Nolan and Australian Postal Corporation [2003] AATA 49 (17 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 49

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/446

GENERAL ADMINISTRATIVE DIVISION )

Re PAUL NOLAN

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 17 January 2003

Place Sydney

Decision The Tribunal affirms the decision under review.

[SGD] Dr J D Campbell

Member

CATCHWORDS

Compensation - injury at work - issue of harassment - issue of diagnosis - whether condition work-related - issue of other conditions - issue of liability

Safety, Rehabilitation and Compensation Act 1988 sections 4, 7, 14, 16 and 19

Comcare v Mooi (1996) 69 FCR 439

REASONS FOR DECISION

17 January 2003 Dr J D Campbell, Member

1. In this matter, Mr Paul Nolan ("the Applicant") seeks a review of the decision of the reconsideration officer at Australia Post ("the Respondent") dated 14 February 2001 (T59) which affirmed the earlier determination of the Respondent dated 9 January 2001 (T54) in which the Respondent denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of any illness of the mind.

2. A hearing was held before the Tribunal in Sydney for three days commencing 11 September 2002 at which the Applicant was represented by Mr Rohan de Meyrick of counsel. The Respondent was represented by Mr Brian Skinner of counsel. The Applicant, his father, Mr T. Nolan, Mr G Bere-Streeter, Mr M Lennon and Mr M McCully presented oral evidence.

3. The following documents were introduced into evidence before the Tribunal:

Exhibit Description Date

TD1 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1 - 69 p1 - 148 -

A1 Applicant's Statement of Facts & Contentions 04-03-2002

A2 Medical Report Dr J Pickering 19-07-2001

A3 Clinical Notes from Blacktown Community and Mental Health Service -

A4 Clinical Notes from the Salvation Army Counselling Service -

A5 Medical Certificates from Dr M Amjad - 5 Various dates

R1 Respondent's Statement of Facts & Contentions 19-02-2002

R2 Medical Report Dr R Lewin 29-10-2001

R3 Letter to Dr R McGurr [sic] from Mr T Nolan 16-05-2001

R4 Letter to Dr R Gurr from Mr T Nolan 18-10-2001

R5 Letter from Dr R Gurr to Dr M Amjad 03-06-2001

R6 Letter from Dr R Gurr to Dr M Amjad 24-10-2001

R7 Letter from Mr T Nolan to Dr M Amjad 08-05-2001

R8 Clinical Notes of Dr M Amjad

R9 Statement of Mr G Bere-Streeter 04-09-2002

R10 Statement of Mr M Lennon plus 2 annexures 04-09-2002

R11 Statement of Mr M McCully 04-09-2002

R12 Statutory declaration of Mr B Dean 04-09-2002

R13 Clinical Notes Blacktown Hospital including triage data form for 30 March 1998 -

ISSUES

4. The relevant issues in this matter are:

(a) Whether the Applicant has sustained a compensable injury, being a disease as defined in sections 4 and 7 of the Act.

(b) Whether the Applicant is entitled to compensation for incapacity for period 1 November 1999 to 21 November 2000.

(c) Whether the Applicant is entitled to compensation for incapacity commencing 22 November 2000 and continuing.

LEGISLATION

5. The relevant legislation in this matter is the Safety, Rehabilitation And Compensation Act 1988 and in particular sections 4, 7, 14, 16, 19.

BACKGROUND

6. The Applicant completed a claim for compensation on 23 November 2000 in which he claimed that severe depression occurred when informed a urine sample was to be tested for drugs (T30). In detailing further particulars on 23 November 2000, the Applicant stated that he "Returned to work after 12 months L.W.O.P [leave without pay] due to depression. Immediately was harassed by supervisor, and informed was to be demoted and assigned difficult postie run "(T32, p68). On 24 November 2000, the officer investigating the incident report, Mr L Gosper wrote, that despite being unable to speak directly to the Applicant.

"Paul Nolan reacted to normal workplace instructions. In regard to his position with Australia Post, this was made clear to Paul before he availed of LWOP and he agreed to it.

As far as the urine test is concerned it seemed reasonable. It seems to have been a reaction by Paul maybe caused by his existing condition." (T32, p69)

7. On 27 November 2000, Mr G Bere-Streeter, Delivery Manager at Australia Post and the Applicant's then supervisor, detailed in a supplementary statement to the incident report (T33) that the Applicant had returned to work at the delivery centre on 22 November 2000 and that he appeared in good spirit, that he was asked to help out on beat one as the person undertaking the activity needed some assistance indoors; that he did ask the Applicant for a letter confirming his earlier conversation with Mr M McCully, that he would be standing down from his SPD02 position and that the Applicant agreed to provide the letter as requested; that the Applicant was aware of an impending medical appointment; that he was made aware by the Area Manager's Office that the Applicant had become upset on finding that his urine sample was to be referred for drug testing, that after the Applicant returned to work, there was not a confrontation and the Applicant settled into work, with Mr Bere-Streeter being advised by Mr Gosper that the Applicant showed no signs of stress but that a fellow worker did state that she had seen the Applicant upset (T33, p70).

8. In a statement by Mr B Dean, Network Support, Penrith Delivery Network dated 28 November 2000, he recorded the following:

* A meeting was held at the Area Managers Office Penrith in the late morning on 14 November 2000 at which the Applicant, his mother, Mr M McCully and Mr Dean (in part) attended.

* The purpose of the meeting was to establish whether the Applicant was to return to duty after 12 months leave.

* The Applicant seemed in a jovial mood, laughing loudly at things that in his opinion weren't particularly funny. The Applicant's movements seemed exaggerated.

* That the interview was conducted for the most part by Mr McCully, but that he did explain to the Applicant and his mother that the Applicant would have to attend motorcycle refresher training, this being consistent with Australia Post's policy that motorcycle refresher training was required every two years.

* That the Applicant was not holding a current motorcycle license and that as the last course for the year was on 16 November 2000, the Applicant undertook to advise Mr Dean if he had been successful in securing his licence by noon of 15 November 2000.

* That on the morning of 21 November 2000, he was requested by Mr McCully to arrange a medical for the Applicant, which was to include urine drug and alcohol testing. Mr McCully and Mr Bere-Streeter were informed of these arrangements.

* That Dr Pierides rang on 22 November 2000 to inform him that the Applicant had not been made aware that his urine was to be tested for drugs and alcohol, and that the sample given, in the light of the situation would not be so tested. (T34, p71-72)

9. On 28 November 2000 Mr M McCully, staffing coordinator for the Penrith Delivery Area, completed a statement which detailed the following:

* A meeting was held on 14 November 2000 at Penrith Area Office at which he, the Applicant, Mr Dean (in part) and Mrs Nolan attended.

* The purpose of the meeting was to discuss the Applicant's intentions concerning return to work, as he had failed to return on 3 November 2000. The Applicant had produced a medical certificate on 6 November 2000 stating that he was unfit to return to work, because of stress until 20 November 2000.

* The Applicant stated that he was happy to return to work on 20 November 2000, but that he would prefer to work at another network, due to past differences with the manager at Blacktown Delivery Centre.

* The Applicant had lost his license due to a driving under the influence conviction, but would advise him by 15 November 2000 if he had been successful in regaining his license.

* The Applicant was advised that his request for "take home" motorcycle would be referred to the Area Manager as per policy delegation; that he would have to attend refresher motorcycle retraining prior to recommencing outdoor deliveries, and that he would be required to undertake a pre placement medical examination.

* On 17 November 2000, in the absence of any advice from the Applicant, Mr McCully telephoned and spoke to Mrs Nolan concerning the Applicant attending at work on 20 November 2000.

* On 21 November 2000, Mr McCully, in the circumstances of the Applicant's non attendance at work on 20 November 2000, rang and spoke with the Applicant and established that the Applicant had secured his license on 20 November 2000, asked if the Applicant would be comfortable about returning to work at Blacktown Delivery Centre on 22 November 2000. Mr McCully stated that he advised the Applicant that a written statement was required concerning the Applicant standing down from the Senior Postal Delivery Officer Grade 2 (Relief), as there was a vacant position in the delivery centre to which he could be assigned. Mr McCully stated that the Applicant agreed to that request. Mr McCully also advised the Applicant of an intended medical appointment and that he would not be able to undertake motorcycle delivery duties prior to attendance at refresher motorcycle training (T35, p73).

10. On 23 November 2000 the Applicant dictated a statement to his father in which he stated:

* He had been an employee of Australia Post for 14 years, and had enjoyed his work until the arrival of Mr Bere-Streeter as Postal Manager.

* That shortly after Mr Bere-Streeter's arrival he was questioned by Mr Bere-Streeter about his duties and that he was unable to understand as to why he was receiving continual harassment from him.

* He has long hair as he plays the guitar and is a lead singer in a band. He wore his long hair in a pony tail at work.

* That he was not a drug user and that he had informed Mr Dean (Health and Safety Officer) of such, when counselled by him in relation to drug taking in April 1999.

* That on 24 September 1997 he had a fall from his "Postie" motorcycle at work and fractured his left clavicle, which did not heal correctly, and that he continued to suffer pain in the left shoulder, especially when he was delivering mail through the continued jarring from the bike.

* That the arrival of Mr Bere-Streeter and the associated effects of the pain in the shoulder caused him to become depressed and introverted.

* That shortly after the earlier two matters, he fractured his left heel at a party and was unable to work for a couple of months. A request for casual work was denied and due to the pain from both injuries, he became extremely depressed and towards the end of October 1999 suffered a nervous breakdown. He was placed on leave without pay for 12 months ending 1 November 2000, after his father had discussed his circumstances with Mr M Lennon, the Area Manager at Penrith.

* That he did meet with Mr McCully and Mr Dean at the Penrith Area Office on 16 November 2000 He was accompanied by his mother, and during the meeting arrangements were made for him to return to work at Blacktown Delivering Centre on 22 November 2000.

* That although apprehensive, he met with Mr Bere-Streeter on 22 November 2000 who informed him that he had to sign a document downgrading him from a Postal Delivery Officer Grade 2 to a General Postal Officer, that he was assigned to a Postal Delivery Area which was considered very demanding and that he was required to attend a medical examination.

* That he attended at the doctor's surgery on 22 November 2000, at which he was told his urine sample was to be sent for drug testing. On being told this, he commenced to tremble and he broke down. The Applicant stated that he had never been informed of the intention to test his urine for drugs, nor had he consented to it. He said he left the doctor's surgery in a dazed and shattered state, being very upset, crying, shaking and very confused.

* He telephoned his father from the Blacktown Railway Station, who instructed him to return to the Post Office, which he did. His colleagues were said to have noted his visibly upset state and about 1.30 pm his mother arrived to take him home at the completion of duties for that day.

* After arriving home, his father took him to the Blacktown Medical Centre, where Dr Amjad issued a certificate stating that he was unfit for work until 5 January 2001.

* He states that he remains extremely upset and emotionally drained and that the stress he was suffering is due to the unlawful directions issued by Australia Post Management, who had commenced to harass him on his return to work. (T38, p85-88)

11. In a statement dated 23 November 2000, Mr T Nolan, the Applicant's father detailed the following:

* 12 months ago the Applicant suffered a nervous breakdown, and he had arranged with Mr Lennon, the Area Supervisor at Penrith for the Applicant to take 12 months leave without pay until he recovered.

* Prior to his nervous breakdown, the Applicant had been a happy person and was content working at Blacktown Postal Centre as a delivery officer.

* About two years prior to writing this statement, the Applicant had complained to him about the management style of Mr Bere-Streeter, and that he had been particularly singled out and given a very hard time.

* On 22 November 2000 the Applicant returned to work and had telephoned saying that he had been well received by his colleagues.

* At midday on 22 November 2000 he received a call from the Applicant saying that Mr Bere-Streeter had given him a pretty hard time at work that morning, that Mr Bere-Streeter had requested the Applicant sign a document to leave his job as a relief postie; that the Applicant had been sent for a drug test and that the Applicant felt like killing himself. He advised his son to return to work, and that when his mother returned she would come and pick him up.

* The circumstances of the drug test were confirmed in a telephone call from Dr Pierides.

* The Applicant returned home with his mother after 1.30pm, and shortly after he took the Applicant to Dr Amjad, who certified him unfit for work until 5 January 2001 as he was suffering from stress and harassment (T38, p89-91).

12. The Applicant was assessed by Dr D Lovell, a consultant psychiatrist, on 12 December 2000. Dr Lovell detailed his responses to questions in a report dated 12 December 2000 (T46) and summarised his opinion in the report dated 8 January 2001 in the following terms:

"To summarise, Mr Nolan's presentation had many determinants. He is a young man with alcohol dependency. He is also emotionally dependent on his parents. In the context of a non-work related injury, the absence of his parents and some social withdrawal, he may have through time become depressed. His major difficulty however is that he believes he has been singled out and harassed at work because of 'a poor attitude'. This appears to be part of his personality style, rather than related to illness. He describes a recent upset when asked to undergo a drug test and remains angry and aggrieved towards Australia Post.

Psychological counselling would not be particularly beneficial unless directed towards his alcohol abuse. I trust this answers your queries." (T53)

13. On 9 January 2001 the Respondent advised the Applicant that Australia Post was not liable, under section 14 of the Act to pay compensation to the Applicant in respect of any illness of the mind. (T54)

14. On 18 January 2001 the Applicant in seeking reconsideration of the decision of 9 January 2001, believed that Dr Lovell's report did not fully cover all aspects of the interview, in that:

* The Applicant considered that he was both physically and mentally disturbed during the interview and that he had requested tissues to wipe away tears from his eyes.

* No mention was made of pain being suffered in both shoulders as a result of the injury in September 1997, and that he had commenced to drink more heavily hoping the alcohol would induce sleep.

* That when he did return to delivery work some 12 months after the accident, there was a continual difficulty with pain associated with long and difficult postal runs.

* That he commenced to use cannabis, and recommenced drinking to assist with pain reduction after fracturing his left heel and the continuing shoulder pain.

* The depressive symptoms arose from his treatment at Blacktown Delivery Centre and not from his heel pain, although the continuing pain in both shoulders and to a minor degree, the heel pain may have caused exacerbation. These issues all contributed to his mental breakdown. (T55)

15. In a report to the reconsideration officer dated 29 January 2001, Mr Gosper, supervisor, detailed the followings:

"I worked with Paul as his supervisor for about 2 years. Not withstanding anything to do with his compo claim. I can personally comment that Paul was always a worry. He, in my opinion portrayed a picture of someone struggling with life.

He was rarely punctual

He was not reliable, had much sick leave.

He was not efficient in his work

He was sloppy, always leaving mail he considered too hard to deliver

His attitude was never serious, always laughing and clowning around I would guess to cover poor self esteem or some other problem.

I counselled him on occasions and the [sic] always thought it to be a joke. He was co-operative but always laughed.

He was always receiving phone calls. He had girl friends who rang him and he was constantly, verbally disagreeing with them.

If he claims Graham Bere-Streeter treated him any different to anyone else I can verify this not to be true. Graham is a fair and reasonable Manager who, in my opinion, did nothing to upset or harass Paul.

I personally consider that Paul has a personal psychological problem and is blaming work because he cannot accept responsibility for this, or anything for that matter.

I trust this has been of assistance. Please contact if you need more info." (T56)

16. On 14 February 2001, the Respondent affirmed the determination of 9 January 2001 and determined that Australia Post is not liable in respect of "severe mental depression". (T59)

APPLICANT'S EVIDENCE

17. The Applicant told the Tribunal that he was born in 1968, is a single man living in a flat behind his parent's house and had commenced working with Australia Post in 1986, initially as a telegram delivery officer, then a postal delivery officer and later as a Relief Postal Delivery Officer, with wages in the later position some $50-$100 a fortnight higher than that of a postal delivery officer. The Applicant stated that he has worked in different delivery offices, but most of his time has been at Blacktown Delivery Centre. His duties involved sorting and delivering mail on a motor cycle. The Applicant stated that in 1996, 1997 he was the unofficial union delegate and that he complained to management about too much overtime and working too hard on behalf of the members. As a consequence he concluded that because he caused trouble to his employer, he was picked on.

18. In September 1997 the Applicant stated that he was seconded to St Mary's Delivery Centre and that on 23 September 1997 he experienced a fall from his motor bike with injuries to his left collar bone (fractured), both shoulders (tendons), and neck (tendons). After the fall the Applicant indicated that he rode the motor bike some five kilometres back to the Post Office.

19. The Applicant stated that he experienced problems with healing of his injuries and that it was some six months before he returned to work, and following his return was on light duties, sorting mail for a further six months, before returning to delivery duties on a motor bike in late 1998. The Applicant indicated that he felt depressed and lost following the injury; that he had started drinking a little more after the accident in comparison to his normal pre accident alcohol consumption of a beer or two after work, but any increase in consumption reverted after his return to work. On return to motorcycle delivery he observed that he felt pain in both shoulders when riding on rough surfaces. He did not take medication for the pain and tried to live with it.

20. At Easter 1999 the Applicant told the Tribunal that whilst at a friend's place he hopped over a fence to fetch a ball and fractured his left heel. He stated he was on sick leave for six weeks and then given a certificate for light duties at work. On return to work he was told that there was no light duty work available and that he should go home. The Applicant stated that he felt distressed and that he was not being treated like any other worker. The Applicant stated that he experienced a loss of confidence, increased his alcohol consumption and on 6 June 1999 was charged with drink driving. The Applicant stated that he remained on unpaid sick leave and in November 1999 applied for 12 months leave without pay because of his loss of licence, depression, feeling "no good" and troubles in the work place.

21. The Applicant stated that in late 1998 Mr Bere-Streeter commenced as the new manager at Blacktown Delivery Centre, and that he understood him to be a person known to get rid of trouble makers. From the first day the Applicant stated that Mr Bere-Streeter raised with him the issue of driving the car to Penrith, picked on him continually and took away the Applicant's motor bike privileges, an act which the Applicant considered to be discriminatory, and which led to the Applicant telling Mr Bere-Streeter that he had "a black heart".

22. The Applicant indicated that he was approached in April 1999 by Mr Dean in relation to the use of drugs, which he denied. Further the Applicant stated that his attention had been drawn to his use of safety gear (not wearing a helmet) and not riding properly (swerving all over the footpath) as a consequence of being followed on his delivery prior to his heel injury at Easter 1999.

23. Between 2 November 1999 and 20 November 2000, the Applicant indicated that he was on leave without pay; that during that period he felt down, no good, and worthless and that his parents helped get him back into the workforce, with his parents calling for assistance from the Blacktown Hospital and his referral for counselling at the Salvation Army.

24. The Applicant related to the Tribunal how he was afraid to return to work, as he felt they had something up their sleeve, he was concerned about their little lies and prior to returning he went with his mother to see the Area Manager, when he was informed that the retraining motor cycle course could not occur until after Christmas. He found that he was unable to sleep at nights and that he was always thinking about Mr Bere-Streeter's constant harassment at work in late 1998 / early 1999, when it seemed that he was spoken to almost every day about being late (two minutes late, one minute late), and not delivering a letter. While the Applicant conceded that some complaints about his behaviour may have been well founded, he felt he was made to look bad by Mr Bere-Streeter twisting things around.

25. The Applicant indicated that he saw Dr Amjad, his general practitioner about depression following his shoulder injury in September 1997 and was treated with antidepressants for six months. The Applicant stated that he had always been a happy guy, liked fun and people and yet while off work he felt worthless, cried and smashed things. During the period of leave without pay from November 1999 to November 2000 he did not take any antidepressant medication.

26. The Applicant confirmed that he told Mr Sanders, a Salvation Army psychologist, that he was drinking six to eight stubbies of beer a day and that he had used marijuana prior to his bike accident and that he continued to use the drug for recreational use, mainly on weekends, although it did also help with pain and his difficulties with sleeping. He stated that he smoked a lot more when under pressure, but he never attended work "stoned" or drives his bike while under the influence of marijuana. He noted that his use of the drug did increase after the motorbike accident to three to four cones two to three times a week.

27. The Applicant detailed that he, his mother, Mr McCully and Mr Dean met at the area office at Penrith on 16 November 2000 and that Mr McCully expressed concerns about the Applicant in front of his mother and that, although he was not happy, he did agree to return to work in a non relief position. The Applicant stated that the issue of the safety motor cycle training course was raised, and that he raised the issue of taking the motor bike home, in the light of the general practice of everyone else taking their motor cycle home. He remembers his request being denied and that it was suggested that he either ride a push bike to work or else walk. He believed he secured the return of his licence on the day after the meeting.

28. On 22 November 2000 the Applicant stated that he returned to work, feeling a little worried, but otherwise cheery and happy. He rang his parents to say that "things were OK" and at 8.15am went to see Mr Bere-Streeter, who requested him to sign a paper relinquishing his relief position and put him on the longest delivery run, which had rough grades and would twist his shoulder. The Applicant felt that he was being victimised in that he had asked in the past not to be put on long delivery runs; that he was being forced to do something that he did not want to do; that he had been demoted, as he had enjoyed being a relief postman.

29. The Applicant confirmed that he was sent to a doctor in Blacktown for a routine check up as he had been absent from work for a year. During the medical examination, a urine sample was requested and when the doctor told him the urine sample was to be tested for drugs and alcohol, he felt ruined, destroyed, worthless and that his job would be taken away from him. The Applicant stated that he was crying when he rang his father, who told him to return to work, which he did, although he felt robbed. The Applicant returned to work for one to two hours and was picked up on completion of his shift at 1.30pm and taken home by his mother. He stated that his father took him to the doctor and he has not worked since as he receives monthly certificates from his doctor that provides reasons for the payment of sickness benefits since cessation of work. The Applicant also stated the he received Centrelink payments during his period of leave without pay.

30. The Applicant stated that since ceasing work he has continued to have difficulties with sleeping, with sweating, feeling nauseous, "feels pressure of being a no-one", feels like "a monkey sitting in the corner", spends a lot of time thinking about events with Mr Bere-Streeter, has bad thoughts of doing harm to himself (slit wrists with broken bottle, sometime last year) and feels he is falling apart. Last year the Applicant spoke of attending a TAFE course for six to seven months, but he was unable to handle the bridging course because during the course he was required to see Dr Lewin, a psychiatrist, which he described as not being a happy experience. The Applicant stated that he continues to feel nauseous, has a fear of people, does not want to talk to anyone, remains introverted and not motivated.

31. The Applicant told the Tribunal that he continues to drink alcohol on a regular basis and smoke marijuana. He believes that he would not be able to work at Blacktown or anywhere else. He continues to have problems with his shoulders, with pain in the shoulders waking him at night. He is prescribed Cipramil for his depression.

32. In response to questions in cross-examination the Applicant detailed the following:

(a) In relation to his schooling he spent the last two years at John Paul II during which he had no trouble organising tasks and activities, no problems listening or following instructions, was not forgetful in daily activities, did not run about, did not butt into conversations or talk in class unduly. He had always blurted out answers in class, and got easily distracted and fidgeted, but had no problems with self esteem and making friends. Attention Deficit Disorder had never been suggested and in his HSC he gained a mark of 150 out of 500.

(b) At present the Applicant denies moving every five minutes, that he is the class clown, that he is always doing things and that he is chronically late. He admits to an alcohol consumption of between four to five schooners four to six days a week and six beers a day; to a use of cannabis (three to four cones twice a week), which commenced when he was aged 18 to 20, a maximum average pattern in 1997 and a few extra cones in June 1999; use of heroin when depressed; use of speed in his early 20's.

(c) Before 1997 the Applicant was being treated for anxiety by Dr Amjad in relation to work pressures, gambling and financial pressures arising from his gambling. He had informed subsequent counsellors of his financial problems arising from his gambling. Although he was recommended for treatment by a psychiatrist for Attention Deficit Disorder, he had not participated in any treatment program.

(d) Dr Amjad had been his treating general practitioner since 1989, although he did see other doctors at other surgeries from time to time. He saw Dr Amjad in April 1993 for stress; in June 1996 for gambling, losing weight due to lack of sleep because of owing money, depression, for which he was given extended counselling; in August 1996 for complaints of being very upset, depressed and anxious, for which he was advised to rest and given time away from work. He is unable to remember what in the workplace caused him to be so upset at that time. He does however blame Australia Post and his growing up for his psychiatric problems.

(e) The Applicant experienced some difficulties in September 1999 when his father sought assistance from the community and mental health counsellors at Blacktown Community Health Service. The Applicant's use of cannabis was raised as a major cause of mental health problems. He was suspicious of what other people were saying and he had feelings of low self esteem. He did not wish to change his lifestyle which at that time included eight schooners of beer per day and four to five cones of cannabis per day. He never told the drug and alcohol team counsellors that his problems were work-related. He used heroin in 1999, was fined $600 for being in possession of cannabis in 1997, and in 1998 was convicted of driving under the influence resulting in the suspension of licence for twelve months.

(f) In October 1999 when applying for 12 months leave without pay, no mention was made of his problems of stress, anxiety or work problems. He did understand that he would be placed on unattached list, but believed that did not involve loss of his relief postal officer status. He believed he had a complete breakdown during his 12 months on leave without pay and that this occurred in October 1999.

(g) In March 2000 he was referred for counselling to Ms Ortiger at the Salvation Army, and that his problems were associated with both family and work (difficulties with his boss). He also felt he was not qualified to do any other work.

(h) That his parents felt concerned about his suicidal tendencies; that he felt pressurised by his parents and that his relationship with his parents varies, as he did not play "games".

(i) That his father did provide Dr Gurr with a lengthy description of his problems prior to him seeing Dr Gurr. In October 2001 he did discuss issues of work with Dr Gurr and that treatment with Cipramil had only been recently commenced by Dr Gurr.

(j) That when he wrote concerning the issue of voluntary redundancy packages on 7 February 2000, he did not advise Australia Post of his stress and anxiety conditions. Nevertheless his stress between 3 November 1999 and 20 November 2000 was due to his worrying about work and his difficulties with his boss and management at Australia Post. He did acknowledge that Mr McCully had spoken of a motor cycle retraining course at the meeting on 14 November 2000 and that only his father attended the meeting with Mr Lennon on 23 November 2000.

(k) In relation to his problems with Australia Post, there had been issues raised by management with him in April 1997 (slow sorting of mail), June 1997 (sick leave issues), September 1997 (performance not up to standard in relation to delivering delays) September 1997 (sick leave usages). He did not believe he was a poor performer and that issues relating to his sick leave were discriminatory.

(l) Following the arrival of Mr Bere-Streeter in December 1998, issues of failing to comply with a direction, failing to deliver Foxtel magazines, failing to comply with policies relating to home garaging of motorcycles, non delivery of depot bags were raised. The Applicant believes no direction was given, that the non delivery of two depot bags was not his fault and that he knew of no one who had lost home garaging privileges.

(m) That the visits to Dr Lovell and Dr Lewin were examples of harassment by Australia Post, with both appointments being for late in the afternoon and that smoking of marijuana was a particular issue in both consultations.

MR T NOLAN

33. Mr T Nolan, the Applicant's father and a retired police inspector told the Tribunal that the Applicant had been collocated for the past ten years in terms of accommodation. In relation to the Applicant's gambling, he believed that his son liked a punt at the races and this habit remains unchanged. Prior to his motor cycle accident in September 1997, Mr Nolan considered his son to be a happy outgoing man, happy go lucky, highly strung, who liked music and had been involved in local radio. After the motorcycle accident, he observed that his son was a bit depressed, experienced difficulties at work, and that after that injury his son's personality seemed to change.

34. Mr Nolan stated that he and his wife were overseas at the time of the Applicant's motor cycle accident and that some six weeks later his personality started to change. He observed some improvement when his son returned to work on light duties. Mr Nolan observed that his son was not "the Paul of old" and was a bit depressed prior to his injury to his heel in early 1999. This he believed, was associated with a change in management, and that his son complained of being harassed at work, meeting difficulties and not being well treated by Mr Bere-Streeter. He understood such complaints about management were shared by some of his son's co-workers.

35. In relation to the events of 22 November 2000, Mr Nolan confirmed that his son was happy although concerned about Mr Bere-Streeter, when he left for work on 22 November 2000. By about 1.45pm when he took his son to see Dr Amjad, he observed his son to be a complete wreck (agitated, crying, tremulous, shaking, sweating profusely). Further Mr Nolan has observed that since then his son's condition waxes and wanes, with his son becoming agitated when he has to see psychiatrists, and that his son seems to laugh inappropriately from time to time.

36. In response to questions in cross-examination Mr Nolan stated the following:

* His son has always been highly stung, a good athlete and involved in playing rugby league. His son had experienced no difficulty organising in junior school, but this changed in senior school, when he was no longer the class leader. His son was not always chronically late or in a hurry, but he had some difficulties in organising priorities, and sustaining energy and effort in his last two years of school and there after. He believed his son was able to sit still at school, had no difficulties with assignments, sustained friendships, did not have low self esteem, but was unaware as to the totality of his school behaviour.

* In relation to his son's breakdown towards the end of October 1999, Mr Nolan believes that he spoke about this with Mr Lennon at the Penrith Area Office, but cannot recall whether any medical certificates were forwarded. Mr Nolan stated that the Applicant had lost his license in August 1999, but he did not inform Mr Lennon during their discussions of this event, nor was there any such advice forwarded in the letter of 20 October 1999 (T17).

* In relation to therapy for his son's nervous breakdown, Mr Nolan stated that assistance was requested in October 1999 from the Community and Mental Health Team at Blacktown, and later from Dr Amjad. Mr Nolan believed that his son was seen by Dr Gurr in May 2001 for the first time, the delay due to his son's refusal to accept that he had had a nervous breakdown.

* Mr Nolan stated that he was unaware of his son's use of marijuana. Further the statement made by the Applicant on 23 November 2000 contained much of Mr Nolan's phraseology. Mr Nolan was unaware that his son had time off for anxiety prior to 1997. Mr Nolan was of the opinion that the Applicant's workers compensation matter should be finalised prior to his returning to work.

37. In response to questions in re examination, Mr Nolan did discuss any assertions with the Applicant that he was making in the statement of 23 November 2000 and phrased the assertion accordingly. In these activities he stated he was acting as a concerned father, and this was reinforced when he requested assistance on 10 September 1999 from the Community and Mental Health Service at Blacktown.

MR G BERE-STREETER

38. In a statement dated 4 September 2002 (Exhibit R9) Mr Bere-Streeter stated that:

* He had been delivery manager at Blacktown from December 1998 to December 2001.

* On 1 March 1999 he had discussions with the Applicant which resulted in the loss of home garaging privileges for the Applicant in relation to his work motorcycle on account of the Applicant having failed to comply with the policy. A similar approach is said to have taken with another employee.

* On 26 March 1999 he had a discussion with the Applicant regarding his inadequate work performance in regard to failure to deliver mail (depot bags).

* On 15 April 1999 he had a discussion with the Applicant regarding his late arrival time at work and his failure to record such.

* In June 1999, the Applicant stated that he was unable to complete his delivery round because of a foot injury. A medical certificate was requested.

* On 5 July 1999 the Applicant's father visited him at work and told him that the Applicant had suffered a nervous breakdown. Counselling from rehabilitation counsellors was offered.

* On 22 November 2000 he informed the Applicant that he would be assisting with Beat 1 duties, as a trainee employee required assistance in undertaking "inside" duties; that the Applicant would be required to give up relief duties as discussed with Mr McCully and that the Applicant agreed to provide a letter to that effect; and that the Applicant was to attend a medical appointment and that the Applicant would have to give urine samples at the medical appointment.

39. In response to questions in cross-examination Mr Bere-Streeter stated the following:

* That he was unaware of the full reasons as to why the Applicant was on leave without pay, and that he had no discussions with Mr Lennon or anyone else concerning the Applicant's return to work, although Mr McCully and Mr Dean did advise him to talk to the Applicant on his return. Mr Bere-Streeter stated that he was unsure as to whether he was aware of the meeting on 14 November 2000, and that he had some idea that issues of anxiety had been raised when the Applicant returned to work. He had understood that the Applicant had agreed to stand down from his relief position when he had gone on leave without pay in order that the position could be filled, and that Mr McCully had reminded him to remind the Applicant of the agreement to stand down from that position.

* In relation to the issue of Beat 1, it was not the hardest and longest beat; as to the issue of whether it was bumpy he was unsure; the Applicant's appointment to this beat was because of a trainee currently undertaking the duty.

* He was aware that the Applicant was to have a medical examination on his return and that the Applicant was aware of this. He was not expecting any issues to arise as a result of the medical examination.

* He was aware that the Applicant has a motorcycle accident in September 1997 and that he suffered some residual shoulder pain.

* He removed the garage privileges, because the Applicant had not returned the bike when not working the next day. He understood his second in charge had informed the Applicant of the policy. He noted that other people had such privileges withdrawn under the policy. He would not withdraw such privileges as a result of a single act of non compliance with the policy. He did not believe that there was either differential or unfair treatment on that issue.

MR M LENNON

40. In a statement dated 4 September 2002 (Exhibit R10) Mr Lennon stated the following:

* He was an Area Manager for Australia Post.

* He received a letter from the Applicant dated 7 February 2000 in which the Applicant requested advice on available redundancies and commented on the management style of the incumbent manager. He responded to that letter on 23 November 2000 indicating that here had been no finalisation on the availability of redundancy packages.

* He met with the Applicant's father on 23 November 2000 at which the latter complained that his son had been given the most difficult beat to discourage him from returning to work, both issues being denied by Mr Lennon. Further Mr T Nolan was reported as stating that the manager was a tyrant to which Mr Lennon replied that he was a firm but fair manager. Similarly the allegation raised that Australia Post was shedding permanent staff and replacing them with casual employees was denied. Further the Applicant's father raised the issue of his son being very upset with the medical examination conducted on 22 November 2000. Mr T Nolan was invited to discuss his concerns with Mr Bere-Streeter.

* At a meeting at Mr Mossfield's electoral office on 11 December 2000 similar issues of poor management and staff treatment at Blacktown Delivery Centre were raised by Mr T Nolan. Such allegations were denied and a letter was forwarded on 2 February 2001 to Mr T Nolan detailing relevant turnover statistics.

41. In oral evidence Mr Lennon stated that:

* The beat was not longer nor more difficult than others.

* That he was aware of morale problems at Blacktown Delivery Centre, but these problems existed before the arrival of Mr Bere-Streeter.

* That Mr Bere-streeter was one of "the tougher style of manager".

* That he was aware of the need for extra care in the Applicant's return to work program, but was not involved in the meeting of 14 November 2000.

MR M McCULLY

42. In a statement dated 4 September 2002 (Exhibit R11), Mr McCully detailed the following:

* He is a staffing coordinator at Australia Post.

* The Applicant was due to return to work on 3 November 2000, but a medical certificate supplied by the Applicant indicated that he was suffering from stress and unfit to work until 20 November 2000.

* At a meeting on 14 November 2000 with the Applicant, his mother, and Mr Dean (in part), the Applicant informed him that:

* He did not hold a current motor cycle licence, as he had been disqualified in relation to a drink driving conviction.

* He intended to obtain his motorcycle licence on 15 November 2000.

* He wished to return to work on a walking beat.

* He wished to obtain work at another delivery centre because of previous difficulties with Mr Bere-Streeter.

* He wished to have the ability to take his motorcycle home each day.

* At the meeting of 14 November 2000 Mr McCully informed the Applicant that:

* He would have to attend motorcycle retraining (HART) prior to commencing deliveries with motorcycle.

* The Area manager was the authority who was able to decide whether he was allowed to take the motor cycle home each day.

* He should consider returning to work as a postal delivery officer on one round, but that would require resignation from his nominal position of SPD0 (Grade 2) designation.

* That the Applicant did not contact him, as agreed on 15 November 2000.

* That on 17 November 2000 he contacted the Applicant's mother, who stated that the Applicant was attempting to regain his licence and that he would return to work on 20 November 2000, unless the Applicant notified that he had not obtained his license.

* That on 20 November 2000 the Applicant failed to return to work or contact him.

* That on 21 November 2000 he contacted the Applicant and again indicated that it was necessary for him to provide a written statement standing down from the position of Senior Postal Delivery Officer Grade 2 (Relief) as there was a vacant position at the delivery centre to which he was to be assigned, that he had to attend HART training, and that there were no positions available at other delivery centres.

43. In oral evidence, Mr McCully was unable to recall an order given to Mr Dean on 21 November 2000 in relation to the Applicant's requirement for a medical examination, although the issue of drug screening was discussed at the office. Mr McCully stated that he had endeavoured to find other locations of employment for the Applicant, but none were available.

MR B DEAN

44. In a statutory declaration dated 4 September 2002 (Exhibit R12), Mr Dean stated:

* He was a delivery manager at Australia Post.

* That he attended a meeting, in part, on 14 November 2000 with the Applicant, his mother and Mr McCully at the Area Office, Penrith, at which he informed the Applicant that:

* The policy of Australia Post was for employees to attend motorcycle refresher training every two years.

* That the Applicant could not ride a motorcycle until he attended the course, as his last course was completed on 30 July 1998.

* That the last course for the year was on 16 November 2000.

* That if the Applicant could attend that course, the Applicant would have to inform him by noon 15 November 2000 that he had been successful in regaining his licence.

* The Applicant did not contact him by noon 15 November 2000, and he has had no further contact with the Applicant since 14 November 2000.

MEDICAL EVIDENCE

DR D LOVELL

45. The medical reports and opinion of Dr Lovell, consultant psychiatrist have been referred to at paragraph 12 of the decision. In his report of 12 December 2000 (T46), Dr Lovell makes the following observations:

"he is of the belief that his employer believes him to use illicit drugs and considers a drug test to be another example of perceived harassment. He could be said to suffer from an adjustment disorder with depressed mood."

"I believe he satisfies the evidence for alcohol dependency."

"I believe that he would be able to resume work if he were so motivated, however he anticipates that there will for further problems. He is strongly supported in his grievance against Australia Post by his father, who is a retired police inspector. It is anticipated he will return to work on 5 January 2001. I believes that he would be fit to perform normal duties without restrictions".

"Mr Nolan needs to consult a drug and alcohol counsellor in relation to his alcohol abuse, otherwise I do not consider that he requires psychological counselling."(T46)

BLACKTOWN COMMUNITY AND MENTAL HEALTH CLINICAL NOTES

46. A review of these records (Exhibit A3) reveal the following information:

* The Applicant was referred on 10 September 1999, by his father with a history of not eating for three days, refusing to communicate with both parents, and being very depressed.

* After initial assessment the Applicant was given a professional diagnosis of depressive features and alcohol dependence, and was to be treated with support until doctor review.

* Medical review by Dr Sloss on 14 September 1999 concluded that the Applicant had no acute mental illness, was not an acute risk and suffered from cannabis abuse and alcohol abuse with query depression.

* Follow up reports on 21 and 26 September 1999 suggest the Applicant was not changing his ways in relation to alcohol; the report on 5 October 1999 suggested that the Applicant was not interested in drug and alcohol counselling; on 14 November 1999 major issue related to obtaining social security benefits; 16 December 1999 the Applicant was willing to see drug and alcohol counsellor; 11 January 2000 the Applicant is reported to be doing well although continuing to smoke cannabis and drink alcohol. The Applicant to be referred by general practitioner for counselling. Mental Health file to be closed.

CLINICAL NOTES OF DR M AMJAD

47. The clinical notes of Dr Amjad (Exhibit A5) detail that the Applicant:

* Did complain of loss of weight and sleep and depression arising from owing money due to gambling on 17 June 1996.

* Did complain of dizziness , upset and was tense, anxious and depressed, with a diagnosis of anxiety on 20 August 1996.

* Informed Dr Amjad that he lost his driver's licence for 12 months drink driving - has not seen anyone yet - still feels depressed, tense, unable to cope. Advised to attend health centre (10 January 2000).

* On 9 March 2000 reported that he had seen Ms Ortiger (psychologist).

CLINICAL NOTES SALVATION ARMY

48. The Applicant underwent counselling by Ms Ortiger, a psychologist at the Salvation Army on five occasions between 9 March 2000 and 10 August 2000, and again with Mr Sanders, a psychologist on 5 occasions between 5 December 2000 and 30 January 2001.

49. In a letter dated 12 February 2001 to Dr Amjad, Mr Sanders described fairly consistent patterns of symptoms including "difficulties sleeping, feelings of worthless & sadness, neglecting to eat, wanting to cry, panic attacks, entertaining thoughts of self-harm and some paranoia. He presented generally as quite distressed, agitated and emotionally labile. He also reported consuming an average of 6 - 8 stubbies a day as well as using marijuana." Mr Sanders indicated that the Applicant may benefit from medication that treats both anxiety and depression (Exhibit A4).

DR J PICKERING

50. In a report dated 19 July 2001 (Exhibit A2) Dr Pickering, a consultant psychiatrist detailed a history of the Applicant's problems following a two hour interview with the Applicant and his father for part of that period. As a consequence Dr Pickering considered that the Applicant may be suffering from:

* An undiagnosed Attention Deficit Hyperactivity Disorder.

* Adjustment Disorder with Depressed Mood.

* Malingering.

* Substance abuse.

51. Dr Pickering considered that the causation of the Adjustment Disorder with Depressed Mood is associated with the following work-related events:

"1. The motorcycle accident in which he sustained a fractured left clavicle and soft tissue injuries to his right shoulder, which left him with residues of pain.

2. The perception of harassment by managers in general.

3. The perceived harassment by Mr Graham Bere-Streeter, which he states was also observed by others.

4. Being sent for a medical examination which included a urine test for drugs to which he had not consented.

5. Being told things by management which he found to be deceptive when he checked on their veracity."

52. Dr Pickering also considered that the role of the Applicant's attention-deficit/hyperactivity disorder in the causation of symptoms cannot be ignored, and that "It will therefore be necessary to demonstrate whether or not Mr Nolan made any contribution to his own difficulties and what part this played, ie was any of the disciplinary matters and criticism objectively justified by his own behaviour and therefore not constitute harassment."

53. Dr Pickering also considered the issue of substance abuse, and concluded that the only alcohol related history of any significance "was a single high-range PCA. His daily alcohol consumption is however slightly in excess of what is recommended .... His use of cannabis is slight."

DR R GURR

54. In a report to Dr Amjad dated 3 June 2001 (Exhibit R5) Dr Gurr, a consultant psychiatrist, stated, having also received a letter from the Applicant's father giving his version of events dated 16 May 2001 (Exhibit R3):

"My impression is that he has an adjustment disorder with mixed anxiety and depression, which might be considered a normal reaction to his perceived harassment."

55. In a further report to Dr Amjad dated 24 October 2001 (Exhibit R6) Dr Gurr, having received a further letter from the Applicant's father dated 18 October 2001 (Exhibit R4), and a hand delivered copy of Dr Pickering's report dated 19 July 2001, noted that the Applicant had come "to see me again, very reluctantly at the insistence of his father". Dr Gurr made the following comments:

"However, Paul was in no mood to rationally discuss that, as he was feeling angry with doctors and the legal compensation process. He is feeling trapped by his anger towards his previous work supervisor and his desire to get back at him through the court process, with the need to maintain his symptoms until it goes to court, which stops him getting on with life. He has noticed private investigators watching him at times. He has a low self esteem and does not know what to do and is acting in a adolescent fashion with a dominant father."

DR R LEWIN

56. In the report dated 29 October 2001 (Exhibit R2), Dr Lewin, a consultant psychiatrist, having detailed a comprehensive clinical history and examination which consists of 17 pages, summarised his opinion in the following paragraphs:

"Mr Nolan gives a history of feeling angry with the way that he had been treated in the workplace. He perceived that he had been harassed and he had an explanation for this.

Mr Nolan has a history of alcohol abuse dating from, at least, the age of eighteen years. His pattern of drinking has been associated with a single, high range drink-driving matter and he reports craving for alcohol. He reports no period of sustained abstinence in recent years. He spends most of his disposable income on alcohol. He appears to be financially reliant upon his family for other spending.

Mr Nolan clearly has a history of abuse of alcohol. There were a number of features in the case suggestive of a more severe drinking problem.

Mr Nolan also reports the use of marijuana, at least, twice per week. Until recently he often smoked more frequently. A degree of suspiciousness is referred to above and it is likely that the organic effects of chronic marijuana intoxication are at the basis of the patter of suspiciousness.

Mr Nolan had no insight in to the harmful effects of his pattern of drinking, abuse of marijuana and other substances.

Mr Nolan has reported intermittent symptoms of reactive depression and bodily symptoms of arousal. These symptoms at present are much less severe than symptoms he has experienced in the past. There were notable features of the Mental State Examination which are not compatible with a diagnosis of a more severe depressive condition. I did not diagnose Major Depression, Panic Disorder or any morbid Anxiety or Depressive Disorder. It is my opinion that Mr Nolan is angry about the circumstances in the workplace. I did not diagnose any current Anxiety or Depressive Disorder.

I noted the report of the father's view that Mr Nolan suffers from an Attention Deficit Disorder. I note that this is a controversial diagnosis. Mr Nolan reported some of the more general features which are found in this condition. He did not present clinical features sufficient to satisfy the full diagnostic criteria. The patten of behavioural disturbance is sufficiently explained in terms of a degree of pre-existing personality vulnerability.

You asked me to express my opinion with regard to causation. I do not regard the conflict in the workplace (Mr Nolan's complaint of harassment by the manger) as significant in regard to his current psychological symptoms. It is my opinion that Mr Nolan's abuse of alcohol, marijuana and other drugs is the current significant problem. Mr Nolan has displaced the cause of his psychological difficulties on to work. He minimises the impact of his pattern of substance abuse upon his behaviour and he misunderstands the importance of these problems. I appears to me that he has misinterpreted the behaviour of the manager consistent with a pattern of suspiciousness and misinterpretation which I observed during the examination.

It is my opinion that there is no psychiatric condition in Mr Nolan's case which arises as a consequence of his work."

SUBMISSIONS

APPLICANT

57. Counsel for the Applicant submitted that the Applicant's evidence was a thoughtful and corroborated account of his ability to cope with life after his work-related motor cycle accident in September 1997. Counsel, in noting that the Applicant had enjoyed a period of some ten years satisfactory employment with Australia Post prior to September 1997 submitted that the appropriate diagnosis in this matter was adjustment disorder with depressive episode, and that the Applicant's pre-existing conditions may have made the Applicant more vulnerable to the unfolding work place circumstances.

58. Counsel, in noting the entry in Dr Amjad's clinical notes of 1996 relating to anxiety and gambling, contended that a perusal of the totality of Dr Amjad's clinical notes has little impact on considerations in this matter. Counsel submitted that the Applicant's father's evidence clearly portrayed a significant change in the Applicant's behaviour and mood after the work-related motorcycle accident in September 1997; that the nature of the injuries received in this accident was complicated resulting in six months absence from work and six months on light duties when the Applicant returned to work; and that the Applicant's mood and outlook deteriorated in the first six months.

59. Counsel contended that by late 1998 following the arrival of Mr Bere-Streeter as the Applicant's supervisor, the Applicant had on going symptoms in both shoulders and was subjected over a period of six to eight months to frequent disciplinary actions by his supervisor. The Applicant considered that he was being treated unfairly.

60. Counsel, in noting the Applicant's non work-related accident resulting in a broken left heel at Easter 1999, his period off work and his attempt to return to work on light duties, which was denied, submits that the Applicant's onset of an adjustment disorder commenced in September 1999 at the time of his nervous breakdown. As a consequence of these happenings, which included the suspension of his driving licence, the Applicant on 20 October 1999 wrote to Mr Lennon to confirm an arrangement of a few weeks annual leave commencing 5 October 1999 and 12 months leave without pay ending on 1 November 2000. In support of these contentions counsel pointed to the documents from the Blacktown Mental Health Service, which clearly details the Applicant's anxiety and his difficulties at work, including stress as a consequence of his supervisor's actions. Counsel contended that the Applicant's work situation had materially contributed to the causation of the Applicant's adjustment disorder, and further that there was no evidence before the Tribunal that a postal delivery officer without a license could not be employed at Australia Post.

61. Counsel, in noting the events of 14 November 2000 and 22 November 2000, submitted that there was no real factual dispute as to the substance and activities of these two days, apart from some difference in observations made as to whether or not the Applicant was or was not upset on his return to work following his medical examination. More importantly counsel contended that the Applicant felt that during the process of his return to work he was being treated unfairly, and that this was a continunance of unfair disciplinary actions which had been taken against him in the past. These circumstances had led to the nervous breakdown and included:

* The removal of home garaging privileges of a work motorcycle, which he considered a significant fringe benefit; that he had received no warning from his supervisor and the circumstances leading up to the loss involved a day in which the Applicant was sick and did not attend at work.

* The code of conduct warning when the Applicant failed to keep an appointment with Mr Bere-Streeter on 25 February 1999 as an example of unfair disciplinary processes.

* That there was no requirement to step away from the position of Senior Postal Delivery Officer Grade 2 (Relief); that to make the Applicant do so was unfair.

* That there was no attempt by management either on 14 November 2000 or on 22 November 2000 to raise the issue of urine drug screening as part of his medical examination on 22 November 2000.

62. Counsel submitted that issues of morale problems at Blacktown Delivery Centre had been confirmed by Mr Lennon, and that Mr Lennon, the management staff at the Penrith Area Office and Mr Bere-Streeter, were aware of the Applicant's problems and that they were aware that there would be a need to be careful in the Applicant's reintroduction into the work force. Instead it was argued that it would appear that area office had not fully explained the particulars of the meeting with the Applicant on 14 November 2000 to Mr Bere-Streeter; that there had been a confirmation of demotion without notice; that the Applicant had been sent for drug testing without consent and that the Applicant had been placed on a different run.

63. Counsel submitted that Drs Pickering, Lovell and Gurr all concluded that the Applicant suffered from chronic adjustment disorder with depressed mood disorder, and that this condition resulted from, in part, changing circumstances in life, stress in the working place, emotional dependence on parents; that such a diagnosis covered both periods, that is from September 1999; that the Applicant still has the difficulties, although recovering (Dr Pickering, Dr Lovell); that the letters written by Mr T Nolan to Dr Gurr and Dr Amjad are consistent with the father's beliefs in this matter; and that despite being terminated on invalidity grounds on 22 May 2002, incapacity payments should continue.

RESPONDENT

64. Counsel for the Respondent contended that the primary issue in this matter was the question of whether or not an injury within the meaning of the Act existed. In so stating counsel relied upon the matter of Comcare v Mooi (1996) 69 FCR 439 where Drummond J stated at p 443-444:

"But in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to "injuries" compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s 14(1).

Not to require such a feature to be present in the employee's condition would, I think, be to ignore that the Act makes compensible only injuries which are defined to comprise diseases and physical or mental injuries (other than diseases). Elements of the definition of "ailment", the term by which the Act defines "disease", such as "disorder", may, in ordinary speech, be apt to refer to bodily and mental functions not being in their ordinary state, even though no form of illness or disease is present."

65. Counsel further referred Drummond J in Comcare v Mooi (supra), where at page 446 he stated:

"There has been a continuous liberalisation of the requirements to be satisfied by Commonwealth employees to be entitled to workers' compensation. But the need to show something more than the development of a work-caused condition of the body or mind and associated impairment of capacity to work has been an essential requirement since the inception of the legislation: work-caused physical or mental fatigue that impairs an employee's capacity to work is no more compensible than debilitating work-caused distress, unless that distress amounts to or results in a condition of disease or illness."

66. Counsel submitted that there is insufficient evidence available, which would allow a finding, on the balance of probabilities that the Applicant has suffered an injury within the meaning of the Act. Counsel, in acknowledging all the psychiatric reports in this matter, argued that at no stage during the Applicant's leave without pay was any doctor called on behalf of the Applicant to nominate any diagnosis that may have said to have existed during that period. Further, on the issue of the various psychiatric reports, it was contended there is no nominated medical evidence which clearly defines that any particular medical condition has been aggravated.

67. In summary counsel contended, that in the absence of an injury consistent with the definition contained within the Act, the Applicant is not liable to compensation pursuant to section 14 of the Act.

CONSIDERATION AND FINDINGS

68. In the matter the Tribunal has been particular in detailing the history of the matter. It is evident to the Tribunal that the Applicant had some difficulties with sleep and mood in June 1996 and with anxiety and mood in August 1996 (Clinical notes of Dr Amjad) and that the Applicant had been subject to work performance issues on 29 April, 10 June, 1, 2, 3, 23 September 1997 by his supervisor. These related to slowness in sorting, sick leave audit, failure to complete deliveries, registered letter not delivered, sick leave usage (T3-T9). The Tribunal notes that the Applicant's work-related motorcycle accident occurred on 23 September 1997; that he suffered a fractured left collar bone; that he was on compensation leave for six months and then returned to work on light duties for six months.

69. The Tribunal notes that the Applicant was subject to work performance matters raised by Mr Bere-Streeter on 25 February, 26 February, 1 March, 26 March and 15 April 1999. These included failing to comply with a direction, failing to promptly and correctly carry out his duties, failure to display skill, care and diligence, failure to abide by motorcycle take home policy, non delivery of depot bags, failure to record attendance in the manner required and failure to be punctual and reliable in his attendance.

70. The Tribunal further notes the following sequence of events:

* The Applicant fractured his left heel in a non work accident in late April 1999 and that he was absent from work on sick leave, despite a request by him to return to work on light duties, this request bring declined by management.

* In September 1999 he was disqualified from driving for a period of 12 months because of a drink driving offence.

* On 10 September 1999 he was referred to the Blacktown Mental Health Service by his father. Assessment and supervision in part was carried out by that team until 11 January 2000. There is no document nor any evidence before the Tribunal to support the Applicant's father's claim that his son had a major nervous breakdown in late October 1999. On 20 October 1999 the Applicant requested a few weeks annual leave and 12 months leave without pay commencing 5 October 1999 and finishing 1 November 2000. The Applicant noted in this correspondence that it would be necessary for him to be placed on the attached list at Blacktown Postal Delivery Centre on his return.

* During year 2000 the Applicant remained under the care of his general practitioner and received counselling from Ms Ortinger and Mr Sanders, psychologists at the Salvation Army.

* On 14 November 2000, a meeting was held at the Area Office at Penrith at which the Respondent became aware of the Applicant's loss of licence and at which the Applicant was advised of his need to regain his licence, his need for motor cycle retraining, issues surrounding home garaging of his motor cycle and the requirement for him to relinquish his relief position.

* On 22 November 2000 the Applicant returned to work and Mr Bere-Streeter requested a letter from the Applicant that he relinquish his relief position, placed him on beat one, and advised him of the need for a medical examination, at which he would need to supply a urine sample.

* That the medical examination on 22 November 2000 involved the supply of a urine sample by the Applicant and that it is common ground between the parties that the Applicant was neither asked nor consented to having the urine sample analysed for drugs and alcohol.

* That the medical examination conducted by Dr Pierides on 22 November 2000 detailed the Applicant's history of stress and depression (no medication and pain in the left shoulder). Examination by Dr Pierides found the Applicant to be mildly anxious and to have continuing left shoulder and neck pain as a consequence of the fractured left clavicle in September 1997. No urinary analysis for drugs and alcohol was undertaken.

* On 22 November 2000 following the medical examination, the Applicant became distressed, returned to work and completed his shift and was later driven by his father for consultation with Dr Amjad who considered the Applicant to be stressed and depressed. The Applicant has not returned to work since and was medically retired on 22 May 2002 on grounds of invalidity.

71. The Tribunal, having detailed the chronology in general terms also notes the following:

* That the Applicant believes he has been stressed and harassed by his supervisors in the work place and that his circumstances and medical conditions are a consequence of these happenings. Further he believes he has been treated unfairly and discriminated against in relation to both the withdrawal of privileges and the allocation of work.

* That the Applicant's father is firmly of the view that the Applicant's medical circumstances arise as a consequence of unfair and discriminatory treatment at work.

* That the Applicant's father believes it more than appropriate for him to assist his son in his redress and pursues his advocacy of such accordingly.

* That the Respondent's managers and staff advisers believes that they have acted correctly and fairly if all the circumstances of the matter are taken into consideration.

72. In addressing the issue of whether the Applicant has suffered an injury, the Tribunal notes that the essence of the Applicant's case is that an injury was suffered as a consequence of unfair treatment and harassment after his return to work in September/October 1998 after the motorcycle accident, and that this injury was aggravated by the events of November 2000 at and around the time of the Applicant's return to work, following a year's leave without pay.

73. In reviewing the various clinical notes and reports the Tribunal notes the following:

* Apart from the notations in June and August 1996, Dr Amjad clinical notes do not demonstrate any evidence of abnormal mental behaviour or attitude until 17 November 1999 when the Applicant informed him he was on one year leave without pay and that he had been seen by Dr Sloss at the Blacktown Mental Health Service.

* Blacktown Mental Health clinical notes indicate that the Applicant was assessed by them on referral by the father on 10 September 1999 and that a medical review by Dr Sloss on 14 September 1999 concluded that the Applicant was not suffering any acute mental illness, but suffered from alcohol and cannabis abuse with query depression. Later notation indicates that the Applicant was not interested in drug and alcohol counselling, but by 16 December 2000 the Applicant was willing to see such counsellors.

* The Tribunal again notes that there is no documentary evidence to support the contention made by the Applicant's father that his son's nervous breakdown was in late October 1999.

* That the clinical notes of the Salvation Army counsellors between 9 March 2000 and 30 January 2001 describe the Applicant as experiencing a fairly consistent pattern of symptoms including difficulties sleeping, feelings of unworthiness and sadness, neglecting to eat, wanting to cry, panic attacks, entertaining thoughts of self harm and some paranoia, as well as consuming 6-8 stubbies of beer per day and using cannabis. Further that the Applicant may benefit from medication which treats both anxiety and depression.

* Dr Amjad's clinical notes for January to December 2000 record the Applicant's counselling progress with the Salvation Army and described the events of 22 November 2000. The Applicant is recorded as being anxious and/or upset on particular visits and/or alternatively depressed. The Applicant was commenced on antidepressant medication on 8 February 2001.

* Dr Lovell in his report of 8 January 2001 (T53) considered that the Applicant was "a young man with alcohol dependency. He is also emotionally dependent on his parents. In the context of a non work-related injury, the absence of his parents and some social withdrawl, he may have through time become depressed. His major difficulty is that he believes he has been singled out and harassed at work because of "a poor attitude". This appears to be part of his personality style, rather than related to illness."

* Dr Lovell in an earlier report dated 12 December 2000 (T46) believed the Applicant's could be said to suffer from an adjustment disorder with depressed mood as the Applicant believed the urine drug test to be another example of personal harassment; that he satisfies the criteria for alcohol dependency and that he would be able to return to work if so motivated, and that he would be fit to perform normal duties without restrictions.

* Dr Pickering in his report of 19 July 2002 (Exhibit A2) considered that the Applicant may be suffering from an undiagnosed Attention Deficit Hyperactivity Disorder and an adjustment disorder with depressed mood, the later associated with the perception by the Applicant of harassment at work by managers in general, perceived harassment by Mr Bere-Streeter, the urine drug test episode, deceptive comments by managers and the continuing effects of his motor cycle accident in September 1997. In regards to the adjustment disorder Dr Pickering stated:

"This writer can only make a statement about causation which is conditional upon his perception of harassment by management being verified by independent sources..."

* In relation to the role of Deficit Hyperactivity Disorder in the causation of symptoms, Dr Pickering stated:

"It will therefore be necessary to demonstrate whether or not Mr Nolan made any contribution to his own difficulties and what part this played, ie was any of the disciplinary matters and criticism objectively justified by his own behaviour and therefore not constitute harassment".

* Dr Pickering considered that the Applicant's daily consumption of alcohol is slightly in excess of what is recommended and his use of cannabis is slight.

* Dr Gurr in his report of 3 June 2001 (Exhibit R5) considered the Applicant to be suffering from an adjustment disorder with mixed anxiety and depression, which might be considered a normal reaction to his perceived harassment.

* Dr Gurr in a later report of 24 October 2001 (Exhibit R6) made the following comments:

"However, Paul was in no mood to rationally discuss that, as he was feeling angry with doctors and the legal compensation process. He is feeling trapped by anger towards his previous work supervisor and his desire to get back at him through the court process, with the need to maintain his symptoms until it goes to court, which stops him getting on with life. He has noticed private investigators watching him at times. He has a low self esteem and does not know what to do and is acting in an adolescent fashion with a dominant father."

* Dr Lewin in his report of 29 October 2001 (Exhibit R2) , concluded that:

"I do not regard the conflict in the workplace (Mr Nolan's complaint of harrassment by the manager) as significant in regard to his current psychological symptoms."

"It is my opinion that Mr Nolan's abuse of alcohol, marijuana and other drugs is the current significant problem."

"Mr Nolan has displaced the cause of his psychological difficulties on to work."

"It is my opinion that there is no psychiatric condition in Mr Nolan's case which arises as a consequence of his work."

"The pattern of behavioural disturbance is sufficiently explained in terms of a degree of pre-existing personality vulnerability."

74. The Tribunal having addressed the chronology of this matter, the interactions that have occurred at work between the Applicant and his managers/supervisors, and having noted the details of the various meetings and file notation, concludes that these has been a history since 1997 of management being dissatisfied with elements of the Applicant's work performance. Management concerns were expressed prior to his motorcycle accident in September 1997 and again in early 1999. The Tribunal notes the urine drug testing episode of 22 November 2000 and concludes that the appropriate processes for conducting such a test was not carried through by management and it was appropriate that the test were not completed. Apart from the episode of the inappropriate testing, the Tribunal on detailed examination of the evidence before the Tribunal finds on the balance of probabilities that the Applicant was treated fairly in the work place, was not harassed and was not subject to discriminatiory practices by management at Australia Post. The Tribunal recognises that the Applicant and his father perceive otherwise, but on the basis of the evidence before the Tribunal, there is little which corroborates their contentions and much which supports an appropriate management response to a variety of evolving situations as regards the Applicant.

75. The Tribunal would also note that the evidence before the Tribunal clearly portrays a complex interaction between the Applicant and his parents. All psychiatric reports indicate such and it is clearly evident to the Tribunal that the Applicant's father has advocated his son's cause with a firm belief that his son's condition has arisen as a consequence of work place happenings. The Tribunal, however does express concern that Mr T Nolan appeared somewhat unaware as to his son's drug and alcohol usage which was in evidence before the Tribunal, and that this may have been somewhat understated in letters written to Dr Gurr and Dr Amjad. Further the Tribunal would also caution against the loss of objectivity in situations where the desire for a particular outcome becomes the predominant motivation for future action.

76. In further addressing the question of injury in this matter, an analysis of the various psychiatric and psychological reports, as well as the evidence of the Applicant clearly indicates that the Applicant has had of a long history of both alcohol and cannabis dependency. Such is evident in the reports of Dr Sloss, the Salvation Army Counsellors, Dr Lovell and Dr Lewin. Dr Gurr is silent on this issue and Dr Pickering is of the opinion that alcohol usage by the Applicant is slight excessive and his usage of cannabis is slight. The Tribunal concludes that on the balance of probabilities the Applicant suffers from alcohol dependence and from cannabis dependence, and that these conditions have been present for many years and certainly prior to September 1997, with the Applicant being of the belief that he did not have a problem and thefefore not having an interest in seeking therapy. Further the Tribunal finds that there is no evidence before the Tribunal to suggest that work played some part in the causation of such. The Tribunal, while noting the Applicant's contention and that of his father, that his use of cannabis was associated with the continuing pain in his left shoulder, is not satisfied on the balance of probabilities that the Applicant's work caused an aggravation of either his alcohol and/or cannabis dependency, for in all the clinical reports before the Tribunal there is no suggestion that such a proposition has been mentioned by the Applicant and commented on by the particular clinician as a particular issue.

77. Similarly the Tribunal is unable to find on the balance of probabilities that other diagnostic scenarios existed either prior to September 1997 or afterwards. In making such a finding the Tribunal relies upon the medical reports of Drs Sloss, Lowell and Lewin. Further in relation to Dr Pickering's diagnosis of Attention Deficit Hyperactivity Disorder, the Tribunal observed that the Applicant denied particular symptomatology nominated at page eight of Dr Pickering's report (namely items 1, 2, 3, partly four, not entirely five) and further that his childhood behaviour was not necessarily consistent with the diagnostic criteria for that disorder and as detailed by Dr Pickering.

78. Further the Tribunal, having already detailed Dr Pickering's conditional comments in relation to the causation of adjustment disorder with depressed mood, and having concluded on the balance of probabilities that on the evidence before the Tribunal that the Applicant was not subject to unfair or discriminatory treatment and/or harassment by management concludes that Dr Pickering's causation theory cannot be sustained. Further while the Applicant does experience particular behavioural manifestation, both Dr Lovell and Dr Lewin consider this to be part of the Applicant's personality traits.

79. In considering Dr Gurr's two reports, the Tribunal concludes that neither are of particular assistance to the Tribunal either in terms of diagnosis or causation, for each report appears to be descriptive of the situation and not defining of criteria leading to earlier a diagnosis and for causation of the defined symptomatology, in so far as it relates to work.

80. In summary and for the reasons already outlined the Tribunal, having concluded that the Applicant has suffered and continues to suffer from both alcohol and cannabis dependency prior to September 1997, and that on the balance of probabilities that neither conditions of dependence have been caused by or aggravated by work and that the Applicant's behavioural manifestations are part of the Applicant's personality traits in association with symptomatology arising from his alcohol and cannabis dependence, finds that the Applicant has not suffered an injury in the terms of section 4 of the Act.

81. As a consequence the Tribunal concludes that the Respondent is not liable to pay compensation to the Applicant pursuant to section 14 of the Act.

DETERMINATION

82. The Tribunal affirms the decision under review.

I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: H Sim .....................................................................................

Associate

Dates of Hearing 11 ~ 13 September 2002

Date of Decision 17 January 2003

Counsel for the Applicant Rohan de Meyrick

Solicitor for the Applicant Greg Horan, Turner Freeman Solicitors

Counsel for the Respondent Brian Skinner

Solicitor for the Respondent Colin Hall, Blake Dawson Waldron