Buhr and Comcare - [2006] AATA 93

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 93
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1691

GENERAL ADMINISTRATIVE DIVISION )

Re PETER BUHR

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member Robin Hunt
Date6 February 2006
PlaceSydney

Decision The tribunal affirms the decision under review.
..............................................
Ms R Hunt
Senior Member

CATCHWORDS
WORKERS' COMPENSATION – Australian Tax Office and Department of Social Security employee - Adjustment disorder with anxiety and depression – Deterioration in condition – Development of delusional disorder –– Whether perceived situations or events actually happened – Meaning of "injury” - Whether applicant suffered further psychiatric injury in the workplace – Whether injury excluded from consideration for compensation – Failure to obtain training and higher duties – Delay in transfer – Meaning of “benefit” - Total incapacity for work – Condition due to combination of employment related factors and excepted factors – Claim for soft tissue neck injury – Not injury giving rise to compensation - Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4(1) and 14
Compensation (Commonwealth Government Employees) Act 1971
CASES
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Comcare v Mooi (1996) 69 FCR 439
Wiegand v Comcare (2002) 72 ALD 795
Comcare v Maida (2002) 36 AAR 69
Australia Post v Oudyn (2003) 73 ALD 659
Wiegand v Comcare [2005] FCA 1904
Hart v Comcare (2005) 145 FCR 29
WORDS AND PHRASES
Definitions of “benefit”, "disease" and "injury"
REASONS FOR DECISION

6 February 2006 Senior Member Robin Hunt

SUMMARY

1.      Mr Peter Buhr, the applicant, applied to the tribunal for review of a decision by an Independent Review Officer (IRO) which affirmed a Comcare determination adverse to his claims for compensation. Mr Buhr sought compensation for his psychological condition as well as for a soft tissue neck injury. I have found that while Mr Buhr is permanently unable to return to the workforce as a result of his psychological condition, this was brought about by factors excluded from compensation. As to his neck injury, I have found that it was not causing Mr Buhr constant pain and was not an injury giving rise to compensation as at 1 December 2004. It follows that the decision under review is affirmed and Mr Buhr has not succeeded in his claim.
BACKGROUND
2.      Mr Buhr was born in Vancouver, Canada, on 14 September 1946 and commenced an apprenticeship as a boilermaker after he left school in 1963. He moved to Australia in 1976 and commenced Commonwealth employment in 1987. Mr Buhr lost an eye in an altercation in 1976 and injured his back when he fell while working on a roof before he commenced Commonwealth employment.
3.      Mr Buhr suffers a psychological disorder which developed while he was employed by the Commonwealth. Mr Buhr already had symptoms of an adjustment disorder when he commenced employment with the Commonwealth. He claims his present condition developed or was aggravated as a result of harassment and victimisation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Buhr and Comcare

Details

AGLC: Buhr and Comcare [2006] AATA 93
Case: [2006] AATA 93
Decision Date: 6 February 2006

CaseChat Overview and Summary

In the Federal Court of Australia, Buhr sought a review of a decision by Comcare, which rejected his claim for compensation for a psychiatric injury sustained in the workplace. Buhr, who was an employee of the Australian Tax Office and the Department of Social Security, alleged that he developed an adjustment disorder with anxiety and depression due to various work-related stressors, which later deteriorated into a delusional disorder. Comcare rejected Buhr's claim on the basis that his delusional disorder was not a psychiatric injury that arose out of or in the course of his employment and that it was excluded from consideration under section 32 of the Safety, Rehabilitation and Compensation Act 1988.

The central legal issues in this case were whether Buhr's delusional disorder constituted a psychiatric injury arising out of or in the course of his employment and whether it was excluded from consideration under the specified section of the Act. Additionally, the court had to determine if Buhr's failure to obtain necessary training, the imposition of higher duties, and a delay in his transfer constituted an injury under the Act, and if his condition amounted to total incapacity for work. The court also had to consider whether Buhr's condition was due to a combination of employment-related factors and excepted factors, as well as the nature of his claim for a soft tissue neck injury.

The court found that Buhr's delusional disorder was not a psychiatric injury that arose out of or in the course of his employment, as the disorder involved a belief in events that did not actually occur. Consequently, it was excluded from consideration under section 32 of the Act. The court further held that the failure to obtain training and the imposition of higher duties did not constitute an injury under the Act, nor did they result in a benefit to Buhr. Regarding total incapacity for work, the court found that Buhr's condition was due to a combination of employment-related factors and excepted factors. Finally, the court ruled that Buhr's claim for a soft tissue neck injury was not an injury giving rise to compensation.

The tribunal affirmed the decision under review, dismissing Buhr's claim for compensation for his psychiatric injury.

Orders

Orders of the court

The tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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