Wilson and Australian Postal Corporation
[2000] AATA 670
•7 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 670
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V98/1020
GENERAL ADMINISTRATIVE DIVISION)
Re: MARIA WILSON
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal: Mrs H. E. Hallowes, Senior Member
Mr I.L.G. Campbell, mc, Member
Dr C. Re, Member
Date: 7 August 2000
Place: Melbourne
Decision:The reviewable decision dated 10 July 1998 is set aside. The determination dated 13 May 1998 is varied to now provide that the applicant is entitled to be paid compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of the aggravation of her ailments, bipolar disorder and depression, under subsection 4(1) of the Act, for the periods when she was incapacitated for work between 4 May 1998 and 31 October 1998 and in respect of her reasonable medical expenses during that period under section 16 of the Act.
From 1 November 1998, any aggravation of her ailments by her employment ceased, her employment no longer contributing to her ailments.
(sgd) H.E. Hallowes
Senior Member
COMPENSATION — bipolar disorder — whether contributed to in a material degree by employee's employment — whether suffered as a result of failure to obtain a promotion, transfer or benefit in connection with employment
Safety, Rehabilitation and Compensation Act 1988 ss.4, 14, 16
Australian Telecommunications Commission v Tzikar (1985) 5 AAR 173
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Westgate v Australian Communication Commission (1987) 14 ALD 367
REASONS FOR DECISION
7 August 2000 Mrs H.E Hallowes, Senior Member
Mr I.L.G. Campbell, mc, Member
Dr C. Re, Member
This is an application by Ms M. Wilson for review of a reviewable decision made on 10 July 1998, which affirmed a determination made on 13 May 1998, that there was no liability for the Australian Postal Corporation ("the APC") to pay compensation to her under section 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). A copy of the letter advising Ms Wilson of the decision was included amongst the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") which also included a copy of Ms Wilson's claim for compensation form, signed by her on 6 May 1998. On her claim form, Ms Wilson advised that her duties were to sort and deliver mail. She had been doing her current job for two and a half years. She was suffering severe migraines, stomach pains and vomiting. She reported pain in the heart area and numbness in her fingers. She first sought medical treatment for her illness on 4 May 1998. She had suffered a similar sort of illness in the past. Dr G. Belkin was her treating medical practitioner.
The letter dated 13 May 1998 advising Ms Wilson of the determination stated, amongst other things:
. . .
In order for compensation to be paid, it must be clearly established that your employment with Australia Post, that is, for the purpose for which you were employed, has materially contributed to your condition.
I would also like to advise you that liability does not lie with Australia Post:
when personal conflict has occurred
when the direct cause of that personal conflict is created by the employees themselves
when the stated cause of the conflict is outside the purpose of carrying out the duties of employment
where a disease, injury or aggravation suffered by an employee is a result of reasonable disciplinary action taken against the employee
where a disease, injury or aggravation suffered by the employee is the result of the employee failing to obtain a promotion, transfer or benefit in connection with his or her employment.
It is apparent from the statements of yourself and Mr Walsh that your condition arose as a result of your failure to obtain "my permanent full-time position at my 568 St. Kilda Road MDC" and therefore does not constitute an injury or illness under the Act.
. . .
The Tribunal had before it a considerable amount of further material lodged by both parties at the hearing. Ms Wilson represented herself. The respondent was represented by Ms A. McMahon, of counsel. The terms "disease" and "injury", which are relevant to this application for review, are defined under subsection 4(1) of the Act as follows:
4(1) In this Act, unless the contrary intention appears:
. . .
"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;
. . .
"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;
. . .
In lodging her application for review, Ms Wilson said that she was suffering from severe migraines, stomach pains, vomiting and anxiety attacks well before 4 May 1998. She contended that her medical conditions started at the beginning of 1996 due to her employment situation with the APC. She advised that her medical condition remained the same.
The documents disclosed that Ms Wilson was born on 18 November 1957. She had worked with the APC from July 1979 until late 1983 as a part-time "box-sorter" at the South Melbourne Post Office. In giving oral evidence to the Tribunal Ms Wilson said that between 1984 and 1994 she was employed in private industry which had been "fantastic". She described the work she did during that period. She lives with her son. She is separated from her husband who was also employed by the APC and who suffers from bipolar disorder. She described herself and her husband as both being "nervous wrecks" and said that they had both had nervous breakdowns which she attributes to their employment with the APC. In February 1995 she again joined the APC, first of all as a part-time box sorter and from October 1995, as a full-time senior postal delivery officer ("SPDO2 G2") on relief duties at St Kilda Road, Melbourne. Her duties included sorting and delivering mail and relief duties. She told the Tribunal that she returned to the APC because she wanted to "bury the past" and to have job security.
Ms Wilson described the buggies which were used by delivery officers at St Kilda Road. She said that on one occasion she had panicked when she had been unable to find a buggy to use during deliveries. It was her evidence that virtually no month went by without a buggy breaking down which, she said, placed the delivery officers under great stress. Other postal workers at St Kilda Road did not speak to her. She was laughed at. She was sworn at together with other employees. She was given little training. When she raised the issue of the help given to her in her position with her supervisor, Mr L. Walsh, he "did not want to know". Other employees were spoken to but the situation continued. She was given the worst delivery rounds to do. She said "I stressed myself". The St Kilda Road facility underwent changes in staffing structure in late 1997 when seven full-time delivery rounds were changed to part-time delivery rounds. In November 1997, Mr Walsh had "told her off". She went to consult Dr Belkin.
Dr Belkin has been treating Ms Wilson with anti-depressants on and off for 16 years. Towards the end of 1997, he referred her to Dr W. Orchard, psychiatrist. She had also consulted Dr J. Oldham, psychiatrist, but she did not take much time off work as she did not want to acknowledge that she was sick. She felt degraded. She had become frightened carrying out her delivery duties in traffic. She was paranoid about having an accident.
The documents include a letter from Ms Wilson to the area manager, APC, Mr S. Brown, dated 29 September 1997, in which Ms Wilson advised as follows:
. . .
As per your advise [sic] last Monday I am submitting my application to be granted a permanent full-time position as PDO 1 (on permanent full-time delivery round) at my work-place located at 568 St. Kilda Road, Melbourne, Vic.
. . .
Several months ago I spoke to my supervisor Leo Walsh in regard to my decision and at the time he said that he could not see any problem when a "round" became available.
Some two months ago I also spoke to you in regard to the same matter and as you can recall your response was the same.
As you are aware of the recent developments considering our Delivery Centre, if it takes place, I see it as a perfect opportunity to be granted my request.
. . .
By letter dated 23 January 1998, Ms Wilson also applied for a position in marketing and sales with APC. She told the Tribunal that in January 1998 all staff members at St Kilda Road were offered redundancy packages. The documents include a copy of a letter Ms Wilson sent to her union on 30 March 1998 in which she raised the difficulties for her in getting a position at St Kilda Road. She stated:
. . . Due to all these misfortunes my health is suffering great deal, I suffer from migraines, horrific stomach pains, dizziness, numbness in my limbs and head, vomiting, enormous amount of stress. . . .
She went on to say:
. . . I do understand that my position will be replaced with a part-time employee and I also agree to it since it is a part of the changes . . .
In a further letter to the union, dated 4 May 1998, Ms Wilson contended:
. . .
Last week on the 22nd April 1998 my supervisor Leo Walsh told me that I was granted full-time permanent position on round 13 starting within my office. The postman Jean Maree Vandenghagen who took the Package came to work for the last time on the 24th April, 1998. Leo Walsh told me I was going to take over this round as of Monday the 27th April, 1998. On this day when I came to work at 6.00 AM Leo Walsh told me that Chris (works at 568 St. Kilda Road MDC for at least six months as a casual basis on round 9 and now, I believe on part-time basis) changed his mind in regard to take on a Relieving position. For this reason I was not getting the job which was given to me last week and I was to remain doing my SPDO2 duties as usual. . . .
Ms Wilson said that on 28 April 1998 Mr Walsh had told her that her performance was unsatisfactory. When she found out that she had been placed on part-time round 13 she felt betrayed. A file note indicates that Ms Wilson left work on Tuesday, 28 April, after being advised that there was no permanent round for her and on 30 April she had advised that she could not cope and she went home. She agreed with Ms McMahon that she was "devastated" after being advised that there was no permanent round, but when Ms McMahon put to her that she sought medical treatment because of her devastation, she replied:
No. What I'm saying to you, that I went through hell from the very beginning and this was just tip of the iceberg for me to totally collapse and even then I kept on trying and trying, fruitlessly, being vindicated, silent treatment, treated like I was non existent, not even an air because air at least you can breathe. It's not just this. It's the whole combination of everything combined together so - - -
During May 1998, a rehabilitation Return To Work Plan was put into effect for Ms Wilson. It was noted that Ms Wilson had been diagnosed with "anxiety related to work with bipolar depression" by Dr Belkin. It was also noted that Ms Wilson agreed that, if she was offered a permanent full-time round at the St Kilda Road Delivery Centre, she felt she would be in a better position to cope or that, with training and supervision, she could perform administrative or clerical duties at another office in the area. Mr Walsh reported that he could not understand Ms Wilson's stress as she only worked four to five hours each day in any event and she had been offered rounds at other post offices and she refused them. Documents before the Tribunal confirm Mr Walsh's report with respect to the hours Ms Wilson worked.
In a letter dated 9 May 1998 to the area manager, Mr A. Dunphy, Ms Wilson noted that she was on sick leave on 29 April 1998 as a ". . . consequence of the latest events of me being granted the position and then the offer being withdrawn on the 27th April . . .". She advised she had asked for leave without pay for one week but it was not granted to her. She had attended Dr Belkin on 4 May 1998, who provided her with a medical certificate stating that she was unfit for work until 19 May 1998. A copy of that medical certificate was amongst the documents. By letter to Ms Wilson dated 22 May 1998, Mr Dunphy confirmed a conversation he had had with Ms Wilson on 6 May 1998 and he went on to ask that:
. . .
Please advise if you wish to take up the offer of a FT PDO position on a fixed round at another facility. If so I will endeavour to accommodate your request as soon as practical.
At this stage, and in the foreseeable future, it is not possible to appoint you to a FT round at St Kilda Rd MDC, but as stated above, it will be possible to accommodate your request at another facility.An APC memorandum dated 18 June 1998, from Mr Dunphy to Mr Walsh, amongst others, stated, amongst other things:
. . .
Mrs Wilson was recently (15 June) the subject of a Code of Conduct Inquiry. The subject of the inquiry was the [sic] she did absent herself from duty..compensation while undertaking other activities. While on Compensation leave in early May Mrs Wilson took part in a fashion parade where on televisions [sic] she stated that the work involved in creating her fashion "nearly ended her". Mr Dennis Rafferty the Inquiry Officer found that these other activities did take place while Mrs Wilson was on compensation leave but took place outside of her normal hrs of work and therefore that Mrs Wilson had no charge to answer. Mr Rafferty will be able to provide you with details and will provide the video in relation to this matter.
. . .
A video of the show in which Ms Wilson participated was placed before the Tribunal. The Tribunal notes that Ms Wilson was not on compensation leave at that time, as compensation had not been granted to her. The Tribunal further notes that no disciplinary action was taken.
Further medical certificates amongst the documents include one from Dr R. Towie, general practitioner, which states that Ms Wilson was unfit for any work between 1 June and 8 June 1998, but that she would be fit for alternative duties between 9 June and 29 June 1998. She was not to be involved in deliveries but she could undertake office duties. Dr Towie diagnosed stress, anxiety, depression and migraine. Ms Wilson had been referred to Dr J. Oldham, psychiatrist, by Dr Towie and she was prescribed xanox, lithium, sandomigran and aspro. A medical report by Dr Towie, dated 1 June 1998, advises that Ms Wilson had been suffering depression/anxiety for a few years for which she was taking medication and seeing a psychiatrist. In his opinion the cause of her problems were largely work-related. A further medical report from Dr Towie, dated 26 June, states that Ms Wilson should undertake no deliveries until 24 July 1998. A further medical certificate restricted Ms Wilson's duties between 20 August and 17 September 1998, although the Tribunal notes that that medical certificate had not been obtained until 3 September 1998. The Tribunal further notes that the records with respect to Ms Wilson's attendance disclose that, during the relevant period, Ms Wilson continued to undertake deliveries of mail.
Ms Wilson told the Tribunal that she has not returned to work since the end of 1998. She has seen her psychiatrist, Dr Orchard, approximately 20 times. She remains on medication for her psychiatric condition. She thinks that may be she is paranoid. She fears she has been spied on by the APC. She said that there have been too many coincidences in her life for this not to be so and she described incidences which she finds hard to explain and which she associates with her employment. In her view the APC has ruined her life.
When cross-examined by Ms McMahon, Ms Wilson said that she is no longer consulting Dr Belkin. Tensions have arisen between them. Dr Towie is now her general practitioner. Ms Wilson said it was not until May 1998 that she knew she needed specialist help and that she was very, very ill. She underwent a total collapse. She lost a lot of weight. Medical records before the Tribunal show that her weight had fluctuated for some years. Ms Wilson went on to say that she was frightened about going out on delivery rounds because she may be involved in an accident, although she conceded that she may have gone on a delivery round with another employee after 20 May 1998. The records suggest that she frequently undertook delivery rounds (see paragraph 12 above). She acknowledged that she had been interviewed on television at the Fringe Fashion Festival. She said that fashion was an escape for her. She had been frightened to talk in front of Mr Walsh. She was shocked when she did not get the position that she thought had been offered to her. She had separated from her husband in June 1998. She was not aware of any offers of employment made to her between 26 June and 7 December 1998. She did not open any letters which came from the APC because it was "pointless", or, when she did open letters from the APC, it was too late for her to apply for positions described therein. She was aware that she had been offered a position at the APC's East St Kilda facility, but when she attended there nobody knew about her position and in her opinion "they were trying to get rid of me". She was called a "bitch" and told to "fuck off".
Both Ms Wilson's daughter and her sister gave oral evidence on Ms Wilson's behalf. They supported Ms Wilson's evidence that she was unhappy. Her daughter thought that her mother had started to act strangely and that she became depressed when working at the APC. Her mother became worried about their safety. Ms Wilson's sister described her as a shadow of her former self. They had worked together in business in the years between Ms Wilson's two periods of employment with the APC. Ms Wilson's sister said that Ms Wilson no longer answers the telephone. Ms Wilson's husband is sick with bipolar depression and since his illness it has affected her sister's life however her sister became ill before separating from her husband. In her opinion her sister became insecure when she failed to get the job she was seeking at the APC. A friend of Ms Wilson's also gave oral evidence and told the Tribunal that Ms Wilson was a very different person from how she had originally been. It appeared to her that Ms Wilson has been depressed for the last few years. She used to be happy. She is now suicidal and paranoid.
Dr Belkin was Ms Wilson's general practitioner for 15 years. He first treated her on 5 October 1984. Dr Belkin provided written reports for the Tribunal, as well as giving oral evidence. On 27 October 1998 he reported that for the last two years Ms Wilson had presented with symptoms suggestive of anxiety and depression which her history suggested were caused by conflict at her workplace. In a further report two days later, Dr Belkin noted that Ms Wilson had reported migraine headaches on 11 June 1996, which she said had been present for about 14 months, since she commenced work with the APC. She also reported anxiety attacks when working outdoors.
Dr Belkin gave oral evidence by telephone. He had commenced Ms Wilson on mild anti-depressant medication in 1987. In 1996 she had spoken to him about conflicts at work and he linked the development of her headaches to her work situation. In 1996 Ms Wilson mentioned harassment at work to him and in 1998 her symptoms had worsened significantly. He had provided Ms Wilson with a medical certificate in May 1998 as she was depressed and it appeared to him to be due to the stress of conflict at work. He relied on the history Ms Wilson provided to him in drawing that conclusion. He did not record all her problems at work in his clinical notes as he thought they would be temporary and should resolve. He noted Ms Wilson had suffered Graves disease as a teenager. Her overactive thyroid had been operated on and in 1997 her thyroid was no longer overactive. Lithium treatment had caused temporary hypothyroidism. He referred Ms Wilson to Dr Orchard in late 1987. Dr Orchard diagnosed bipolar disorder, a condition with mood swings, the sufferer becoming hypo-manic or hyper-manic. In his opinion Ms Wilson's depression was under reasonable control between 1984 and 1995 but then her health began to deteriorate.
The Tribunal arranged for Dr Orchard to give evidence by telephone. The Tribunal had before it copies of letters he had sent to Dr Belkin on 18 November 1997, 24 November 1997 and 21 April 1999, together with a report dated 4 May 1999, addressed To Whom It May Concern, and a further letter to Ms Wilson's area manager at the APC, dated 18 November 1997. In oral evidence to the Tribunal Dr Orchard said that Ms Wilson lacked insight into her psychiatric problems, relating them all to persecution by the APC. He had not seen her between November 1997 and April 1999 but he has treated her regularly since then. Her bipolar illness was responding to lithium and epilim. Since the recent addition of the anti-psychotic medication, risperdal, Ms Wilson's condition has improved significantly. He agreed that Ms Wilson has a degree of paranoid thinking. However, the consistency of her story of psychological abuse at the APC during both periods of her employment has led him to believe that something must have happened during her employment which contributed to her disease. In his opinion she is a hypersensitive person who is likely to have negative interaction with supervisors and colleagues who may unwittingly provoke a psychological reaction because of her personality. There is a strong genetic predisposition to bipolar illness, which something in the environment may trigger. Although Graves disease may present as a psychiatric condition, this is not the situation with Ms Wilson. In Dr Orchard's opinion Ms Wilson's hypersensitivity and paranoid style of thinking, exacerbated by years of excessive xanox use which tends to accumulate in the brain, may have led to dis-inhibition over the years, which in turn affects her interaction with colleagues and supervisors. Paranoid attitudes are a regular feature of bipolar illness. There is a possibility that, if the events at the APC described by Ms Wilson were not corroborated, they may be more her perception rather than reality.
Ms McMahon provided the Tribunal with a report by Mr T. Chong, psychiatrist, dated 25 January 1999. Dr Chong diagnosed a depressive illness, paranoia and underlying personality disorder. In his opinion Ms Wilson's psychiatric condition was due, in part, to employment factors, "the main contribution" being her failure to obtain a permanent full-time position. She was unfit for work. The Tribunal was also provided with a report from a forensic psychologist, Mr T. Watson-Munro, dated 1 September 1999. He expressed the opinion:
. . .
5. If the alleged harassment is proven, then it is arguable that a degree of her depression and anxiety is clearly attributable to her employment. The nature of her condition in certain instances can be precipitated by stress, but more usually tends to occur in any event. This would tend to weaken the nexus between her employment and the development of her condition. Certainly, the other features of her presentation, however, appear to be work-related, particularly in relation to her anxiety; her perseverity [sic] thinking regarding the way that she was allegedly mistreated; and her ongoing poor self-esteem.
. . .Mr Dunphy was called by the respondent. He is the area manager for the Central Delivery Network. He gave evidence that he first became involved with Ms Wilson in late April or early May 1998 when he was responsible for the St Kilda Road Delivery Centre where Ms Wilson was employed. Ms Wilson had come to see him as she wanted to be placed on a full-time round at St Kilda Road. She was then doing relief work. He described the nature of the work undertaken at the St Kilda Road Delivery Centre and said that it was not cost effective to pay staff full time as they were able to complete their duties by 1 o'clock or 2 o'clock in the afternoon. This is borne out by the documents before the Tribunal. Voluntary redundancy packages or voluntary transfers were offered and positions converted to part-time. He was familiar with what had occurred on 27 April 1998 when another employee decided that he did not want to undertake relief duties and that he wanted to remain on his full-time round. This was the round Ms Wilson had understood she would have the opportunity to be placed in. While sympathetic to Ms Wilson's position when she came to see him, he did not have a full-time position for her at St Kilda Road. There were positions in Prahran and also at St Kilda, and it was his memory that she was offered work at the South Melbourne Delivery Centre. He had written to her to this effect on 22 May 1998. Ms Wilson indicated to him that she was not really interested in accepting work other than at St Kilda Road, as other Delivery Centres were either too far away from where she lived or there were people working there who she did not want to work with as she had had negative experiences with them when first employed by the APC. He had written to Ms Wilson on 21 October 1998, suggesting a further position for her (exh 2). Ms Wilson was then under work restrictions due to her medical certificates. As noted above, attendance record books disclose that, between 9 June 1998 and 17 September 1998, she did do delivery work.
Mr Dunphy received a telephone call from Ms Wilson's supervisor at the St Kilda East Post Office when Ms Wilson attended there on one day in October 1998. He was told that Ms Wilson had attended for work but she had taken more than one and a half hours to complete work which most people could do in 15 minutes. Mr Dunphy recalled that Mr Walsh had advised him Ms Wilson's work performance was not acceptable. He had authorised Ms Wilson to sit an aptitude test to assess her competency and capability for retail work. Mr Dunphy confirmed that, following Ms Wilson's contention that she had been sworn at, an investigation was undertaken and the officer concerned was given a warning counselling, which satisfies the Tribunal that Ms Wilson's evidence that language used by a supervisor was inappropriate was correct. Mr Dunphy denied Ms Wilson's suggestion that, as she had claimed compensation, she was demoted from full-time hours to part-time hours. The evidence supports Mr Dunphy's response and it is clear from the evidence that the Delivery Centre where Ms Wilson carried out her duties was undergoing restructure at the relevant time with officers being offered redundancies or part-time positions or transfer to another APC facility. The Tribunal is satisfied from the discussion which ensued between Ms Wilson and Mr Dunphy that, during the second half of 1998 when Ms Wilson carried out some duties for the APC, she was paid at an hourly rate, the balance of her pay being made up from her sick leave entitlements. There were insufficient duties for her to undertake indoors to make up her full-time hours.
At the conclusion of the evidence it was agreed that Ms Wilson and Ms McMahon would make submissions in writing. In lodging her written submission with the Tribunal Ms Wilson referred to matters she had not raised in giving oral evidence to the Tribunal and the Tribunal is unable to take those matters into account in determining the issue before it. She did, however, raise the language used to address her at the APC and the way in which she was approached by her supervisor with respect to any errors she made in the course of her carrying out her duties which, in her opinion, was different to the way other officers were approached and which has led her to contend that she was victimised and intimidated.
The Tribunal accepts Ms McMahon's submission that Ms Wilson suffers from a bipolar disorder with features of paranoia and severe mood swings. This finding is supported by both Dr Belkin's and Dr Orchard's evidence; that evidence also supports a finding that Ms Wilson suffers depression. The Tribunal is satisfied that Ms Wilson's ailments are longstanding. They were not caused by her employment by the APC. Relying on the evidence of Dr Orchard, the Tribunal finds that bipolar illness has a strong genetic element and it becomes manifest when there is stress. Ms Wilson is hypersensitive and she has paranoid thinking. The Tribunal finds that during the relevant period Ms Wilson experienced other problems in her life, which probably contributed to the deterioration in her health during 1998 as reported by Dr Belkin.
The next issue for the Tribunal to determine is whether the ailments suffered by Ms Wilson were aggravated in a material degree by her employment with the APC. When the Act speaks of employment as a contributing factor, it refers, not to the fact of being employed, but to what the employee does in his or her employment. The contributing factor must be either some event or occurrence in the course of the employment or some characteristic of the work performed, or the condition in which it is performed (see Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, at p.641).
The Tribunal finds that Ms Wilson suffered an aggravation of her bipolar disorder in May 1998 which was contributed to in a material degree by her employment when Dr Belkin provided her with medical certificates. His evidence and the clinical notes of Dr Towie point to an accumulation of stresses at work which continued to affect Ms Wilson in the second half of 1998 during which time her condition deteriorated to such an extent that she did not even bother to open her mail and by 1999 she was certified by Dr Towie as totally incapacitated for work. The Tribunal is not dissuaded from this finding by the fact that Ms Wilson was able to be involved in a quite different activity for the Fringe Fashion Festival. That involvement appears to have taken place during one short burst of activity by Ms Wilson. It does not point to her being fit for work in an environment in which the Tribunal finds she was exposed to abusive language, ostracised and had difficulty in obtaining a buggy to carry out her deliveries. Much of Ms Wilson's response to what occurred arose out of her underlying illness but the Tribunal is satisfied that she has given an accurate account of her work environment as she perceived it. Ms McMahon noted that Ms Wilson did not call evidence from any fellow employees to corroborate her evidence and to substantiate her allegations. Nor did the respondent, although Mr Dunphy was called to give evidence. The Tribunal recognises the difficulty for an unrepresented applicant in persuading work colleagues to come and give evidence before the Tribunal about their experiences. If the Tribunal had had concerns about finding facts in this matter, it would have called further evidence itself.
In coming to its decision, the Tribunal has also considered what was said by Davies J in Westgate v Australian Communication Commission (1987) 14 ALD 367, at p.373, where his Honour said:
. . . Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease.
. . .
In this application the Tribunal is satisfied that Ms Wilson's employment materially contributed to the aggravation of her disease. In Westgate Davies J also referred to the decision of the Full Federal Court in Australian Telecommunications Commission v Tzikar (1985) 5 AAR 173 where the Court considered the matter under earlier compensation legislation. At page 195 of the report in Tzikar, Sweeney and Woodward JJ said:
. . . In our opinion, the resentment of a sick mind, directed towards former conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s 29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier.
. . .
And further Smithers J said, at p.372:
. . .
If by his finding that the four specified sequelae played a part in the respondent's mental illness the Tribunal meant no more than that in the course of the respondent's natural illness the mind noted the situations described in the sequelae and, according to its naturally impaired mental process, developed a desire that the situation in items two and three should continue indefinitely or a desire to punish Telecom for the situations described in items one and four, then it could not be said that any of the sequelae were factors which contributed to cause an aggravation of the natural illness. They constituted a reason for action by the impaired mind but did not cause it. . . . If the Tribunal meant that the sequelae aggravated the respondent's neurosis and that her mental condition was by reason of the sequelae made worse than it otherwise would have been, that conclusion must have been reached by the adoption of some such notion as that the specified sequelae caused the respondent's mind to develop a desire to maintain her illness so that the benefits described in items two and three of the sequelae would be perpetuated and the dissatisfaction described in items one and four of the sequelae would be vindicated and to implement these desires by some conscious or subconscious mental process whereby the existing neurosis was aggravated.
Shortly after being certified as incapacitated for work by Dr Belkin in May 1998, Ms Wilson began to consult Dr Towie. From 9 June 1998, Dr Towie restricted Ms Wilson to office duties only. The Tribunal is satisfied that the APC tried to provide rehabilitation for Ms Wilson from May 1998 onwards. It was during the attempts by the APC to place Ms Wilson at another facility that she suffered a further verbal assault. To an employee without bipolar disorder, the language used by other employees may not have been confronting but Ms Wilson's underlying bipolar disorder and depression made her vulnerable to those slights and threats.
The Tribunal accepts Ms McMahon's contention that Ms Wilson's failure to obtain a position in administration or retail played a role in the deterioration of her medical condition and the Tribunal finds that when she learnt that she was not to be offered the full-time position she anticipated obtaining in April 1998 it had a considerable impact on her ailments. However this failure by Ms Wilson to obtain the position she sought is not sufficient for her condition to be excluded from the definition of "disease" under the Act.
The Tribunal observes that, despite Dr Towie's medical certificates, it appears from the records that Ms Wilson continued to undertake delivery rounds on most of those days she attended at work, the final record of attendance being dated 17 September 1998. The Tribunal also notes the deterioration in her health. However, allowing her time to recover from the incident which occurred on or about 27 October 1998, the Tribunal is satisfied that, once she was no longer at the scene where the aggravation of her ailments occurred, it was her underlying condition which took over and incapacitated her for work. It is her sick mind which suggests to her that the APC continues to contribute to her incapacity. The APC is however now no more than an inert factor on which her mind focuses its attention.
The Tribunal is satisfied that Ms Wilson is entitled to be compensated for those periods of time during which she was incapacitated for work due to her bipolar disorder and depression between 4 May 1998 and 31 October 1998 but from 1 November 1998 her employment no longer contributed to her disease.
It is for these reasons that the Tribunal will set aside the reviewable decision and vary the determination dated 13 May 1998.
I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
Mr I.L.G. Campbell, mc, Member
Dr C. Re, Member(sgd) Catherine Thomas
Personal AssistantDates of Hearing: 11.02.00 and 04.05.00
Date of Decision: 07.08.00
Solicitor for the Applicant: IN PERSON
Counsel for the Respondent: Ms A. McMahon
Solicitor for the Respondent: Australian Government Solicitor
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