O'Connor and Comcare

[2005] AATA 469

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 469

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/750

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID O'CONNOR

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr SC Fisher, Member

Date25 May 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd].......................

SC Fisher
  Member

CATCHWORDS

COMPENSATION – Injury – unspecified adjustment disorder – applicant suffers from a diagnosed injury or disease – uncontradicted medical evidence – applicant claims injury arose out of stress due to the mismanaged salary packaging of a motor vehicle – methods of remuneration too remote from the conditions under which an employee does his or her work – injury sustained did not arise out of the course of employment – applicant also falls into ‘benefit’ exception – salary packaging is a method of remuneration that gives tax-effective benefits to employees – decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 ss 4,6,7,14
Workers' Compensation Act 1926 -- 1960 (NSW)
Compensation (Commonwealth Government Employees) Act 1971

Secretary, Department of Social Security v Murphy Federal Court, 29 June 1998, 908/98; (1998) 52 ALD
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598; (1981) 4 ALD 198
Kunz v FCT (1996) 41 ALD 533
Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Comcare v Mooi (1996) 69 FCR 439; (1996) 42 ALD 495
Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235; (1987) 14 ALD 367
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321; (1990) 26 FCR 316
Hawkins v Comcare [2001] FCA 726
Wiegand  v Comcare [2002] FCA 1464; (2002) 72 ALD 795
Trewin v Comcare (1998) 84 FCR 171
Robertson and Comcare [2002] AATA 96; (2002) 67 ALD 160
Comcare v Nichols [1999] FCA 209
Lees v Comcare (1999) 29 AAR 350; (1999) 56 ALD 84,

MacArthur and Comcare [2003] AATA 1139

National Mutual Life Association of Australasia Ltd v Campbell [2000] FCA 852
Williams v Muller [2003] FCA 1190
Suters v Australian Postal Corporation (1992) 28 ALD 320
TSC Industries Inc v Northway Inc 426 US 438
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Nader v Urban Transit Authority (New South Wales) (1985) 2 NSWLR 501
Golds v Comcare [1999] FCA 1481

Telstra Corporation Limited v Treloar [2000] FCA 1170

REASONS FOR DECISION

25 May 2005 Mr SC Fisher, Member

Introduction and Background

1.      Mr David James Cecil O'Connor (the Applicant) is an employee of the Australian Taxation Office. By a compensation claim form dated 6 February 2003, the applicant claimed compensation from Comcare (the Respondent) in respect of "depression aggravated by unresolved financial dispute at work".  The applicant said that he first noticed symptoms responding to this condition on 15 January 2003 and that he first sought medical intervention for this condition on 16 January 2003.

2. By a determination dated 27 March 2003, the Respondent denied liability to compensate the applicant under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act” or “SRCA”) in relation to "unspecified acute reaction to stress" (using the nomenclature of the International Classification of Diseases and Injuries).

3. On 6 May 2003, the applicant requested a reconsideration of the 27 March 2003 determination relying on the machinery contained in section 62(2) of the Act. On 4 July 2003, an Independent Review Officer proceeding under sections 62(3), 62(4), and 63 of the Act affirmed the 27 March 2003 determination. This meant that the respondent was not liable to pay the applicant compensation in respect of the claimed compensable condition. The basis for that decision was that the respondent did not consider that the applicant’s claimed condition arose out of an injury within section 14 (importing the definition of "injury " from section 4) because of the operation of the exclusion to the definition of "injury" stemming from the failure on the part of the applicant to obtain a benefit. Moreover, the Respondent considered that the requisite relationship or nexus between the employment of the applicant and his claimed medical condition was not satisfied on the basis of the evidence before the respondent, and this was an additional ground for denying liability under section 14 of the Act.

4.      The applicant disagreed with the Respondent's reconsideration and appealed to this Tribunal on 5 September 2003.

Jurisdiction

5.      The Tribunal has jurisdiction in this appeal by virtue of Part VI of the Safety, Rehabilitation and Compensation Act 1988 (“the Act” or “SRCA”). References to statutory provisions are to provisions of the Act unless the context indicates otherwise.

The Decision under Review

6.      The decision under review is a decision has been described earlier in this Reasons for Decision under the heading "Introduction and Background".

The Role of the Tribunal

7. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy Federal Court, 29 June 1998, 908/98; (1998) 52 ALD 268. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.

The Material Before the Tribunal

8.      The following documentary evidence was before the Tribunal:

Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T12).

Exhibit 2Psychiatric Medico-Legal Report by Dr Peter Mulholland dated 27 April 2004.

Exhibit 3Report by Dr Peter Mulholland dated 29 April 2004.

Exhibit 4Report by Dr Peter Mulholland dated 3 June 2004

Exhibit 5Report by Dr Peter Mulholland dated 19 August 2004

Exhibit 6Report by Dr Maxwell Katz dated 10 August 2004.

Exhibit 7Applicant's Statement dated 2 February 2004.

Exhibit 8E-mail print out dated 14 January 2003 from Jenny Barclay to the Applicant concerning FBT Declarations.

9.      The Applicant was represented by Mr DR Kent of counsel.  Mr Kent was instructed by Hall Payne Lawyers.  Exhibits 2-7 were lodged on behalf of the Applicant.  The Applicant's solicitors provided a Statement of Facts and Contentions to the Tribunal.

10. The Respondent lodged documents T1 to T12 under section 37 of the Administrative Appeals Tribunal Act 1975.  These documents were taken into evidence as Exhibit 1.  Exhibit 8 was lodged on behalf of the Respondent.

11.     The Respondent was represented by Mr R King-Scott of counsel, instructed by Dibbs Barker Gosling Lawyers.  The Respondent’s solicitors provided a Statement of Facts and Contentions to the Tribunal.

12.     Both parties lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.

Evidence of the Applicant

13.     The only person to give evidence on behalf of the applicant was applicant himself.  The evidence of the applicant in these proceedings can be summarised as follows:

A.The applicant explained that he was a GST Field Operative based in the Southport Office of the Australian Taxation Office.

B.The applicant explained the nature of his duties, including the need for him to conduct field audits of GST payers which required to use either his own motor vehicle or an Australian Taxation Office motor vehicle to travel to venues on field assignments.

C.The applicant explained how he contacted the salary packaging unit in relation to acquiring a motor vehicle to be used for work purposes that he was to pay for on a salary packaging basis.

D.The applicant explained the history of the administrative errors concerning the acquisition of the vehicle and the processing of the salary packaging application (including associated finance) which are put down to the "incompetent administration" of the salary packaging unit in particular and the Australian Taxation Office in general.

E.In his evidence-in-chief, the applicant explained the problems that had arisen with the first vehicle that he had obtained on a salary packaging basis, including a failure on the part of the Australian Taxation Office to deduct lease payments for a period of nine months from his salary in order to pay the finance lessor.

F.In his evidence-in-chief, the applicant agreed that he was not required to have a motor vehicle on a salary packaging basis, but that this was strongly encouraged because that were not enough motor vehicles in the motor vehicle pool at the Southport Office for all GST Field operatives and others to use.

G.The applicant explained that the distress he suffered from caused him to consult Doctors Mulholland and Katz, Psychiatrists, for psychiatric intervention.

H.In cross-examination, the applicant said that he was "not aware" that there was a 1:1 staff member: motor vehicle ratio in the Southport Office.

I.In cross-examination, the applicant denied seeing clause 61 of the Enterprise Bargaining Agreement, but he did agree that he was told that salary packaging was possible for computer/laptops, school fees and similar items. The applicant conceded that he knew that salary packaging had a connection with FBT.

J.The applicant said that $7,800 was not deducted from his salary for a period of nine months due to payroll problems following the migration from Nomad to SAP computer software.

K.The applicant said that he did not notice from his pay slips the fact that these repayments were not being deducted from his salary. The applicant said that he did not have the time or the energy to sort out the car issue.

L.The applicant said that he was living from investment income.

M.The applicant said that the Human Resource personnel in the Australian Taxation Office were "idiots".

N.The applicant denied having any discussions with Mr Christopher Glennon regarding his car problems, although he did say he did have discussions with his team leader and also a person called Mike Warren about this matter.

O.The applicant said that the stress from the unresolved car issues had an adverse effect on his health, and that led to him having more and more sick leave during which he also contracted viral infections.

P.The applicant said that he had undergone psychological counselling through the Employee Assistance Program in an effort to deal with the stress from the car issues.

Q.The applicant said that in January 2003 he "de-compensated" at work about the time he had a conference at work, on 9 January 2003 regarding the salary packaging issues, which he found to be heated and intractable.

R.The applicant described the stress experienced concerning discrepancies in recorded odometer readings from submitted FBT declarations (Exhibit 8 refers).

S.The applicant said in cross-examination that he recalled an interview with Assistant Commissioner Dalzell of the Australian Taxation Office that went between 60 - 90 minutes in length.  The applicant denied overstating the odometer readings.  In that interview, the applicant did not recall any discussion about the falsification of log books.

T.The applicant denied any knowledge of on-going disciplinary proceedings in relation to himself.

U.In re-examination, the applicant said he did not treat the conversation with Assistant Commissioner Dalzell very carefully.

Discussion of the Evidence of the Applicant

14.     The Tribunal had the opportunity to observe the applicant while giving evidence in this hearing.  The Tribunal found the applicant an unsatisfactory witness, and his contention that he treated the 23 March 2003 interview with Assistant Commissioner Dalzell not very carefully (in effect, not very seriously) is less than credible, given the evidence provided by Assistant Commissioner Dalzell that the applicant vigorously and effectively prosecuted his case and claims in the course of that interview.

Medical Evidence Adduced by the Applicant

15.     The medical evidence adduced on behalf of the applicant was not contentious (although the respondent did contest the nexus between the medical conditions and the employment of the applicant in terms of attribution).

Medical Evidence of Dr Peter Mulholland

16.     Dr Peter Mulholland provided medical reports dated 27 April 2004 (Exhibit 2), 29 April 2004 (Exhibit 3), 3 June 2004 (Exhibit 4), and 19 August 2004 (Exhibit 5). The medical evidence provided by Dr Mulholland (who did not give evidence in person and was not required for cross-examination) is to the following effect:

A.Dr Mulholland diagnosed the applicant as suffering from “adjustment disorder (unspecified) with features of depression, anxiety, anger and frustration”.

B.The applicant meets the criteria for an adjustment disorder as per the DSM-IV.

C.The applicant has lifelong Attention Deficit Hyperactivity Disorder (ADHD), which was diagnosed in 1995 when the applicant was 35 years of age.

D.Dr Mulholland opined that the applicant probably had a mildly increased susceptibility or predisposition to an adjustment disorder or other psychiatric disorder as a result of his underlying ADHD.

E.Dr Mulholland opined that the applicant was precipitated into his psychiatric disorder as a consequence of his dispute with his employer.

F.Dr Mulholland opined (Exhibit 5) in reference to the medical report provided by Dr Maxwell Katz (Exhibit 6) that the reason for the different diagnosis made by Dr Katz (which was "major depression") was that the applicant presented to Dr Katz when he was the first slipping closer to the edge of a nervous breakdown than when the applicant presented to Dr Mulholland.  Dr Mulholland said that the two psychiatrists, although having made different diagnoses, were talking essentially about the same thing and that the diagnoses were probably more similar than dissimilar.

G.Dr Mulholland said the following concerning the cause of the medical condition of the applicant:

"27.2 The origin of this adjustment disorder lies in his dispute with his employers.  Please note that I have no opinion as to the rights or wrongs of the dispute and it is not my job to have an opinion about same.  All that I can say is that his emotional reaction is for the most part a consequence of the ongoing and unresolved dispute with his employers.  It is highly likely that if he were not having this dispute with his employers then his psychiatric condition would be satisfactory.  It needs to be remembered that he has probably had undiagnosed ADHD for most of his life however he has been under treatment for same the past several years with a good result."

Medical Evidence of Dr Maxwell Katz

17.     The medical evidence provided by Dr Katz (who did not give evidence in person and was not required for cross-examination) was in the form of a medical report dated 10 August 2004 (Exhibit 6) and is to the following effect:

A.Dr Katz diagnosed the applicant as having "adult ADD/ADHD".

B.Dr Katz diagnosed the applicant as suffering from "major depression according to DSM – IV Diagnostic Manual of Mental Disorders".

C.Dr Katz said that when the applicant has presented to him, "he was slipping closer to the edge of a nervous breakdown that has now been averted with the change in medicinal treatment with which David is continuing to comply...".

Discussion of the Medical Evidence

18.     As stated earlier in these Reasons for Decision, the medical evidence in this case is not contested essentially by the parties. The Tribunal noted that neither medical specialist who provided medical reports was required by the Respondent to attend the hearing for the purposes of cross-examination, so that the respondent is taken to accept the medical evidence proffered by the applicant. Following Kunz v Federal Commissioner of Taxation (1996) 41 ALD 533, it is now not open for the respondent to object to this medical evidence.

19.     The general test of the admissibility of evidence in the practice of the Tribunal is regulated by the twin criteria that the evidence must be logically probative of the existence of facts that emerge from the evidence before it, as well as relevant to the issues before the Tribunal: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601 and Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33. Moreover, the weight to be given to such evidence as is admitted as a matter for the Tribunal is a fact-finding body, having regard to the pronouncements made above. In this case, the Tribunal noted that the medical evidence adduced by the applicant is not contested, although the evidence is not unanimous. The Tribunal notes that the report of Dr Mulholland is more detailed and thorough than the report provided by Dr Katz. The Tribunal prefers the evidence provided by Dr Mulholland, and is prepared to find that the applicant suffers from “adjustment disorder (unspecified) with features of depression, anxiety, anger and frustration”.  The uncontradicted medical evidence provided by Dr Mulholland is that the dispute that the applicant had with the Australian Taxation Office is the cause of his adjustment disorder.

Evidence for the Respondent

20.     The following persons gave evidence on behalf of the respondent: Assistant Commissioner Craig Dalzell and Mr Christopher Glennon, both of the Australian Taxation Office.

Evidence of Assistant Commissioner Craig Dalzell

21.     The evidence of Assistant Commissioner Craig Dalzell in these proceedings was to the following effect:

A.Assistant Commissioner Dalzell said that he held the position of Assistant Commissioner Operations with the Australian Taxation Office with particular responsibility for Financial Systems and Operations.

B.Assistant Commissioner Dalzell said that on 23 March 2003, he held a 90 minute interview phone call with the applicant, and that this was known as a step in what was termed a "review of action".  The subject matter of the interview was the salary packaging arrangements relating to the applicant and the FBT declarations. Under investigation were issues of concern relating to the kilometres travelled in the subject car and a disputed FBT debt.

C.Assistant Commissioner Dalzell said that the applicant admitted during the interview that there was a discrepancy between his verbally-advised odometer readings and those supplied by way of a motor vehicle log book on or about 15 March 2002.

D.Assistant Commissioner Dalzell said that the conversation was a "serious conversation" and that the applicant participated "very energetically". The applicant voiced his complaints regarding the tax system, FBT, Australian Taxation Office staff and the handling off his salary packaging arrangements.  Assistant Commissioner Dalzell said that the applicant was very rational, that he had a well-organised story and provided quite a detailed account of his version of events.

E.Assistant Commissioner Dalzell said that the further a person travelled in a motor vehicle can for FBT purposes, demonstrate a higher business usage than normal which would lead to decreased taxable value of the car in the hands of the applicant. In other words, the applicant would gain if he could establish greater business kilometres travelled using the motor vehicle.

F.In cross-examination, Assistant Commissioner Dalzell agreed that the 23 March 2003 interview was not a fraud investigation and that is centred on disputed FBT calculations and liabilities and any ensuing FBT debt. Assistant Commissioner Dalzell agreed further that the applicant raised a number of issues and that he had been quite energetic in presenting his case concerning maladministration in the salary packaging arrangements FBT calculations and so on.

G.In cross-examination, Assistant Commissioner Dalzell said that the applicant admitted to him "I need to inflate the odometer readings to reduce the FBT debt", to which he responded that there was a falsified claim.

H.In cross-examination, Assistant Commissioner Dalzell said that there had been a later reference to Internal Affairs Branch (Fraud Prevention and Control Function) of the Australian Taxation Office.

Evidence of Christopher Glennon

22.     The evidence of Mr Christopher Glennon on behalf of the respondent in these proceedings was to the following effect:

A.Mr Glennon explained that he had been a long-standing employee of the Australian Taxation Office and that at one point he had been the area manager for the Mt Gravatt and Southport Offices with responsibility for activities/work teams in which the applicant worked.

B.Mr Glennon said that in the early days of GST implementation, the emphasis for field operatives was on GST education and compliance. Mr Glennon said that at that time, the ratio of office cars: staff members was close to 1:1, so that the applicant could have used a pooled motor vehicle to carry out his work responsibilities.  Mr Glennon denied that there was any pressure exerted by him or the Australian Taxation Office for GST field operatives to use their own motor vehicles instead of using pooled motor vehicles that were available in the Southport Office.

C.Mr Glennon said that the applicant did not make any complaints to him personally about the salary packaging issues he was experiencing as this was not his area of responsibility.

D.Mr Glennon said that the salary packaging issues experienced by the applicant were not related to his duties as a GST field officer.

The Legislation

23.     The following provisions of the Act were relevant to the resolution of the issues presented by this appeal:

“4(1)    In this Act, unless the contrary intention appears:

...

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

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.

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.

...

6  Injury arising out of or in the course of employment

(1)       Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

(a)as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or

(b)while the employee:

(i)was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;

(ii)was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;

(iii)was travelling between the place where he or she normally resides and another place, being a place where he or she resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment;

(iv)was travelling between one of his or her places of work and another of his or her places of work;

(v)was travelling between his or her place of work or place of residence and a place of education for the purpose of attending that place in accordance with:

(A)a condition of his or her employment by the Commonwealth or a licensed corporation; or

(B)a request or direction of the Commonwealth or a licensed corporation;

or for the purpose of attending that place with the approval of the Commonwealth or the licensed corporation, as the case may be, unless he or she was so travelling while on leave without pay;

(vi)was at a place of education, except while on leave without pay, for a purpose referred to in subparagraph (v);

(vii)was travelling between his or her place of work or place of residence and any other place for the purpose of:

(A)obtaining a medical certificate for the purposes of this Act;

(B)receiving medical treatment for an injury;

(C)undergoing a rehabilitation program provided under this Act;

(D)receiving a payment of compensation under this Act;

(E)undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or

(F)receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensed corporation, is available, or reasonably expected by the employee to be available, for collection at that place; or

(viii)was at a place for a purpose referred to in subparagraph (vii).

(1A)For the purposes of this section:

(a)a journey from a place of residence is taken to start at the boundary of the land where the place of residence is situated; or

(b)a journey to such a place of residence is taken to end at that boundary.

(1B)If an employee owns or occupies a parcel of land contiguous with the land on which the employee’s residence is situated, the boundary referred to in subsection (1A) is the external boundary of all of the contiguous parcels of land if treated as a single parcel.

(2)Subparagraph (1)(b)(ii), (iii), (iv), (v) or (vii) does not apply where the travel:

(a)was by a route that substantially increased the risk of sustaining an injury when compared with a more direct route; or

(b)was interrupted in a way that substantially increased the risk of sustaining an injury.

(3)Subsection (1) does not apply where an employee sustains an injury:

(a)while at a place referred to in that subsection; or

(b)       during an ordinary recess in his or her employment;

if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.

7  Provisions relating to diseases

(1)       Where:

(a)an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;

(b)the disease is of a kind specified by the Minister by notice in writing as a disease related to employment of a kind specified in the notice; and

(c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;

the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed in a material degree to the contraction of the disease, unless the contrary is established.

(2)       Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed in a material degree to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed.

(3)       Where an employee suffers an aggravation of a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the aggravation first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed in a material degree to the aggravation if the incidence of the aggravation of that disease among persons suffering from it who have engaged in such employment is significantly greater than the incidence of the aggravation of that disease among persons suffering from it who have engaged in other employment in the place where the employee was ordinarily employed.

(4)       For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a)the employee first sought medical treatment for the disease, or aggravation; or

(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.

(5)       The death of an employee shall be taken, for the purposes of this Act, to have resulted from a disease or an aggravation of a disease, if, but for that disease or aggravation, as the case may be, the death of the employee would have occurred at a significantly later time.

(6)       An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a)the incapacity or impairment would not have occurred;

(b)the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c)the extent of the incapacity or impairment would have been significantly less.

(7)       A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

The provision of the Act imposing liability on the respondent to pay compensation is section 14, which reads:

14  Compensation for injuries

(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.

(2)       Compensation is not payable in respect of an injury that is intentionally self‑inflicted.

(3)       Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.”

24.     Because of the structure of these provisions, "disease" is a subset of "injury": see Comcare v Mooi(1996) 69 FCR 439. Section 5(1) of the Act defines "disease" to include any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development.

Issues

25.     The issues in this case are as follows:

A.Does the applicant suffer from a diagnosed injury or disease?

B.If so, has the injury or disease been materially contributed to by the employment of the applicant?

C.Has any injury or disease (or any aggravation of any injury or disease) suffered by the applicant arisen as a result of the failure to obtain a benefit in connection with the applicant's employment within the meaning of the exclusion to the definition of "injury" in section 4 of the Act?

Applicant’s Submissions

26. Counsel for the applicant submitted that the three issues in this case should be resolved in favour of the applicant and that the Tribunal should make a determination that the respondent is liable to pay compensation to the applicant within the meaning of section 14 of the Act.

27.     In relation to the first issue, Counsel submitted that a diagnosis of either "adjustment disorder" or "major depression" should be made on the basis of the medical evidence before the Tribunal.

28.     In connection with the second issue, Counsel submitted that the requisite connection between the employment and the medical condition existed. Counsel contended that if the applicant's medical condition was a "disease", it must be contributed to in a material degree by his employment for a liability to pay compensation to arise on the part of the respondent. In the alternative, Counsel argued that if the medical condition of the applicant was an "injury", the injury must arise out of, or in the course of the employment of the applicant. Either basis, Counsel urged, was sufficient in this case.  Counsel criticised the distinction drawn by the respondent between the employment of the applicant and the stress created from mismanagement of his salary package as being artificial.  Counsel said that the motor vehicle that was the subject of the salary packaging and other disputes was central to the applicant's work as a GST field officer and that salary packaging is part of remuneration and internal remuneration is central to the employment of the applicant.

29.     Counsel submitted that the following passage from the decision of Kitto J in Federal Broom Company Pty Ltd v Semlitch(1964) 110 CLR 626 at 632 – 633 when properly analysed was supportive of the applicant establishing the requisite connection between his employment and his medical condition:

“I find myself, with respect, unable to concur in either of the grounds taken by Else-Mitchell J. The first is based upon an assumption that the Legislature in enacting the relevant words, as it did by the amending Act of 1960, was mainly concerned to displace the decision of the Court in Darling Island Stevedoring and Lighterage Company Limited v Hussey (1959) 102 CLR 482 ; and the conclusion is drawn that the word "disease" is used as meaning only such illnesses or disorders as possess the characteristics which were material to the decision in Hussey's Case (1959) 102 CLR 482 . No doubt the assumption is correct; but for the next step there is, I think, no warrant. In its ordinary meaning ’disease’ is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness. The second ground treats the word "employment" in the definition as something distinct both from the fact of the employment of the worker and from any consequence of the employment, and confines it (if I understand the notion correctly) to the  inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work. With all respect, I think that to take this view is to refine upon the word too much and by so doing to miss what the definition is manifestly intending to say. Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a 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 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.”

30.     From this baseline, Counsel argued that the difficulties the applicant experienced in relation to his employer concerning salary packaging of his motor vehicle that was clearly used for work purposes was a state of affairs that the applicant was exposed in the performance of his duties and as a consequence of his employment.  So in that sense, the employment of the applicant was a contributing factor to any aggravation of a mental injury suffered by the applicant, being an aggravation that arose out of, or in the course of, the employment of the applicant. Counsel cited the decisions of the Federal Court of Australia in Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 and Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at [22] in support of the contentions that the employment of the applicant "positively contributed" to his medical condition (Westgate) and that it did not matter if the contribution was large or small (Treloar).

31.     In relation to third issue, Counsel contended that the applicant did not fail to obtain a benefit within the meaning of the exclusion to the definition of "injury" in section 4 of the Act. Counsel argued that the respondent incorrectly characterised the applicant's position. Counsel argued that in point of fact, the applicant did not fail to gain some potential advantage or benefit, rather it was the complete mismanagement by the employer of the applicant of the salary packaging scheme that led to the medical condition suffered by the applicant.

Respondent’s Submissions

32.     The respondent conceded on the basis of the medical evidence provided by Dr Mulholland that the Tribunal should find that the medical condition suffered by the applicant was a diagnosable condition.

33.     In relation to the requirement that the ailment or aggravation was contributed to a material degree by the employment of the applicant, the respondent cited the decisions of Kitto J (with whom Taylor and Owen JJ agreed) and Windeyer J in Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 at 632 and at 641 respectively, as approved by the Full Court of the Federal Court of Australia in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at 328, and Hawkins v Comcare [2001] FCA 726. The respondent submitted that these decisions were authority for the proposition that the aggravation or deterioration comprising a contributing factor must be some event or occurrence in the course of employment and not the mere fact of being employed. The respondent submitted further that in that sense there was no "state of affairs to which [the worker] would otherwise not have been exposed" or "some characteristic of all condition in which the work was to be performed" that provided a material contribution between the employment of the applicant and the medical condition from which he suffered.

34.     The respondent also cited the decisions of the Federal Court in Hawkins v Comcare [2001] FCA 726 and Wiegand v Comcare [2002] FCA 1464 in support of the contention that the injury suffered by the applicant was not work-related, but even if it was, it fell within the exclusionary cause (see Trewin v Comcare (1998) 84 FCR 171 at 175) to the definition of "injury" in section 4(1) of the Act. Consequently, the respondent argued that it had no liability to pay compensation to the applicant under the Act.

Findings of Fact

35.     Based upon the evidence before it, the Tribunal makes the following findings of fact:

A.Mr David James Cecil O'Connor (the Applicant) is currently an employee of the Australian Taxation Office.

B.By a compensation claim form dated 6 February 2003, the applicant claimed compensation from Comcare (the Respondent) in respect of "depression aggravated by unresolved financial dispute at work".

C.The applicant was not required to obtain a private motor vehicle through salary packaging means through the Australian Taxation Office, although the Australian Taxation Office did facilitate the salary packaging arrangement which the applicant took advantage of in relation to the acquisition of the motor vehicle.

D.The applicant did use his salary packaged vehicle for work purposes and lodged FBT declarations in respect of that vehicle.

E.The salary packaging arrangements were not administered properly causing the applicant financial loss.

F.The applicant first noticed symptoms responding to this condition on 15 January 2003 and first sought medical intervention for this condition on 16 January 2003.

G.The applicant suffers from “adjustment disorder (unspecified) with features of depression, anxiety, anger and frustration”.

H.The dispute that the applicant had with the Australian Taxation Office is the cause of his adjustment disorder.

I.By a determination dated 27 March 2003, the Respondent denied liability to compensate the applicant in relation to "unspecified acute reaction to stress" (using the nomenclature of the International Classification of Diseases and Injuries).

J.On 6 May 2003, the applicant requested a reconsideration of the 27 March 2003 determination.

K.On 4 July 2003, an Independent Review Officer affirmed the 27 March 2003 determination.

L.The applicant appealed to the Tribunal on 5 September 2003.

Tribunal’s Reasons

A.       General Approach

36.     First, in terms of its methodological approach and in connection with claims to establish liability for an injury or incapacity flowing from that injury, the Tribunal must be satisfied on the balance of probabilities of the existence of the injury or the incapacity and that they were work related: see Robertson and Comcare [2002] AATA 1259 at [124]. A succinct statement of this calculus is found in Comcare v Nichols [1999] FCA 209 where Justice Heerey said at [23]

"However Mrs Nichols also contended that (i) she had a cervical spondylosis (ii) which was work-related and (iii) which contributed to her present incapacity.  If all three elements were established she would have an entitlement to compensation.  The Tribunal had to be satisfied of the existence of each element."

37.     In Lees v Comcare (1999) 29 AAR 350; (1999) 56 ALD 84, the Full Court of the Federal Court explained how section 14 determinations should operate:

“[35] This is not to say that a determination under section 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by section 53 of the Act; secondly, that a claim for compensation has been made as required by section 55 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an ‘employee’ at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.”

38.     The Tribunal approached this matter through the prism of the Comcare v Nichols template (a trimmed down version of the Lees v Comcare template), namely: (1) does the applicant have a medical condition (2) which is work-related and (3) which contributes to his present incapacity.

B.       Does the Applicant Have a Recognised or Diagnosable Medical Condition?

39.     In connection with the first issue from the Comcare v Nichols template, the evidence before the Tribunal establishes that the applicant has a medical condition, namely “adjustment disorder (unspecified) with features of depression, anxiety, anger and frustration”. The overarching definition is that of "injury" in section 4(1) of the Act (reproduced above) which in turn picks up subsidiary definitions of "disease" (also contained in section 4(1) of the Act, reproduced above), which in turn sweeps up the definition of "ailment" (also contained in section 4(1) of the Act, reproduced above). When the three definitions are read together, in light of the evidence in this case, it is clear that the applicant has suffered an injury because he has contracted a disease in the nature of an ailment. The Tribunal was satisfied that the applicant has sustained an "injury" (that is in turn a disease comprised by an ailment) and that the medical condition is best described as “adjustment disorder (unspecified) with features of depression, anxiety, anger and frustration”.  This means that the first major issue in this case is resolved in favour of the applicant.

C.       Is The Applicant’s Medical Condition Work-Related?

40.     The central issue on which the parties were divided is whether the applicant's medical condition is work-related, which corresponds to the second issue from the Comcare v Nichols template. The competing contentions have been summarised above.

41.     It is clear, on the basis of binding authority, that non-employment factors must be disregarded when examining the injury/employment issue: Trewin v Comcare(1998) 84 FCR 171 at 176 per Heerey J.

42.     The decision of the High Court of Australia in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 is widely cited in the jurisprudence of the injury/employment nexus in decisions of this Tribunal and of the Federal Court of Australia on the matter of the law applicable to determining whether an injury or disease has arisen in the course of employment. Federal Broom Co Pty Ltd v Semlitch itself as a decision under a parallel statute, namely the Workers' Compensation Act 1926 -- 1960 (NSW).  The fact that Federal Broom Co Pty Ltd v Semlitch has been translated from State workers compensation law to Federal workers compensation law was the subject of these observations in Wiegand v Comcare Australia[2002] FCA 1464:

“[23] In terms of the definition of disease, the question which the Tribunal was required to consider was whether Mr Wiegand'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 respondent concedes that 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.’

Federal Broom Co Pty Ltd v Semlitch concerned the definition of "injury" in s 6(1) of the Workers' Compensation Act 1926-1960 (NSW). That definition extended "injury" to include "the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration; ...". In the definition of "disease" in s 4 of the SRC Act, the notions of acceleration, exacerbation or deterioration are no longer mentioned, but for practical purposes I consider this provides no basis for distinguishing the observations of Kitto J. It will also be noted that the definition of "disease" in the SRC Act requires that employee's employment contributed to a "material degree", but the introduction of the notion that the contribution must be "material" was held not to be a ground for differently construing the requirements for the definition of "disease" in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323.

[24] It will be noted that Kitto J does not introduce any qualification or refinement to the meaning to be given to "employment" which would require some qualitative assessment of the incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against. All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a "reality" test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.

[25] This situation may be contrasted with that considered in Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 where it was held that the fact that a neurotic employee wrongly believed that his leg pain arose out of his work did not mean that his employment actually was a contributing factor to his neurosis.

[26] An interpretation similar to that enunciated by Kitto J was also given to the notion of employment by Windeyer J in Federal Broom Co Pty Ltd v Semlitch at 641 where his Honour said:

"I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of `the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed." (emphasis added)

43.     So although there are textual variations between the key definitions of workers compensation law between the Federal and State domains that are to be used in determining whether an injury or disease has arisen in the course of employment, there is sufficient warrant, from the authorities cited, for treating as normative the idea that Federal Broom Co Pty Ltd v Semlitch expresses as a statement of sufficiency the required relationship between a medical condition suffered by an employee and the employment itself.

44.     In MacArthur and Comcare [2003] AATA 1139, McCabe SM said:

“104. I note the Full Federal Court took a similar view in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321. Sweeney ACJ, Sheppard and Foster JJ explained (at 328):

‘All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause.’

The fact he might have developed a depressive disorder even if he had not been employed at the meatworks as a result of constitutional factors is beside the point. As the Full Court explained (at 328) it is inappropriate to apply a "but for" test: see also Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641 ff per Windeyer J.

105. The law also makes it clear that it does not matter if the applicant's reaction to the events in the workplace is irrational, so long as there were events to which he did react: see Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 at 240 per Davies J.”

45.     Because of the definition of "disease", it must be an ailment or an aggravation of an ailment that was contributed to in a material degree by the applicant’s employment by the Australian Taxation Office (an agency of the Commonwealth). The combined operation of the defined concepts of "injury", "disease" and "ailment" in section 4(1) of the Act means that the present inquiry is whether the injury or disease suffered or sustained by the applicant has been materially contributed to by the employment of the applicant. In Trewin v Comcare (1998) 84 FCR 171 at 176, Heerey J read Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632-633 and at 641 as authority that it is not enough for the employee to show that if he had not been employed at all, he would not have suffered that injury or disease. Windeyer J said (at 641):

“... was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of "the employment" as a contributing factor, it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.'”

As Kitto J cautioned in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 633: "Fallacy lurks in paraphrase" (a cautionary dictum repeated by a unanimous Full Court of the Federal Court in National Mutual Life Association of Australasia Ltd v Campbell [2000] FCA 852). Even so, because of the statutory language deployed in relation to the word "disease", the statutory inquiry in the context of the present case is whether the applicant suffers an ailment or an aggravation of an ailment that was contributed to in a material degree by the applicant's employment by the Australian Taxation Office.  In the words of Windeyer J the contributing factor between the applicant and his employment must be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.  These integers must not be taken in isolation, however.  Those integers take their meaning and have their operation in the context of a practical consideration, namely “not to the fact of being employed, but to what the worker in fact does in his employment”: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641.

46.     The Tribunal considered that there are three separate and distinct limbs in this formulation (with the second and third formulations being alternatives).  The first is some event or occurrence in the course of employment.  The second is some characteristic of the work performed.  The third is the conditions in which it was performed.  Because of the definition of "disease", the ailment or aggravation of the ailment must be contributed to in a material degree by the employment of the applicant by the Australian Taxation Office.  So to paraphrase or adapt what Windeyer J said in Federal Broom Co Pty Ltd v Semlitch, the contributing factor between the applicant and his employment must be contributed to in a material degree by either (1) some event or occurrence in the course of the employment or (2) some characteristic of the work performed or (3) the conditions in which it was performed, so long as those contributions are related to the practical out working of the employee's tasks.

47.     In connecting the course of employment with the requirement for employment to contribute in a material degree to a disease, the Federal Court said the following in Williams v Muller [2003] FCA 1190:

“[58] Events which occur in the course of employment may mean that a disease was contributed to in a material way by the employment: see e.g. Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632, 641; Treloar v Australian Telecommunications Commission (1990) 26 FCR 316; Wiegand v Comcare Australia [2002] FCA 1464; (2002) 72 ALD 795.”

48.     The language of the statutory definition of "disease" in its use of the concept of "contribution" does not require that the contributing factor be a causa sine qua non; the "but for" test is not appropriate nor is the causa causans or "real effective cause" or "proximate cause" formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause.  If they are not, then, they do not "contribute":Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at [21]; 12 AAR 535.

49.     The Tribunal also considered what the Full Court of the Federal Court said in Treloar v Australian Telecommunications Commission(1990) 26 FCR 316; 12 AAR 535:

“[22] The use of the word "material" in conjunction with the words "contributing factor" in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature.  It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of.  The causal connection must be established on the probabilities and not left in the area of possibility or conjecture.  Once the link is established, however, it matters not that the contribution be large or small.”

50.     Even if it is acknowledged that the discussion of materiality in Treloar v Australian Telecommunications Commission took place in a legislative context where materiality was not a qualification or statement of sufficiency in relation to contributory factors under the previous Compensation (Commonwealth Government Employees) Act 1971 (as Ryan J did in Suters v Australian Postal Corporation (1992) 28 ALD 320 at 331), Treloar v Australian Telecommunications Commissionis taken to be a valuable exposition of the meaning of the word to which courts and tribunals are entitled to have regard. when considering legislation containing it (Suters at 331). Materiality can refer to an item or thing of such a nature that knowledge of that item or thing could affect a person's decision-making process [the Tribunal adds that this can also be a feature in private law as well as public law; refer TSC Industries Inc v Northway Inc426 US 438 at 449 (1976)]. "Material" can also mean significant or essential: see Black's Law Dictionary (Abr Seventh Edition, West Group, St Paul, Minnesota, 2000) (entry “material", page 793).

51.     It is clear from Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 at 240 and MacArthur and Comcare [2003] AATA 1139 at [105] that it does not matter if the applicant's reaction to the events in the workplace is irrational, so long as there were events to which he did react. This is something approximating the eggshell skull rule from tort law (compare Mount Isa Mines Ltd v Pusey(1970) 125 CLR 383 and Nader v Urban Transit Authority (New South Wales) (1985) 2 NSWLR 501). In this case, it is clear from the evidence before the Tribunal that the applicant did react to events in the workplace, which were the mismanagement of the salary packaging arrangements that were put in place through the facilitation of his employer. Perhaps somebody with a different constitution or make-up may have reacted quite differently to the mismanagement of the salary packaging arrangements that took place than the applicant did, but the law is that this does not matter.

52.     The nub of the respondent’s contentions before the Tribunal in relation to the second major issue is that the salary packaging arrangements which the Australian Taxation Office facilitated in relation to the applicant are, in effect, too remote from the day-to-day activities of the applicant or the manner in which he performed his duties.

53.     The evidence before the Tribunal, which the Tribunal has accepted, is that the Australian Taxation Office facilitated salary packaging between its employees and external car financiers, and that the car which was salary packaged by the applicant was used for work purposes in the course of his duties as a GST field officer.  This evidence still has to be fitted, however, within some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed before the requisite nexus between the applicant' employment and his injury is established.  Anyone of these three connecting factors will satisfy this requisite nexus, so long as they do so to a material degree (in the sense that materiality has been discussed above).  In the opinion of the Tribunal, there is nothing that is characteristic of the work performed that satisfies the nexus between the employment of the applicant and his injury.  In relation to the prospect of any specific event or occurrence that happens in the course of employment, it is not correct to treat the salary package mismanagement of the acquisition of the motor vehicle as such an event or occurrence when this integer is understood in its context (what the employee in fact does in his or her employment).  Alternatively, it is not artificial to separate the salary packaging of the motor vehicle from its deployment for work purposes when examining the conditions under which the applicant performed his work because methods of remuneration (of which salary packaging is a part) do not have anything to do with the conditions under which the applicant performed his work as a GST field officer on a day-to-day basis.

54.     The evidence before the Tribunal, in its totality, establishes that even though the applicant could have used a pooled motor vehicle for the purpose of performing his duties as a GST field officer, he elected not to do so (and was not required to do so) and chose instead to arrange for a salary packaged motor vehicle to assist him when performing his duties.  Even if the applicant had private motives for selecting a salary packaged motor vehicle (and there was no evidence to that effect before the Tribunal), this would not change anything.  The Tribunal is not satisfied, however, that the conditions under which the applicant performed his work include his salary packaging arrangements concerning the motor vehicle. In effect, methods of remuneration are too remote from the conditions under which an employee does his or her work.  This resolves the second major issue in this case in favour of the respondent.

55.     In a general or uncontrolled sense, remuneration is related to employment (particularly from the employee's perspective).  But to recognise that relationship is not enough for the purposes of the contraction or suffering of a disease under the Act.  There must be some type of causative event that provides a bridge or connection between contracting the disease and the outworking of the employment function.  Nothing in section 7 alters this conclusion in terms of the facts of this case.

56.     The Tribunal comes back to the medical evidence.  The uncontradicted medical evidence is that the applicant’s dispute with his employer caused his adjustment disorder (refer to Dr Mulholland report of 27 April 2002 (Exhibit 2) as extracted above).  This comes close to determination of the ultimate issue outside of the framework of administrative decision-making, but the Tribunal did not surrender its decision-making powers or functions to the uncontradicted medical evidence.  The Tribunal is satisfied that the “employment” of the applicant did not contribute to a material degree to his adjustment disorder in the sense that contribution has been explained above (it was a dispute related to employment which did).

D.       Is the Applicant's Injury or Disease Excluded from Compensation?

57.     The third major issue in this case is whether any injury or disease (or any aggravation of any injury or disease) suffered by the applicant has arisen as a result of the failure to obtain a benefit in connection with the applicant's employment within the meaning of the exclusion to the definition of "injury" in section 4 of the Act? The applicant contended that the exclusionary cause did not apply, while the respondent contended to the opposite effect. On the facts of this case, it is only the exclusionary cause or ground of "failure by the employee to obtain ... a benefit in connection with his or her employment" that is operative, and this is where forensic issue was joined between the parties. Strictly speaking, it was not necessary for the Tribunal to consider this third issue in view of its ruling on the second issue, but for completeness and in deference to the arguments that were advanced to the Tribunal by the parties, the Tribunal proceeded to do so.

58.     The exclusionary ground of "failure by the employee to obtain ... a benefit in connection with his or her employment" has received its closest exposition in the decision of Heerey J in Trewin v Comcare (1998) 84 FCR 171 at 176 - 177. His Honour said:

“In my opinion the term ‘benefit’ in 4 is not restricted to something which is a matter of charity or gratuity. The Macquarie Dictionary gives two relevant meanings for the noun ‘benefit’:

1. an act of kindness.

2. anything that is for the good of a person or thing.

To some extent the meanings overlap, with the latter being broader.

I think that the word is used in s 4 in the latter sense, which does not necessarily exclude something obtained as a matter of right. An example of this usage is in the term ‘medical benefit’, which means a payment to which an insured person is entitled as a matter of contractual right.

Moreover the concept of ‘failure ... to obtain a promotion, transfer or benefit in connection with ... employment’ has to be applied in the context of Commonwealth employment where there is a complex regime of industrial regulation with Awards, workplace agreements and appeal systems. Sometimes employees might have career-related legal rights, at other times no more than understandings and expectations. I think the intention to be deduced from the exception to the definition of ‘injury’ in s 4 is that Parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified) disappointment in Commonwealth careers but concluded that injuries so arising were, for policy reasons, not to be compensable.”

59.     In Golds v Comcare [1999] FCA 1481, Cooper J agreed with those observations (at [42]).

60.     The applicant submitted that the "benefit" exclusion did not apply.  The applicant argued that that he did not fail to obtain a benefit in connection with his employment, and that there was no failure to gain some potential advantage.  Rather, it was the complete mismanagement of the salary packaging arrangements that were consensually put in place between the parties which failed to deliver the promised for benefits in the hands of the applicant.  This contention does not sit squarely with the evidence of the applicant to the fact that for some 9 months the car lease repayments were not deducted, causing him to have to later come up with the payments in arrears in a bullet or lump sum.

61.     The Tribunal did not find it necessary to read the benefit exception ejusdem generis with the other exceptions with which it is housed.  This would have led to a genus or class pitched at too high a level of abstraction to be of any practical utility since "promotions", "transfers", and "benefits" are not on their face connected by a discernible genus or class (except perhaps the employment context). The Tribunal had regard to what the Federal Court said in Telstra Corporation Limited v Treloar [2000] FCA 1170:

“ For one thing, statutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances the generality of the statutory language is deliberate and allows the courts to develop a body of law to fill the gaps.”

62.     In the opinion of the Tribunal, the benefit exception fits within the ambit of these observations. The Tribunal proceeded on the basis that decisions of the Federal Court in Trewin v Comcare(1998) 84 FCR 171 and Golds v Comcare[1999] FCA 1481 are sufficient warrant for reading "benefit" in an employment context rather than reading it even more broadly to mean anything of value or advantage to an employee, whether or not this arises out of or is associated with employment or whether or not it is a benefit that is commensurable in money or monetary terms. The Tribunal is inclined to agree with the contentions of the respondent in relation to the salary packaging issue.  Salary packaging is a method of remuneration that delivers tax-effective benefits to employees in the light of laws concerning FBT. If less income tax is paid by an employee because of a lawful salary packaging structure, then this is a "benefit" within the meaning of the definition of "injury" in section 4(1) of the Act as a benefit can consist of something not spent (in other words, savings) as well as a discount on something that is spent. Accordingly, the Tribunal concludes that as the salary packaging dispute arose in the course of the employment of the applicant by the Australian Taxation Office (in the sense explained above), then this dispute falls within the ambit of a failure to obtain a benefit in connection with the applicant's employment within the meaning of the exclusion to the definition of "injury" in section 4 of the Act.

Tribunal’s Conclusion

63.     Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct and preferable decision is that the adjustment disorder injury sustained by the applicant did not arise in the course of his employment by the Australian Taxation Office.

Tribunal’s Order

64.     The Tribunal decides to affirm the decision under review.

I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Member SC Fisher.

Signed:         Camille Banks
   Associate

Date of Hearing  1 March 2005
Date of Decision  25 May 2005
Counsel for the Applicant         Mr D Kent
Solicitor for the Applicant          Hall Payne Lawyers
Counsel for the Respondent     R King-Scott
Solicitor for the Respondent     Dibbs Barker Gosling