Buhr v Comcare

[2007] FCA 575

FEDERAL COURT OF AUSTRALIA

Buhr v Comcare [2007] FCA 575

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – whether questions of law or questions of mixed fact and law – jurisdiction of Administrative Appeals Tribunal – whether determination of first decision-maker and reviewable decision determined Comcare’s liability for current injury as well as non-existence of old accepted employment related injury

WORKER'S COMPENSATION – Commonwealth employee – injury excluded from liability - whether injury work related – failure to obtain promotion – whether employee made claim pursuant to s 54 of Safety, Rehabilitation and Compensation Act 1988 (Cth) – substantial compliance with s 54 of Safety, Rehabilitation and Compensation Act 1988 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 20, 53, 54, 60 – 64
Compensation Commonwealth Government Employees Act 1971 (Cth)

Australian Postal Corporation v Mowbray & Anor (2003) 77 ALD 440 cited
Australian Postal Corporation v Oudyn (2003) 73 ALD 659 cited
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 approved
Comcare Australia (Department of Defence) v Madia (2002) 36 AAR 69 cited
Comcare v Hart (2004) 139 AAR 396 Comcare v Etheridge (2006) 149 FCR 522 cited
Condell v Commissioner of Taxation [2007] FCAFC 44 cited
Duong v Australian Postal Corporation (2005) 41 AAR 288 cited
Hart v Comcare (2005) 145 FCR 29 cited
Lees v Comcare (1999) 56 ALD 84 distinguished
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 approved
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 cited

PETER BRADLEY BUHR v COMCARE AND ADMINISTRATIVE APPEALS TRIBUNAL
NSD 426 OF 2006

EDMONDS J
24 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 426 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER ROBIN HUNT

BETWEEN:

PETER BRADLEY BUHR
Applicant

AND:

COMCARE
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	24 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 426 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER ROBIN HUNT

BETWEEN:

PETER BRADLEY BUHR
Applicant

AND:

COMCARE
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	24 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) given on 6 February 2006 affirming the decision under review. The appeal is instituted pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and is confined to a question of law – see [11] and [12] below.

2. The reviewable decision before the Tribunal (see ss 63 and 64 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’)) was the decision of an Independent Review Officer of the first respondent (‘Comcare’) on 1 December 2004 affirming a determination dated 25 October 2004 that, as at 1 December 2004, the applicant was not presently entitled to compensation under ss 16 and 20 of the SRC Act for two distinct injuries allegedly suffered during his employment with the Commonwealth. Those injuries were a psychological condition and a soft tissue injury to his neck. No appeal is brought against the Tribunal’s decision affirming the reviewable decision in respect of the neck injury.

3. It is not disputed that during 1988, the applicant suffered an injury of extreme anxiety and that, on 24 February 1989, Comcare accepted liability of the applicant’s psychological condition which was described as an ‘adjustment disorder with features of anxiety and depression’.

4. There is also no dispute that, as at 1 December 2004, the psychological/psychiatric condition was a delusional/paranoid disorder and that it was a condition which made, and continues to make, the applicant unfit for work.

   In the Tribunal

5. The first issue considered by the Tribunal was whether, as at 1 December 2004, the date of the reviewable decision, the applicant continued to suffer from an adjustment disorder with features of anxiety and depression that continued to entitle him to compensation under s 16 of the SRC Act for medical expenses and under s 20 for incapacity benefits.

6. At [25] the Tribunal found that, as at 1 December 2004, the applicant did not continue to suffer from the adjustment disorder for which Comcare accepted liability.  However, the Tribunal found that, as at that date, the applicant suffered from a delusional/paranoid disorder that had disabled him from continuing to work, but for which Comcare did not accept liability.

7. The second issue considered by the Tribunal was whether the applicant’s employment in the Department of Social Security (‘DSS’) at Gosford from 29 August 1989 – he had previously worked in the Australian Taxation Office (‘ATO’) at Sydney from 30 March 1987 and subsequently in the DSS at West Ryde prior to his transfer to Gosford – gave rise to a psychiatric condition which was compensable under s 14 of the SRC Act.

8. In relation to this second issue, the Tribunal first considered whether there had in fact been a claim made for a condition after 1 December 1988 when the SRC Act replaced the Compensation Commonwealth Government Employees Act 1971 (Cth). At [23] it concluded that, in substance, such a claim had been made under the SRC Act. At [24] the Tribunal said:

   ‘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 SRC Act].’

9. The Tribunal then considered whether the claim made by the applicant for his current psychological condition was compensable under s 14 of the SRC Act. It concluded, by reason of the exclusion in the definition of ‘injury’ in subs 4(1) of the SRC Act – 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’ – and by reason of the construction of that exclusion by a Full Court of this Court in Hart v Comcare (2005) 145 FCR 29, affirming the first instance judgment of Whitlam J in Comcare v Hart (2004) 139 AAR 396, in particular at [11], [21] and [22], that it was not: [33].

10. On 5 September 2006 I granted the applicant leave to file a further amended notice of appeal raising four questions which are said to be questions of law on which the appeal to this Court is instituted.  These questions were framed as follows:

    1.Whether the Tribunal had jurisdiction to consider and determine whether the applicant’s delusional/paranoid disorder was a compensable ‘injury’ under s 14 of the SRC Act?

    2.Whether the Tribunal erred in law in making a determination under s 14 of the SRC Act in respect of a new ‘injury’ of the applicant when the applicant had not made a claim under ss 53 and 54 of that Act to Comcare in respect of such an injury?

    3.Whether the Tribunal erred in law in finding the applicant’s claim for compensation of 10 October 1988 for an injury of extreme anxiety and for which Comcare accepted liability on 24 February 1989 gave rise to a liability for compensation under s 14 of the SRC Act?

    4.Whether the Tribunal erred in law in determining that the progression or worsening of a disease for which liability had previously been accepted constituted a new and distinct ‘injury’ for the purposes of s 4(1) of the SRC Act and for which liability must be established under s 14 of that Act?

11. At the outset, counsel for Comcare submitted that none of these questions was a question of law; at best, each of the questions involved mixed questions of fact and law and this was not sufficient to support an appeal pursuant to s 44 of the AAT Act. In this regard, counsel for Comcare referred to what was said by Branson J sitting in a Full Court of this Court in Comcare v Etheridge (2006) 149 FCR 522 at [13] – [16], with whose reasons Spender J and Nicholson J agreed, namely:

    ‘[13] The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 by Stone J and me particularly at [10]-[18]. We expressed our approval of the observation made by Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 19 ATR 1067 at 1069-1070 that an appeal “on a question of law” is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies “on a question of law” the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53, r 3(2)(b).

    [14] The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see, Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]-[47]). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act.

    [15]    In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 that:

    If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can make it into a question of law.

    [16] A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye (at [18]):

    In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law.  It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.’

12. I think Comcare’s submission on this ground is correct and that it would not be inappropriate to dismiss the application.  I have no doubt that questions 2, 3 and 4 are mixed questions of fact and law; my only doubt concerns question 1.  Because I can foresee an argument that it is a question of law, rather than undertake a comparative assessment of the arguments for and against the correctness of that proposition, I propose to deal with all the questions on which the appeal is brought on the basis that they are questions of law.  But as Gyles J recently said in Condell v Commissioner of Taxation [2007] FCAFC 44 at [20]:

    ‘… that does not convert the appeal into a full appeal or permit findings of mixed fact and law to be made.  An appeal on a question of law can only succeed if legal error in the AAT decision is demonstrated.’

    Question 1

13. The first question is said to be sourced in the ground that the Tribunal should have found, on the proper application of s 25 of the AAT Act and ss 61 and 62 of the SRC Act, that its jurisdiction was limited to reviewing a decision made pursuant to ss 16 and 20 of the SRC Act in respect of the cessation, as at 1 December 2004, of compensation payments for an accepted injury of the applicant of ‘adjustment disorder with features of anxiety and depression and chronic soft tissue injury’: Lees v Comcare (1999) 56 ALD 84 and Australian Postal Corporation v Oudyn (2003) 73 ALD 659. In short, it should have found that it did not have jurisdiction at large to hear and determine whether an injury, other than the accepted injury, was compensable under s 14 of the SRC Act. Where the Tribunal has no jurisdiction under s 25 of the AAT Act to make or review a determination under s 14 of the SRC Act, the parties cannot consent to the Tribunal being vested with such jurisdiction: R v Moodie; Ex parte Mithen (1977) 17 ALR 219 and Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396.

14. It lay at the core of the applicant’s submission that the determination of Maricar Failla, the first tier decision-maker, dated 25 October 2004 was confined to a decision to cease compensation payments under ss 16 and 20 of the SRC Act on the basis that, as at 1 December 2004, claims for such payments no longer arose from the applicant’s accepted injury of adjustment disorder with features of anxiety and depression. The first tier determination of Ms Failla did not, it was submitted, relate to a decision as to whether there was any liability under s 14 of the SRC Act for a new injury of delusional/paranoid disorder.

15. It was further submitted that the determination of the Comcare Independent Review Officer, David Warwick, affirming the original decision of Ms Failla, was not a determination as to whether there was any liability under s 14 of the SRC Act for a new injury of delusional/paranoid disorder.

16. But the Tribunal, on review, the applicant submitted, adopted an approach that differed substantially from that which had been adopted by the original decision-maker and on reconsideration in that it determined whether Comcare was liable for the applicant’s delusional/paranoid disorder injury under s 14 of that Act: reference was made to [6] of the Tribunal’s reasons for decision. That is, it treated this as a new injury for which the applicant had made a claim under the SRC Act.

17. The applicant contended that this approach was contrary to the evidence and contrary to the principles in Lees, which have not been disturbed by the decision in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 and which have been followed in Australian Postal Corporation v Mowbray & Anor (2003) 77 ALD 440, Oudyn and Duong v Australian Postal Corporation (2005) 41 AAR 288.

18. In summary, the applicant submitted that the Tribunal had no jurisdiction to determine whether the delusional/paranoid disorder was an injury for which Comcare was liable under s 14 of the SRC Act. What was before the Tribunal was the review of a decision as to whether, as at 1 December 2004, the claims for ongoing payment of compensation under ss 16 and 20 of the SRC Act arose from the applicant’s accepted injury of adjustment disorder with features of anxiety and depression.

19. On the other hand, Comcare submitted that the reviewable decision of 1 December 2004 considered whether liability should be found under the SRC Act for the applicant’s delusional disorder. This was plainly a ‘reviewable decision’ within the meaning of subs 60(1) vide s 62 of the SRC Act. Accordingly, a challenge based simply on jurisdiction is not sustainable.

20. It also submitted that the question of whether liability should be accepted for a delusional disorder was considered at all stages of the decision-making process that began in 2004.  In this regard, Comcare referred to a brief summary of the relevant history of the matter in support of its submission.

21. Comcare acknowledged that up to 2003 the applicant’s condition had been accepted as an ‘adjustment disorder with features of anxiety and depression’.  However, as part of its administration of the matter, Comcare arranged for the applicant to be periodically medically reviewed.  In September 2003 Comcare obtained a report from an independent psychiatrist, Dr Brown, who opined that the applicant was no longer suffering from an adjustment disorder, anxiety or depression that was work related, but was suffering from a constitutional ‘delusional disorder’.

22. The diagnosis of a delusional disorder was then supported by the applicant’s own psychiatrist, Dr Greenway, in his reports.  However, Dr Greenway related it to events that had occurred when the applicant returned to work on a return-to-work program at the Gosford DSS.

23. Following receipt of these reports, Comcare on 3 February 2004 gave notice of an intention to review ongoing payments in respect of the applicant’s ‘adjustment disorder with features of anxiety and depression’. It was authorised to carry out such an ‘own motion’ review by subs 62(1) of the SRC Act. The letter also annexed a Statement of Reasons that, in Comcare’s submission, specifically addressed whether the applicant was separately entitled to compensation for a delusional disorder.

24. The applicant then submitted a further report from his treating psychiatrist, Dr Greenway, dated 19 April 2004.  The final paragraph of the letter claimed:

    ‘Thus, Mr Buhr appears to have had little support in his attempt at returning to work at Gosford and it appears that even before he started there, it had been decided that he was not wanted.  There is no doubt that the attitude of the people at work has contributed to the exacerbation of his delusional disorder, which I do not think, will improve.’

25. On 25 October 2004 Comcare formally determined that the applicant was not presently entitled to benefits under s 16 or s 20 for his ‘adjustment disorder with features of anxiety and depression …’. The letter also incorporated the Statement of Reasons annexed to the letter of 3 February 2004, that, according to Comcare, specifically addressed liability for the delusional disorder. The letter also referred to Dr Greenway’s report of 19 April 2004 and his view that the applicant’s delusional disorder had been affected by events at the Gosford workplace. However, the delegate made a finding that the applicant’s allegations concerning these events were either ‘refuted or unfounded’.

26. No liability was accepted in this determination of 25 October 2004 for the delusional disorder.  But a denial of liability for a condition does not mean that liability for it was not considered; according to Comcare it clearly was.  Comcare therefore rejected the assertion in the applicant’s submissions that this decision did not consider liability for the delusional disorder.

27. Further, according to Comcare, it was unnecessary for this decision to address all of the matters – see [35] of Lees – that were necessary to give rise to liability under s 14 of the SRC Act. The delegate was satisfied that a relevant matter, namely whether the employee had suffered a work related ‘injury’, had not been established. This was sufficient, on the reasoning of the delegate, to deny liability for the delusional disorder.

28. The contention in the applicant’s submission that ‘the first tier decision of the process found that as at 1 December 2004 the anxiety and depression had progressed to a delusional/paranoid disorder’ is, according to Comcare, wrong. The decision simply found that as at 1 December 2004, on the medical evidence, benefits were not payable under ss 16 and 20 of the SRC Act for an ‘adjustment disorder with features of anxiety and depression’; the decision also rejected liability for a work related delusional disorder.

1. On 1 November 2004 the applicant’s solicitors sought review of this decision. The applicant was entitled to do this pursuant to subs 62(2) of the SRC Act. Further, under subs 62(3), the applicant was required to set out reasons for the request. This the letter did. Although, in the main, the letter pressed the anxiety condition as requiring the continuation of benefits, it also argued that Comcare was liable for the applicant’s delusional disorder which had been exacerbated by his employment.

2. On 1 December 2004 Comcare reviewed the decision dated 25 October 2004 and, according to Comcare, directly considered the issue of whether liability should be found for a delusional disorder that the applicant claimed was related to his work. Thus, there was, Comcare submitted, a hierarchy of decision-making, under the SRC Act, that dealt with liability for the delusional disorder.

3. Comcare further submitted that when it carried out its review under s 62 (i.e. in making its reviewable decision on 1 December 2004) it was authorised under subs 62(5) ‘to make a decision affirming or revoking the determination or varying the determination in such manner as it thinks fit’ (emphasis added). The applicant was seeking ongoing compensation under ss 16 and 20. The review officer was not only entitled, but was obliged, to consider whether the original condition was persisting and/or whether some other psychiatric condition had arisen, to take its place, that may be compensable.

4. Finally, Comcare submitted that, on any view, the Tribunal had before it a reviewable decision that presently refused the applicant compensation under ss 16 and 20 of the SRC Act for the condition of ‘adjustment disorder with features of anxiety and depression’. The Tribunal was not simply limited to considering the case within the four corners of a diagnosis that had been accepted previously if it was no longer apt. It was entitled to consider the evidence available to it and assess whether or not liability should be found for another mental condition that had emerged in the ongoing progress of the case: Hannaford, per Heerey J at [10] and [11].

5. There is no doubt, in my view, that the first tier decision-maker, Ms Failla, in making her determinations of 25 October 2005, relied on and embraced as reasons for her decision, the ‘Statement of Reasons’ referred to in and accompanying her proposal letter to the applicant of 3 February 2004.  That statement contained the following relevant observations and findings:

   ‘56.     Dr Brown further opined on the balance of probabilities Mr Buhr’s Delusional Disorder is not related to his employment with the Commonwealth, but rather the expression of a constitutional predisposition prior to his employment with the Commonwealth and a progression of that psychological constitution’s reaction to ongoing situations as he perceived them.  The only connection to his Commonwealth employment is that his delusions are focused on this and he would be sensitive to any perception that he was rejected, considered inferior, was under threat or discriminated against.  In terms of fitness for employment Dr Brown was of the opinion that Mr Buhr is not psychologically fit for any employment due to his Delusional Disorder.

   …

   60. In order for compensation to be payable under the SRC Act, it must be established that an employee:-­

   (i) suffered an injury arising out of, or in the course of, that employment: or

   (ii)suffered an ailment or the aggravation of any such ailment that was contributed to in a material degree by the employment.

   61.      The weight of the evidence suggests that Mr Buhr is no longer suffering a condition that arose out of or materially contributed by his Commonwealth employment.  The condition Mr Buhr now suffers from is as a result of constitutionally acquired paranoid personality disorder, which has manifested into a Delusional Disorder.  Both specialist Dr Brown and Dr Greenway are of the opinion that Mr Buhr suffers from a Delusional Disorder that has been brought about by his own perception regarding events associated with his Commonwealth employment.  …

   62.      With regard to the mental condition I note that a number of allegations made regarding the cause of Mr Buhr’s mental condition have been refuted or have been unfounded (refer point 15 & 42) and therefore supports the fact that it is his own perception of the events.  Examples of these include conspiracy within the Public Service against him, audited by the tax department as a gesture of victimisation, persecuted by denying him a transfer on medical grounds, refused training.  Including (as reported to Dr Brown and Dr Greenway) that he was threatened and that the Assistant Manager placed a needle in his arm and injected a material which would cause him to develop cancer.

   63.      … I accept on the basis of the medical doctors and specialist opinion that Mr Buhr may have suffered from this condition, however the “adjustment disorder” that was caused by his Commonwealth employment has now ceased and the condition Mr Buhr now currently suffers from namely “Delusional Disorder” is as a result of a constitutional predisposition.

   …

   69.      Based on the evidence above and the requirements of the SRC Act 1988 I propose to determine that Mr Buhr suffered an “adjustment disorder” and a “strained neck” as a result of his Commonwealth employment.  However the conditions suffered have since ceased and the condition Mr Buhr now currently suffers from is a “delusional disorder” which is constitutional rendering him totally unfit for employment.’

6. In my view, a fair reading of the Statement of Reasons, in particular the passages extracted in [33] above, would lead one to conclude that Ms Failla, as the first tier decision-maker, did determine that Comcare had no liability under s 14 of the SRC Act for the applicant’s current (at that time) injury of delusional/paranoid disorder because it was ‘… not related to his employment with the Commonwealth, but rather the expression of a constitutional predisposition prior to his employment by the Commonwealth and a progression of that psychological constitution’s reaction to ongoing situations as he perceived them’.

7. I am also of the view that a fair reading of the ‘Reasons, Decision and Notice of Rights’ which accompanied Mr David Warwick’s (the Independent Review Officer) letter to the applicant of 1 December 2004 would lead one to conclude that he had affirmed Ms Failla’s determination that Comcare had no liability under s 14 of the SRC Act for the applicant’s current injury of delusional/paranoid disorder. This is reflected in the following passage from the ‘Reasons, Decision and Notice of Rights’:

   ‘As noted in the determination of 25 October 2004, Dr Greenway’s report is based on the [applicant’s] account and perception of events during his employment.  A number of allegations made by the [applicant] have been refuted or have been unfounded.  From the medical evidence it is clear that the [applicant] has a medical condition and that his perception of events during his employment are related to his psychological constitution.  I do not consider that the [applicant’s] condition of delusional disorder is related to his employment, nor am I able to establish that the [applicant’s] perceptions are based on fact and meet the reality test as required in Wiegand.

   …

   The fact that I must consider is whether the [applicant’s] employment contributed to an exacerbation of his delusional disorder.  From the evidence I am satisfied that the [applicant’s] perception of the issues mentioned above have probably contributed to exacerbations of his delusional disorder.  However, as mentioned in Dr Brown’s report, these exacerbations would be transient exacerbations … the effects of which would have long ceased given the [applicant] has not been subject to those stressors since he was retired in 1994.  I am also satisfied, based on the medical evidence that any contribution to the [applicant’s] current condition relate to the [applicant’s] perception regarding his rights and the management of his claim, which for the purposes of the Act are not compensable’.

8. In these circumstances, I do not consider the Tribunal lacked jurisdiction to consider the applicant’s psychological condition as at 1 December 2004 and events after the introduction of the SRC Act. In other words, its finding and conclusion at [24] of its reasons is not infected with legal error and this ground cannot be sustained.

9. In conclusion on this ground, I would merely add that if my conclusion was wrong and the Tribunal lacked jurisdiction to consider the delusional disorder and/or that no claim had been made for it (see question/ground 2 below), I agree with counsel for Comcare that there would be clear futility in remitting the case to the Tribunal for reconsideration.  If the Tribunal lacked jurisdiction initially, it would not be in a better position to consider these issues on remittal.

   Question 2

10. This question is said to be sourced in the ground that the Tribunal should have found that, on the proper construction of the scheme of the provisions of the SRC Act, as set out in Lees, that a pre-requisite to Comcare making a determination as to whether it had a liability for a delusional/paranoid disorder injury of the applicant was the making of a claim by the applicant, pursuant to s 54 of the SRC Act, for such an injury. The fact that a review decision concerning the applicant’s eligibility for compensation payments under ss 16 and 20 of the SRC Act took into consideration the applicant’s condition at the date of that decision did not give rise to a decision in respect of liability for a condition for which a claim had been made.

11. There is a certain overlap between this ground and the first ground; both go to the question of whether the Tribunal had jurisdiction to consider and determine whether the applicant’s delusional/paranoid disorder was a compensable injury under s 14 of the SRC Act although the first ground was predicated on the premise, implied if not express, that a claim for such an injury had been made. The present ground raises the anterior issue – whether a claim for such an injury had been made.

12. At [23] of its reasons, the Tribunal acknowledged that the applicant had not made a formal claim after the commencement of the SRC Act. But the Tribunal went on:

    ‘…[the applicant] did respond to an enquiry by Comcare after 1 December 1988 … In my view Comcare treated Mr Buhr’s complaint as if a formal claim had been lodged after commencement of the [SRC] Act …  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 [SRC] Act.’

13. Comcare submits that the Tribunal’s finding was open on the evidence before it and was made without legal error.  Comcare refers to a brief summary of the facts as demonstrating that the Tribunal’s finding was open on the evidence:

    ·The applicant had forwarded a number of letters to Comcare in which he asserted that he had sustained a psychiatric injury at the Gosford office of the DSS (i.e. after 1 December 1988) – letter from the applicant to Comcare dated 12 June 1990 and letter from the applicant to Comcare dated 1 June 1991.

    ·Thereafter, the applicant’s treating psychiatrist continued to forward medical reports to Comcare, on the applicant’s behalf, which linked his psychiatric condition to events at work at Gosford:

    - Dr Greenway report of 27 August 1990
    - Dr Greenway report of 10 February 1991
    - Dr Greenway report of 17 October 2003
    - Dr Greenway report of 18 November 2003
    - Dr Greenway report of 11 December 2003

14. There was, Comcare submitted, ample material before the first tier decision-maker in which the applicant claimed that events at work at Gosford had affected his psychiatric state.

15. Comcare conceded that there is no dispute that Lees at [29] set out what ordinarily will be required of a claim under s 54 of the SRC Act. In particular, that it be in writing and that it should be supported by a medical certificate: s 54(2). However, it observed that Lees did not fully set out the terms of s 54. In particular, it noted that subs 54(5) of the SRC Act also states:

    ‘Strict compliance with the approved form referred to in subsection (2) is not required and substantial compliance is sufficient.’

16. Comcare further submitted that the Tribunal’s conclusion at [23] is consistent with s 54 of the SRC Act. That is, notwithstanding the applicant’s lack of a formal claim for a delusional disorder, the requirements of the section were, on the facts of this case, substantially complied with by him.

17. Finally, reference was made to the rationale for ss 53 and 54 of the SRC Act, namely, to prevent prejudice to Comcare by late notification of events that could give rise to a claim. Comcare has long been aware of the general nature of the applicant’s complaints about his work between 31 August 1989 and 26 November 1990. Neither the applicant nor Comcare adduced evidence that Comcare had been prejudiced by a claim being made in the way it was.

18. I agree that the Tribunal’s finding at [23] was open on the evidence and that, notwithstanding the lack of a formal claim for a delusional disorder, the requirements of s 54 were, on the facts of this case, substantially complied with by the applicant.

19. I am therefore of the view that the Tribunal’s finding at [23] does not raise a basis for an appeal on a question of law under s 44 of the AAT Act.

    Question 3

20. The difficulty I have with this question is that I cannot identify in the Tribunal’s reasons where it found the applicant’s claim for compensation of 10 October 1988 for an injury of extreme anxiety and for which the respondent accepted liability on 24 February 1989 gave rise to liability for compensation under s 14 of the SRC Act.

21. I do not read [6] of the Tribunal’s reasons, in particular the sentences –

    ‘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 s 14 of the 1988 Act’

    as being a reference to the applicant’s claim for compensation of 10 October 1988 and for which Comcare accepted liability on 24 February 1989.  These sentences clearly refer to the delusional or paranoid disorder that had disabled him from continuing to work.  In any event, nothing in [6] amounts to a finding of the Tribunal; the paragraph is nothing more than a statement of the issues before the Tribunal, albeit an arguably ambiguous statement.

22. The closest one comes to a finding of the kind raised in question 3 is in [25] of the Tribunal’s reasons, however, read carefully, what is said there is a long way short of a finding that the applicant’s claim for which Comcare accepted liability gave rise to a liability for compensation under s 14 of the SRC Act. Indeed, the Tribunal made no finding, in express terms, that liability for the adjustment disorder had been accepted specifically under the SRC Act. There is, but only arguably, an implication of such a finding in the Tribunal’s reference to Oudyn in the context that the finding that the applicant’s claim for his current psychological condition is not compensable under s 14 and does not override any continuing liability for the accepted condition of adjustment disorder, but that is as far as it goes. It is not, in my view, sufficient to sustain an error of law on the part of the Tribunal of the kind raised in question 3.

    Question 4

23. This question is said to be sourced in the ground that having found that the applicant’s condition progressed from the earliest accepted ‘injury’ of ‘adjustment disorder with features of anxiety and depression’ to a delusional/paranoid disorder condition (at [25] of the Tribunal’s reasons), the Tribunal should have found that the applicant’s subsequent condition formed part of his compensable injury under the 1971 Act: Comcare Australia (Department of Defence) v Madia (2002) 36 AAR 69. In making its finding that the applicant’s condition had progressed, the Tribunal implicitly accepted that the underlying patho-physiological condition, which caused the accepted injury and the subsequent condition, had not changed. On this basis it was not a new injury for which liability under s 14 of the SRC Act had to be established or accepted.

24. My difficulty with this ground is that it seems to be predicated on the proposition that what was said by the Tribunal at [25] of its reasons, in particular its use of the phrase: ‘The condition had progressed …’, amounts to a finding that the ‘adjustment disorder with features of anxiety and depression led, of itself, to the delusional disorder’.  In the face of the evidence referred to at [15] and [16] of the Tribunal’s reasons and the Tribunal’s actual findings at [29] and [31] – [33] of its reasons, I cannot accept that what the Tribunal said at [25] amounts to such a finding.  And if there is no such finding, the ground and its inherent question of law do not arise.

25. Dealing first with evidence –

    1.The psychiatrist who first diagnosed the applicant as suffering from a delusional disorder, Dr Brown, considered it was a constitutional condition.  He based the diagnosis on a claim by the applicant that he had been injected in the neck by his supervisor at the Gosford DSS in 1990.

    2.On the other hand, the applicant’s treating psychiatrist, Dr Greenway, linked the applicant’s delusional disorder to his treatment at the Gosford DSS.

    3.Dr Lambeth, called on behalf of the applicant, also considered the delusional disorder was contributed to by events at the Gosford DSS.  He did not think it was related to the applicant’s employment at the ATO.

    4.It was also clear from the medical evidence that the diagnosis of a delusional disorder was a quite distinct ailment from that of ‘an adjustment disorder with features of anxiety and depression’.  The delusional disorder had its own DSM-IV classification and diagnostic criteria.

26. The debate in the case was whether the delusional disorder was a purely constitutional condition or whether the events that occurred when the applicant worked at the Gosford DSS (after 1 December 1988) acted on a paranoid personality to produce, over time, the condition.  The debate was not whether the applicant’s work prior to 1 December 1988 or his adjustment disorder suffered in 1988, without more, had subsequently brought on a delusional disorder.

27. I agree with the submission of Comcare’s counsel that, when the evidence and the factual issues before the Tribunal are understood, there is no room for the applicant’s contention that the Tribunal implicitly found that the delusional disorder was due to the same ‘underlying patho-physiological condition’ as the adjustment disorder.  The Tribunal made no finding to this effect.

28. As I have already indicated, I also agree with his submission that the essence of the applicant’s appeal on this ground is based on the use of the word ‘progressed’ in [25] of the Tribunal’s reasons.  However, he further submits that particular words in a decision-maker’s reasons should not be read in isolation.  If ambiguity is present, the words should be interpreted ‘beneficially’ to the decision-maker: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, approving Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.

29. Finally, I agree with his submission that the word ‘progressed’ in [25], understood in context, does not mean the Tribunal was making a finding that the adjustment disorder had, of itself, led to the delusional disorder.  Rather it is properly read as merely descriptive of how the applicant’s delusional disorder emerged from events which occurred at the Gosford DSS that acted upon the applicant’s underlying paranoia.  The Tribunal clearly considered whether these particular events had such an effect and concluded that they had ([33]).  This finding, in itself, is inconsistent with a suggestion that the adjustment disorder, which arose before 1 December 1988, was the same ‘patho-physiological condition’ as the delusional disorder.  The Tribunal went on to find that liability did not arise for this condition because of the operation of Hart.

1. A challenge to reasons based on an alleged implicit finding that is inconsistent with each of the case as run before the Tribunal, the evidence adduced by both parties, and the actual findings of fact in the Tribunal’s reasons, cannot sustain this ground.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        24 April 2007

Counsel for the Applicant:	Ms S Higgins
Counsel for the First Respondent:	Mr G M Elliott
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	3 November 2006
Date of Judgment:	24 April 2007