded that on 24 January 2004 she had an anxiety attack at work when refused a shift change for the 26th January 2004 in order to attend her husband’s citizenship ceremony. Following this anxiety attack she was again taken to Concord hospital and then driven home.
13. As stated above the Applicant’s treating Psychiatrist is a Dr Dong Binh Tran. In his report of 27 February 2006 he states that he has been the Applicant’s treating psychiatrist since 15 December 2004.
14. After taking a history from the Applicant including brief details of her upbringing in South Vietnam Dr Tran opined that the Applicant was suffering an adjustment disorder with anxiety disorder. He further opined that the Applicant’s employment appeared to be a substantial contributing factor to her anxiety.
15. At the request of her former solicitors the Applicant consulted Dr Westmore, Psychiatrist. In his report of 8 May 2006 Dr Westmore commenced by stating:
“I would note early in this report that Ms Phu was very difficult to assess. She has very poor English language skills and throughout the assessment she was highly anxious and very agitated.”
16. Dr Westmore obtained a history of alleged harassment by Ms Nguyen and under the heading of Opinion Dr Westmore stated:
“I am not qualified to pass comment on the workplace difficulties themselves although I can indicate that in response to those workplace difficulties Ms Phu has developed a psychiatric condition. She has suffered an adjustment disorder with symptoms of depression and anxiety. She has also had at least one episode of panic which was treated in a local hospital.
…
It is my own opinion that the symptoms she described are consistent with an adjustment disorder with depressed and anxious mood and I note the close relationship which exists between the emotions of anger and depression. I note the obsessional rumination and abnormal preoccupation she has with her workplace difficulties, something also identified by Dr Walden. This is not a normal response to her workplace difficulties and is further supported evidence that her response to those difficulties has become pathological in its nature.
…
I believe there is a direct causal link between her employment and the onset of her psychiatric problems. As implied earlier I cannot comment on whether the actions of the employer were reasonable or necessary and only a tribunal of fact can make that determination.”
17. So far as the reasonableness of any work action is concerned evidence was given by Ms Nguyen, a former process leader responsible for the Applicant and Ms Wilkins. Ms Wilkins is now in a more senior supervisory role.
18. Ms Wilkins’ evidence was that Team C, which included the Applicant, had been unruly and allowed to get away with what they wanted because of the lack of a permanent process leader. Her direct knowledge of the Applicant was that she was happy if left alone, but if put under scrutiny became upset.
19. In this regard I note that the Applicant in cross-examination conceded complaining to management about a former Process Leader Mr Dooley, although she denied this, it was because he required her to remove an item of food (namely mandarins) from the work area.
20. Ms Nguyen gave evidence. She denied harassing the Applicant, but did state she had occasion to speak to the Applicant’s current process leader, as the Applicant was talking to, and thus interfering with the work of, members of her current team.
21. After considering various reports and documents in the material made available to me and having heard not only the Applicant, Ms Nguyen, Ms Wilkins give evidence and be cross-examined together with the evidence of Mr Stavropoulos and having read Mr Stavropoulos’ report following the petition against Ms Nguyen, I find that Ms Nguyen may well have a less than optimal management style, however the crux of the matter is as she said “staff complained because I made them do their job”.
22. On 3 March 2005 the Applicant consulted Dr Walden, a Psychiatrist at the request of the Respondent. Although an interpreter was present, Dr Walden, in contrast to Dr Westmore, noted: “…Ms Phu spoke good English and rarely relied on the interpreter.”
23. During her consultation with Dr Walden the Applicant appeared to hyperventilate. Of this attack Dr Walden reported:
“I have witnessed many episodes of panic and hyperventilation in patients over the years and was not convinced that Ms Phu was genuinely experiencing such an episode in my office. She appeared to be angry. Her behaviour was inconsistent and there appeared to be a considerable element of exaggeration. She was clearly angry with Australia Post whom she believes have treated her poorly. She did not present as being depressed. She denied suicidal intent. There were no features suggestive of psychosis.”
At page 7 of her report Dr Walden stated:
“She also claims that she is experiencing panic attacks. I had the opportunity to observe her during what she considered to be a panic attack in my office at interview. She was clearly angry. Her behaviour was not consistent with a typical episode of panic or hyperventilation and there appeared to be an element of considerable exaggeration and abnormal illness behaviour. On the basis of the history obtained, it appears that Ms Phu has behaved in this manner when there has been conflict.
…
Overall, this suggests that Ms Phu has a poor capacity to resolve conflict which is likely an aspect of personality style. She is angry when her views are not shared by others and behaves in an inappropriate manner.
She is clearly angry and distressed by her interaction with Ms Nguyen and believes that she is not being treated appropriately. There is no evidence however that her perception is accurate. Furthermore, I do not consider that there is convincing evidence that her reaction is anything other than an exaggerated emotional response to circumstances she finds unpleasant as her perceptions are not being supported. I am not convinced that she is suffering from any psychiatric disorder at the present time. Rather, it would appear that she has limited capacity to resolve conflict and the situation regarding disputed work conditions has been inappropriately medicalised.”
24. Dr Walden concluded her report by stating that the Applicant did not suffer from any psychiatric illness.
25. The Applicant again attended Dr Walden on 15 August 2006 at the request of the Respondent’s solicitors. In her report of 21 August 2006 at page 6 Dr Walden makes the statement: “She spoke some English, but it was heavily accented and she tended to rely on the interpreter for all but very basic communications”. Unfortunately Dr Walden does not comment on the contrast between the Applicant’s apparent fluency in English, on her first consultation and her reliance upon an interpreter during the second consultation. This may be however no more than the Applicant being concerned to be specific although I note that during these proceedings the Applicant again relied very little upon the interpreter even when being cross-examined.
26. Commenting upon Dr Tran’s report Dr Walden stated:
“Dr Tran makes no comment that as he considers Ms Phu has an Adjustment Disorder, why he continues this diagnosis more than 12 months after Ms Phu has ceased work with the person whom she describes as being the source of her major conflict.”
and added:
“I note Ms Phu’s letter of complaint regarding Mr Bob Hogan, dated 8 February 2006. She stated ‘I believe that I was unfairly treated by Mr Hogan and was subject to official blackmail by him.’ I note that Ms Phu stated she had an anxiety attack in his rooms. (Comment: I wonder if what Ms Phu is describing is that she became very angry when she did not get her own way. This would be consistent with her behaviour in my initial interview. Whilst I can understand that Ms Phu was unhappy and angry that she was not being given the time off that she asked for, it does seem an exaggeration to describe this as ‘official blackmail’).”
27. Dr Walden concluded her report by stating:
“In response to your specific questions, I do not consider that Ms Phu suffers from ay psychiatric illness. I do consider that she is angry and unhappy about some aspects of her interaction with her employer, but I do not consider that she is ill. She has no psychiatric illness which precludes her from performing her usual duties as a mail officer. Her personality style and history indicates that she is likely to continue to behave inappropriately when others do not share her view and that poorly adaptive conflict resolution skills will continue to be apparent.”
28. Subsequent to her attendance upon Dr Walden the Applicant was referred for examination and report by the Respondent solicitors to Psychiatrist, Dr Champion.
29. During the course of the consultation with Dr Champion the Applicant again became emotional and started to take large deep breaths and then became hysterical. This led to the consultation being terminated. Of this episode Dr Champion commented:
“The display produced by Ms Phu and her sister was not consistent with psychiatric disorder but rather impressed as a tantrum on Ms Phu’s part which was exacerbated in well meaning but unhelpful fashion by her sister. I concluded on the basis of my experience of the examination of Ms Phu that she was a woman with strongly obsessional personality characteristics who had become focussed upon what she perceived to be unfair and unjust behaviour toward her in the workplace from her employers. The considerable anger and feeling of entitlement and injustice had been expressed directly and also in an indirect fashion. A common form of the indirect expression of anger is the adoption of what is termed Passive Aggressive Behaviour. In this form of behaviour which is motivated and voluntary, the individual claims to be injured as a way of gaining what they perceive to be justice. Passive Aggressive Behaviour is commonly adopted in workplace confrontations. It does not imply the presence of psychiatric disorder.”
30. Dr Champion concluded his report by opining that the Applicant did not suffer from any psychiatric disorder but did have personality difficulties stemming from the presence of strongly obsessional features in the personality structure. He added:
“The DSM-IV AXIS-II description does not of itself indicate psychiatric disorder but the tendency to develop perceptions of injustice in hierarchal situations in which they are elements of criticism. Maladaptive perceptions in this case have led to passive aggressive behaviour as a means of achieving what is perceived to be justice. None of this amounts to a diagnosable psychiatric disorder.”
31. Cross-examined Dr Champion agreed that person’s perceptions of reality may escalate a situation and that an adjustment disorder may be caused by a person’s behaviour and personality and situations which they themselves then create.
32. Neither Doctors Tran nor Westmore have observed the Applicant suffer apparent panic attacks. In cross-examination the Applicant stated that this was because she “felt protected” with Dr Tran.
33. I note that both panic attacks the Applicant apparently suffered at work arose out of situations where she was challenged. The first occurred when Ms Nguyen remonstrated with her about a perceived (albeit incorrect perception) failure to carry out her duties. The second such event was when she was denied a change of shift on the 26th of January in order to attend her husband’s Citizenship Ceremony. Further if Ms Nguyen has been removed from the immediate supervision of the Applicant it is, as pointed out by Dr Walden, difficult to ascertain why any adjustment disorder should continue more than 12 months after Ms Nguyen’s removal.
34. Given the reactions invoked by the Applicant when being examined by the Respondent‘s psychiatrists, and the events at the workplace when she decompensated to the stage she was transported to Concord Hospital, plus the evidence of Ms Wilkens, I am more persuaded by the opinions of Drs Walden and Champion. I am satisfied that what has occurred is that the Applicant when challenged has resorted to maladaptive behaviour but does not suffer from any psychiatric illness much less a work caused psychiatric illness.
35. Part of the Applicant’s perceptions of unfair treatment have arisen due to her being placed on light duties following a work caused injury to her back on 28 July 2004.
36. According to the Applicant on the 28th July 2004, she had turned away from a mail sorting machine to take up a tray of letters when the right handle of the tray broke and she was pulled down and her back bent forward in a rotating motion.
37. Following this incident she complained of pain and a facility nominated medical practitioner Dr Anton was called in. He rubbed a cream into her back and issued a certificate for restricted duties.
38. The Applicant did not immediately claim compensation. Her evidence was that she was afraid she would loose her job if she claimed compensation. Nevertheless she did make a claim on 13 October 2004.
39. An issue in assessing whether the Applicant’s current condition is work caused is whether her action following the breaking of the handle on the letter tray caused a twisting motion to her back.
40. Dr Lawford, Rheumatologist who was called by the Applicant obtained a history of a twisting of the Applicant’s torso following the breaking of the letter tray handle. Dr McGill did not obtain that history although Professor Sambrook’s history reads that she suddenly flexed forward and downwards to the left.
41. An Australia Post Incident Report apparently completed on the day of the accident contains the remarks: “Do not twist back face the direction you are working”. This corroborates the Applicant’s evidence that she had turned behind her to pick up the tray and was twisted forward and down when the handle broke.
42. A medical report by the Applicant’s General Practitioner, Dr Van Vinh Nguyen dated 17 January 2005 also refers to a twisting motion. Dr Nguyen also confirms the Applicant’s evidence that she had no prior history of back pain.
43. The Applicant was referred by her General Practitioner, Dr Nguyen to Orthopaedic Surgeon, Dr Woo. In a report to Dr Nguyen dated 11 February 2005 Dr Woo states:
“Her back pain is likely related to the accident on 28/7/04 and aggravated on 8/10/04. The early degenerative changes seen on MRI of lumbar spine on 18/1/05 are consistent to the usual wear and tear changes for people her age.”
44. At the request of her then solicitors the Applicant was examined by Professor Sambrook, Rheumatologist on 31 May 2007. He diagnosed intervertebral disc disease at L4/5 and L5/S1 with mild disc prolapse but no frank radiculopathy. He added:
“The episode described by Mrs Phu in her statement of 31st March 2007, includes an acute flexion and rotation of her lumbar spine, which may have led to a degree of disc damage in her lower spine. The natural history of this sort of problem is for it to resolve over time in most cases but of course in some cases this is not the case.”
45. Dr Lawford, Rheumatologist, was also of the opinion that a twisting/flexion movement of the lumbar spine injured the Applicant’s disc at L4/L5 and L5/S1, leading to chronic back pain.
46. Dr McGill, Rheumatologist, is of a contrary opinion. He examined the Applicant at the request of the Respondent’s solicitors. He opined that the Applicant had minor degenerative changes in her two lower lumbar discs not attributable to her employment. Her presentation and reported symptoms were out of proportion to the minor radiological abnormalities.
47. In evidence Dr McGill had access to a CT scan of the Applicant’s back taken in 2008 and was able to compare this to earlier imaging. He noted a minor disc bulge with facet joints normal for a lady of the Applicant’s age. In his opinion the changes shown by the imaging were consistent with age degeneration and not as a result of any work injury.
48. Orthopaedic Surgeon, Dr Maxwell disagreed with Dr Lawford stating that his opinion conflicted with all the available evidence. In Dr Maxwell’s opinion the disc bulges shown on imaging were not traumatic bulges but were long standing and degenerative. He did however state that tortion is commonly seen with disc injuries.
49. So far as the Applicant’s back is concerned her evidence that prior to 28 July 2004 she had never had any back pain was not challenged. There was an injury on 28 July 2004 and since that time the Applicant has complained of back pain. I see no reason not to accept her complaints of pain as genuine.
50. Professor Sambrook states that not all disc injuries of the type suffered by the Applicant resolve. Dr Lawford gives a credible explanation of the means of injury and its sequalea. To my mind Dr Lawford’s evidence best fits the sequence of events in this matter namely an undenied work injury followed by pain which was hitherto not present.
51. Even if I am wrong regarding Dr Lawford’s evidence as to the cause of the Applicant‘s pain, the fact remains that an asymptomatic condition was made symptomatic by the work injury on 28 July 2004. This is sufficient to vest liability in the Respondent in any event.
52. Furthermore I can see no reason to reject Dr Lawford’s opinion that further treatment should enable the Applicant to return to full duties.
53. The decision in matter N2006/1703 is set aside and the Tribunal substitutes its decision that the Applicant is presently entitled to compensation pursuant to section 16 and 19 of the SRC Act. The decision in matters N2005/1018 and N2007/983 are affirmed.
54. As the Applicant has been successful in matter N2006/1703 she is entitled to her costs in that matter. The question of those costs and the portion of the costs is a matter for the Registrar or Deputy Registrar taxing the Applicant’s Bill of Costs.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: [sgd] [sgd] .....................................................................................
Mwela Kapapa, AssociateDate/s of Hearing 20 – 23 May 2008
Date of Decision 16 June 2008
Advocate for the Applicant Mr C C Phu
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Forners Solicitors
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