Sutcliffe and Australian Postal Corporation
[2006] AATA 1023
•30 November 2006
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DECISION AND REASONS FOR DECISION [2006] AATA 1023
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos N2004/212, N2005/714, N2005/808, and N2005/1156
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | DALE SUTCLIFFE | ||
Applicant
| And | AUSTRALIAN POSTAL CORPORATION |
Respondent
DECISION
| Tribunal | MS N BELL, Senior Member DR J CAMPBELL, Member |
Date 30 November 2006
Place Sydney
| Decision | 1. The reviewable decision dated 3 February 2004, the subject of application number N2004/212, is set aside and instead the Tribunal decides: i. As at 28 August 2003 to date, Australia Post is not liable to pay compensation to Mr Sutcliffe under sections 19 and 24 of the Safety, Rehabilitation and Compensation Act 1988. ii. As at 11 September 2003 to date, Australia Post is not liable to pay compensation to Mr Sutcliffe under section 16 of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal makes no order as to the costs of Application N2004/212. 2. The reviewable decision dated 17 May 2005, the subject of application number N2005/714, is affirmed. 3. The reviewable decision dated 12 June 2005, the subject of application number N2005/808, is affirmed. 4. The reviewable decision dated 5 September 2005, the subject of application number N2005/1156, is affirmed. |
....................[Sgd]...................
Senior Member Ms N Bell
COMPENSATION – Is there a Back Condition – Was the Back Condition Caused by the Work Place – What Psychiatric Condition Exists – Was the Psychiatric Condition Caused or Aggravated by the Work Place - Mild Degeneration of the Lumber Spine – Variable Degree of Sensory Alteration – Non Physical Causes of Symptoms - Borderline Personality Disorder with Adjustment Disorder – Moderate to Severe Depression
REASONS FOR DECISION
| MS N BELL, Senior Member DR J CAMPBELL, Member |
Mr Sutcliffe commenced work with Australia Post in 1989 and has spent most of his time there as a Postal Delivery Officer. He has had a number of injuries over the last 17 years but his four applications to the Tribunal concern injuries to his back and a psychiatric injury. In particular, Mr Sutcliffe contends he injured his back on 10 January 2000 when he bent to lock a bike shed and again on 5 May 2000 when he was delivering mail on his bike. He also contends that the nature of his work, and particularly being required to ride a motorbike, caused an injury to his back. Australia Post, although it initially accepted liability for lower back strain, contends it has no present liability to pay compensation for incapacity, medical expenses or permanent impairment in relation to Mr Sutcliffe’s back. In particular, Australia Post says Mr Sutcliffe has a degenerative lumbar spine condition not related to or made worse by his employment.
As to his contended psychiatric injury, Mr Sutcliffe says he was harassed and verbally abused by colleagues. Australia Post denied liability for a psychiatric injury and any work related psychiatric permanent impairment. It contends that Mr Sutcliffe suffers from borderline personality disorder and that any distress or other symptoms experienced by Mr Sutcliffe are simply a manifestation of that condition.
issues
In this context, and from the four applications made by Mr Sutcliffe, the following issues arise:
§ What back condition does Mr Sutcliffe suffer from?
§ Whether that back condition was caused or aggravated by incidents at or the nature and conditions of Mr Sutcliffe’s work.
§ What psychiatric condition does Mr Sutcliffe suffer from?
§ Whether that psychiatric condition was caused or aggravated by Mr Sutcliffe’s work.
what back condition does mr sutcliffe suffer from?
Mr Sutcliffe said he relies on painkillers most days and “collapses in a heap” at the end of the day. He said he takes eight to 16 Mersyndol Night Strength per day and, when the pain is particularly bad, will take Panadeine Forte. He said he can no longer ride his motor bike, garden, do panel beating, go camping, or bushwalk and cannot lie on his back in bed. He said lifting, kneeling, holding, and bending all cause pain. However, he did describe doing some limited panel beating, welding and motor vehicle repairs. He said he suffers constant pain and cramping in his lower back and legs.
Dr Selby Brown, Consultant Orthopaedic Surgeon, in his reports and his oral evidence, described Mr Sutcliffe’s back condition as mild degeneration of the lumbar spine. He was unaware of some of the information that had emerged in Mr Sutcliffe’s evidence, including his welding, panel beating and motor vehicle repair activities. He was also unaware of a large number of other incidents at work that Mr Sutcliffe had been involved in before and after the bending incident in the bike shed. Nor was he aware that Mr Sutcliffe had claimed continuing back pain following a motor vehicle accident in 1985. He referred to these as “significant inconsistencies”. Dr Selby Brown agreed he relied on Mr Sutcliffe’s co-operation in his physical examination. He also agreed that the “variable degree of sensory alteration” he found on examination, and a similar sensory response found by another specialist physician, the details of which were put to him, indicated the need for investigation into possible non physical causes of Mr Sutcliffe’s symptoms. He said other causes could be psychological or he could be feigning.
Dr McGill, Rheumatologist, diagnosed Mr Sutcliffe’s back condition as mild degenerative lumbar changes. He noted Mr Sutcliffe had told him he suffered no back problems from his motor cycle accident in 1985 and Dr McGill did not know that he complained of back pain one year later in his Statement of Injuries and Disabilities filed with the District Court in a common law claim. He said this indicated a pattern of back pain after the 1985 accident. Dr McGill found no chronic radiculopathy on examination and he described the tests he administered to determine that. He found, after that testing, that Mr Sutcliffe had embellished.
Dr Maxwell, Orthopaedic Surgeon, in his reports and in oral evidence said Mr Sutcliffe had a mild degenerative condition of his lumbar spine, with longstanding minor disc bulging at L 4-5. He found Mr Sutcliffe’s restriction of movement at examination to be inconsistent with his pathology - for example, his exaggerated response to very light palpitation. He said there was no logical explanation for it.
The expert medical evidence is unanimous in the opinion that Mr Sutcliffe suffers from a mild degenerative lumbar spine condition and we find accordingly.
whether mr sutcliffe’s back condition was caused or aggravated by work
Mr Sutcliffe stated unequivocally that he had never had any problem with his back or any psychiatric problem until he worked for Australia Post. He worked on various postal delivery runs, initially on a pushbike and then later on a motor bike, then on foot and currently does only mail sorting. While doing motor bike runs Mr Sutcliffe had a number of incidents involving dogs or collisions.
He said two incidents in particular affected his back. In January 2000 he was locking up a bike shed after putting away his bike, bent over to lock the shed and found he could not straighten. He reported this incident. He said he went home and was “in tears” for days, unable to straighten up and had pain across his lower back. However, the sick leave records relevant to the period indicate that he took only one day off, eight days after the incident and then a few hours off for his back thereafter. We note that a Rehabilitation Case Closure Summary shows that after some light duties Mr Sutcliffe resumed normal duties on 15 February 2000 and, after being monitored for four weeks, reported that he had no difficulties with normal duties. The sick leave records show Mr Sutcliffe took no further time off for his back in 2000 and no time off for his back in 2001.
On another occasion, also while working at Pennant Hills, Mr Sutcliffe twisted, while balancing the motor bike, to reach his satchel and felt a sharp pain in his lower back. He could not recall whether he had reported this incident. He said he returned to the post office and the pain was so bad he had to lie down on the floor.
He also described the very rough terrain he had to ride on, with few foot paths and lots of tree roots and potholes which, he said, aggravated his back.
In addition, he described a motor bike accident four or five years ago, when he was travelling back to Beecroft post office from an appointment with an Australia Post appointed doctor. He said this aggravated his back as well.
In cross examination, Mr Sutcliffe described a motor vehicle accident he had had in 1985 which rendered him unconscious for six to eight hours and in which he was hit, while on a motor bike, by a car and propelled into the path of an oncoming truck. He said he could not recall whether he complained of back pain, but the admission notes of Blacktown Hospital show he complained of back pain and, when he pursued the compensation in the District Court, the Statement of Injuries and Disabilities filed with the Court shows he sought compensation for a back injury. He did not work again for more than 18 months.
The clinical notes of Dr Napper, treating Psychiatrist, show no record of mention by Mr Sutcliffe of back pain until 3 March 2000 when he mentioned having seen a chiropractor and had a good result. We note that Mr Sutcliffe had seen Dr Napper on at least two occasions in January 2000 and there is no record of any problem or incident concerning his back at that time. Indeed there is no mention of Mr Sutcliffe’s back in Dr Napper’s clinical notes again until January and February 2002. No further mention is made until Dr Napper provided a certificate on 3 October 2003 to the effect that Mr Sutcliffe is to work only three hours per shift, not lift more than three kilograms, and not use a motor bike. There is, of course, no suggestion that Dr Napper was treating Mr Sutcliffe for his back. On 2 June 2005, in response to a request from Mr Sutcliffe’s solicitors, Dr Napper diagnosed chronic pain syndrome or pain disorder with symptoms of depression. He considered Mr Sutcliffe had acute sensory pain and neuropathic pain. When asked how he arrived at this conclusion he said it was from his observations of Mr Sutcliffe being in severe pain in his rooms and considered it was consistent with the history Mr Sutcliffe had given him.
We also note that, when Mr Sutcliffe saw Dr Pryba of Davidson Trehear, on 30 April 2002, following an incident concerning “threats” made by him in the workplace, he told Dr Pryba that he was not experiencing any pain.
Dr Selby Brown’s evidence, after cross examination and consideration of the additional matters outlined above in paragraph five above was that there may be a non physical cause of the pain reported by Mr Sutcliffe. He said it is common for aggravations of back conditions to never completely “work themselves through”. However, he agreed that he would be largely dependent on Mr Sutcliffe’s reports to him to assess whether an aggravation had ceased or whether it continued.
The evidence of Dr McGill was that Mr Sutcliffe’s minor degenerative changes in his lumbar spine are within the common range for people his age. He considered that his obesity contributed to his lumbar pain and that the combination of those changes and Mr Sutcliffe’s obesity make him prone to fluctuating pain whether he is undertaking work activities or not. He referred to riding a motorcycle with a full load, doing a walking delivery beat and working at a V sort frame and concluded that all of these activities could increase Mr Sutcliffe‘s pain but added that his pain would also be increased if he were to sit at home. He considered that activity, including his normal delivery duties, would not produce a change in his lumbar spine pathology and said that pain on exacerbation generally settles more quickly if activities are continued. Dr McGill said rest is no longer considered to be the best treatment for exacerbation of pain from activity and said that any exacerbation or aggravation caused by any of the above activities would not extend into the next day.
Dr Maxwell said Mr Sutcliffe’s obesity and very poor tone were contributing to his episodes of back pain. He said the changes shown on a CT scan in 2004 were typical of mild degeneration in a man of Mr Sutcliffe’s age. An MRI scan in the same year showed mild degeneration at L 4-5 and a small annular tear which Dr Maxwell said is a common finding in 40 to 50 year olds and not indicative of trauma. He said the disc bulging, evident from the MRI, showed that the disc did not protrude significantly beyond the posterior border of the vertebral body and that indicated the changes were longstanding ones.
Dr Maxwell’s evidence was that the course of Mr Sutcliffe’s bike shed incident and consequent attendances on doctors and restrictions at work were typical of an inflammation of the facet joint which causes some acute back pain which resolves in four to six weeks. Dr Maxwell said it appeared from that course of events that Mr Sutcliffe made a full recovery from that incident and the absence of any significant residual pathology confirms that there is no prolonged disability or impairment. He said that if a person has a degenerative condition, as Mr Sutcliffe does, certain activities can cause some exacerbation of pain or discomfort from time to time. He said this is particularly so if a person does not build abdominal strength and does not lose weight.
Given the expert medical evidence before us, together with Mr Sutcliffe’s evidence, we do not consider Mr Sutcliffe’s back condition to have been caused by his employment. Nor do we find his condition was aggravated by his employment. In this respect we are mindful of the expert medical evidence of Drs McGill and Maxwell that any exacerbation would settle quickly and may, in any event, be due to non work events. In relation to the effect of the general nature of Mr Sutcliffe’s work, including riding a motor bike, we accept the evidence of Dr McGill that, while a brief exacerbation of pain may sometimes occur, it would resolve quickly and have no more effect on the underlying condition than would engaging in no activity. We also note the evidence of Dr Selby Brown that an assessment that an aggravation continued would depend on acceptance of Mr Sutcliffe’s description of his symptoms and their course. We note the inconsistencies between the histories given by Mr Sutcliffe to various examining doctors and the absence of time taken off work and records of complaints of pain to treating doctors during the periods of alleged aggravation. There is no medical evidence of any worsening of Mr Sutcliffe’s underlying degenerative lumbar spine condition.
We conclude, therefore, that Mr Sutcliffe’s back condition was not caused or aggravated by his employment. It follows that Australia Post has no present liability to pay compensation for incapacity, medical expenses or permanent impairment to Mr Sutcliffe in respect of his back condition.
what psychiatric condition does mr sutcliffe suffer from?
Mr Sutcliffe gave evidence of a very disturbed childhood which included physical abuse by his father, sexual abuse and estrangement from his parents from early adolescence until very recently. He also described the suicide of an uncle (distantly related) and the attempted suicide of his brother. In addition he described the conflict he had with his sister, which led to his conviction for assaulting her and her 6 week old child. He remains estranged from his sister. He also described the pressures that arose out of his former relationship of some 15 years with a woman who had been sexually assaulted and claimed victims compensation and from whom he had separated. In addition, he noted his current relationship with a woman who has been diagnosed as mentally ill and with whom he has become involved in a very heated neighbourhood dispute.
Dr Napper’s diagnosis of Mr Sutcliffe was initially, in 1998, major depressive disorder of some six weeks standing. This condition resolved with anti-depressants and, by 2001 Dr Napper diagnosed an “attenuated form of” bipolar disorder or borderline personality disorder. He now considers Mr Sutcliffe suffers from pain disorder associated with symptoms of depression and from a “short limited adjustment reaction to adverse events at work” although when questioned he said the adjustment reaction was not a formal diagnosis. There were inconsistencies in Dr Napper’s evidence. For example, when, in cross examination, he was taken through the diagnostic criteria of borderline personality disorder, he denied that Mr Sutcliffe had ever met those criteria. This directly contradicted his earlier diagnosis of borderline personality disorder, in his letter of 5 September 2001 to Dr Rust, General Practitioner.
Dr Napper appeared to have firm views about Mr Sutcliffe’s back condition. On the basis of the history given to him by Mr Sutcliffe of pain in his back and down his leg which never went away and was sometimes exacerbated, he concluded that Mr Sutcliffe had neuropathic pain. He said it was clearly not psychological pain. He said a pain disorder has to start with a medical condition. He said he observed Mr Sutcliffe in severe pain in his rooms that was consistent with the history he gave him.
Dr Morse saw Mr Sutcliffe on two occasions in February and March 2005, seven weeks apart. The history given to Dr Morse by Mr Sutcliffe and set out in his report of 4 February 2005 was limited in the main to detailing his physical condition and the treatment of him by Australia Post in relation to that condition. Dr Morse said Mr Sutcliffe’s focus at that interview was on his physical condition. Dr Morse diagnosed adjustment disorder with mild depression after the first interview. At the second interview Mr Sutcliffe gave Dr Morse a history that included details of verbal harassment by staff at Australia Post. Dr Morse considered Mr Sutcliffe to present as more depressed and distressed and to have given a history of more difficult experiences and so after that interview he diagnosed adjustment disorder with moderate to severe depression.
In cross examination, Dr Morse was advised of the range of childhood, adolescent and adult experiences set out in paragraph 23 above that he had no knowledge of previously. Dr Morse had not been provided with any of Dr Napper’s reports. He said Mr Sutcliffe had told him of a normal childhood with no traumas and of getting on well with his parents.
Dr Morse agreed that, if Mr Sutcliffe had made little mention of difficulties with his workplace to Dr Napper for the first three and a half years but focussed on his domestic circumstances and issues, then it could be concluded that his workplace was not of great concern to him. However, he said that would depend on the relationship between workplace problems and domestic problems.
Finally, Dr Morse said that after all the additional information he had been advised of at the hearing, the most likely diagnosis would be borderline personality disorder, although he noted Mr Sutcliffe’s long term relationship and his long term employment as indications against this. He agreed that this condition may make him misperceive reality and make him prone to perceptions of persecution. He noted, however, that it is possible, and in fact common, to have borderline personality disorder with adjustment disorder and moderate to severe depression.
Dr Roldan, Psychologist, after interviewing Mr Sutcliffe in August 2005 and reading all reports available at that time, diagnosed borderline personality disorder or personality disorder not otherwise specified. Dr Roldan explained the main features of borderline personality disorder which include an idiosyncratic perception of the world including perceptions of threat or rejection by others, involving the person in disputes with others and leading to crisis points. Other features include suicidal gestures to attract attention or manipulate, chronic feelings of emptiness, intense anger and paranoid ideation. Dr Roldan found all of these features in Mr Sutcliffe. He referred to his early history and found that history to be supportive of the diagnosis.
Dr Roldan also said it is typical of a person with borderline personality disorder to indulge in self serving attributions, blaming others at every opportunity. He did not consider Mr Sutcliffe’s 15 year relationship stood in the way of the diagnosis because, from Dr Napper’s notes, the relationship appeared to be chaotic and unstable and possibly one where the pathological needs of Mr Sutcliffe’s partner, who may have had her own difficulties, were met by Mr Sutcliffe’s particular demands in the relationship. He also noted the existence of a great number of stressors in Mr Sutcliffe’s life including his estrangement from his family, his partner’s victims’ compensation case concerning her sexual abuse and considered that, with the paucity of mention of work in Dr Napper’s notes, this is inconsistent with Mr Sutcliffe’s workplace being a significant stressor.
Dr Roldan explained the results of the Minnesota Multiphasic Personality Inventory that he had administered to Mr Sutcliffe. The results of that test show an exaggerated response and strongly indicate symptom over reporting. Similarly the Pain Disability Index test shows that Mr Sutcliffe scored himself as more disabled by pain than a person who is an inpatient in a Pain Clinic.
On the basis of the expert medical evidence of Dr Morse, the treating diagnosis made by Dr Napper in 2001 and the assessment made by Dr Rolden, we find Mr Sutcliffe suffers from borderline personality disorder.
whether mr sutcliffe’s psychiatric condition was caused or aggravated by work.
Mr Sutcliffe described a long history of harassment at work that included name calling, taunting, verbal abuse and threats. Particular incidents he described were when, on the death of a friend, he was accused of lying about it and when he became upset, was badgered by his Manager; when, after he commenced to receive treatment from Dr Napper, he was taunted about this; having his partner referred to as a “bike moll” and, on one occasion, having his lunch sprayed with disinfectant.
Mr Sutcliffe confirmed that, on one occasion, following a discussion about a mass shooting in the US, he said words to the effect of “It’s a wonder I haven’t shot someone yet, the way I’ve been treated by management”. He was suspended immediately for one week and referred to counselling. On another occasion he became involved in a violent exchange with another worker, after having broken wind close to him, and was similarly referred.
Mr Paul Gledhill, Operations Manager at Dural Postal Delivery Centre said he first met Mr Sutcliffe in June 2002 when Mr Sutcliffe was transferred to Dural and Mr Gledhill was Team Leader there. He said he had frequent contact with Mr Sutcliffe and had never heard Mr Sutcliffe being called names or being teased or harassed. He said that, had he heard of such things, he would have acted on it because harassment and bullying is not condoned by Australia Post. Mr Gledhill did, however, recall an incident when a Team Leader reported to him that Mr Sutcliffe had broken wind near another staff member. He said he spoke to Mr Sutcliffe about this and asked him to move away when this happened. He described Mr Sutcliffe as generally compliant and a good worker. He described the various beats Mr Sutcliffe had been given while at Dural and the accommodations that had been made for him, with the result that he is now doing no deliveries and only working on the V sort frame.
Mr Paul Johnson, Delivery Manager, now at Terrigal Delivery Centre, was Mr Sutcliffe’s manager at Pennant Hills and Beecroft delivery centres. He described his relationship with Mr Sutcliffe as a good one. He said Mr Sutcliffe never complained to him about harassment and he never heard him being harassed or called names. In relation to the “shooting comment” incident he said he was told of the comment by a team leader and, according to Australia Post policy following violent events in the US, he had no option but to inform the Area Manager who then took control of the matter.
Mr Johnson described Mr Sutcliffe as a productive worker who behaved in a friendly manner to him.
Dr Roldan considered that Mr Sutcliffe’s workplace serves as just another venue for the display of Borderline Personality Disorder characteristics. He considered that his work has not aggravated his condition but is just the same as other aspects of Mr Sutcliffe’s life. He agreed that borderline personality disorder can exist with depressive episodes and with adjustment disorder but that any such disorders would be temporary. In any event Dr Roldan did not consider that Mr Sutcliffe had an adjustment disorder. He considered that Mr Sutcliffe’s attributions of blame to the workplace are just that and do not amount to causation.
We also note the evidence of Dr Napper and the contents of his clinical notes that show a substantial history given by Mr Sutcliffe about his domestic concerns but very little in relation to his work situation. In addition, we note the evidence of Dr Morse to the effect that, with borderline personality disorder, Mr Sutcliffe would be prone to perceptions of persecution.
On the basis of this evidence, we conclude that Mr Sutcliffe’s borderline personality disorder was neither caused nor aggravated by his employment. It follows that Australia Post is not liable to compensate Mr Sutcliffe for incapacity, medical expenses or permanent impairment to Mr Sutcliffe in respect of his psychiatric condition.
costs
We note that Australia Post’s decision in respect of its general liability for Mr Sutcliffe’s back condition offends the principle in Australian Postal Commission v Oudyn [2003] FCA 318. This is acknowledged by Australia Post and as early as 13 May it notified Mr Sutcliffe’s representatives that it did not intend to defend its decision in that respect. Mr Foster for Mr Sutcliffe indicated there is no issue as to costs in respect of that decision which must, as Australia Post concedes, be set aside.
decision
The reviewable decision dated 3 February 2004, the subject of application number N2004/212, is set aside and instead the Tribunal decides:
i.As at 28 August 2003 to date, Australia Post is not liable to pay compensation to Mr Sutcliffe under sections 19 and 24 of the Safety, Rehabilitation and Compensation Act 1988.
ii.As at 11 September 2003 to date, Australia Post is not liable to pay compensation to Mr Sutcliffe under section 16 of the Safety, Rehabilitation and Compensation Act 1988.
The Tribunal makes no order as to the costs of Application N2004/212.
The reviewable decision dated 17 May 2005, the subject of application number N2005/714, is affirmed.
The reviewable decision dated 12 June 2005, the subject of application number N2005/808, is affirmed.
The reviewable decision dated 5 September 2005, the subject of application number N2005/1156, is affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Senior Member and DR J CAMPBELL, Member
Signed ............ [ Sanjiv Shah]…………
Associate
Dates of Hearing 22 – 26 May 2006, 6 October 2006
Date of Decision 30 November 2006
Counsel for the Applicant Mr Geoffrey Foster
Solicitor for the Applicant Ms Lin Vay
Counsel for the Respondent Mr Paul Jones
Solicitor for the Respondent Mr Cameron Hutchins
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