Green and Australian Postal Commission [1990] AATA 598 (3 August 1990)

Administrative Appeals Tribunal

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Green and Australian Postal Commission [1990] AATA 598 (3 August 1990)

Last Updated: 5 June 2008

COMPENSATION - anxiety, depression - postmaster - change in duties - work stress - contribution to contraction, aggravation, acceleration or recurrence of applicant's disease - whether effect ceased

Compensation (Commonwealth Government Employees') Act 1971 ss. 5(1)(7)(11), 26, 27(1), 29(1)(2), 45(2) & 53
Commonwealth Employees' Rehabilitation and Compensation Act 1988 ss. 4, 5(7), 60(1), 62, 64(1), 123, 126 & 139
Australian Postal Services Amendment Act 1988 s.5
Elleissy v Australian Telecommunications Commission (1989) 18 ALD 240
Westgate v Australian Telecommunications Commission (1987) 14 ALD 367
Re Willis and Australian Telecommunications Commission Decision No. 5220(B), decided 23 February 1990
Re Ganchov and The Commission for the Safety Rehabilitation and
Compensation of Commonwealth Employees Decision No. 5802, decided 27 March 1990
Re Gilbert and Australian Postal Commission Decision No. 4726, decided 4 November 1988
Re Cannon and Australian Postal Commission (1988) 15 ALD 375

AAT Decision No 6094

D E C I S I O N & R E A S O N S

RE : ROBERT GREEN

AND : AUSTRALIAN POSTAL CORPORATION

No. V89/208

TRIBUNAL : Mrs H. E. Hallowes, Senior Member

DATE : 3 August 1990

PLACE : Melbourne

ADMINISTRATIVE APPEALS TRIBUNAL)

) No. V89/208

GENERAL ADMINISTRATIVE DIVISION)

Re : ROBERT GREEN

Applicant

And : AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

The Tribunal sets aside the determination under review and remits the matter to the respondent for reconsideration in accordance with findings and directions that-

1. the applicant's employment by the respondent contributed to the contraction and aggravation of the applicant's disease, severe reaction depression with marked anxiety features;

2. the applicant was at various times totally or partially incapacitated for work as a result of his disease and is entitled to compensation until 20 October 1987 in accordance with the relevant provisions of the Compensation (Commonwealth Government Employees') Act 1971 and the Commonwealth Employee's Rehabilitation and Compensation Act 1988 as set out in the amended determination under review dated 29 December 1988;

3. the applicant was totally incapacitated for work from 20 October 1987 until 27 March 1990 as a result of his disease to which his employment was a contributing factor;

4. the applicant has been and continues to be partially incapacitated for work as a result of his disease from 27 March 1990. He has the capacity to work as a cleaner for 4 hours each day on 5 days per week;

5. the respondent shall pay the applicant's costs in these proceedings according to the appropriate scale of the scale of costs of the County Court of Victoria, such costs to be agreed between the parties legal representatives if possible and in the absence of such agreement to be taxed by the Registrar or a Deputy Registrar of the Administrative Appeals Tribunal.

.........................

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL)

) No. V89/208

GENERAL ADMINISTRATIVE DIVISION)

Re: ROBERT GREEN

Applicant

And : AUSTRALIAN POSTAL CORPORATION

Respondent

REASONS FOR DECISION

3 August 1990 Mrs H. E. Hallowes, Senior Member

1. On 11 August 1988, two years after he retired from his employment, the applicant lodged a claim for compensation under section 53 of the Compensation (Commonwealth Government Employees') Act 1971 ("the 1971 Act"). He described his disease as "mental illness - acute anxiety and stress related symptoms".

2. The 1971 Act was repealed by Section 139 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act"). Sub-section 126(2) of the 1988 Act, which falls within Division 2 Part X, the Transitional Provisions, provides:

"126(2) A claim for compensation duly made before the commencing day under the 1971 Act shall be taken to be a claim for compensation duly made to the relevant authority under this Act."

Section 2 of the 1988 Act provides that sections 1 and 2 of the 1988 Act commenced on the day on which the Act received Royal Assent, 24 June 1988. By sub-section 2(2), the remaining provisions of the 1988 Act commenced on day or days fixed by proclamation. In Government Gazette No. S196 1 July 1988, the Governor-General of the Commonwealth of Australia acting with the advice of the Federal Executive Council proclaimed 1 July 1988 as the day on which sub-section 4(1), the interpretative section and Part VII (other than section 98) of the 1988 Act commenced. The remaining provisions of the 1988 Act commenced on 1 December 1988 including Part X. By section 123 of the 1988 Act the "commencing day" is thus 1 December 1988.

3. By sub-section 4(1) of 1988 Act the "relevant authority" means:

"(a) in relation to an employee who is employed by an administering authority - that administering authority; and

(b) ...."

"Administering authority" by the same sub-section means:

"'administering authority' a Commonwealth authority declared by the Minister under section 101 to be an administering authority;"

The Minister has declared the respondent to be an administering authority, and by sub-section 5(7) of the 1988 Act, the applicant, having been employed by a Commonwealth authority, references in the 1988 Act to the Commonwealth in this application are read as references to the Australian Postal Corporation ("the Corporation"). When the applicant lodged his application for review, the respondent was known as the Australian Postal Commission. By section 5 of the Australian Postal Services Amendment Act 1988 the Australian Postal Commission was preserved and continued in existence under the name of the Australian Postal Corporation from 1 January 1989.

4. By sub-section 126(2) of the 1988 Act the claim for compensation in this application, although made before the commencing day under the 1971 Act, shall be taken to be a claim for compensation under the 1988 Act. However sub-sections 124(1) and (2) of the 1988 Act provide-

"124. (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a) ....

(b) ....

(c) in any other case - under the 1971 Act as in force when the injury, loss or damage was suffered."

5. In Re Willis and Australian Telecommunications Communications Commission (Decision No. 5220(B) handed down on 23 February 1990), the Tribunal, presided over by the then President of the Tribunal Hartigan J said that section 124 of the 1988 Act has led to the expression of divergent views within the Tribunal. In paragraph 35 of their reasons for decision in Re Willis the Tribunal said-

"What appears to us is that when the provisions of Part X are read as a whole it is plain that an employee's entitlement to compensation in regard to a pre-existing injury and the obligation of the relevant authority to pay compensation to an employee is ascertained according to the provisions of the 1912 Act, the 1930 Act or the 1971 Act whichever was in force at the time the entitlement or the liability arose. We do not consider that sub-sections 124(1) or (2) require entitlement or liability to be further ascertained by application, for example, of the entitlement provisions (such as ss.14, 19 or 24) of the 1988 Act."

6. In Re Ganchov and the Commission for the Safety Rehabilitation and Compensation of Commonwealth Employees (Decision No. 5802) handed down on 27 March 1990 Deputy President Todd said-

"With great respect, unassisted by the authority of the decision in Re Willis, it would have been my opinion that s.124(1) of the 1988 Act by its plain meaning sets up a dual requirement, that is to say it requires that liability be established under the 1988 Act, and further requires in s.124(2) that there would have been liability to pay compensation under the previous legislation. Section 124(1) applies the 1988 Act to all injuries etc., whether suffered before or after 1 December 1988. The words 'Subject to this Part' however qualify that application in respect of various specific respects, for example as provided for in S.124(7) relating to the rate of compensation payable in respect of periods occurring before 1 December 1988. In making the general application of the 1988 Act 'Subject to this Part' so far as s.124(2) is concerned, all that was done as I see it was to require that there have in general terms been, in respect of pre-existing injuries, liability to pay some compensation. Section 124(2) has in my opinion no further dispositive effect. The authorities relied on in Re Willis do not seem to me to have required that attention be given to the question of a dual requirement of liability, and therefore the judgments cited did not address the problem created by the 1988 Act. The specific terms of s.124 of the 1988 Act were not, and of course could not have been, before the Courts in those cases.

It would however be idle for me to go into my views in any more detail. The decision in Re Willis was a decision of the President. The Tribunal is not legally required to apply a strict doctrine of precedent. It is not a court, and is not of last resort; as to which see the joint judgment of Dawson, Toohey and McHugh JJ in Hien Van Nguyen and ors. v Thang Van Nguyen (High Court of Australia, FC No. 90/009, 8 March 1990). It is however I believe time to say that unless decisions of the President are followed by all within the Tribunal, and unless decisions of Presidential Members (which of course includes Deputy Presidents) clearly dealing with a point in issue are followed within the Tribunal, the Tribunal could gain a reputation for inconsistency if not disarray. In critical cases it is certainly in my view open to a member to note his or her disagreement with a precedent decision, but it is not desirable for members to adhere to views that appeal to them when the point has been decided otherwise at a higher level. That is not to say however that members are not entitled to express their own view for the record, as I have done here. For the rest, as the whole question of following previous decisions is related solely to questions of law, a disappointed party has a right of appeal if the view of such a would-be dissentient from the precedent case is seen compelling."

With respect I would adopt what was said by Deputy President Todd in Re Ganchov. This application will therefore be determined under the provisions of the 1971 Act. The relevant legislation is sub-sections 5(7),(11) and 27(1) and 29(1),(2) of the 1971 Act.

7. On 29 December 1988 a delegate of the respondent made a determination that-

"In accordance with section 124 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988, I hereby determine ...

The said employee suffered a temporary aggravation of a disease, namely, depressive reaction with marked anxiety features to which the employment was a contributing factor on 19.03.85, and the temporary aggravation of the disease is deemed to be a personal injury to the said employee arising out of the employment (Section 29) Compensation (Commonwealth Government Employees') Act 1971.

In accordance with the provisions of Section 27 of the Compensation (CGE) Act 1971, Australia Post is liable to pay compensation in respect of the said personal injury.

...

On the evidence before me including specialist medical opinion I also find that:

(a) the temporary aggravation of the disease ceased to be a result of the employment with Australia Post on 21 October 1987.

(b) any incapacity for work suffered by the employee from 21 October 1987 is not the result of the personal injury of 19 March 1985.

(c) the personal injury of 19 March 1985 does not reasonably require further medical treatment.

Therefore in accordance with the provisions of the 1971 Act, including Section 27, 29, 45, 37, Australia Post is not liable to pay compensation to the employee on and subsequent to 21 October 1987 in respect of the aggravation of the depressive reaction."

8. The applicant was advised by the respondent on 29 December 1988 that Dr T. Murray had reported to the respondent that his illness was a result of a pre-existing vulnerable personality which was aggravated by his employment. The advice went on to say "The work pressure which had caused the aggravation, ceased once you were retired according to Dr Murray". It was on the basis of Dr Murray's opinion that the delegate of the respondent made the determination under review. Following advice from the applicant that he was still receiving medical treatment, the respondent reconsidered the determination and on 6 February 1989 the applicant was advised that the delegate had decided the determination of 29 December 1988 should be neither varied nor revoked. By sub-sections 60(1) and section 62 of the 1988 Act this is a "reviewable decision" which the claimant may apply to the Tribunal to have reviewed under sub-section 64(1). In April 1989 an amendment was made to the determination under review, amending the date of cessation of compensation payments in accordance with the provisions of sub-section 45(2) of the 1971 Act, from 20 November 1987 to 20 October 1987. The applicant seeks review of that part of the determination which decided that he had suffered a temporary aggravation of his disease which had ceased on 20 October 1987. The applicant contends that he is "permanently affected by stress-related illness" and that his symptoms are a continuation of the symptoms he developed while he was working for the respondent and continue to arise out of his work induced stress.

9. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with medical reports from Dr Murray the applicant's treating psychiatrist; Dr M. Epstein, and Dr G. Conron, psychiatrists, who provided reports for the purpose of these proceedings and, Dr J. Mackellar and Dr J. Dyson, general practitioners, who have treated the applicant. Dr Mackellar's and Dr Dyson's medical records were also placed before the Tribunal. The applicant gave evidence together with his wife; twin daughters; his step-daughter; Dr Dyson; Dr Mackellar; Dr Murray; Dr Conron; Dr Epstein; Mr J. Hoffman who was divisional manager with the respondent, based at Benalla until he retired in April 1989; Mr L. Pawley sales manager, a friend of the applicant's; Mr T. Mason, postal services controller with the respondent and Mr Brian Law assistant postal manager, Shepparton, also employed by the respondent.

Findings of Fact

10. On the evidence before me I find the following facts. The applicant was born in 1933. On leaving school aged 14 years he started work at the local Post Office and apart from a period in the early 1950's he was employed by the respondent until his retirement on the grounds of invalidity in July 1986. For some of the period he worked at Post Offices in Melbourne before he transferred to the country in 1975. He suffered stress in the late 1960's during the break-up of his first marriage. He remarried before moving to Mooroopna as a postal officer Grade 3 and as postmaster responsible for six staff. The applicant actively participated in his local community, joining a number of organisations. During the fruit season the population of Mooroopna increased by about 2,000.

11. During the 1970's there were changes in duties of post masters. They were no longer responsible for morse code and telecommunications and new areas of responsibility were introduced. The applicant said he had difficulty in handling the changes and following a period of training in Melbourne he applied to be the district training officer. He was appointed and posted to the head office of the area, located at Benalla and was supplied with a car to enable him to travel around the area to introduce local postmasters to a new management program which included responsibility for sales. His original appointment was a temporary transfer and after 12 months he applied to become permanent in the position although he told the Tribunal he did not have confidence in the new management program. In the early 1980's he started to develop headaches and after further consideration decided to withdraw his application for the position of district training officer. He resumed his responsibilities as the postmaster at Mooroopna in 1981. He was required to implement the postmaster management program which necessitated contact with and visits to local businesses in order to acquaint them with, and sell to them, the services available at the Post Office. He was also required to visit local schools to interest the students in stamps. He conducted interviews with respect to passport applications. There were targets to be met and more paperwork to complete.

12. The applicant found that he had difficulty speaking on the promotional visits. He would lose concentration and there were periods of silence which caused him embarrassment. He lost confidence in the work he was doing although this did not affect his good relationship with his staff. At the same time he started to avoid social contact at home and developed physical symptoms such as a sore throat, ear-ache and problems with his nose as well as pain in his back. He underwent extensive medical assessment but no satisfactory diagnosis was made until it was suggested by a surgeon, Sir Edward Dunlop that he visit a psychiatrist. His general practitioner, Dr Dyson referred him to Dr Murray who told him that he had a psychosomatic illness. Before his medical problems were properly diagnosed the applicant got to the stage of thinking that he was dying.

13. The applicant accepts that he first had difficulty coping with his work in 1979. He was unable to achieve the projected sales of Post Office services but he was prepared to promote the Post Office project "Get the Business" and applied to be the district training officer. He found that the older district postmasters were not interested in new ideas. Although he had various physical ailments at this time as evidenced by his sick leave records he did not attribute these to his nervous disposition. In 1981 he had "stomach problems" and in 1983 he was diagnosed as having allergies. He accepted his doctors diagnoses. He felt fatigued when he was at work and his throat and ears would ache. However by 1985, when he was referred to Dr Murray, he accepted that he had a psycho-somatic illness but his pride prevented him from taking his staff into his confidence and burdening them with his problems.

14. The applicant said that until the symptoms of his disease developed he had been actively involved with his family as well as the community, attending school functions, participating in his church, playing tennis with his daughters and sharing responsiblity for domestic chores as well as carrying out any minor repairs on his home. He retreated from these activities and avoided contact with visitors to his home. After consulting Dr Murray in 1985 and being prescribed medication, he resumed work on several occasions but found that he was unable to cope. He retired from work on 25 July 1986 on the grounds of invalidity. He last attended the Post Office for work on 9 September 1985.

15. Early in 1987 the applicant obtained a cleaning position at a local school for one and a half hours each evening where he was able to work alone. He also obtained employment at the local cannery but after three weeks he said that he felt he was not competent to work on the line clearing cans and he resigned from that employment. Following these two attempts at returning to the paid work force the applicant and a friend decided to rent a kiosk at a sports ground, through a local council.

Members of both families assisted in serving at the counter but the applicant did not renew his contract for the kiosk after 12 months as he again felt that he was not coping. He said that he was unable to communicate with patrons, his throat would "knot up" and he would perspire. By late 1987 Dr Murray expressed the opinion that the applicant was coping well and he referred him back to Dr Mackellar for the prescription of medication. The applicant has been able to participate in outings with friends he has known for a long time and he travels to Melbourne during the football season to stay with friends and attends matches. He has also accepted some responsibility for household duties although he has no confidence in what he does. He has registered with the Commonwealth Employment Service ("CES") but has had no offers of employment from that source.

Medical Evidence

16. Dr Murray first examined the applicant on 24 July 1985. In February 1988 he reported that the applicant complained of extreme anxiety but Dr Murray was convinced that depression was his underlying major illness. He reported that the applicant improved considerably with treatment over the next four months but each time he resumed his duties as a postmaster he would suffer a relapse. On 27 November 1985 Doctor Murray expressed the opinion that the applicant should retire on medical grounds. After he ceased work Dr Murray was able to reduce the applicant's medication and see him at increasingly spaced intervals. By 20 October 1987 Dr Murray returned him to the care of his general practitioner.

17. In his report dated 25 February 1988 Dr Murray made the following observations.

"1) The psychiatric disorder from which the former employee suffered was basically a Depressive Reaction with marked anxiety features. As implied in the foregoing report his condition largely resolved with a

fairly prolonged period of psychiatric treatment and it is to be expected that he may be able to be maintained in a state of relative good health under the care and supervision of his own family doctor.

2) The essential cause of his illness, in my opinion, was the existence of a somewhat vulnerable personality structure in the employee which was at least aggravated (on the balance of probability) by the changes in the nature of his duties as a Postmaster, as they were perceived and described by the employee in his statement which you quote in the first page of your communication dated 23rd February 1988. I.E. He saw himself as a competent performer of duties in the traditional role of a Postmaster as he had experienced such a role during a large number of years as a postal employee. When various changes in emphasis in the duties to be performed by a Postmaster were perceived by the employee to require him to 'change in role ... to a salesman', he conscientiously and honestly endeavoured to make necessary adjustments. Nevertheless he felt increasingly inadequate and with his self-esteem progressively becoming lower, he did indeed become extraordinarily tense, apprehensive and generally self-denigratory in his attitude about his capacities and general worth.

......

d. As already stated there was a pre-existing vulnerable personality in that the employee did not perceive himself as either a well educated man or one possessing high degrees of personal skills and abilities and in general experiencing a satisfactory level of self-esteem. In the circumstances of his duties undergoing some change in emphasis, there was at least an aggravation of his feelings of inadequacy and lack of worth which contributed very materially to the development of a severe Reactive Depression to which the employment of the employee was a contributing factor.

.....

4)c. The factors at 2 a to 2 d would, in my opinion, be certain to render the employee susceptible to further episodes of severe depression if attempts were made to reemploy him by Australia Post.

5) In my opinion the employee is not totally incapacitated for any work whatever at present, but attempts to do work similar to the nature of that for which he was employed prior to his retirement would in my opinion result in him being seen as clearly unfit to perform similar work."

18. When the applicant was again referred to Dr Murray in 1989 his symptoms were much worse than in 1987 as he was attempting to cope socially without taking the medication prescribed by his family doctor. Dr Murray gave evidence to the Tribunal that in his opinion the applicant had reverted to the position he was in during 1985, brooding over his life's activities rather than being only concerned with current problems. Dr Murray expressed the opinion that the applicant would not have his disease were it not for the work stress even though he has a personality which predisposes him to his disease. Dr Murray does not anticipate a cure for the applicant's disease, He is now of the opinion that the applicant could cope with cleaning at a school.

19. Dr Dyson first treated the applicant in 1977 or 1978. He obtained a history from him of stress both at home and at work. He prescribed anti depressant drugs. In Dr Dyson's opinion, if precipitating factors are removed most people with the applicant's disease will get substantially better. Dr Mackellar was in practice with Dr Dyson until 1979. In March 1988 Dr Mackellar expressed the opinion that the applicant's working environment was "a major contributing factor to his ill health, at that time". He had referred the applicant to Dr Murray in 1985 as the anti depressant medication he was prescribing was not relieving the applicant's symptoms. Dr Mackellar is now of the opinion that the applicant could work in a job which involved no "heavy responsibility load".

20. Dr Epstein examined the applicant on 28 November 1989 and 26 January 1990. He recorded a history which included the observation that the applicant was functioning reasonably well as a house husband but when he was under pressure all his symptoms returned. Dr Epstein expressed the opinion that the applicant has suffered from a stress breakdown. A major contribution to his breakdown was his employment. In Dr Epstein's opinion the applicant's capacity for work remains limited. Part-time manual work, placing the applicant under no time constraints, would be suitable. The applicant's capacity for coping has broken down as a result of his experiences when working with the respondent. The applicant's depression is part of his stress break down syndrome. In Dr Epstein's opinion the applicant does not have a pure depressive illness. They respond well to anti depressant medication. In the applicant's case there has been a decline in functioning. The history given to Dr Epstein by the applicant had primarily been a history of anxiety although he complained of depression. Dr Epstein disagreed with Dr Murray's and Dr Conron's diagnosis of a depressive illness. When it was put to Dr Epstein that the applicant had worked at the cannery, as a school cleaner and at a kiosk, "a remarkable feat" if in fact the applicant was still suffering the level of disability he had outlined to Dr Epstein, Dr Epstein replied-

"No, not necessarily. I have seen a number of people who have had breakdowns who in a sense deny their breakdown by trying to throw themselves into some sort of activity to prove that they are not as damaged as they might have been told and it is usually to their own detriment."

On the evidence before me I do not find that the applicant worked at three jobs at one time. I accept the evidence of his wife that he ceased cleaning at the school in order to take up the contract for the kiosk.

21. Without other responsibilities, Dr Epstein considers that the applicant may be able to work as a school cleaner for four to five hours each day. If the applicant's condition was constitutional Dr Epstein would have expected him to develop symptoms at a much younger age. The decline in the applicant's ability to cope commenced in 1979.

22. Dr Conron interviewed the applicant on 18 July 1989. He formed the opinion that the applicant suffers from a depressive illness with associated anxiety features and that his employment was a mild aggravating factor in the precipitation of his illness. Dr Conron reported that he did not think that the applicant's relapse over the last couple of years was related to his employment as he had been retired from work for almost three years. He would be fit for a low key clerical job with limited responsibility. Dr Conron said that having perfectionist tendencies can be a factor in the development of a depressive illness and the likelihood of developing a depressive illness in males increases with each decade. This contrasts with the evidence of Dr Epstein who expected symptoms at a younger age if depression is the correct diagnosis. Dr Conron also considers that the applicant has other predisposing factors such as the separation of his parents during his childhood. Dr Conron concluded that the applicant was a person who was very vulnerable to depression. In Dr Conron's view, the applicant's major diagnosis is more likely to be depression than anxiety, particularly because of his age at presentation. The following exchange took place between Mr T. Tobin who represented the applicant at the hearing and Dr Conron-

"So you would accept that there is an underlying psychiatric vulnerability which has been aggravated bystresses, if there were stresses ..... perceived by him in the work place?--Yes.

Which has aggravated that underlying vulnerability to be productive of symptoms such as to incapacitate him from being a postmaster, and has remained incapacitated from that position since that time?--Yes"

In Dr Conron's opinion the applicant is permanently unfit for work as a postmaster. Dr Conron was not sure that the stresses which acted on the applicant during his employment are now a continuing factor in his current incapacity for other work.

Evidence of relatives, a friend and work colleagues

23. The applicant's wife noticed a gradual change in the applicant's personality from approximately 1977. She expressed the opinion that the applicant was not handling his work well.
He would break down at home and cry every evening and developed physical problems. After he commenced treatment with Dr Murray, Mrs Green noticed some improvement in her husband's condition. Even the work at the cannery made her husband anxious but he was able to cope with the school cleaning. The applicant gave up cleaning at the school in order to take up the contract at the kiosk. Mrs Green started full time work on 1 May 1978.

24. Both the applicant's daughters gave evidence about changes in the applicant's attitude and mood which stemmed from the early 1980's. Their father now lacks energy although he does most of the household tasks. Carolyn described her father as a perfectionist who likes routine. Melissa said that her father became withdrawn in the early 1980's and he makes excuses so that he does not have to go out.

25. Mr Pawley has been a friend of the applicant's for 23 years. He noticed a change in the applicant's personality in the early 1980's. The applicant attends football matches with Mr Pawley during the football season. Mr Pawley described the applicant as a "fastidious" man and a perfectionist. The applicant expressed pride in his progress at work to Mr Pawley. He has discussed health problems with Mr Pawley since the early 1980's. He said that he was exhausted and had trouble coping. The applicant's step-daughter gave evidence of similar observations with respect to the applicant. She said that the applicant's personality changed within 12 months of the family moving to Mooroopna. In her opinion, her step-father now shows little initiative, although, on the other hand, she told the Tribunal that he was obsessive and forever cleaning the house.

26. Mr Hoffman found the applicant to be a competent and effective officer. He could not recall the applicant making any complaints to him about his work other than the amount of travelling involved when he was based at Benalla. He understood that Mr Green had withdrawn his application for the permanent position of divisional training officer because of the travelling involved and his reluctance to move from Mooroopna. It was Mr Hoffman's understanding that there were "a lot of resignations" following changes in the responsibilities of postmasters, particularly of postmasters who had started as post boys and developed their skills under the "old regime". Mr Hoffman did recall that the applicant had problems in keeping up with his work in 1985 and allowances were made for him.

27. Mr Mason worked at the Mooroopna Post Office with the applicant from the date Mr Green was transferred to the country. Mr Mason cannot recall the applicant making complaints with respect to his work and health. From Mr Mason's point of view the applicant's confidence and work performance did not diminish although he appeared to lose interest in his work in 1985. He arrived at work one day and said that he had "had enough". In Mr Mason's opinion the applicant had an old traditional concept of the Post Office. Mr Mason expressed the opinion that the applicant had reduced his interest in the local football club after he lost a crucial vote for office. Mr Mason was surprised that the applicant retired as he was anticipating that he would return to work after taking sick leave.

28. Mr Law, who was the applicant's senior officer, thought that the applicant was competent, and confident about his work. He could not recall the applicant complaining about his situation or his health although he was aware that the applicant was "upset the way the Post Office was going", for example selling business.

Findings of fact and the application of the law to the facts

29. The respondent referred the Tribunal to the decision of Hill J in Elleissy v Australian Telecommunications Commission (1989) 18 ALD 240, and in deciding the facts in this application I note what was said in Elleissy's case in respect of the onus of proof, the first ground of appeal. In Re Gilbert and Australian Postal Commission Decision No. 4726 handed down 4 November 1988, the work of Mr Gilbert with the respondent was not dissimilar from that of the applicant. Mr Gilbert was a postmaster, Grade 3 and he attended a course to train officers to go out and market Post Office services to potential customers. Mr Gilbert went on sick leave in December 1985 and was invalided out of the Corporation in December 1987. The Tribunal found that Mr Gilbert had a disease, manic depressive psychosis which was predominantly constitutionally caused.

30. It is not relevant to the decision that the applicant's personality made it more likely that he would develop his disease when placed under stress than a person of a different personality structure. Whether the applicant's disease is properly diagnosed as being a depressive illness or a disease in which the major component is his anxiety, does not affect the issue before the Tribunal in so far as it is accepted that the applicant has a disease however defined. The evidence clearly points to the applicant having a mental ailment falling within the definition of "disease" in sub-section 5(1) of the 1971 Act. This was not in issue before the Tribunal. The issue before the Tribunal is whether the applicant is still totally or partially incapacitated for work as a result of his disease and whether the stress he suffered at work continues to be a contributing factor. The medical evidence may assist the Tribunal in determining the issue. In Re Cannon and Australian Postal Commission (1988) 15 ALD 375, both the issues as to whether the applicant suffered from a disease, and whether his employment was a contributing factor were before the Tribunal. The delegate had disallowed the applicant's claim for compensation in respect of stress. The Tribunal found that Mr Cannon suffered from anxiety contributed to by work related stress. As it is not in issue that the applicant has a disease in this application paragraphs 22 and 23 of the Reasons for Decision in Re Cannon do not take this application further. However, paragraph 25 of the Reasons for Decision in Re Cannon is relevant. In that paragraph the Tribunal refered to Westgate v Australian Telecommunications Commission (1987) 14 ALD 367 where Davies J. described the sort of employment contribution which is required to satisfy the tests laid down in the 1971 Act at page 373 as follows-

"It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease".

31. It was the respondent's contention that the applicant had been compensated for the stress he was subjected to during his employment. The Tribunal must decide whether his disease would
have marched on after 20 October 1987 regardless of his employment by the respondent which had ceased some time earlier. The evidence satisfies me that the applicant had a vulnerable personality which, as he grew older, did not stand him in good stead to cope with the changes in duties at the Post Office. Other factors may have contributed to the contraction and aggravation of his disease but I am satisfied on the evidence before me that the applicant's work contributed to the contraction and aggravation of his disease although he was able to hide his feelings of inadequacies from fellow employees. He was unaware himself for some time that his physical symptoms had there origins in a psychiatric disease. His disease did not impact to any great extent on the quality of his work other than in his own judgement, but rather led to his inability to go to work.

32. Dr Conron's evidence supports a finding that the applicant suffers from endogenous depression which, while aggravated by the stress of coping with changes at the work place, would no longer be aggravated once the impact of that stress ceased, a reasonable time after the stress was removed. If Dr Conron's view is accepted the applicant's relapse in 1989 would be unlikely to be contributed to by his employment with the respondent. Dr Murray was sufficiently confident of the applicant's condition that he returned him to the care of his general practitioner in October 1987 approximately 2 years after he last attended work, although he was still required to take medication. Dr Murray reported on 25 February 1988 that the applicant's condition had largely resolved. In treating the applicant's relapse in 1989 on the other hand, Dr Murray accepts the applicant's symptoms as having their source in his brooding over his life's activities rather than in current problems. Dr Murray's view therefore diverges from that expressed by Dr Conron towards the conclusions reached by Dr Epstein and Dr Epstein's opinion that the applicant's capacity for coping has broken down as a result of his work experiences with the respondent.

33. The Tribunal is of the opinion that the evidence given by the applicant sits more comfortably with the opinions expressed by Dr Murray and Dr Epstein than that expressed by Dr Conron. As there is a difference in medical opinion in this application as to the appropriate diagnosis, I prefer the opinion of the applicant's treating specialist who has seen him on many occasions over a number of years and who has been in contact with his general practitioner. Both Dr Murray and Dr Conron accept "depression" as the major illness however they differ in their opinion as to whether the applicant's work contributed to the contraction of his disease or only aggravated it and whether the aggravation is ongoing.

34. Dr Murray's observations on 25 February 1988 that the circumstances of the applicant's change in duties led to an aggravation of his feelings of inadequacies and lack of worth, which in turn contributed materially to the development of a severe reactive depression provides the key to the applicant's medical history. There is a causal link between the applicant's work and the contraction and ongoing aggravation of his disease. Each time the applicant resumed his duties as a postmaster in 1985 he suffered a relapse.

35. I find that the applicant no longer has a capacity to work for the respondent in any position as a result of his disease. The applicant was successful in his employment until the nature of his duties changed. He was one of the "post boys" whose education and personal skills did not stand them in good stead to adapt to a new role. His vulnerable personality exposed him to stress as a result of the changes in his duties. I find that his application to be a training officer was a means of avoiding the new responsibilities expected of him. There was however no escape and the applicant returned to his duties at Mooroopna and then started to withdraw into himself. Although his disease has been diagnosed as a depressive illness by his treating doctor, there are other features of his disease which mean that, although he has not worked for the respondent for some time, the stress which occurred when he was working with the respondent continues to impact on him such that it continues to be a contributing factor to his disease.

36. However, the medical evidence points to the applicant having an ability to cope with the work that he was doing when he cleaned the school which would not involve much responsibility or contact with members of the public. His disease is alleviated to some extent by taking anti depressant medication. The applicant is partially incapacitated for work by his disease. He has demonstrated an ability to obtain a job involving cleaning duties in the past. The provisions of section 26 of the 1971 Act do not apply to his situation. I find that the applicant has a capacity to work as a cleaner for periods of 4 hours each day for five days each week from the date Dr Murray gave evidence to the Tribunal.

37. The matter will be remitted to the respondent for calculation of the rate of compensation payable to the applicant since 21 October 1987 and continuing under the relevant legislation, taking into account the periods during which the applicant was