Australian Postal Corporation v Harris

Introduction 1 This is an appeal by the Australian Postal Corporation ("the Corporation") under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (Òthe AAT ActÓ) against a decision of the Administrative Appeals Tribunal ("the Tribunal") of 21 December 1999. In that decision the Tribunal determined an application for compensation by Mr Ian Harris under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"). The determination was made in a review of a reconsideration determination of a delegate of the Corporation which had affirmed an earlier determination disallowing a claim for compensation by Mr Harris under the Act. Background 2 The following emerges from the reasons of the Tribunal. Mr Harris commenced working for the Corporation on 6 November 1989. An incident occurred on 11 September 1990 in which Mr Harris claimed he strained his groin, leg and hip. In November 1990 Mr Harris returned to normal duties as a driver though in June 1991 he was hospitalised. There was evidence before the Tribunal that this was for reasons, inter alia, of depression though no finding to that effect was made. In August 1992 Mr Harris resumed his normal duties though claimed he was then suffering neck and back pains. On 21 September 1992 he was sent home from work for Òacting silly and giggly and over happyÓ. He subsequently was admitted to the Pialla Unit at the Nepean Hospital where his emotions were stabilised with medication. 3 Mr Harris returned to work on light duties on 16 November 1992. In 1993 Mr Harris claimed to be getting bouts of diarrhoea and indigestion. He claimed to have injured his back and groin at work on 14 February 1994. Mr Harris separated from his wife in February 1994. While he continued to work at this time he took various periods off work until March 1995 when he went on continuous sick leave. He sought and obtained an involuntary retirement effective 2 October 1996. From that point Mr Harris was in receipt of a disability support pension. On 14 April 1997 Mr Harris made application for rehabilitation and compensation under the Act for alleged injuries to his cervical spine, an osteoarthritic knee, an anxiety and stress disorder and intestinal problems. On 17 June 1997 the Corporation disallowed the claim and this disallowance was affirmed on review on 25 August 1997. The hearing and evidence before the Tribunal 4 The hearing before the Tribunal took place on 29 and 30 October 1998 and 5 March 1999. At the hearing in March 1999 evidence given by Dr Pusic who was Mr HarrisÕs treating psychiatrist and another psychiatrist, Dr Morse who had seen Mr Harris in probably April 1996 when he had made a disability claim under a policy with MLC. Dr Pusic first saw Mr Harris in early February 1994. Additional psychiatric evidence was given by Dr Gertler who saw Mr Harris on 25 November 1997. Two reports of Dr Pusic were in evidence before the Tribunal. The first report was dated 5 November 1995 and concluded: "Taking into account Mr HarrisÕ Generalised Anxiety Disorder, obsessive and paranoid personality traits and physical disabilities, I would say that Mr Harris is totally and permanently unfit to continue his duties with Australia Post. I do not feel that he would benefit from a work based rehabilitation program." The second report was dated 25 February 1999. Dr Pusic commenced this report with an account of Mr HarrisÕs history which preceded his first report. Dr Pusic then expressed the view that: "By late 1995, Mr Harris anger and resentment [sic] of the way he had been treated by Australia Post had reached the stage where any rehabilitative attempt would have been fruitless. I found him to be unfit to return to work for Australia Post. I would say that Mr HarrisÕ inability to cope with the demands of being a driver for Australia Post did contribute to his Anxiety Disorder. He may possibly have been helped if a comprehensive rehabilitation assessment and a planned rehabilitation program was put in place at an early stage when he was experiencing difficulties with driving. Since 1995, Mr Harris has been on a Disability Support Pension. He has continued to suffer from mild fluctuating levels of generalised anxiety. He has continued to suffer form [sic] low back pain. He has at times been irritable and mildly dysphoric. He has become increasingly withdrawn from others. He leads an isolated existence in a caravan park. Using the guide to the assessment of the degree of permanent impairment, Mr Harris is experiencing a 10% level of impairment. From purely a psychiatric point of view, Mr Harris would be fit for non demanding employment.Ó Mention should be made of the report of Dr Morse dated probably April 1996. The report concluded with answers to several questions which Dr Morse had been asked: Ò7 I consider him to be totally disabled in regard to work as a driver. He presumably could do clerical work with sufficient training and assistance though he would see himself as being too anxious or tense to carry this out, however, with treatment and support, rehabilitation, it is possible he could carry out the work. I think he would be suitable for cleaning and other light physical work if his physical condition would allow it. 8 He appears to have a very poor motivation to return to work. 9 Given the intensity of his emotional distress and his attitude towards his illness, the rather hopeless, despairing view he has of his ability to recover, the complicating factor of his physical condition which he sees as also very disabling, I consider the prognosis for recovery from his emotional and physical state to be poor, his ability to return to normal life and social interaction to be very poor and his ability to return to work as poor.Ó The Tribunal's decision 5 The reasons for decision of the Tribunal commenced with an outline of the background and the evidence, both documentary and oral. The Tribunal then set out the evidence of Mr Harris, an account of the medical evidence (both historical and more contemporary) and the submissions of both counsel for Mr Harris and counsel for the Corporation. The Tribunal's account of the contemporary medical evidence included a detailed account of the evidence of Dr Pusic, Dr Gertler and Dr Lee who was a psychiatrist who had examined Mr Harris at the request of the Corporation. 6 The Tribunal then set out its consideration of the evidence and the findings of fact it made. It commenced by saying that Mr Harris was not an impressive witness. As to the claims of physical disability the Tribunal said: Ò106. É the Tribunal finds that the aggravating effects of the ApplicantÕs work on his knee, back and neck would have ceased no later than 17 June 1995, that being three months from the cessation of those work activities [loading and unloading a truck]. 107. É the Tribunal finds that the Applicant does not suffer from any work related impairment in his knees É the Tribunal does not accept that the ApplicantÕs back condition continues to be aggravated or accelerated by his work with the Respondent. 108. On the basis of these findings the Applicant is entitled to incapacity payments pursuant to s 19 for total incapacity and compensation pursuant to s 16 for any medical treatment in respect of his neck, back and knee conditions, until and including 17 June 1995. Thereafter his entitlement to such payments ceased. As the Tribunal finds that the effect of the ApplicantÕs employment on those conditions ceased no later than 17 June 1995, he is not entitled to payment of compensation in respect of permanent impairment for his neck, back and right knee. Therefore, although the Tribunal took evidence in respect of permanent impairment, the detail of that evidence is not included in these reasons for decision.Ó 7 The Tribunal then turned to consider the contention that Mr Harris suffered from a compensable psychiatric condition. It concluded that Mr HarrisÕs employment contributed to a material degree to the acute psychotic episode he had in February 1994. It rejected any suggestion that Mr Harris suffered from a personality disorder. The Tribunal then considered the evidence of the three psychiatrists. It rejected the opinion of Dr Lee. It expressed, in substance, reservations about the evidence of Dr Gertler. It said the following about the evidence of Dr Pusic: Ò111. The Tribunal was most assisted by the evidence of Dr Pusic, the ApplicantÕs treating psychiatrist. It was supported by and/or consistent with his contemporaneous clinical notes. The weakest part of Dr Pusic's evidence was his opinion that the ApplicantÕs present condition of mild anxiety disorder was still affected by his employment at Australia Post as this was an opinion given without supporting evidence. However, as that was the best evidence available and he is the treating psychiatrist the Tribunal is reasonably satisfied of the reliability of his opinion evidence. On the basis of Dr Pusic's evidence, therefore, the Tribunal finds that the ApplicantÕs employment contributed to his hypomanic disorder rather than merely having aggravated it, and that he continues to suffer from a mild anxiety condition arising in part from his employment with the Respondent.Ó 8 The Tribunal then dealt with and rejected the contention that Mr Harris had a compensable intestinal condition related to his anxiety disorder after he stopped working for the Corporation on 17 March 1995. The Tribunal concluded its consideration of the elements of the claim based on Mr HarrisÕs psychiatric condition: Ò113. The ApplicantÕs condition has now improved to the point where Dr Pusic considers that the Applicant could perform suitable work although he excluded the pre-injury work with Australia Post as suitable work. He also noted the likelihood of the Applicant needing to be involved in a rehabilitation program in order to achieve his return to suitable work. On the basis of Dr Pusic's evidence, and in the absence of any evidence as to the date from which the Applicant was fit for selected employment, the Tribunal finds that from the date of its decision the Applicant was the fit for suitable light work within the limitations of his non-work-related neck and back conditions, in a low stress environment, subject to a suitable rehabilitation program to assist him to return to work after having been out of the workforce since 17 March 1995. 114. The Tribunal notes the evidence from Dr Pusic that the Applicant suffers from a permanent impairment in relation to his psychiatric condition of ten percent, and the Tribunal so finds. The Tribunal prefers the evidence of Dr Pusic to Dr Gertler on this issue for the same reasons as outlined previously. The Applicant is entitled to payment of compensation for permanent impairment at ten percent pursuant to s 24 of the Act. His entitlement for payment in respect of non-economic loss pursuant to s 27 will be remitted to the Respondent for assessment.Ó 9 The formal decision of the Tribunal was: ÒThe Tribunal sets aside the reviewable decision being the determination of the Respondent dated 25 August 1997 and remits the matter to the Respondent with the Direction that-