Buhr and Comcare
[2006] AATA 93
•6 February 2006
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 while in Commonwealth employment. Part of his complaint involved injury due to lack of training for promotion or higher duties and not being placed on higher duties as much as he thought he deserved. As well, Mr Buhr alleged social rejection by his co-workers, particularly at his last place of employment by the Commonwealth at the Gosford office of the Department of Social Security (DSS). Mr Buhr made various allegations about occurrences at work which had affected him adversely. Some of these may have been perceived and some real, as conceded in his statement of facts and contentions filed with the tribunal for the review.
4. Dr Robbie, a psychiatrist, examined Mr Buhr in 1985. In a report addressed to the Department of Social Security, which is before the tribunal, Dr Robbie, on 4 June 1985, found him “strung out, difficult, aggressive and paranoid in his thinking”. He speculated that Mr Buhr’s personality and presentation might be a slowly developing personality trait that one day “may merge into a paranoid condition”. He suggested that the altercation in 1976 in which Mr Buhr lost an eye and “all that followed” might have affected Mr Buhr’s behavioural problems. Dr Robbie rather thought he had been difficult for some time and that this was likely to be why his wife left him in 1977. Dr Robbie assessed Mr Buhr’s “current behavioural and personality presentation as presenting a 40% disability on the open labour market”. He noted Mr Buhr’s blindness in one eye but observed that Mr Buhr was keen to work and had told Dr Robbie his back injury was only minor. Dr Robbie ended his report with “I leave others to make further calculations”.
5. Mr Buhr, on 30 March 1987, commenced working with the Department of Taxation in Sydney. He subsequently relocated to the DSS at West Ryde before again relocating to the office of the DSS on the Central Coast pursuant to his request for a transfer.
ISSUE
6. The overall issue for the tribunal was whether, as at 1 December 2004, the date of the reviewable decision, Mr Buhr was entitled to compensation under sections 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988. Mr Buhr claimed compensation for a soft tissue neck injury and for his psychological condition. In relation to Mr Buhr’s psychological disorder, a preliminary question arose. The first question was whether Mr Buhr suffered an injury or disease compensable pursuant to s14 of the 1988 Act. Then, if an injury or disease came within s14, the next question was whether compensation for the condition was payable pursuant to s16 for medical expenses and s20 for weekly payment expenses. Further, in relation to Mr Buhr’s claim for cervical spine injury, the tribunal was required to determine whether he was, as at 1 December 2004, entitled to compensation pursuant to s16 for medical expenses and s20 for weekly payment expenses.
Relevant legislation
7. Legislation relevant to the application for review includes various provisions in the Safety, Rehabilitation and Compensation Act 1988 which came into effect on 1 December 1988. Under s4(1):
“injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
and
“disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
Section 14 provides for payment of compensation as follows:
“14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
Section 16 reads:
“16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.”
Section 20 reads:
“S20. (1) This section applies to an employee who, being incapacitated for work as a result of an injury, retires voluntarily, or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of the retirement, receives a pension under a superannuation scheme.
(2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated. ”
HISTORY AND ANALYSIS OF EVIDENCE
8. Comcare conceded that, when Mr Buhr ceased work because he was incapacitated by a psychiatric condition, his condition was plainly an ailment within the meaning of the definition of disease. The question for determination was whether that ailment, or an aggravation of the ailment “was contributed to in a material degree by the employee’s employment” with the Commonwealth. Comcare denied that the ailment suffered by Mr Buhr was contributed to in a material degree by his employment.
9. On 30 August 1988, Mr Buhr lodged a compensation claim for injuries to his lower back sustained when travelling by train on the way home from work on 29 August 1988. On 10 October 1988, he lodged a further claim for injuries to his lower and upper back relating to the 29 August 1988 injury. Mr Buhr also claimed psychological injury on 10 October 1988. In the claim form he completed, Mr Buhr described in detail what he asserted contributed to his injury or illness. In answer to the section 3 question about his “injury”, he referred to the lurching of the train injuring his back. In the section 4 part of the form asking about his “illness”, Mr Buhr set out: “extreme anxiety arising from attitude of Public service towards me”. He named the Department of Taxation and the Department of Social Security at “W. Ryde”. Mr Buhr also requested a transfer to Gosford DSS because he found it difficult to travel from the Central Coast to West Ryde. He told the tribunal that part of the problem for him was his poor eyesight and having to drive to and from the railway station in the dark. Ultimately, the DSS agreed to his transfer and he started work at Gosford on 29 August 1989. He did not work for some months in 1988 and 1989 while he was awaiting the transfer. He has since ceased to work permanently. A Commonwealth Medical Officer decided he should be retired on medical grounds in 1991. In 1994, Comcare agreed to Mr Buhr’s retirement on those grounds.
10. Some correspondence and investigation followed Mr Buhr’s claim made on 10 October 1988. Comcare wrote to Mr Buhr on 25 November 1888, asking him for more information about what gave rise to his psychiatric condition and asking him to sign an authority to enable Comcare to obtain medical evidence from his treating psychiatrist, Dr Greenway. Comcare sought and obtained a report from Dr Greenway dated 11 January 1989. Dr Greenway recounted some complaints Mr Buhr had made to him about how he was mistreated at work. He mentioned people smoking, which affected his breathing, the “conspiracy” not to give him a transfer and insulting names he had been called at work such as “Alf” and “alien”. Mr Buhr gave similar evidence to the tribunal. Dr Greenway also mentioned Mr Buhr’s personal problems. Dr Greenway believed Mr Buhr was motivated to work but found it “very difficult to say how fit he is to work”. He believed Mr Buhr was certainly unable to work in his current position. He explained Mr Buhr’s pre-existing personality dysfunction made Mr Buhr vulnerable to stresses. He was not sure if Mr Buhr currently was employable but believed it was in Mr Buhr’s interest that he should be transferred to the Central Coast.
11. Mr Buhr responded to Comcare in a letter dated 1 December 1988 that was stamped on receipt, 7 December 1988. That is, Mr Buhr’s further information about his complaint is contained in a letter around the time of the commencement of the 1988 Act and was received after its commencement. Mr Buhr wrote at length about various matters, saying he could carry out heavy work without back problems. He said he had told the recruitment officer that smoking caused him a sinus problem. He also wrote about the extreme discomfort he suffered to his back and neck travelling by train. He also mentioned the loss of his eye and the trouble he had driving to and from Woy Woy station. He referred to his request for a medical transfer, which he claimed had been disregarded, and his frustration at not being put in training programs as well as his poor treatment by staff at the tax office. He noted he had been “on the order of merit” for a transfer for two years but it had not happened. He said he had been victimised by a tax audit. He wrote he was very confused and worried about his future in the public service and thought there “was some sort of plan to make me quit”. He further wrote he had started to stutter, had lost self respect and confidence, and had suicidal and violent feelings. Near the end of this letter, Mr Buhr wrote “my employer seems to be looking for tricks and schemes to prevent me from being transferred rather than taking my welfare into consideration”.
12. On 24 February 1989, Comcare accepted liability for Mr Buhr’s “adjustment disorder with features of anxiety and depression”. On 22 May 1989, the DSS notified Mr Buhr of a medical panel’s finding that he was fit to return to work. However, Mr Buhr did not return to work until 29 August 1989 when he took up the position at Gosford DSS. Comcare granted Mr Buhr’s transfer request on compassionate grounds.
13. In May 1990, Mr Buhr slipped and suffered another injury to his neck. He lodged further claims in 1990 for physical and psychological injuries. On 6 August 1990, he claimed permanent impairment because of his psychological condition. It is clear from the medical evidence before me that Mr Buhr is permanently incapacitated for work because of his delusional disorder or psychological condition, however his condition is described. I have referred to various reports below in this connection as well as the agreement with Comcare reached in 1994.
14. In September 1994, the DSS, Comcare and Comsuper agreed to Mr Buhr’s retirement. There is evidence before me that Mr Buhr did have a paranoid personality before he entered Commonwealth employment, including Dr Robbie’s report in 1985 and later reports of Dr Greenway. Comcare further accepts that Mr Buhr did develop an adjustment disorder as a result of events that occurred in Commonwealth employment, particularly in relation to his delayed transfer to Gosford and issues with his eyes in travelling from the Central Coast to the ATO in Sydney and then to West Ryde. It disputes events and consequences stemming from Mr Buhr’s employment at Gosford and denies liability for his psychological deterioration while at Gosford.
15. Various doctors agree that adjustment disorder is not now Mr Buhr’s condition. There have been specific diagnoses of a delusional disorder. Evidence of the development of delusional disorder is Mr Buhr’s claim, repeated in his evidence before the tribunal, that a workplace superior injected him with a deleterious substance. Mr Buhr claimed this incident occurred at Gosford DSS while he was working there in 1989/1990. Delusional disorder diagnosis was made by Dr Phillip Brown on 16 September 2003. Dr Brown placed the onset of Mr Buhr’s delusional disorder as occurring in 1990.
16. Dr Holland is Mr Buhr’s GP and produced clinical notes since April 1989. Up until the end of 1989, there is nothing in the clinical notes that suggests anything of a stressful nature for which Mr Buhr needed medical attention from him. Mr Buhr saw Dr Greenway in January 1990 but Dr Greenway did not issue a medical certificate at that time which suggested that Mr Buhr was having difficulty at work. However, later that year Dr Greenway concluded, in August 1990, that Mr Buhr’s personality disorder left him with permanent incapacity to work. Dr Greenway noted in his report of 27 August 1990 that the work situation had aggravated Mr Buhr’s paranoid personality disorder but had not caused the condition. As well, Dr Frame, psychiatrist, on 31 May 1991, diagnosed personality disorder in the form of a paranoid personality manifesting obvious signs of increased anxiety and tension. A Commonwealth Medical Officer concluded on 9 July 1991 that Mr Buhr should be retired on the ground of his personality disorder.
Does Mr Buhr have an entitlement to compensation for further psychological injury under the 1988 Act?
17. Comcare put to the tribunal that Mr Buhr was not entitled to compensation, as at 1 December 2004, for medical expenses under s16 nor for weekly payments of compensation under s20 in respect of the claim submitted on 10 October 1988. That is, Comcare disputed a liability to pay compensation for any further psychological injury which arose after acceptance of liability for the adjustment disorder that occurred when he was working at the ATO and at the DSS, West Ryde. Comcare further argued that Mr Buhr never lodged any claim for compensation under ss16 and 20 of the Safety, Rehabilitation and Compensation Act 1988.
18. On 1 December 1988, the Safety, Rehabilitation and Compensation Act 1988 replaced the Compensation Commonwealth Government Employees Act 1971. The definition of “injury” and an employer’s liability under the 1988 Act is different from the position under the 1971 Act. An initial question for the tribunal concerns whether Mr Buhr ever made a claim for the further psychological injury suffered after he sought a transfer in 1988 and commenced at the Gosford DSS on his return to work in August 1989. Mr Buhr has claimed the cause of his worsening condition was discrimination and adverse treatment he suffered when he sought a transfer from West Ryde in 1988 and then from 29 August 1989 when he was transferred and worked at Gosford. Whereas Comcare accepted the earlier anxiety condition as an adjustment disorder, it never accepted liability for the later development of Mr Buhr’s delusional disorder or the disorder that left him permanently unable to work.
19. The records before the tribunal show that Mr Buhr’s adverse psychological condition was progressive. Comcare accepted his claim made before the introduction of the 1988 Act. After he made his claim for compensation in 1989, Comcare continued to accept his claim for “adjustment disorder with features of anxiety and depression” and arranged for him to be seen by a panel. The panel assessed him as fit to return to work from May 1989. However, he did not return until 29 August 1989. This was because he continued to press for a transfer to Gosford. On 27 July 1990, a Comcare officer wrote to Mr Buhr’s treating psychiatrist, Dr Greenway, asking for a further opinion. In the letter to Dr Greenway, the writer noted a conflict of opinion with the panel and mentioned that Comcare had continued payments of compensation to Mr Buhr. There is other documentary evidence in the records before the tribunal of continuing compensation payments throughout 1989 and 1990. For example, a departmental letter at T70, dated 11 May 1990, sets out payments made.
20. Dr Greenway furnished his opinion to Comcare as requested on 27 August 1990. Dr Greenway wrote that the situation at work may have aggravated Mr Buhr’s personality disorder although it did not cause the disorder. He was continuing treatment and wrote that both the underlying personality and the situation at work contributed to Mr Buhr’s condition. He pointed out that just because a person had a paranoid personality did not mean that “people are not making it hard for you”. He noted that Mr Buhr seemed more relaxed since being put on higher duties and he was continuing Mr Buhr’s medication. Around the same time, 29 August 1990, Mr Buhr was transferred to Gosford DSS on compassionate grounds rather than acceptance of liability for any worsening disorder and he commenced work there.
21. On 10 May 1991, Comcare rejected Mr Buhr’s claim for permanent impairment on the basis that he was suffering a pre-existing condition prior to enactment of section 124(4) of the 1988 Act and was excluded from a lump sum entitlement. On review, however, on 31 August 1992, Comcare accepted that Mr Buhr deserved payments from 31 August 1992 to 10 February 1993 for the accepted adjustment disorder. Then, on 28 January 1993, Comcare again decided that Mr Buhr was entitled to payments from 11 February 1993 to 18 July 1993 for the adjustment disorder. On 26 February 2002, Comcare again wrote to Mr Buhr asking for medical updates regarding his fortnightly compensation payments. In addition, on 25 August 2003, Comcare wrote to Dr Silva and arranged an appointment for him to see Mr Buhr for “adjustment disorder with features of anxiety and depression and chronic soft tissue neck injury”.
22. About one year after he had commenced at Gosford DSS, on 6 August 1990, Mr Buhr made a compensation claim for permanent injury. In the section where the claim form asks about the “permanent injury/impairment “, Mr Buhr has written “I am mentally instable and confused …”. He has not attempted a diagnosis but has described his symptoms and reactions. His treating doctor, Dr Greenway, has also completed a page of the claim form and, where asked to provide a diagnosis, has written “anxiety/depression as part of an adjustment disorder” and then “personality disorder – paranoid”. Dr Greenway has written, where asked to describe the extent of the impairment: “it depends on the circumstances in which this man finds himself” and “maybe totally disabling”.
23. While it is true that Mr Buhr did not put in a formal claim for medical expenses and periodical compensation after the commencement of the 1988 Act, he did respond to an enquiry by Comcare after 1 December 1988. Mr Buhr responded to Comcare in his letter dated 1 December 1988, which was received on 7 December 1988, after the introduction of the Act. Comcare also requested and received a report from Dr Greenway after the commencement of the Act, in January 1989. Dr Greenway expressed his fears that Mr Buhr had worsened to the extent that he might no longer be able to work. He also emphasised that the transfer to Gosford might be the only prospect of Mr Buhr’s being able to work again. In my view, Comcare treated Mr Buhr’s complaint as if a formal claim had been lodged after commencement of the 1988 Act. As well, Mr Buhr’s condition was not tailored to fit in with the changeover in the legislation. It had not been diagnosed afresh for the purposes of the Act until some months later. In addition, Comcare accepted its liability for compensation for the earlier condition of adjustment disorder with features of anxiety and depression several times after 1 December 1988. Accordingly, I consider that the continuing correspondence from Mr Buhr and Comcare’s responses and medical investigation of Mr Buhr’s claim should be treated as a claim and acceptance of that claim under the 1988 Act.
24. The sum of these letters and records indicates that Comcare has consistently accepted that Mr Buhr had an ongoing claim for his mental condition although it accepted liability from time to time only for the adjustment disorder. Whether it worsened to the extent of a delusional disorder or paranoid personality disorder or other, the decision under review, made on 1 December 2004, properly took in the continuing claims of Mr Buhr about his psychological condition. This is so despite the lack of a formal claim having been lodged detailing a new condition after 1988. I find, therefore, that the reviewable decision before the tribunal does take in the psychological condition of Mr Buhr as at 1 December 2004. It follows that the tribunal may properly consider Mr Buhr’s condition as at 1 December 2004 and events after the introduction of the Safety, Rehabilitation and Compensation Act 1988. This accords with Comcare v Maida (2002) 36 AAR 69 which involved a worsening condition. In that case, Mr Maida had suffered from schizophrenia before and after 1 December 1988. Mansfield J of the Federal Court at paragraph 38 found that the tribunal had erred in failing to determine whether there had been a qualitative change in the patho-physiological condition underlying the schizophrenia and in regarding the change in the degree of his permanent impairment as itself constituting a new permanent impairment under the Act.
25. However, as at 1 December 2004, Mr Buhr did not continue to suffer from the adjustment disorder for which Comcare accepted liability. The condition had progressed by then to a delusional disorder or a paranoid disorder that had disabled him from continuing to work. While Comcare accepted liability for adjustment disorder with features of anxiety and depression, it did not accept liability for his worsening condition. I have found, for the reasons set out below that the claim made by Mr Buhr for his current psychological condition is not compensable under s14 and therefore not compensable under ss 16 and 20. This does not override any continuing liability for the accepted condition of adjustment disorder. Australia Post v Oudyn (2003) 73 ALD 659. I have set out my consideration of Mr Buhr’s condition in the following paragraphs.
Is Mr Buhr’s claim disqualified as a failure to obtain a benefit ?
26. As already mentioned, on 1 December 1988 the Safety, Rehabilitation and Compensation Act 1988 replaced the Compensation Commonwealth Government Employees Act 1971. The definition of “injury” and an employer’s liability under the 1988 Act is different from the position under the 1971 Act. Under the 1971 Act, Mr Buhr’s disorder, contributed to by incidents at work, was compensable as a “disease”. The 1988 Act is not as wide as the 1971 Act. Specifically, liability in the 1988 Act flows from new s14. Section 14 requires an injury within the terms of the definition before a matter is compensable. The definition of injury encompasses disease and also includes aggravation of a disease, effectively, as a fresh injury. However, after setting out that an injury includes a disease and injury and aggravation of a physical or mental injury, a proviso adds that it does not include any such disease, injury or aggravation suffered by an employee “as a result of failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment”.
27. This proviso was interpreted for a time to mean that, as so long as there were other factors in the causation of the condition that were work-related, it did not matter if one of the complaints was failure to obtain a transfer or promotion or the like. The position has been clarified by the Full Federal Court in the matter of Hart v Comcare (2005) 145 FCR 29. The High Court on 16 December 2005 refused special leave to appeal against the findings of the Full Court in this case and I have therefore relied on the judgments there set out. The Full Court placed emphasis on the significance of a complaint based on a failure to obtain benefits from an employer. Whitlam J, at paragraphs 21 and 22, said that the proviso was to be used as a matter of ordinary statutory interpretation and, when a material factor in the condition was related to the failure to obtain a benefit, the condition was not compensable. His Honour also expressed the opinion that:
“11 … the Tribunal drew a spurious distinction between a failure to obtain a promotion occasioning disappointment and distress and an application, promotion and interview process causing upset and emotional disturbance. The holding in those cases may not be outflanked in this fashion. The extreme artificiality of the supposed distinction identified by the Tribunal is pointed up by its own use of the words ‘promotion related’ to describe the causative incidents.”
28. Further, I note from the judgment of von Doussa J in Wiegand v Comcare (2002) 72 ALD 795, that the question I am required to consider is whether Mr Buhr’s ailment or an aggravation of the ailment “was contributed to in a material degree by the employee’s employment”. In relation to the concept of employment as a contributing factor, the following passage from the judgment of Kitto J (with whom Taylor and Owen JJ agreed) in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632 is directly applicable:
“Where it is possible to identify a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I can see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.”
29. One of the significant factors in Mr Buhr’s claim is a failure to obtain training, promotion or higher duties. In giving oral evidence, Mr Buhr told the tribunal that he wanted higher duties rather than promotion and he wanted training to enable him to perform higher duties. Comcare put before the tribunal evidence that it did provide Mr Buhr with some training. I also note that his treating psychiatrist, Dr Greenway commented, when he furnished his opinion to Comcare on 27 August 1990, that Mr Buhr was more relaxed since he was put on higher duties. This leads me to conclude that Mr Buhr was indeed affected by whether or not he received benefits including higher duties. He told the tribunal that part of his complaint concerned the selection of people for higher duties and training to perform higher duties. Such benefits are matters which are not compensable under s14. The Full Federal Court, in interpreting this section of the Act found, notwithstanding its beneficial legislation, the words of the section result in this consequence.
30. The judgment of von Doussa J in Wiegand supports a similar interpretation. This case involved Mr Wiegand’s allegations as to a number of factors when he worked at the tax office that gave rise to his condition. Deputy President Jarvis, on considering the matter after remittal, held that Mr Wiegand’s concerns were part and parcel of claims including the failure to obtain benefits. His Honour went on to decide, therefore, the whole claim was excluded and not compensable under the Act. Also see the judgment of Drummond J in Comcare v Mooi, (1996) 69 FCR 439, particularly at 448, for the proposition that failure to obtain training for higher duties is a benefit within the meaning of the s24 proviso. I further note that Finn J in granting an extension of time in the Wiegand matter revisited in Wiegand v Comcare [2005] FCA 1904 commented that Mr Wiegand was unlikely to succeed on the merits.
31. Before me, Mr Buhr complained not only of being deprived of training and higher duties but that he was shunned, that he was avoided or "sent to Coventry". This may be true given his contemporaneous complaints, his oral evidence and the evidence of Ms Lee, a former work colleague, who recalled that she found him intimidating. Dr Greenway also reported that he thought that some of Mr Buhr’s complaints were likely to be true. Ms Lee told the tribunal that she found Mr Buhr intimidating. Where Mr Buhr thought he was being avoided out of spite, this may have occurred because people found him intimidating. In this connection, I note that Dr Robbie in 1985 also found him loud and aggressive. Mr Buhr’s manner was mild before the tribunal but there is evidence of his former aggressive behaviour in other situations. I accept that people at work did avoid Mr Buhr at work but not necessarily out of malice or because of victimisation. I also do not accept the evidence of Mr Johnson that that he never called Mr Buhr a “yank”, or an “idiot” or a “moron” as recalled by Mr Buhr in his evidence. Mr Johnson did not impress as a witness who considered his responses and he did not make an effort to recollect the circumstances about which he was questioned. His answers were perfunctory and lacking in any detail of the relationship with Mr Buhr. I find it likely that Mr Buhr was referred to in a disparaging manner and, given his personality type, it followed that he would feel that he was being persecuted.
32. Mr Buhr may well have been harassed in the sense of being referred to as stupid and in the way that it was communicated to him that others were preferred for advancement. However, the courts have indicated that, although part of Mr Buhr’s injury may flow from rude and inconsiderate treatment partly causing his injury, he cannot obtain compensation on that ground where a material contribution forming the basis of his claim is a failure to obtain a benefit. Mr Buhr’s complaint was largely based on his perceived failure to be put on higher duties and to receive training towards this. Whether or not this was a correct perception, the matters he complains of are a failure to obtain a benefit as explained by the court in Hart’s case. As the failure to obtain a benefit contributed to a material degree to Mr Buhr’s complaint, his condition is not compensable.
33. On balance, after hearing Mr Buhr’s oral evidence and that of other witnesses, as well as considering submissions made on his behalf, I have formed the view that his perceived failure to obtain training and higher duties was part and parcel of his complaint about treatment at work. This amounts to failure to obtain a benefit and is not compensable within the meaning of the proviso in s14. I suspect that some people at the workplace were unpleasant to Mr Buhr and this is very unfortunate. I also acknowledge that Ms Lee gave evidence she found him intimidating and that she and others may have avoided Mr Buhr for this reason. Nevertheless, the overall complaint was about discrimination and conspiracy to treat Mr Buhr unfairly. In my view, this amounts to a claim about failure to obtain a benefit. Therefore, it follows that Mr Buhr’s claim about his treatment after the commencement of the 1988 Act is not compensable under that legislative regime. Mr Buhr cannot succeed in this claim under ss 14, 16 and 20 of the Act.
Does Mr Buhr have a current claim for his neck injury ?
34. The remaining issue is whether Comcare is liable to pay, after 1 December 2004, compensation under s16 for medical expenses and s20 weekly payment expenses for an injury to Mr Buhr’s cervical spine. Mr Buhr complained of back pain and injury to his neck due to discomfort and jolting during train travel that was work related. His claim lodged in September 1988 was accepted and he was referred to physiotherapy in April 1989 for his neck condition. In May 1990, Mr Buhr again complained of neck pain to his GP, Dr Holland, and was referred to physiotherapy. In making his complaint, he referred to stumbling outside his workplace. On 22 October 1990, Mr Buhr again complained to Dr Holland about his neck and that this was related to using the phone at work. He told the tribunal he had to cradle the phone between his shoulder and neck and that this caused him pain. He was again referred to physiotherapy. In March 1991, Mr Buhr ceased physiotherapy but told the tribunal he continued a home exercise program. On July 1993, Dr Holland advised (T117) that Mr Buhr had a recurring chronic soft tissue neck injury which bothered him two or three times a year and settled well with physiotherapy or chiropractic treatment, with dates back to his injury in 1990. Mr Buhr’s complained on 10 January 1990 of a crick in the neck while driving. Mr Buhr obtained reports from Professor Ghabrial, orthopaedic surgeon, which are at T182, T184 and T189. On 16 September 2003, Dr Silva, orthopaedic surgeon, examined Mr Buhr. He was again examined on 26 May 2004 by Professor Ghabrial.
35. The reviewable decision did not deal with any claim for a back injury although it was mentioned in written submissions before me. At the hearing, Mr Buhr’s counsel did not pursue this claim after discussion. Mr Buhr submitted in respect to his neck injury that the opinion of Professor Ghabrial, who had treated Mr Buhr for 15 years, should be preferred to that of Dr Silva, who saw him only once. Dr Silva’s opinion was that Mr Buhr had no continuing organic orthopaedic cervical spine disability.
36. Professor Ghabrial gave evidence that the facet joint problem with Mr Buhr’s neck was likely to have come with the first incident and he regarded the others as flare ups or short term aggravations of that existing condition. In his report of 26 May 2004, the first incident mentioned that concerned the neck occurred in 1990. The records before me indicate Mr Buhr injured his lower back when he slipped and fell on a roof while working. He was out of work for a time after that event. He was working for the Commonwealth when he injured his lower back travelling by train on 29 August 1988 (T8). On 10 October 1988, Mr Buhr lodged a claim for injury to both his upper and lower back. In 1989, Comcare accepted liability for his psychological injury and assessed him in respect to his request for a transfer. Then, after his return to work, Mr Buhr slipped outside Gosford DSS in 1990 and twisted his neck. He claimed compensation for a cricked neck on 30 June 1990 and Comcare, on 22 November 1990, requested a medical certificate giving a diagnosis and explaining the relationship between diagnosis and his accident in June.
37. Dr Holland provided a certificate on 6 December 1990 which gave a history of Mr Buhr’s neck problems. Dr Holland set out that Mr Buhr had lumbar back problems since his fall in 1977 and being jolted on trains in 1988. He had referred Mr Buhr for physiotherapy with good results. Dr Holland said Mr Buhr’s first mention of neck problems had been in January 1990 when he complained of occasional cricks or twinges of pain in his neck while driving. Then, he complained of a fall on a wet footpath on 30 May 1990. Dr Holland stated in his certificate that he again had referred Mr Buhr for physiotherapy with good results. Dr Holland saw him again on 22 October 1990 when he developed sudden neck pain from holding the phone between his chin and his shoulder. Mr Buhr confirmed in oral evidence that he hurt his neck when he slipped out side the office, that he had some physiotherapy and that he had pain again some time later due to the awkward way he held the phone when trying to do several things at once at work. Dr Holland said he had referred Mr Buhr for physiotherapy again with good results. Dr Holland felt on each occasion that Mr Buhr had a mild soft tissue injury that responded well to physiotherapy over a couple of weeks. His neck pain related to specific events and he was fine between episodes. Dr Holland had no knowledge of a documented cervical spine condition.
38. On the material before me, Mr Buhr never lodged any claim for a cervical spine injury as a result of the fall in June 1990. From Dr Holland’s certificate, he had physiotherapy and the problem resolved with good results. On 22 October 1990, Mr Buhr complained of another incident at work, the injury from the phone, as compensable. The report of Dr Hollands at T84 spells out the history. On that history, Dr Ghabrial responded when giving evidence that the facet joint problem was likely to have come with the first incident and he would regard he others as flare ups or short term aggravations of that existing condition. Further, even on Dr Ghabrial's evidence, the diagnosis of facet joint condition is doubtful because it was based on a history that Dr Ghabrial assumed of a continuing pain in the neck from that time, which Dr Holland’s history does not support. As well, at T82, the physiotherapist's notes from November 1990 say, in relation to the October 1990 incident, “These symptoms were treated on one occasion only with symptoms resolving in that time.”
39. Dr Hollands’ notes in July 1993 refer to “Recurrent neck pain left side. Had pain several times a year, usually in winter …”. This again is not consistent with an ongoing complaint of pain. Dr Hollands' notes on 31 October 1995 record “Turned neck quickly last week when wife called him. Felt sudden left sided pain left side of neck…”. He went on to report that, after October 1995, “The neck settled spontaneously and he did not need physiotherapy”. In addition, Dr David Bornstein, orthopaedic surgeon, saw Mr Buhr on 4 April 2005 and reviewed x-rays of his neck. Dr Bornstein reported that Mr Buhr did not have an orthopaedic condition in his cervical spine that would explain the symptoms he complained of. He did not consider there were even sufficient degenerative changes in the neck to account for the symptoms of which he complained. He concluded that the history provided by Mr Buhr was not consistent with his examination as far as the neck was concerned. Dr Bornstein found no lesion in the neck related causally to Mr Buhr’s employment or any other factor.
40. On balance, taking the various medical opinions and notes before me into consideration as well as Mr Buhr’s own evidence, I have formed the distinct impression that Mr Buhr’s neck causes him an occasional problem and that it was not causing him constant pain and was not an injury giving rise to compensation as at 1 December 2004. It has not been an ongoing complaint related to his employment. `It follows that Comcare bears no liability under ss16 and 20 of the Act as at 1 December 2004.
decision
41. The tribunal affirms the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: .....................................................................................
Zoe McDonald
AssociateDates of Hearing: 17, 18, 19 and 20 October 2005
Date of Decision: 6 February 2006
Counsel for the Applicant: Mr H. Marshall SC
Solicitor for the Applicant: O’Sullivan Saddington
Counsel for the Respondent: Mr G. Elliott
Solicitor for the Respondent: Australian Government Solicitor
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