Tulloch and Australia Postal Corporation

[2005] AATA 731

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 731

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/381

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JAMES ROSS TULLOCH

Applicant

And AUSTRALIA POSTAL CORPORATION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date1 August 2005

PlaceBrisbane

Decision The Tribunal affirms the decision to reject a claim by James Ross Tulloch   for compensation.

.................SIGNED.............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

COMPENSATION – no acceptable diagnosis of depression – no compensable injury – decision affirmed

Safety Rehabilitation and Compensation Act (1988) ss4, 14  

REASONS FOR DECISION

1 August 2005 Deputy President Don Muller        

1.      This is an application by James Ross Tulloch (the Applicant) for review of a decision made by an officer of Australia Postal Corporation (the Respondent) on 15 December 2003 and affirmed by a reconsideration delegate on 23 March 2004 to deny liability for the Applicant’s claim of “mental disorder ie severe depression).

2.      At the hearing on 13 December 2004 Mr. Tulloch appeared on his own behalf and the Respondent was represented by Mr. C. Clark of Counsel who was instructed by Sparke Helmore Lawyers

3.      The Tribunal had before it the following documentary evidence:

Exhibit 1 – T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

Exhibit 2 – Statement by Robyn Stevens dated 24 November 2004

Exhibit 3 – Statement by Mark Wilson, undated.

Exhibit 4 – Hazard Report

Exhibit 5 – Safety Brief by J. Perry

Exhibit 6 – Noise information

Exhibit 7 – Statement by Les Daly dated November 2004

Exhibit 8 – Statement by Bevan Long dated 29 November 2004

Exhibit 9 – Sound level measurements

4.      Oral evidence was also heard from Mr. Tulloch and from Mr. Bevan Long, the Facility Manager.

5.      The issue for the Tribunal to decide in this matter is whether Mr. Tulloch suffers from a medical condition as claimed and if so, whether it was caused or materially contributed to by his employment.

BACKGROUND

6.      Mr. Tulloch is an employee of Australia Post and works as a night sorter in the Cairns Mail Facility.  He was born on 17 March 1948 and was 56 at the date of hearing.  He continues to be employed by Australia Post.

7.      The background to Mr. Tulloch’s claim is as follows.  The night sorting group, of which Mr. Tulloch was a part, had worked for some time at the Cairns Mail Delivery Centre until the group was transferred to the Cairns Mail Centre itself.  Once working at the Mail Centre, Mr. Tulloch became concerned about the noise of gates of Unit Loading Devices (ULDs) being raised and dropped close to where he was working.  Mr. Tulloch claims that the Mail Delivery Centre was a quiet environment, whereas the Mail Centre proper was a significantly noisier working environment for the mail sorters.

8.      The source of the offending noise was the noise from gates of ULDs which were opened, mail or parcels were dropped into them, and the gates were then dropped again.  Robyn Stevens, another night sorter, described the noise, in her statement dated 24 November 2004, as similar to “if you could imagine a car backfiring near you”.  Mr. Tulloch said that the background noise is not a problem but the “impact noise” of the ULD gates dropping was his concern.

9.      After Mr. Tulloch made his concerns known, tests were undertaken to determine if the noise level was harmful.  The decibel reading of the noise indicated that it was not harmful.  Staff at the mail centre were also briefed about the issue and told to ensure that the gates were lowered instead of dropped.  Mr. Tulloch felt that even after this, staff were deliberately dropping the gates of the ULDs and that the managers were not acting on the situation.  More comprehensive tests of the noise levels were done and the result was again that the noise levels were not sufficient to cause harm to hearing.

10.     Mr. Tulloch made a claim for compensation for “stress” on 19 May 2003 which was denied by a determination made on 30 May 2003 by a delegate of the Respondent, who determined that the stress suffered by Mr. Tulloch had been the result of certain disciplinary action that had been taken against Mr. Tulloch, in a matter unrelated to this claim.

11.     Mr. Tulloch then made a claim for a “mental disorder ie severe depression”  on 24 November 2003.  On the claim form, Mr. Tulloch stated that the reasons for his condition was because he was “sitting at the letter sorting frame working adjacent to me (3 metres away) another person opening ULD gates opened latches and deliberately dropped the gates causing metal to metal impact noise”.  Liability for Mr. Tulloch’s alleged condition was denied by a delegate of the Respondent on 15 December 2003.  The decision was based on the finding that the evidence did not suggest that Mr. Tulloch had a medical condition, rather, that the problem was that he was frustrated with his work situation.  The Respondent did not consider that Mr. Tulloch had an “injury”  within the meaning of that term in sub-section 14(1) of the Safety Rehabilitation and Compensation Act (1988).  A reconsiderations delegate affirmed the decision on 23 March 2004.

12.     Mr. Tulloch consulted Dr. A. Turner and obtained an undated medical certificate which said that Mr. Tulloch would be unfit for normal work for the period between 19 November 2003 to 5 December 2003, but did not describe Mr. Tulloch’s condition.  Mr. Tulloch was directed to see Dr. M. McAuliffe whose report of 11 December 2003 states:

“I believe that the problem is largely an industrial and not a medical problem.  The only medical component is that this man is emotionally upset, with some features of Depression but mainly features of unresolved anger.  I have told him that he is fit to return to work tonight and to use earplugs if necessary.  An Audiogram was not done, as this would measure hearing loss, as against normal hearing.   Neither of these are related, in any way, to the sensitivity to noise.  That is a personality trait.

I have little to offer from a medical point of view  There is an impasse in which Ross Tulloch becomes intolerant with noise at work.  Measures have been taken to reduce the noise, but it still occurs at times.  Any further action must be industrial and not medical.”

13.     Mr. Tulloch obtained a further medical report from Dr. Turner dated 12 January 2004 which states that:

“I have no doubt that he is depressed as a direct result from his workplace situation with respect to the noise exposure and the apparent inability of Australia Post to rectify the problem.”

14.     Dr. Turner gave oral evidence before the Tribunal.   The main points of his evidence were:

·He first saw Mr. Tulloch on 20 November 2003.

·He believes that Mr. Tulloch was depressed about the noise situation at his place of work.

·He agrees with Dr. McAuliffe’s report.

·He did not prescribe antidepressants, nor any other medication, for Mr. Tulloch.

15.     Dr. McAuliffe advised Mr. Tulloch to see a psychiatrist, Dr. Robert Scott, but Mr. Tulloch did not do so because he had seen Dr. Scott in relation to his earlier claim and had been disappointed at Dr. Scott’s attitude towards him.  Dr. Scott did not diagnose Mr. Tulloch as having any mental disorder.

16.     The Respondent contends that Mr. Tulloch does not suffer, nor has he ever suffered from, a diagnosed mental disease or injury arising out of, sustained in or materially contributed to by his employment with Australia Post.

LEGISLATIVE FRAMEWORK

17.     Section 14 of the Safety Rehabilitation and Compensation Act (1988) sets out the circumstances in which the Respondent is liable to pay compensation and provides as follows:

“14 Compensation for injuries

(1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.

18.     The definitions of “injury” and “disease” are contained in section 4.

“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 reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

Disease means:

(a)       any ailment suffered by an employee;  or

(b)       the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”.

CONSIDERATION

19.     Mr. Tulloch has not been seen by a specialist psychiatrist in relation to this claim.  There is no acceptable diagnosis of a mental injury to Mr. Tulloch, in the material placed before the Tribunal.

20.     It is clear that Mr. Tulloch has been extremely annoyed and frustrated by the careless attitude of his co-workers when they have crashed the gates on the ULDs.  He has apparently been depressed by the prospect of continuing in the unpleasant environment.  However, his problems do not amount to a mental injury, nor a mental disease.

21.     The two doctors who have reported on Mr. Tulloch for the purpose of this review agree that Mr. Tulloch’s anger, frustration and depression do not amount to a medical condition.  The solution to his problems lie in the industrial arena.

22.     Neither of the two doctors who saw Mr. Tulloch prescribed any medication for him.

23.     I am satisfied that Mr. Tulloch does not suffer from a mental injury, nor from a mental disease, nor any other injury or disease arising out of, or in the course of, his employment with Australia Post.  That is, he does not suffer from an “injury” and is not entitled to compensation.

24.     The decision under review is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................

B. Hitchcock, Personal Asst

Date/s of Hearing  13 December 2004        
Date of Decision  1 August 2005
Applicant   Mr. Tulloch, himself
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent       Sparke Helmore Lawyers