Zoric and Australian Postal Corporation - [2005] AATA 592

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 592

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/29‑30

Nº V2003/231‑232

GENERAL ADMINISTRATIVE DIVISION Nº V2003/847 and V2003/1158

Re: DAVID ZORIC

Applicant

And: AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member

Date: 21 June 2005

Place: Melbourne

Decision:The Tribunal affirms the decisions under review.

(sgd) B.H. Pascoe
Senior Member

COMPENSATION – strained left shoulder – plantar fasciitis – work stress – whether capable of working full hours – whether suffered work stress – whether psychiatric condition a result of reasonable disciplinary action-

Safety, Rehabilitation and Compensation Act 1988

Comcare v Chenhall (1992) 37 FCR 75

Re Rizkallah and Australian Postal Corporation (1991) 23 ALD 517

Re Scalzo and Australian Postal Corporation (1991) 24 ALD 83

REASONS FOR DECISION

21 June 2005 Mr B.H. Pascoe, Senior Member

In this matter there were six applications to review decisions of the respondent relating to claims for compensation. Four of the decisions involved a refusal to accept liability for incapacity from 9 September 2002 in relation to an alleged work‑related strained shoulder. One decision denied liability in respect of a claim for "work stress". The final decision denied liability for incapacity payments from 12 July 2002 in relation to bilateral plantar fasciitis.
At the hearing, the applicant, Mr D. Zoric, was represented by Mr S. McCredie of counsel. The respondent, Australian Postal Corporation, was represented by Mr A. Moulds of counsel. It should be noted that the hearing took over one year to complete. The applications for review were made in 2003, and a hearing was scheduled to commence on 27 January 2004. On that day, the applicant sought an adjournment in order to obtain a further medical opinion in relation to the most recent reviewable decision. Although opposed by the respondent, the Tribunal adjourned the hearing. At a hearing rescheduled for 2 August 2004, Mr McCredie was not available and Mr J. Gaffney of counsel, on behalf of the applicant, requested a further adjournment on the grounds that his instructing solicitor had not received the complete file from the law firm previously acting for the applicant. After a period of private discussion between the parties, the hearing was adjourned to the next day, 3 August. As the hearing could not be completed, a further three days were listed, from 13 to 15 December 2004. On 13 December 2004, again, Mr McCredie was said to be unavailable and neither he nor Mr Zoric was in attendance. After a refusal to further adjourn the hearing and a warning of possible dismissal of the applications, the applicant and his counsel arrived at the Tribunal, but the hearing could not be commenced before 1:45 p.m. Again, the hearing was not completed within the scheduled time and a further day on 18 January 2005 was listed. At the conclusion on that day the parties were directed to provide written submissions, the last of which was received by the Tribunal on 23 February 2005.
The chronology of the events leading to these applications was:
(a)1984 — Mr Zoric commenced work with Australia Post.
(b)1999 — transferred to Dandenong Letter Centre.
(c)2 November 1999 — Mr Zoric lodged a claim for Strained Left Shoulder allegedly injured on 29 October 1999.
(d)9 February 2000 — Determination made accepting liability for strained left shoulder and Mr Zoric working full hours on restricted duties.
(e)12 July 2002 — Mr Zoric lodged a claim for left and right plantar fasciitis said to have been aggravated on that day.
(f)2 September 2002 — Determination made accepting liability for l & r plantar fasciitis.
(g)17 September 2002 — Determination made that Mr Zoric was able to work full hours from 9 to 16 September 2002.
(h)23 September 2002 — Mr Zoric lodged a claim for work stress said to have been suffered on 9 September 2002.
(i)4 October 2002 — Determination made that Mr Zoric was able to work full hours from 17 to 20 September 2002.
(j)7 November 2002 — Determination made that the respondent was not liable to pay compensation for work stress.
(k)19 November 2002 — Determination made that Mr Zoric was able to work full hours from 21 September 2002.
(l)29 May 2003 — Determination made that the respondent was no longer liable to make further payments of compensation in relation to strained left shoulder from 30 May 2003.
(m)22 July 2003 — Determination made that Mr Zoric was able to work full‑time on restricted duties in relation to plantar fasciitis on and from 12 July 2002.

The determinations under (g) and (i) to (m) above were all affirmed on review and it is those six reviewable decisions which are the subject of these applications.

Mr Zoric was born in Croatia in 1960 and migrated to Australia in 1971. He said that he commenced working for Australia Post in 1984 at the Clayton South Mail Centre. That Centre had a gymnasium and in approximately 1993, he was trying to give up smoking cigarettes and thought that becoming fit would assist. He acknowledged that working out in the gymnasium became a passion. When he was transferred to Dandenong in 1999, Mr Zoric joined an external gymnasium. He said that he could be described as a "gym junkie", attending the gymnasium on at least two occasions each week and, in some weeks, on five occasions. He said that he used all of the equipment available at the gymnasium.
Mr Zoric said that, on 29 October 1999, he was tipping bags of mail on to the Toshiba belt after lifting them from a cage. The bags were not marked for weight, but they could have been up to 40kg or over. He felt a sharp pain deep inside his left shoulder which, he said, did not abate. He saw the facility nominated doctor, Dr Schmerling, and his own general practitioner, Dr Lim; and he was referred to a physiotherapist. He continued working, although took some months off as annual or long service leave. He returned to full‑time work in February or March 2000 on restricted duties. Mr Zoric maintained that he had problems frequently with supervisors and managers who did not like his restricted duties and asked him to perform duties outside those restrictions. In particular, he mentioned Mr Aiello, the area co‑ordinator; Mr D'Cruz, a team leader; Mr Batella, an acting team leader; and Mr McShane, the production co‑ordinator. He said that he had ongoing difficulties with his left shoulder and difficulty in sleeping. He was given specific exercises to assist him in moving his shoulder by the physiotherapist. Mr Zoric said that, while he continued attending the gymnasium, he avoided exercises which caused pain in his shoulder.
Mr Zoric thought that his problems with plantar fasciitis started in the mid‑1990s and assumed it was the result of standing for long hours on a concrete floor. He believed that it was in May or June 2002 that he had severe pain in both heels and saw a facility nominated doctor who diagnosed plantar fasciitis and prescribed Voltaren which proved effective. He acknowledged that he had not consulted any medical practitioner in relation to his feet prior to June 2002.
Medical certificates were issued by Dr Lim through to 16 February 2001 in relation to Mr Zoric's left shoulder strain with restriction on repetitive use of the left shoulder for more than 30 minutes at a time, 3 times a day. By letter dated 20 February 2001, Dr Lim said that "As he is no longer receiving physiotherapy, I am quite prepared to discharge him back to normal duties". Mr Zoric said that he handed all medical certificates to the rehabilitation officer, although several were not able to be found on his file. Mr Zoric maintained that he was not aware that Dr Lim had stated that he had "made a good recovery". Apparently, because Dr Lim was reluctant to issue any further certificates, Mr Zoric became a patient of Dr Lane. Mr Zoric acknowledged that he had refused to sign any of the many rehabilitation programs designed to return him to full working hours. He did accept that, by 2002, he was not suffering any significant left shoulder problems.
Mr Zoric disputed a complaint by Mr McShane regarding an alleged excessive time taken on a toilet break by use of a toilet further away than necessary and being absent for over 20 minutes. He could not recall the criticism of being away for an extended period, nor the use of a less conveniently located toilet.
A major part of the evidence and Mr Zoric's claim related to events of 6 September 2002. Mr Zoric said that he was instructed by Mr Aiella to go to Area 3 to work. As Mr Zoric considered that such instruction should come only from his team leader and he believed that most tasks in Area 3 were outside his physical restrictions, he did not go. Mr Aiello then instructed him to go to the office of Mr McShane, who told him to go to another area to work. Mr Zoric said that there was no available work in that area so he returned to his original place. He said that he was working on additional two hours overtime until 11:30 p.m. He said that, at 10:30 p.m., he went to make a telephone call to check on his ill father on the understanding that he had ongoing permission to make such calls during working hours. He was waiting for a telephone to become vacant when Mr Osborne, the production co‑ordinator of the night shift came past, accused him of watching television, which was in the same area, and instructed him to work on the Toshiba machine. Mr Zoric said there was little work available but, at one stage, wrongly handling a box, he had a recurrence of left shoulder pain. He said that, at 11:25 p.m., Mr Osborne instructed him to go to Mr Osborne's office for a warning counselling for watching television during working hours. Mr Zoric said that no union representative was present and, at 11:30 p.m., he told Mr Osborne that he was leaving to go home. The next day, Mr Zoric saw Dr Lane who provided a medical certificate of incapacity. He said that in subsequent discussions with the rehabilitation officer, it was suggested that he make a claim for stress. He then lodged such a claim with an incident report relating to the aggravation of the shoulder injury. He was off work for two weeks.
Mr Zoric returned to work on 21 September 2002 for two hours per day in seated duties, increasing to four hours per day from 11 December and five hours per day from 10 July 2003. He maintains that he is unable to work more than the five hours per day as a consequence of his feet problems and his stress condition. In December 2002 he was referred by Dr Lane to Dr Hogan, a psychiatrist, and he still attends Dr Hogan for counselling every two months.
Many instances of complaints against Mr Zoric and need for counselling from 1984 were put to Mr Zoric in cross‑examination. These complaints related to his attitude to work, absence from his position, non‑compliance with directions and harassment of female staff. Mr Zoric maintained that he was not aware of many of the complaints retained on his personnel file and believed he had maintained a good relationship with other staff. He believed that some complaints were part of a campaign to silence him regarding an inquiry into corruption at the South East Mail Centre. He said that he had lodged two complaints in February 2000 and June 2001 regarding being harassed, but nothing had resulted from them. He said that he was annoyed at not being offered extra hours work during the preceding Christmas period on the same basis as other staff. Whilst he may not have been prepared or able to perform the additional hours, he regarded it as a matter of principle and discrimination.
Mr Howarth was called on behalf of Mr Zoric to give evidence, but that evidence was of little value to the Tribunal. Mr Howarth worked with Mr Zoric for a part of day and had observed him having discussions or arguments with supervisors, particularly Mr McShane. However, he was not aware of the subject of any of these arguments or their outcome.
Mr D. McShane has been a production co‑ordinator at the Dandenong Letter Centre since 1998 and worked afternoon shift from 2 p.m. to 10 p.m. in 2001 and 2002. He thought that it was in August 2002 that he noticed Mr Zoric was missing from his work station. He paged Mr Zoric to come to his office. He said that Mr Zoric came from a direction opposite to that from which he had expected and said that he had been to the toilet. Although Mr McShane accepted the explanation, he was not fully satisfied and wondered why he would have gone to a toilet furthest away from his work station, particularly if his feet were a problem. Mr McShane said that he was well aware of the work restrictions of Mr Zoric for some time prior. He said that there had been several occasions when he had needed to reprimand Mr Zoric for excessive talking, not being in the area in which he was meant to be and not working. He felt that Mr Zoric was not performing as much work as he was able to do. Mr McShane said that in the afternoon of 6 September 2002, Mr Aiello asked him to assist with a problem with Mr Zoric who would not move to an area when requested. He called Mr Zoric to his office to discuss the problem. Mr Zoric said that he did not need a witness as "who will I get around here". He said that Mr Zoric denied refusing instructions and said that he could not be asked to work with "those people – they don't like me". Mr McShane said that he adjourned the discussions for further enquiries in view of Mr Zoric's denial.
Mr McShane said that, after the discussions, Mr Zoric requested overtime on that day, which was granted. Later that evening, Mr McShane was passing through the break‑out area and noticed Mr Zoric watching television. He instructed Mr Zoric to return to work. Shortly after, Mr Osborne called Mr McShane and asked if any of the day shift on overtime were having a break, because he had noticed a day shift employee in the break‑out area. Mr McShane said that he looked around the corner and saw Mr Zoric seated speaking with Mr Osborne. He said that Mr Osborne then called him to say that he intended to conduct a warning counselling with Mr Zoric. Mr McShane strongly denied the allegations of harassment made by Mr Zoric in a letter of complaint dated 9 September 2002 and which were dismissed after a full enquiry.
Mr F. Aiello has been the area co‑ordinator since 2001. He said that, prior to the 2:45 p.m. tea break, he instructed the team of which Mr Zoric was a member, to work in area 3 after the break. At approximately 3:03 p.m. he was giving instructions to the team leader and was informed that Mr Zoric was missing and would not accept instructions. Mr Aiello said that he looked for Mr Zoric until 4:13 p.m., when he made an announcement over the public address system requesting Mr Zoric to report to area 3. Minutes later Mr Zoric appeared and proceeded to sit down at the VSF machine. Mr Aiello reminded Mr Zoric of the direction and the public address request and again instructed him to go to area 3. Some minutes later he noted that Mr Zoric was not in area 3 and returned to the VSF to again request Mr Zoric to move. At 3:30 p.m. Mr Aiello spoke to Mr McShane who, at 3:45 p.m., requested Mr Zoric to come to Mr McShane's office. Mr Aiello said that he attended for a brief time to hear Mr Zoric deny disobeying the directions, accused them of conspiracy and to refuse attendance of a witness. Mr Aiello was firm that he was well aware of Mr Zoric's work restrictions and had not ever asked him to perform tasks outside his rehabilitation program. Mr Aiello also strongly denied Mr Zoric's allegations of harassment.
Mr Osborne is the production co‑ordinator of the night shift at Dandenong Letter Centre. He said that he knows of Mr Zoric, but they worked on different shifts and he was not aware of any work restrictions for Mr Zoric. Mr Osborne said that, at 10:20 p.m. on 6 September 2002, he passed the break out area on his way to commence work and noticed Mr Zoric watching television. He spoke to Mr McShane to check whether his overtime shift staff were on a break. He then approached Mr Zoric who agreed that he was not on a break but made no mention of waiting for the telephone. Mr Osborne said that he told Mr McShane of his meeting with Mr Zoric and Mr McShane advised that he had counselled Mr Zoric previously that same day. Mr Osborne said that he felt further counselling was warranted and called Mr Zoric to his office. He said that Mr Zoric was abusive and left his office within approximately five minutes. He denied that Mr Zoric had said that he had permission to use the telephone and waiting for it to be free.
Mr F. Alegre was the shift production manager at Dandenong Letter Centre from January 2000 to September 2004. He said that he was aware of the work restrictions of Mr Zoric. He said that permission is given to the employees for the use of the telephone in working hours for urgent calls and this was obtained normally from the team leader and co‑ordinated with the supervisor. It was not policy to give a general approval for ongoing use of the telephone with permission being required for each individual occasion.
Mr A. De Cruz was a team leader of which Mr Zoric was a member in January and February 2001. He was aware of Mr Zoric's rehabilitation program and work restrictions. He was firm that he had never requested Mr Zoric to perform duties outside the restrictions nor harassed Mr Zoric. He said that Mr Zoric was reluctant to be part of the team and wanted to work independently. Mr De Cruz said that he had often spoken to Mr Zoric about him being missing from assigned tasks.
Mr Butler has been the human resources manager at Dandenong Letter Centre since January 2001. He was responsible for investigating Mr Zoric's complaint by letter dated 9 September 2002, alleging personal humiliation, bullying and harassment by Mr McShane, Mr Aiello and Mr Osborne. The three member enquiry team, chaired by Mr Butler, made the following findings in a formal report dated 6 November 2002:
qThere is no proof that Mr Zoric has been harassed or bullied by management representatives.
qThere is no open ended approval for Mr Zoric to use the telephone during working hours and there is no reason why he could not have telephoned his father during his break.
qMr Zoric was watching television at times that he was supposed to be working on overtime and he was spoken to on two separate occasions about this on the night of 6 September 2002.
qTelephone records indicate that no‑one was using the telephone in the period 10.15pm-10.40pm on 6 September 2002 and Mr Zorics claim that the reason as to why he was in the break out area waiting to use the telephone was false.
qIt is reasonable for a manager to enquire as to why anyone would go to a toilet further away than necessary.
qOn 6 September Mr Zoric refused a reasonable instruction to work in an area after it was noticed that he had been absent from an area that he was required to be working in.
qIt is reasonable for a manager to question what Mr Zoric was doing when:
tIt was apparent that he was not performing any function and he was absent from his work area after he made it known that he cannot work with the acting Team Leader and elects not to attend team meetings or toolbox talks that are scheduled in work time.
qThe offer of using a tape recorder was based on Mr Zoric questioning the imbalance of the meeting with Mr McShane and Mr Aiello even after he was offered an opportunity to have an observer present. As Mr Zoric did not agree to the use of a tape recorder it was not used and therefore Mr McShane's actions were appropriate.
qIn the meeting with Mr Osborne on 6 September 2002 it is probable that Mr Zoric said to him that he "talked a lot of shit, he was full of shit" and that he "could say what he liked as there were no witnesses".
qIt is reasonable for a manager to tell Mr Zoric to stop wasting his time when Mr Zoric admitted to the investigation that he has personality clashes with managers, speaks his mind and argues back.
It is our view that as he has elected not to be part of a team and clashed with a number of managers besides those named in his complaint that has contributed to managers questioning him as to what work he was performing.
We are satisfied that there were breaches of the Code of Ethics on 6 September 2002 and that Warning Counsellings were warranted. Mr Zoric should be sent separate advice of the details of the Warning Counselling and the specific breaches of the code of Ethics. The Production Manager, Mick Doyle, should conduct the Warning Counselling.

Dr J. Lim is a general practitioner who first saw Mr Zoric regarding his left shoulder on 1 November 1999. He said that Mr Zoric attributed his sore left shoulder to lifting heavy bags at work on 28 October 1999; said that he did not wish to claim compensation, but wanted a certificate for modified duties avoiding lifting. In a report of 23 August 2000, Dr Lim diagnosed the injury as strained soft tissues of the left shoulder consistent with lifting heavy objects. He considered the condition was temporary and there was no specific reason why the condition had not fully resolved. Dr Lim provided a further report on 20 February 2001 in which he noted that Mr Zoric had made a good recovery from his left shoulder strain" and "as he is no longer receiving physiotherapy, I am quite prepared to discharge him back to normal duties". He observed that Mr Zoric was
…afraid that if he is declared fit for normal duties, he will be required to…do the heavier duties, because as he states, he is a well built male in a predominantly female workplace.

Dr Lim provided certificates for the period 16 November 2000 to 16 February 2001, certifying Mr Zoric fit for full‑time modified duties with no repetitive use of the left shoulder for more than half an hour at a time, three times per day. He assumed that Mr Zoric had not handed in such certificates as he did not agree with them. Dr Lim did not see Mr Zoric after March 2001.

Dr Lane is a general practitioner who first saw Mr Zoric on 10 March 2001 with complaints of a sore shoulder from an injury in October 1999. Dr Lane provided certificates for restricted duties. He suggested an ultra sound investigation of the shoulder, but Mr Zoric did not want to undergo such an examination. On 9 September 2002 he saw Mr Zoric with a complaint of "flare up shoulder pain". On 20 September 2002, Mr Zoric complained of work stress difficulties. Dr Lane provided certificates, stating that Mr Zoric was unfit for any duties from 9 September 2002 through to 10 September 2003 apart from the period 25 November to 2 December 2002 when he certified Mr Zoric fit for restricted duties. These certificates attributed the unfitness for work as "left shoulder injury and plantar fasciitis both feet" with some certificates including "work stress". Dr Lane referred Mr Zoric to a psychiatrist, Dr Hogan, in December 2002. Dr Lane left the practice in August 2003 and did not see Mr Zoric thereafter.
Dr V. Jeuniewic is a general practitioner who succeeded Dr Lane in the management of Mr Zoric from September 2003. He continued the issue of certificates stating that Mr Zoric was unfit for any duties and said that he was following the precedents of Dr Lane. Dr Jeuniewic said that he did not treat Mr Zoric for shoulder or stress problems with plantar fasciitis as the only condition complained of. From January 2004, Dr Jeuniewic certified Mr Zoric as fit for four hours per day with restrictions on standing or walking. This was increased to five hours per day from 14 July 2004 and accepted the view of Mr Zoric that he was unable to work beyond those hours because of foot pain. Dr Jeuniewic acknowledged that he had not conducted any objective examination of the feet and had relied solely on the history provided by Mr Zoric.
Dr S. Soliman is a facility nominated doctor of Australia Post. He examined Mr Zoric on 10 November 2003 to assess suitable duties as a result of plantar fasciitis. He then believed that Mr Zoric was capable of full‑time work but, in view of the fact that he had been off work for a year, accepted that full‑time duties could commence in three weeks. He said that Mr Zoric agreed with this assessment at the time. Dr Soliman said that a further examination on 3 April 2004 confirmed his view that Mr Zoric could work full‑time. He said that, although there was some localised tenderness, there was no clinical evidence of pain on walking.
Mr I. Jones is an orthopaedic surgeon who examined Mr Zoric at the request of the respondent on 26 November 2001, 5 June 2002 and 17 March 2004. After the first examination, he reported that Mr Zoric presented with a history of low‑grade rotator cuff tendonitis affecting his left shoulder". Mr Jones considered that the cause could have been the repetitive nature of Mr Zoric's work or equally due to the gymnasium work he had been undertaking. He did not recommend treatment and believed Mr Zoric was capable of full‑time work with restrictions on lifting above shoulder height. In his report after the examination on 5 June 2002, Mr Jones proposed an MRI scan, but this was refused by Mr Zoric. Again,. He was unclear as to the causes of what he then described as soft tissue derangement within his left shoulder possibility in the form of a labral tear or a rotator cuff tendon tear". Again, restrictions on lifting were considered appropriate. At the examination on 17 March 2004, Mr Jones said that Mr Zoric was not experiencing any problems with his shoulder and, for the first time complained of problems with his feet. He was of the view that he previous shoulder condition related to employment and any shoulder problem had resolved. Mr Jones accepted that Mr Zoric had symptoms and signs of plantar fasciitis which may have been aggravated by standing and walking on hard concrete floors. However, he noted that the complaint is seen in the general community and in patients who have never been engaged in such work. Mr Jones believed that Mr Zoric would be capable of working in a full‑time capacity in spite of his heel pain symptoms. In his oral evidence, Mr Jones said that an ultra sound of Mr Zoric's left shoulder on 20 May 2003 demonstrated no abnormality which confirmed that any past condition had been minor and resolved. In relation to the plantar fasciitis, Mr Jones said that Mr Zoric should have little problem in walking and, while standing was not a problem usually, it could aggravate pain and Mr Zoric should readily cope with duties involved one half hour to one hour of standing.
In relation to Mr Zoric's claim for plantar fasciitis, the documents provided by the respondent show that he was examined by two facility nominated doctors and a consultant surgeon. Dr Vijayakumar examined him on 12 July 2002. Dr Bialylew on 17 October 2002 and Mr P. Scott on 4 July 2003. All certified Mr Zoric as fit for full‑time duties with restrictions on periods of standing and walking.
Dr G. Hogan is a psychiatrist to whom Mr Zoric was referred by Dr Lane and who first saw Mr Zoric on 6 December 2002. He continues to see Mr Zoric on a monthly basis. In a report dated 17April 2003. Dr Hogan diagnosed adjustment disorder with depressed mood. Based on the history given by Mr Zoric, Dr Hogan believed that the condition was the result of the injuries to the left shoulder and both feet and the hostile behaviour of a series of managers and the threat of disciplinary action on 6 September 2002. In his oral evidence, Dr Hogan said that, from a psychiatric point of view, Mr Zoric was ready to make a graduated return to work by April 2003, but could not recall if he had been of that view any earlier. He believed that Mr Zoric had coped since his return to work in late 2003. Dr Hogan accepted that Mr Zoric was of a "querulous temperament" and the problem could be supervisors reacting to him rather than only Mr Zoric's reaction.
Dr L. Walton, a psychiatrist, examined Mr Zoric at the request of the respondent on 29 March 2004. He agreed with Dr Hogan that the appropriate diagnosis is that of a chronic adjustment disorder with anxiety and depressed mood. He took a history from Mr Zoric of complaints against him from 1995 culminating in the events of September 2002 and noted references in his personnel file supplied by the respondent to many critical comments commencing in 1984. Dr Walton identified other stressors in Mr Zoric's life, including the death of his mother in 2000 and difficulties with his father with whom Mr Zoric lives. In a supplementary report of 13 August 2004 after reviewing Mr Zoric's personnel file, Dr Walton stated:
…
If it is established that Mr. Zoric has behaved in the manner alleged over the years, then that implies difficulties residing within his personality, especially in relation to interpersonal dealings. I doubt that these could be said to be so advanced as to warrant application of a diagnostic label of personality disorder but the situation will result in Mr. Zoric experiencing repeated episodes of conflict with fellow workers and supervisors. That has implications in terms of elevating the risk of he suffering from an adjustment disorder in response to what he perceives to be adverse circumstances and which subjectively, as he reports, would be experienced as stressful. Clearly the structure of this man's personality is not a work‑related phenomenon but it does imply a degree of vulnerability towards developing an imposed psychiatric disorder, work‑related or otherwise.
It is appropriate to deal with the alleged injuries in chronological order. The first of these was the strained left shoulder. The comments of Mr Jones are noted that the cause of the condition was not clear as it could well be related to the intense gymnasium program that Mr Zoric was undertaking prior to and at the time of the alleged injury. The Tribunal shares this view and cannot be satisfied on the balance of probabilities that the injury, the nature of which remains uncertain, was necessarily work‑related. However, liability was accepted by the respondent so that this issue is not before the Tribunal for decision. The evidence of Dr Lim was that Mr Zoric had made a good recovery from the shoulder condition by February 2001 and that he was fit for full‑time duties with restrictions on repetitive use of the left shoulder. The only evidence supporting Mr Zoric's claim of an aggravation of his shoulder injury on 6 September 2002 was his complaint to Dr Lane on 9 September 2002 of "flare up of shoulder pain". He made no comment or incident report in the workplace. Dr Lane appears not to have carried out any objective examination of Mr Zoric and accepted his word of having a sore shoulder. Again, even if there was some recurrence of pain, there must be doubt as to whether the continuing gymnasium activities were the cause. In any event, I am satisfied that any shoulder problems did not produce any incapacity for full‑time work with the continuation of the previous restrictions after 6 September 2002. This is further reinforced by the results of the ultra sound in May 2003 which demonstrated no abnormality.
The next injury for which a claim was made was plantar fasciitis. Again, there must be some doubt as to the work‑related nature of this injury. Mr Zoric attributed it to standing on concrete floors over several years. While medical evidence supports the contention that such activities can aggravate the condition, it was noted by Mr Jones that the complaint is seen in the general community who have never been engaged in such work. There was no evidence that Mr Zoric had been required to stand on concrete floors and it is a matter of conjecture as to whether and to what extent his extensive gymnasium activities may have contributed to the condition. Nevertheless, the condition was accepted by the respondent and the only question for the Tribunal is whether the condition has restricted Mr Zoric from full‑time duties with appropriate restrictions on standing or walking for extended periods. As noted, three doctors who examined Mr Zoric on and after 12 July 2002 considered he was fit for such duties. Dr Lane and Dr Jeuniewic included plantar fasciitis as one of the reasons for certifying him unfit for such duties, but without any apparent objective evidence and based solely on the word of Mr Zoric. Again, I am satisfied and find that the condition of plantar fasciitis did not restrict Mr Zoric's ability to work full‑time hours with appropriate restrictions on and from 12 July 2002.
The final injury alleged was "work stress" for which liability was denied in the reviewable decision dated 3 January 2003, which affirmed the earlier determination made on 7 November 2002. The allegation of Mr Zoric was that he was harassed and bullied by various officers of Australia Post culminating in the events of 6 September 2002. On the evidence of Mr Zoric and the various officers of the respondent, including the formal findings of 6 November 2002, I am satisfied that Mr Zoric was not harassed, bullied or requested to perform duties outside his rehabilitation program in relation to his shoulder and feet. I am satisfied that Mr Zoric has the personality described by both Dr Hogan and Dr Walton who readily alleges harassment to avoid performing duties which he does not wish to perform and to avoid complying with instructions properly given to him by his supervisors. The psychiatric evidence does not satisfy me that the events of 6 September 2002 caused the diagnosed psychiatric condition. However, even if it could be said to be the cause, I am satisfied that such condition was a result of reasonable disciplinary action taken against the employee. The applicant relies on the dicta in Comcare v Chenhall (1992) 37 FCR 75 at 84 where it was said that "…action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition". However, in that case the alleged psychiatric condition was said to have resulted from an interview related to possible criminal offences as an employee of the Australian Federal Police and prior to any finding or determination to undertake disciplinary action. Here the various actions which took place on 6 September 2002 were the result of several breaches of conduct by Mr Zoric. As was the view of the Tribunal in Re Rizkallah and Australian Postal Corporation (1991) 23 ALD 517 and Re Scalzo and Australian Postal Corporation (1991) 24 ALD 83, I am of the view that disciplinary proceedings do not need to result in specific and identifiable punishment to be "reasonable disciplinary action". In this case Mr Zoric failed on several occasions to obey an instruction and was required to attend warning counselling and, subsequently, was absent from his work without reasonable excuse with a requirement for a second warning counselling. In both cases, Mr Zoric's actions in refusing to discuss the complaints and walking out of the meeting meant that the normal processes were not able to be properly concluded. Nevertheless, the complaints against him, the requirement to attend two sessions on the one day and the results of those sessions constituted in the particular circumstances of this case "reasonable disciplinary action". As in Scalzo (supra), I am satisfied that any psychiatric injury was brought on by Mr Zoric's own misconduct.
As a result of the foregoing, I am satisfied that any psychiatric condition suffered by Mr Zoric was not an injury pursuant to s 4 of the Act.
It follows from the foregoing that all of the decisions under review should be affirmed.

I certify that the thirty‑two [32] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

(sgd) Catherine Thomas
Clerk

Dates of Hearing:  27‑28 January 2003
  5, 6, 18 May 2004
  02‑03 August 2004
  13‑15 December 2004
18 January 2005
Date of Decision:  21 June 2005
Council for the applicant:             Mr S. McCredie
Solicitors for the applicant:          MMR Legal
Counsel for the respondent:        Mr A. Moulds

Solicitors for the respondent: Frenkel Partners