Phu and Australia Postal Corporation

[2007] AATA 1111

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1111

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/645

GENERAL ADMINISTRATIVE DIVISION		)         No N2005/1222 )         No N2006/269 )         No N2006/598
Re		Chi Chau Phu

Applicant

And  Australia Postal Corporation

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Max Thorpe, Member

Date9 March 2007

PlaceSydney

Decision The decisions under review are affirmed except for the decision of 9   February 2006 concerning Mr Phu’s claim for recompense for overtime payments for 11 days in December 2004, which is set aside.

................[sgd]..........................

Robin Hunt
  Senior Member

CATCHWORDS

COMPENSATION - accepted claim for initial injury - left lower back and buttock pain due to musculo- ligamentous sprain - effects of injury ceased – no continuing work caused injury – incapacity to do overtime hours –compensation due – meaning of ‘benefit’ – fears of retrenchment – no compensation for failure to obtain a benefit.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988

CASE LAW

Hart v Comcare [2005] FCAFC 16

Treloar v the Australian Telecommunications Commission (1990) 97 ALR 321

Wiegand v Comcare Australia [2006] FCA 1620

Trewin v Comcare (1998) 84 FCR 171

REASONS FOR DECISION

summary

1.      There are a number of claims that have been joined in this case.  Mr Chi Chau Phu, the applicant, sought review of four reviewable decisions that affirmed determinations of the respondent, the Australian Postal Corporation (Australia Post). The decisions in question denied liability for compensation for psychiatric or psychological injury that Mr Phu alleged arose in the course of his employment. Mr Phu also claimed compensation for loss of overtime earnings during a busy pre-Christmas period. After careful consideration of the evidence, the tribunal has found that Mr Phu has not established his claims that his psychiatric or psychological condition is attributable to his employment. The decisions under review are affirmed except for the negative decision concerning Mr Phu’s claim for recompense for overtime payments in December 2004, which we have set aside.  This means that Mr Phu has succeeded in his overtime entitlement claim but not in his other claims. Our reasons are set out below.

issues

2.      The tribunal was asked to decide whether:

§  Mr Phu is entitled to compensation payment for his incapacity to perform overtime work between 6 December 2004 and 23 December 2004.

3.      In addition, the tribunal was asked to decide, in relation to Mr Phu’s psychological condition, whether:

§  Mr Phu suffered a psychological or psychiatric injury as a result of reading the Australia Post letter dated 18 January 2005;

§  Mr Phu suffered a psychological or psychiatric injury on 20 February 2006;

§ Mr Phu is entitled to a finding of liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’);

§ Mr Phu is entitled to any payments pursuant ss 16 and/or 19 of the Act; and, if so, the nature and extent of compensation payments.

§  Mr Phu sustained an injury as a result of his failure to obtain a benefit, namely further compensation, in connection with his employment with Australia Post;

background

4.      Mr Phu was born on 12 July 1957 in Vietnam. Mr Phu told us he went to university in Vietnam but dropped out after one year, then became caught up in the war being waged in Vietnam before he became involved in his father’s business. He moved to Australia in 1992 and commenced work with Australia Post on 12 September 1994. On 16 April 1995, Mr Phu suffered an injury to his lower back while handling a bag of mail at work with Australia Post. Australia Post accepted liability for the injury, being “left lower back and buttock pain due to musculo-ligamentous sprain”. The date of injury accepted was 22 April 1995, which was the date Mr Phu lodged his compensation claim for the incident that occurred on 16 April 1995.

5.      While Australia Post initially accepted liability and made payments, an officer wrote to Mr Phu on 28 February 1997 advising him that it had decided to cease payments for the accepted condition. At Mr Phu’s request, Australia Post reconsidered the decision to cease payments. A series of determinations, reconsiderations, revocations and decisions have taken place since. Australia Post argues that the injury has resolved and that Mr Phu is not presently entitled to compensation.

6.      Mr Phu contends that, in consequence of his lower back injury, he suffers restrictions of his work, social and general life activities, which have led to the development of a psychiatric condition. This condition was described by counsel for Mr Phu as “significant ongoing depression and anxiety” and by Dr Julian Parmegiani, forensic psychiatrist, as “an adjustment disorder with depressed mood” attributable to Mr Phu’s back injury and exacerbated by Australia Post’s denial of liability.  Other medical opinions link Mr Phu’s condition to various factors. In addition, Australia Post argues that it is not obliged to make compensation payments if Mr Phu developed his condition because of his reaction to Australia Post’s non-acceptance of liability for his continuing back pain once the initial injury had resolved. 

7.      The tribunal heard evidence and submissions about the following reviewable decisions:

· Matter N2006/269 involved the reconsideration decision of 9 February 2006, which affirmed the determination of 26 October 2005, that the respondent was not liable pursuant to sections 8 and 19 of the Act to compensate Mr Phu for loss of overtime payments from 6 December 2004 to 23 December 2004. The basis of that claim is he had a work-caused back condition which made him unable to do overtime for this period and that he should be compensated for the ensuing loss of earnings.

· Matter N2005/645 involved the reconsideration decision of 20 April 2005, which affirmed the determination of 3 March 2005 that the respondent was not liable, pursuant to section 14 of the Act, for any psychological injury to Mr Phu, which he claimed occurred on 19 January 2005.

·     Matter N2005/1222 involved the reconsideration decision of 6 September 2005, which affirmed the determination of 9 August 2005, that the respondent was not liable to pay compensation to Mr Phu for his psychological condition.

· Matter N2006/598 involved the reconsideration decision of 12 May 2006, which affirmed the determination of 15 March 2006 that the respondent was not liable, pursuant to section 14 of the SRC Act, for any psychological injury to Mr Phu, which he claimed occurred on 20 February 2006.

consideration of evidence

8.      The respondent’s facts and contentions summarise certain events, medical opinions and other matters arising out of its records, which were before the tribunal. These include an incident report and medical certificates on dates in April and May 1995. Consultations with Dr Sachdev, orthopaedic surgeon, also took place in 1995. This doctor diagnosed Mr Phu as suffering a musulo-ligamentous sprain and noted recurrent pain in the lower left back and buttock due to the sprain. Mr Phu saw a number of medical practitioners during 1995 and 1996, including a surgeon, an occupational physician and a rheumatologist, all arranged by Australia Post. Medical investigations and reports have continued.

9.      The medical evidence comprised numerous written medical reports from various medical specialists. Also on record are medical certificates for days Mr Phu took off work. The respondent’s facts and contentions summarises reports of surgeons, occupational physicians, rheumatologists, orthopaedic surgeons and other medical practitioners during 1995 to 2005 and a psychologist’s report dated 8 February 2005. We also had the benefit of oral evidence from a consultant psychiatrist and a consultant rheumatologist.

10.     Mr Phu explained that an important part of his psychological injury claims was the effect of his fear of becoming unemployed as a result of his injury and ongoing condition.  He believed that he would lose his job because he could not perform his duties so well since the injury and that this would lead to his being sacked. He told us this was because of his perception of the application by management of the non work related (non statutory) medical restrictions policy.  

11.     In support of his view, he lodged unsworn written statements by some former colleagues who described their job termination pursuant to a voluntary redundancy. Mr Phu said the alleged events described in these statements which detailed an injury followed by the cessation of acceptance of liability by Australia Post and subsequent termination of employment, led to his fear of similar treatment. His counsel tendered an Australia Post information bulletin, no 1999/05, headed “management of employees with non-work related (non-statutory) medical restrictions”.  This document set out as its objective the addressing of situations where employees who, for medical reasons, were unable to perform fully productive work. It went on to state that the employee would be given the opportunity to return to fully productive work within a reasonable time and that if, after all reasonable efforts had been made, it was apparent the employee would be unable to perform inherent requirements of his or her position, management should redeploy or retire the employee.  Further documents before us include circulars put out on the letterhead of the Communications Electrical Plumbing Union about non work related injury policy and providing advice on both work related and non work related problems.

12.     Mr Phu gave evidence to the effect that he suffered a psychological injury when he read the letter of 19 January 2005.  Similarly, he gave evidence that he suffered a psychological injury on 20 February 2006, when he arrived at work but left to rest in his car as he felt unable to continue and became more upset while resting in his car.

medical evidence

13.     In June 1995, some time after the incident in April 1995, Mr Phu’s back became worse and he saw Dr Smith. He was admitted for several weeks in hospital for tractions (T118). After initial acceptance of liability, physical signs of Mr Phu’s ongoing condition were unclear from clinical and radiological reports but Mr Phu continued to experience pain. Among investigations and reports forming part of the record, a report from Dr Stephen Potter, rheumatologist, on 20 November 1996, said he could not provide a diagnosis as the clinical, historical and radiographic findings did not indicate any significant back impairment. A lumbar spine MRI on 26 November 1996, showed Mr Phu’s spine as normal. Dr Potter again reported on 17 December 1997 that the clinical, historical and radiographic findings did not explain the alleged symptoms. However, Mr Phu continued to complain of pain and medical investigations continued.  Australia Post has arranged for Mr Phu to see many medical specialists over the years since his injury.

14.     Dr Neil McGill, a rheumatologist, saw Mr Phu in 1998, 1999, 2001 and 2003 and furnished reports.  On 25 March 1998, Dr McGill noted that Mr Phu was still on restricted duties arising from the 1995 incident. He could find no significant injury and thought that, if there was a musculo-ligamentous strain or strain of a facet joint, it would have resolved. He concluded that Mr Phu probably did continue to experience some discomfort related to “some minor physical problem in the low back”.  In his report of 1 October 1999, Dr McGill noted that Mr Phu was still on restricted duties because of continuing complaint of low back pain. Dr McGill thought Mr Phu’s overly cautious approach might explain the degree of restriction he was experiencing.

15.     When Dr McGill reported again on 5 April 2001, he observed there was a substantial discrepancy in Mr Phu’s hip and low back movement. Dr McGill wrote that it was evident, on that day’s examination that Mr Phu’s alleged restriction of back and hip movement was not genuine. Dr McGill thought Mr Phu’s symptoms reflected psychological factors and that any physical connection with his symptoms had ceased. When Dr McGill saw Mr Phu on 1 August 2003, he observed his unhappy appearance but found no objective abnormality. His symptoms were non-organic and reflected his unhappiness. Dr McGill thought Mr Phu’s pattern of behaviour was by then entrenched and unlikely to change.

16.     In the meantime, Mr Phu saw Dr Lawford, a consultant rheumatologist, who had previously seen him after a referral from Dr Nguyen Van Vihn. Dr Lawford wrote to Dr Nguyen, on 16 December 2002, about an exacerbation of Mr Phu’s back pain and muscle spasm after shift work the day before.

17.     In a further short report, dated 18 October 2003, Dr McGill referred to Dr Lawford’s report of 8 September 2003, in which Dr Lawford set out he had found that Mr Phu suffered from “a degree of depression relating to his chronic back disorder, but yet again depression is not a cause of back pain”.  Dr McGill noted that Dr Lawford did not describe any objective abnormality and Dr McGill said he could not see an explanation of the back pain in Dr Lawford’s report.

18.     Dr Nguyen Vihn wrote a medical certificate for Mr Phu saying he needed a day off work on 14 January 2005 because of back injury.  A delegate decided that Mr Phu should not be compensated for the day off and a letter to this effect was written on 18 January 2005. This was the letter that Mr Phu claims caused him psychological injury on 19 January 2005. Dr Dong Tran issued a medical certificate on 20 January 2005 for psychological injury arising from denial of liability and resulting loss of entitlements. Dr Dong Tran issued another medical certificate on 21 April 2005 for adjustment disorder with depressed mood arising from the incident or “injury” on 19 January 2005. Dr Tran wrote a report on 30 June 2005 in which he accused Australia Post of refusing to provide Mr Phu with appropriate assistance.

19.     After lodgement of the compensation claim for psychological injury on 26 January 2005 and a report from Dr Nguyen Vinh regarding the absence on 14 January. Australia Post arranged for Mr Phu to see Ms Lander, a psychologist, on 8 February 2005. Ms Lander found Mr Phu was exposed to a number of stressors including the care and responsibility of four young children, one of whom was significantly disabled. She believed that Mr Phu had become entrenched in a sick role at work, given that he had been on selected duties for 10 years. She thought “medicalisation” of his condition had been unhelpful and that this contributed to his attributing any negative emotions to his back problem and failing to take into account his psychological difficulties which would have been present anyway.

20.     During the course of the hearing, we heard oral evidence from Dr Kathryn Lovric, a consultant psychiatrist, for the respondent and from Dr Lawford, the above consul for the applicant’s solicitor’s, dated 21 November 2005, which was handed up at the hearing.

Dr Kathryn Lovric

21.     Dr Kathryn Lovric, consultant psychiatrist, saw Mr Phu in 2005 and 2006. She provided two reports dated 22 August 2005 and a later report dated 24 May 2006. Dr Lovric also gave oral evidence to the tribunal. In her first report, Dr Lovric described Mr Phu’s current symptomatology as back pain, recurrent nightmares described by Mr Phu as being “about work”, and a quick temper. Dr Lovric reported Mr Phu described himself as being  “easily angered” which caused him to “swear at his wife and daughters and shout” ( p 2 report).

22.     In her report of 22 August 2005, Dr Lovric noted there is :

…. considerable dispute amongst the various specialists who have seen Mr Phu with regards to his back injury, and that no objective evidence of continuing injury has been demonstrated radiologically, although functionally Mr Phu appears to have problems which I note various doctors to have suggested to be non-organic.

23.     Dr Lovric’s diagnosis in the report concludes Mr Phu has an adjustment disorder (chronic), adding:

I would see Mr Phu’s current symptoms and behaviours as clinically significant and that he is experiencing marked distress which appears to be ‘in excess of what would be expected’ from the current stressor, which I would see to be ongoing back pain, and also perhaps the psychosocial stressors.

24.     In oral evidence before the tribunal, Dr Lovric elaborated on the nature of an adjustment disorder. She explained:

An essential feature of an adjustment disorder is a psychiatric response which is deemed to be excessive to the stimulus which has provoked it. So it is a reactional disorder characterised by a range of psychiatric symptoms, perhaps including mood disturbance which may be anger, irritability, depression, anxiety and often characterised by other psychological symptoms such as sleep disturbance, appetite problems, behaviour problems.

25.     In the 2005 report, Dr Lovric also stated that Mr Phu’s adjustment disorder “was now chronic” and opined that, although it was difficult to predict, she would “see his [workplace] injury as being a substantial contributing factor to the development of his current condition”. Dr Lovric added:

In the absence of any prior psychiatric history, or family history, the only other situation occurring at the time of the development of Mr Phu’s psychological symptoms was the very difficult home situation with Mr Phu’s oldest daughter and her diagnosis of autism. Whilst it is quite difficult to predict, however, I would doubt that Mr Phu would have developed symptoms such as those he exhibits today, in the absence of the back injury and ongoing litigationi issues, even allowing for the difficult situation with his daughter.

26.     In her second report, Dr Lovric opined that Mr Phu’s chronic adjustment disorder probably developed gradually from 1997 but worsened as the years progressed, “probably developing clinical significance by at least 2004” (p2).  Dr Lovric suggested causative factors still relevant to Mr Phu’s medical condition included his lower back pain and the anxiety related to his compensation-related issues, as well as his oldest daughter’s severe illness. The report notes that Mr Phu’s daughter has been diagnosed with autism. In her second report, Dr Lovric also suggests one of the contributing factors to his condition was his failure to obtain worker’s compensation payments. Dr Lovric writes:

Mr Phu related that one of the most significant stressors in his life in addition to the ongoing pain he suffered as a result of the work-related injury and its intractable nature was the fact that in a 10 year period, he had protracted and ongoing legal issues with regards to the acceptance and rejection of his WorkCover Claim. A contributing factor to the development of his Adjustment Disorder was therefore distress at failure to obtain Workers Compensation payments and the resultant stressors generated. 

27.     In her oral evidence, Dr Lovric reiterated this point, saying that, in her view, there are a number of causative factors for Mr Phu’s adjustment disorder. Dr Lovric told the tribunal:

I think there are a number of factors. Initially I think the main issue was the chronicity and severity of the back pain which Mr Phu suffered and as I said many people with chronic pain do develop psychiatric responses of clinical significance. In addition to that was Mr Phu’s perception of poor treatment by Australia Post and his perception that his authenticity was questioned as a result of the decision, I understand, to deny a number of the claims that he made. Mr Phu told me that one of the determining factors, I guess, of the depressive disorder was his realisation that he wasn’t going to get better and that his disorder was not going to be cured, and he had hoped up until a particular point that it would be. In addition to that, although I think of lesser significance, was some of the psycho-social stresses that were going on in his life at the time.

28.     Dr Lovric also told the tribunal that Mr Phu’s failure to receive compensation payments at various points of time contributed to his condition, in her opinion. She said:

It certainly seemed to be a factor especially in the exacerbation of his symptoms from the time that it developed and I note that on the occasions where I saw him, it was one of his most vociferous complaints and one of the aspects of his entire situation which he seemed most distressed about.

29.     When it was put to Dr Lovric that it was not so much the failure to get compensation payments but Mr Phu’s perception that a consequence of this might be that his job security would be put in doubt, which contributed to the development of his condition, Dr Lovric said:

I think he was concerned about all manner of things that would stem from that particular issue, including his capacity to support his family, which he stated, the future of his employment situation, the ramifications on his family and personally.

Dr Ron Lawford

30.     Dr Lawford, consultant rheumatologist, provided a number of reports and letters, including reports dated 13 March 1997, 20 June 2005 and 16 January 2006. In his report of 13 March 1997, Dr Lawford explains that Mr Phu had current symptoms of lower back pain/left gluteal pain which might radiate down the leg but generally stayed on the left side. Dr Lawford set out that, when Mr Phu’s pain was severe, it might radiate into the right buttock and leg.

31.      In his report dated 20 June 2005, Dr Lawford noted Mr Phu had been off work since 21 April 2005 for stress leave and psychological/anxiety disorder, not on the basis of his lower back injury. In his report Dr Lawford commented:

Although the psychological disorder is stated to be not directly attributable to the lower back injury, in a sense it does arise out of the problems which have occurred within the workplace as part of his back injury. Chi (Mr Phu), as you are aware, has experienced chronic left sided lower back pain since the time of the original injury in 1995. There has been continual problems with Australia Post challenging the liability which as caused Chi significant psychological distress. As part of his back injury he has problems of chronic sleep deprivation having to get up many times through the night, having to use an electric blanket and has been dependent on analgesics.

32.     Dr Lawford, in giving oral evidence, accepted that, even if Mr Phu had a disc injury, it was not continuing and that Mr Phu was in a chronic pain situation with no demonstrable physical lesion.  Dr Lawford stated he could see “a definite connection between a chronic injury/chronic pain syndrome and the development of a psychological disorder”. He gave further evidence to the effect that, whatever the origin of Mr Phu’s pain, Mr Phu was suffering real pain and had difficulty performing his work duties as a result.

Dr Parmigiani

33.     Dr Parmigiani furnished a report to Mr Phu’s solicitors, which is dated 21 November 2005. Dr Parmigiani wrote that Mr Phu suffered a genuine injury in 1995 and complied with recommended treatment but his physical restriction undermined his self-esteem and “he risked losing his employment”. In his opinion, Mr Phu’s back injury, chronic pain and implications for ongoing employment contributed 50% to the development of his adjustment disorder with depressed mood. Dr Parmigiani went on to say that the remainder was caused by the stressors associated with repeated denial of liability.

34.      Dr Parmigiani thought Mr Phu’s prognosis would depend on his circumstances. He observed that ongoing conflict over liability would exacerbate his psychological problems. He suggested a focus on maximising his level of function could lead to an improvement of his psychological state and better adaptation to his chronic pain.

N2006/269 overtime claim – loss of earnings

35. There are four reviewable decisions before the tribunal for consideration. The first is the overtime claim, which is an incapacity for work claim in respect of the back injury. This claim involves the reconsideration decision of 9 February 2006, which affirmed the determination of 26 October 2005, that the respondent was not liable pursuant to sections 8 and 19 of the SRC Act to compensate Mr Phu for loss of overtime payments from 6 December 2004 to 23 December 2004.

36.     Mr Phu claimed he was not physically able to do the overtime duties he would otherwise have carried out in the busy period before Christmas 2004.  The basis of the claim is that he had a work-caused back condition that made him unable to work longer hours. He was working on light duties during the relevant period, and his treating doctor had indicated that he was unable to cope with longer hours. Dr Lawford provided a report dated 22 November 2004 saying Mr Phu could not do the overtime he had been asked to perform. Dr Lawson additionally gave oral evidence before us at the hearing that it was his belief Mr Phu was unable to do the overtime.

37.     In Dr Lawford’s opinion, Mr Phu is unable to cope with an additional work load due to the pain he suffers. Dr Lawford thought he might be able to work for ½ an hour longer than a usual day but that he could not have coped with the overtime demands expected in December 2004. At the time, Mr Phu was still working under restrictions of five kilograms on repetitive weightlifting. We note that Dr Michael Gliksman, who saw Mr Phu in November 2004, could find no evidence of any physical condition to explain Mr Phu’s problems but we accept Dr Lawford’s evidence that he believed Mr Phu did experience the pain he complained of although clinical examination did not locate an anatomical cause. On balance and given the strength of Dr Lawford’s oral evidence about Mr Phu’s inability to perform overtime work due to his ongoing pain condition, we find that Mr Phu is entitled to be compensated for the loss of potential overtime earnings for the 11 days he was unable to work these longer hours in December 2004.

38.     Mr Phu was asked to work overtime for 11 days from 6 December 2004 to 23 December 2004. Consequently, he was entitled to claim that, because of his back injury, he should receive make-up pay in respect of lost overtime earnings. On the balance of probabilities, we accept that is the case, having heard from him and from his treating doctor in respect of his inability to work longer hours during 11 days from 6 December 2004 to 23 December 2004.  This means Mr Phu has succeeded in this claim.

Psychiatric claims

39.     The remaining three claims brought before us are all psychiatric claims.  The first of these, or second matter overall, is N2005/645.  It is a reviewable decision dated 20 April 2005, which affirmed a decision dated 3 March 2005. The substance of the claim involves a denial of liability for a psychiatric condition and the date of incapacity is 19 January 2005.  The claim form describes Mr Phu’s receiving a letter denying him certain benefits and his reaction to the letter.

40.     The third matter, or the second psychiatric claim, is N2005/1222.  It involves a reviewable decision dated 6 September 2005.  The reviewable decision affirmed a decision dated 9 August 2005, which concerns the denial of liability for a psychiatric injury said to arise on 21 April 2005. Mr Phu made the claim in connection with receipt of a letter he received dated 20 April 2005. The letter is at T202 in a separate set of T documents lodged for matter N2005/645.  The period concerned is from 20 April 2005 until July 2005 or August 2005.  The claim form in respect of that matter is at T17 in matter number N2005/1222.

41.     The fourth matter is N2006/598.  It involves a reviewable decision dated 12 May 2006 that affirmed a decision dated 15 March 2006, which denied liability for a psychiatric injury related to events on 20 February 2006.  At the time of the reviewable decision, Mr Phu was still claiming incapacity, but he subsequently did go back to work.  Mr Phu gave evidence that he had an increase in pain during the start of that shift and had gone out to his car but still intended to return to work.  But while he was in the car, he began to think about not receiving compensation benefits and did not go back to work after all. 

analysis and findings

42.     Firstly, we note that despite Mr Phu’s health problems, Australia Post has continued to employ him for the 12 years after acceptance of his initial injury. Australia Post has accommodated Mr Phu by putting him on restricted duties for most of the 12 years since the incident in 1995. Unfortunately, there has been a history of initial non-acceptance of many of Mr Phu’s subsequent claims for compensation followed by acceptance of some of these claims. This may be partly explained by the lack of physical indicia of Mr Phu’s continuing injury discovered by radiology and clinical examinations. In this connection, we note that Australia Post has gone to great lengths over the years to have Mr Phu’s ongoing condition investigated by several specialist medical practitioners and has generally relied on expert opinion when rejecting some of Mr Phu’s claims. As well, Australia Post has not, on the evidence before us, attempted to retire Mr Phu although it disputes that Mr Phu has suffered from any work related condition in recent years. Mr Phu’s fears that he might be sacked have not been borne out to date.

the psychiatric injury claims

43.     The psychiatric claims relate to incidents which lead to Mr Phu’s taking time off work on 19 January 2005, 21 April 2005 and 20 February 2006. What is not clear is the reason for his psychiatric condition and, particularly, whether it is attributable to the workplace. There is broad consensus in the medical opinions before us that Mr Phu does suffer a depressive illness. Dr Lovric, Dr Parmigiani and Dr Tran, diagnose Mr Phu’s condition as an adjustment disorder.  Dr Tran describes a chronic adjustment disorder with depressive features.  Dr Lovric describes it as a chronic adjustment disorder. Dr Parmigiani describes Mr Phu as having adjustment disorder with depressed mood.

44.     According to Dr Tran, in the last page of his report:

Diagnostically Mr Phu appears to be suffering from a chronic adjustment disorder with depressed mood of moderate severity. The primary stressor would appear to be his chronic back condition.

45.     Dr Parmigiani attributes half of the blame to the back condition.  Dr Lovric has a similar position in that she, in her oral evidence and also her report, considered it to be probably the major cause of his problems. Mr Phu’s counsel put that Mr Phu’s concerns about the employer’s policy regarding employees with non work caused health problems and the effect on him of the adverse decisions regarding his entitlement to compensation were additional factors contributing to Mr Phu’s condition. Mr Phu’s own evidence was clear that these were matters that had brought about psychological injury.

46. Mr Phu gave evidence that he got a shock when he read a letter from Australia Post denying him further compensation on 19 January 2005. He gave evidence to the effect this triggered a severe emotional reaction or psychological problem. Certainly, he saw Dr Tran in consequence and Dr Tran certified that he needed time off because he had suffered a psychological injury (T189,625). However, the respondent says that Mr Phu is disentitled from receiving compensation in respect of this and his other psychiatric or psychological injury claims as a consequence of the provisions of s 4 of the Act. The respondent says that a failure to obtain compensation to which one is not entitled is a failure to obtain a benefit. It is clear from recent case law that no compensation is payable to an applicant who seeks recompense for a disease or injury that arose through a failure to obtain a benefit. See Hart v Comcare [2005] FCAFC 16; Treloar v the Australian Telecommunications Commission (1990) 97 ALR 321, Weigand v Comcare Australia [2006] FCA 1620, Trewin v Comcare (1998) 84 FCR 171.

47.     The section contains an exclusion, which reads, in part, that “injury”:

… does not include any 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.

48.     Mr Phu gave evidence that his reaction to the letter of 19 January 2005 was not just the loss of an expectation of money compensation but was affected by his fear of losing his job. Mr Phu’s continuing problem of chronic pain disorder cannot be explained by any of the anatomical, radiological and clinical examination and opinions before us. While Dr Parmigiani and Dr Lawford see a clear connection between Mr Phu’s employment and his psychological problems as well as his chronic pain situation, both acknowledge the influence of Mr Phu’s “continuing battle” with Australia Post about its cessation of acceptance of liability for continuing compensation.

49. The question of whether permanency of employment is a “benefit” for the purposes of s 4 was considered in Trewin v Comcare above. Heerey J in Trewin, at pages 176 to 177, set out his view that a “benefit” did not necessarily exclude something obtained as a matter of right as well as covering a matter of charity or gratuity. He observed that Parliament recognised that injury, and particularly stress, might arise out of disappointment in Commonwealth careers but that such injuries were not compensable. Similarly, Mr Phu’s disappointment and psychological reaction to a failure to obtain an acknowledgment of continuing liability for compensation payments is not compensable on the basis that this has led to a worry about whether he might be sacked. Concerns about permanency are not compensable on the authority of Trewin.

50.     It follows from Trewin and from the judgment of the full court in Hart v Comcare [2005] FCAFC 16, that any injury caused to Mr Phu by the disappointment of Australia Post’s refusing to continue to pay him compensation once his physical injury had resolved, is not a compensable injury. Australia Post ceased payments for the back injury based on the majority of medical opinions on record that the injury has resolved but this injury is not at issue in the claims before us as they concern Mr Phu’s psychological state.

51.     In the case of Hart v Comcare [2005] FCAFC 16, Branson, Conti and Allsop JJ held that, even where medical problems are present, s4(1) contains an exclusion where the injury, disease or aggravation results from a failure to obtain a promotion, transfer or benefit. The tribunal had found that one of the causes of Ms Hart’s condition was the failure to obtain a promotion. The court held that this was sufficient to remove the injury from compensation. Ms Hart had, like Mr Phu, sought compensation for an adjustment disorder.

52.     In addition, the recent judgment of Finn J in Weigand v Comcare Australia [2006] FCA 1620 reinforces the position that, where a combination of employment related situations and events and other situations or events may lead to a psychiatric condition, this combination may not give rise to compensation in all cases. Mr Weigand developed a depressive condition related both to his failure to be promoted and a refusal by his employer to grant him compassionate leave. Finn J held that the tribunal had correctly applied the law as explained in Hart’s case in holding that Mr Weigand should be denied compensation. The tribunal concluded that the refusal to grant compassionate leave had caused Mr Weigand considerable distress and compounded his depression but it was not open to it to evaluate the relative implication of the role of lack of promotion and the possibly unfair refusal to grant leave. According to Hart, Mr Weigand was not entitled to compensation because of the effect on his condition of his failure to obtain promotion. Such a failure is not compensable as a benefit under s 4. This is so even in a case where the refusal of compensation produces a harsh result, as Finn J commented, at para 17.

53. Mr Phu’s counsel argued that an entitlement to compensation does not come within the description of a benefit for the purposes of s 4, that is, it is not a "benefit in connection with his or her employment". Whether an entitlement to compensation arises out of employment or in the course of employment is not a question we must decide. Mr Phu’s worry about the permanency of his position and his concerns that he might be retrenched because of his health problems already disqualify him from obtaining compensation. There is no dispute about the effect this had on Mr Phu. He gave clear evidence about the effect on him of his worry that he would lose his job, albeit unfounded over the last 12 years, and told us that this was a major contributor to his psychological condition.

The Australia Post letter of 18 January 2005 and Mr Phu’s psychological reaction

54. We find that Mr Phu is not entitled to compensation under s 4(1) of the Act to any compensation for psychological injury which may have resulted from his reaction to the letter of 18 January 2005 when he read it on 19 January 2005. This is because his complaint concerns his failure to obtain a benefit which does not give rise to compensation for the reasons set out above.

The events on 19 and 20 February 2006

55. We find that Mr Phu is not entitled to compensation under s 4(1) of the Act to any compensation for psychological injury which may have resulted from events on 19 and 20 February 2006. This is because his complaint again concerns his perception of his vulnerability to sacking which again amounts to an injury at least in part attributable to a failure to obtain a benefit. This again does not give rise to compensation for the reasons set out above.

No liability for psychiatric injury

56.     For the same reasons, we find that Mr Phu has no entitlement to compensation for his psychological or psychiatric condition. This is because the workplace connection he complains of is the cessation of compensation payments which he has not contested on any other basis than his concerns about permanent employment and his psychological reaction to a failure to obtain recognition of an entitlement to continuing compensation.

conclusion

57. As Mr Phu has not established any compensable injury under s 4 of the Act, Mr Phu is not entitled to a finding of liability under section 14 of the Act in respect to any psychiatric or psychological injury. It therefore follows that Mr Phu is not entitled to any payments pursuant ss 16 and/or 19 of the Act for this alleged injury. As we have already found, any such injury Mr Phu sustained in the course of his employment was as a result of his failure to obtain a benefit in connection with his employment with Australia Post.

decision

58.      The decisions under review are affirmed except for the decision of 9 February 2006 concerning Mr Phu’s claim for recompense for overtime payments for 11 days in December 2004, which is set aside.

costs

59.     The tribunal orders that the respondent pay ¼ of the costs of the proceedings incurred by the applicant as only one of his four claims has been successful.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed:         ......[sgd]...........................................................
  Associate

Date/s of Hearing  13, 14, 19 June 2006, 4 – 5 December 2006
Date of Decision  9 March 2007
Counsel for the Applicant         Karl Foster
Counsel for the Respondent     Graham Jones