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[2005] AATA 773
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2005-08-12
Mr J
Original judgment source is linked above.
DECISION AND REASONS FOR DECISION [2005] AATA 773
The Tribunal affirms the decision of Comcare made 13 May 2002 that Comcare is not liable to pay compensation to Mr Vo pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of "unspecified acute reaction to stress".
COMPENSATION - claim for "severe anxiety, depression, post trauma stress disorder" - whether notification requirements of section 53 complied with - section 53(1) notification not complied with - no reasonable excuse - even if section 53 complied with, Applicant has not suffered an injury - even if Applicant had suffered an injury, the injury would be the result of a failure to obtain a benefit or the decision to terminate the Applicant's employment in accordance with the applicant's employment contract and not compensable - decision affirmed
Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659
Comcare v Mooi (1996) 42 ALD 495
Australian Industry Development Corporation v Boyd (1990) 19 ALD 729; (1990) 95 ALR 149
Mr Vo has applied for a review of a decision of Comcare made 13 May 2002 refusing to accept liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for his severe anxiety, depression and post trauma stress disorder. Mr Vo claimed that these conditions were caused by his employment by the Department of Transport and Regional Services. In considering the claim Comcare reclassified the conditions as "an unspecified acute reaction to stress".
For the reasons set out we have decided to affirm the decision of Comcare.
Unless otherwise stated we make these findings based on the evidence of Mr Vo. We are satisfied as to these facts on the balance of probabilities.
Mr Vo was born on 16 January 1953 and is now aged 52 years. He completed his tertiary education in New Zealand, attaining the degree of Bachelor of Commerce (Economics).
In 1982 Mr Vo migrated to Australia and commenced employment in the Australian Public Service. A summary of this employment is as follows:
1982-1984 Department of Immigration
1984-1988 Australian Bureau of Statistics
1988-1999 Department of Transport.
In about 1985 Mr Vo began to experience difficulties at work. In early 1990 he lodged a grievance as to his treatment by a supervisor and further grievances were lodged up to and including 1993. In 1994 Mr Vo sought a review of one of his grievances by the Merit Protection Review Agency and in the same year the Department took inefficiency proceedings against him.
It is not necessary to go into the detail of Mr Vo's work experiences during this period. Clearly Mr Vo regarded, and continues to regard, the inefficiency action against him as unfair and his work conditions as "atrocious". In 1995 he became physically and mentally ill and sought medical treatment from a number of practitioners.
In 1995 Mr Vo sought compensation from Comcare for anxiety and depression arising from his employment. This claim was rejected and in 1996 Mr Vo applied to this Tribunal for a review of that decision. On 23 March 1998 the Tribunal decided that Mr Vo was entitled to compensation for anxiety and depression. The compensation was for periods in 1995 and it was decided that "as and from 21 October 1995, the Applicant ceased to suffer from the compensable injuries".[1] This decision was made pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) with the consent of both Mr Vo and Comcare. In view of the decision of the Federal Court in Australian Postal Corporation v Oudyn[2] the Tribunal's decision should be read as indicating that the compensable injury had ceased to have effect as at 23 March 1998.
In January 1998 Mr Vo's Rehabilitation Case Manager referred him to Lisa Castles and Associates, Rehabilitation and Occupational Health Consultants. In an Initial Assessment Report of 29 January 1998[3] Ms Whitbread, Rehabilitation Consultant/Psychologist, recorded that "Mr Vo reported a history of work related stress dating back to 1989." On 9 April 1998 Ms Whitbread recommended that "Mr Vo should continue with psychological assistance to assist him to manage his level of anxiety and support him in existing and future stressors that may occur in the workplace."[4]
On 17 March 1999 the work being done by Mr Vo was reclassified and a short time later Mr Vo was declared to be an excess officer. Mr Vo complained to the Secretary of the Department concerning this treatment[5] and enlisted the assistance of his union in negotiating with the Department. On 19 May 1999 Mr Vo accepted his employer's offer of voluntary retrenchment.[6] We are not satisfied on the evidence before us that the retrenchment of Mr Vo was in breach of the terms of his employment.
On 11 June 1999 Mr Vo wrote to the Secretary of the Department requesting that his grievances of March 1999 be referred to the Merit Protection Review Agency.[7] This letter was clear and concise in its content.
On 30 August 1999 Mr Vo again wrote to the Department, this time concerning the payment of his long service leave and recreation leave shortly before the end of the financial year.[8] This letter dealt with the taxation implications of the timing of the payment and requested the Department to make adjustments to treat the payments as having been made in the following year. Again this letter was clear and concise.
Mr Vo was unhappy with the response of the Department concerning his taxation position. In September 1999 he prepared and lodged with this Tribunal an application for review of the Department's decision. This application was dismissed for want of jurisdiction.[9] On 28 October 1999 Mr Vo wrote to the Commonwealth Ombudsman concerning the same issue.[10] Mr Vo also wrote to the Superannuation Complaints Tribunal on 18 April 2000 regarding his employer's superannuation obligations in the context of his voluntary redundancy.[11]
Between September 1999 and July 2000 Mr Vo consulted 5 or 6 different lawyers concerning his employment issues. He did not recall the precise number. During some, if not all, of these consultations Mr Vo sought advice in relation to a possible workers compensation claim.
On 14 July 2000 Mr Vo made an application to the Australian Industrial Relations Commission claiming that he had been unfairly dismissed from his employment. After a hearing in which Mr Vo appeared without legal representation the Commission declined to accept the application as it was lodged out of time. The decision of the Commission refers to a written submission by Mr Vo and to his oral submission. The decision indicates that among the reasons put forward by Mr Vo for his failure to apply to the Commission in time was "[h]is case was complex and he was unable to chose between the options available which included a worker's compensation claim, unfair dismissal claim, common law action or doing nothing."[12]
Mr Vo's claim for compensation is dated 3 October 2001[13] and was lodged with the employer on 9 October 2001. Mr Vo stated his illness to be "severe anxiety, depression, post trauma stress disorder". As to the timing of the injury he stated that the "injuries developed over a long period of time. My 2nd nervous breakdown occurred after my unfair dismissal in 1999." This was the first time Mr Vo had given notice of this injury to Comcare.
Comcare determined on 11 February 2002 that it had no liability for 'stress/anxiety' suffered by Mr Vo and affirmed this determination by way of the decision under review dated 13 May 2002.
Mr Vo relied on reports from Dr Eaton who was his general practitioner from 1995 to at least 1997. His previous general practitioner had been Dr Jarvis who had retired. In his report of 25 July 1997[14] Dr Eaton expressed the opinion that:
"Mr Vo.......suffers with...... anxiety and Depression and continuing symptoms of work related stress......The medical conditions were diagnosed in 1995 however his symptoms of work related stress including anxiety and depression were first diagnosed by Dr David Jarvis in 1987."
In a report of 14 April 1996[15] Dr Eaton said that these symptoms had continued "through the years" until the time of writing of the report.
In June 1996 Mr Sutton, Clinical Psychologist, examined Mr Vo on referral by Dr Eaton. On examination Mr Sutton found "predisposing anxiety disorders which made Mr Vo susceptible to stress." He felt that "the predispositions were consistent with his background history and his isolation."[16] Mr Sutton administered a psychometric evaluation which showed statistically significant elevations in anxiety and stress related symptom profiles that were consistent with an acute exacerbation. He was of the opinion that, on the balance of probabilities, this exacerbation was due to perceived work place conflicts. Quite properly Mr Sutton noted that he was not in a position to comment on the actual workplace conflict as this is always based on differing perceptions.
Dr Batagol has been Mr Vo's general practitioner since approximately March 1998. On 26 February 1999 Dr Batagol reported that Mr Vo "is still under a great deal of stress, and I am concerned that the problems may relate to some key parts of his rehabilitation programme apparently not being implemented."[17]
Dr Batagol also provided a report specifically directed to supporting Mr Vo's application to the Australian Industrial Relations Commission.[18] In that report he expressed the opinion that:
"........it was quite apparent that he was suffering from severe emotional disturbance at the time of his leaving work, and for a considerable period of time afterwards. In particular, it is apparent that he was quite distressed for the twelve month period from mid-1999 until mid-2000, and I feel that in retrospect, he may have suffered a form of 'nervous breakdown' and depression, after his application for reinstatement was finally rejected in September 1999, when the MPRA advised after three months, that they could not proceed with his grievance/complaints against the circumstances of his retrenchment.
The symptoms of his depression include such things as difficulty concentrating, tiredness, lack of energy and drive, confusion, difficulty assimilating complex information and against the circumstances of hopelessness and helplessness."
On his own request Mr Vo was assessed by Ms Hutchinson, Clinical Psychologist, in April 1999. This assessment was made after the offer of redundancy but before it was accepted. Ms Hutchinson reported that:
"I am in absolutely no doubt that Mr Vo continues to suffer symptoms of quite severe stress, anxiety and depression. I also believe that these symptoms are work related. He describes sleep disorder which is getting worse and requires increasing dosages of tranquilising medication. He complains of headaches and tiredness that are also increasing in intensity and frequency. He reports panic attacks at work and states that he is depressed about his future employment prospects."[19]
In October 2000 Dr Batagol referred Mr Vo to Ms Bell, Clinical Psychologist, for assessment and treatment of his anxiety and depression. Mr Vo consulted Ms Bell on 13 October 2000 seeking her support in relation to his application to the Australian Industrial Relations Commission. Ms Bell's opinion set out in her report of 15 October 2000 was:
"Apparently Mr Vo was meant to lodge an application to the Australian Industrial Commission (AIRC) within 21 days. However, according to Mr Vo he was unable to do this due to his Department's alleged lateness with handling over his paperwork and the conduct by the MPRA. He did not make the application in September 1999 when he heard from the MPRA, as according to him, he was uncertain how to proceed with making such an application to the AIRC. However, more importantly it would seem that he was not mentally capable of making such decisions and complex tasks back in September 1999, (such as making an application to the AIRC), as he was extremely depressed suffering with symptoms such as extreme lethargy, tiredness, lack of motivation and mental confusion and difficulty concentrating. His GP Dr Batagol documents that he suffered some sort of "nervous breakdown" after September 1999 and had been particularly mentally unwell between mid 1999 and mid 2000."[20]
Ms Bell also assessed Mr Vo on 28 July 2004 to prepare a report for the purposes of this hearing. On 2 August 2004 she reported:
"Mr Vo presented as anxious in the session and as displayed in last consult appeared completely focussed on his upcoming Hearing. He did not present as a malingerer nor did he display any signs of psychiatric illness. He continues to describe experiencing many symptoms of depression and anxiety such as sleep disturbance, low flat mood, pessimistic thoughts (especially about his chronic poor health and future job prospects), nightmares (re his alleged unfair dismissal), regular panic attacks, phobic reactions to his past work supervisor, past work related stress and some flashbacks of past bad arguments with superiors. Mr Vo still complains of regular dizziness, lethargy and headaches (approximately 3-4 a week). Of note now is that he regards that his depression is a little less severe than in 2000 but is more troubled by anxiety. From discussion with Mr Vo it would appear that these psychological symptoms are work related."[21]
Mr Vo has also consulted Dr Buczynski, General Practitioner, who is in the same practice as Dr Batagol. On 1 November 2004 Dr Buczynski reported:
"I have recently reviewed Mr Vo's medical condition which has not changed over the last few years. He still suffers from significant depression and anxiety related to post traumatic stress disorder/adjustment disorder. The symptoms include headaches, panic attacks, dizziness, insomnia and lethargy.
He also suffers from diabetes, complicated by peripheral neuropathy and mild asthma. His disability is very significant. Many days a week he wakes up with severe headaches or dizziness and he is practically unable to do any work on those days.
There were many unfair and traumatic management actions against Mr Vo for a long time.
He has a legitimate Comcare claim. I have no hesitation in strongly supporting his compensation claim for work-related depression and anxiety."[22]
Mr Vo was examined by Dr Skinner, Consultant Psychiatrist, on behalf of Comcare. This examination was for 2 hours on 4 February 2004 and 2 1/2 hours on 4 May 2004.
A very detailed report dated 1 June 2004 from Dr Skinner is before us[23] and Dr Skinner also gave oral evidence. Dr Skinner had available to her a substanial number of reports and other documents provided by both Mr Vo and Comcare.
In her report Dr Skinner states:
"Mr Richard Vo has an underlying intensely obsessional personality structure. The core feature of his personality is a very strong need to feel in control. His personality structure is rigid and inflexible; he has particular ideas about how things should be done and he is not tolerant of suggestions or alternative ideas. In addition he displays paranoid personality traits. These personality traits are likely to interfere with his relationships with others in the work place. .....The conditions......are unrelated to his employment. The conditions have been present at least since early adulthood. The extensive documentation demonstrates that the conditions were present from 1985.............Mr Vo is not suffering from the effects of any work related condition. He has underlying personality characteristics likely to lead to conflicts in the workplace and features of obsessive compulsive disorder likely to cause slowness and consequent inefficiency."[24]
In giving evidence Dr Skinner confirmed the opinions expressed in her report. She indicated that the written material provided to her, particularly the psychiatric and psychological reports, essentially agreed with her own assessment of Mr Vo. She explained that in forming her view she had sought to explain the underlying conditions which caused Mr Vo to suffer stress, anxiety and depression rather than to simply describe the symptoms from which he suffered.
Dr Skinner disagreed with the diagnosis of "significant depression and anxiety related to post traumatic stress disorder/adjustment disorder"[25] made by Dr Buczynski in January 2003. In her opinion, based on DSM-IV,[26] a frightening, life-threatening situation is required to give rise to this disorder. There is no evidence to suggest that such an incident occurred.
Mr Vo had been examined by Dr Saboisky, Consultant Psychiatrist, for the purpose of the previous proceedings before the Tribunal. His report of 3 January 1997 is in evidence in these proceedings.[27] Dr Saboisky's opinion in 1997 was that Mr Vo "had characteristics of a paranoid personality disorder in regards at least to his work place environment", that the, "condition is caused by an underlying personality disorder", and that, "[i]t is almost inevitable that people with his problem have conflict within the workplace."
Mr Vo said that he was feeling unwell during the first half of 1999 as a result of the stress he was experiencing at work. From the time he became redundant (May 1999) his health deteriorated and he suffered "a form of nervous breakdown." He estimated that he was 80% incapacitated at this time and walked around "like a zombie", bumping into furniture and "just hiding" in his home. Mr Vo said that he suffered from "extreme lethargy", "severe confusion" and was unable to make complex decisions. He suffered headaches, dizziness, disturbed sleep and panic attacks. He sought medical advice from Dr Batagol and took pain killing medication and tranquillizers. This condition continued for approximately 15 months after which time Mr Vo said that his condition improved to his being able to operate at about 50% capacity. He was still very lethargic.
When Mr Vo made his claim to Comcare on 3 October 2001 he stated that his symptoms at that time were panic attacks, severe anxiety and severe headache.[28] He says these symptoms are continuing and that he continues to feel tired for the majority of the time and has difficulty coping with day to day stressors.[29]
We are satisfied that Mr Vo has "an underlying intensely obsessional personality structure" as described by Dr Skinner and that this condition is unrelated to his employment. This finding is supported by the evidence of Dr Saboisky that Mr Vo suffered from a "paranoid personality disorder" caused by "an underlying personality disorder."
In making this finding we prefer the evidence of Dr Skinner and Dr Saboisky to the opinions of the practitioners relied upon by Mr Vo. Dr Skinner and Dr Saboisky are well qualified and very experienced psychiatrists. They both provided very detailed reports which were prepared after quite extensive consultations with Mr Vo and after consideration of considerable documentary material. We were impressed too that both these practitioners gave detailed consideration to the underlying cause of Mr Vo's conditions rather than simply describing the symptoms from which he has suffered.
On the other hand the medical witnesses relied upon by Mr Vo do not have the specialist qualifications of Dr Skinner and Dr Saboisky. In addition Mr Vo's general practitioners, Dr Eaton, Dr Batagol and Dr Buczynski, and the psychologists Ms Hutchinson and Ms Bell, describe symptoms rather than giving diagnoses.
We are satisfied that because of his personality Mr Vo experienced stress at work during 1999 prior to his being made redundant and that he felt unwell and suffered feelings of stress following his redundancy.
We are not satisfied on the balance of probabilities that Mr Vo's condition during the period from the time of his redundancy until he lodged his claim in October 2001 was as described by Mr Vo or that he was disabled to the extent of being unable to make a decision to give notice of his injury to Comcare or to his employer. We are not satisfied that he was "like a zombie", that he was "just hiding" in his home or that he suffered "severe confusion" in this period_._
In reaching the conclusion set out in the preceding paragraph we have taken into account that during the period prior to Mr Vo making his claim he was able to engage in correspondence concerning the reasons for, and financial implications of, his redundancy. In addition he was able to prepare and lodge applications to this Tribunal and to the Australian Industrial Relations Commission and, in the latter case, to represent himself at a hearing. He also consulted a number of lawyers and received advice from them. We also take into account that Dr Batagol's notes[30] do not indicate that Mr Vo was presenting to his general practitioner with the symptoms describe by Mr Vo in this period. In fact, Dr Batagol's note for 26 September 2000 records that Mr Vo was "unwell since putting in claim to industrial claims commission (unfair dismissal)" (emphasis added). This claim was made on 14 July 2000.
We accept Mr Vo's evidence that he consulted Dr Batagol on occasions which Dr Batagol has not recorded but there is no explanation as to why Dr Batagol would not have recorded complaints of symptoms such as Mr Vo now describes had they in fact been made. Dr Batagol was not called to give evidence.
Section 14(1) of the Act provides:
"(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"
Relevant definitions in section 4 are:
"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.
"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;"
"ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);"
"impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;"
"permanent means likely to continue indefinitely;"
Section 53(1) of the Act provides, inter alia:
"This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice - as soon as practicable after the employee's death."
Section 53(3) of the Act provides, inter alia:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of this failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section."
has Mr Vo given notice of the injury the subject of his claim in accordance with section 53 of the Act;
has Mr Vo suffered an injury within the meaning of section 14 of the Act?
Has Mr Vo given notice of the injury in accordance with section 53 of the Act?
It is not in dispute that in mid 1995 Mr Vo became aware of the injury for which he is claiming compensation. He says that at this time his condition worsened as a result of his treatment by his employer. In his letter of 16 June 1999 to the Secretary of the Department Mr Vo refers to "his current work related illness".[31] As notice in writing was not given to the relevant authority until October 2001 it is clear that Mr Vo did not give the notice "as soon as practicable" after becoming aware of the injury. Therefore, on the face of it, the Act does not apply to the injury: section 53(1).
Section 53(3), set out in paragraph 43 of this decision, provides for notice to be taken as given in certain circumstances. This can alleviate the consequences of failure to comply with section 53(1).
As indicated a notice was given when the claim was made but it failed to comply with the time requirements. Thus the requirements of section 53(3)(a) and (b) are met. Section 53(3)(c) adds further requirements which must be satisfied before notice can be taken to have been given.
We are not satisfied that Comcare would not be prejudiced if the notice was treated as sufficient. Mr Vo claims that for the first 18 months following his redundancy he was particularly affected by what had happened to him at his work and that in this time he suffered "a second nervous breakdown" as a result. By reason of Mr Vo's failure to give notice Comcare was denied the opportunity to have him examined until October 2001. In our opinion this disadvantage is made even greater taking into account that Mr Vo alleges that he suffered a mental injury. Furthermore Comcare has lost the opportunity to work with Mr Vo to rehabilitate him in the 2 years following his ceasing work.
The alternative provisions of section 53(3)(c) raise the question whether the failure to give notice in time resulted from ignorance, mistake or from any other reasonable cause. There is no evidence before us to suggest that Mr Vo was either ignorant of, or mistaken as to, the need to give notice. He had made a previous claim for compensation. The only ground put forward by Mr Vo was that his health was such that he could not make the necessary decision to make a claim. We do not accept the evidence of Mr Vo that his health was affected to the extent he has described. On the basis of our findings as to Mr Vo's medical condition we are not satisfied that the state of Mr Vo's health was such as to amount to a "reasonable cause" for his failure to give notice_._ The requirements of section 53(3) have not been made out.
As Mr Vo has not given notice as required by section 53 the Act does not apply to the injury the subject of his claim and he is not entitled to compensation for it. However in case we are wrong in this conclusion, and as considerable evidence has been presented as to the nature of the injury, we will deal with the second issue raised.
Apart from the lack of notice has Mr Vo suffered an injury within the meaning of section 14 of the Act?
Mr Vo contends that he suffers from a disease, namely an aggravation of an ailment (as defined in section 4 of the Act) which was contributed to in a material degree by his employment. We have also given consideration as to whether Mr Vo suffers from an ailment which is itself compensable, as distinct from an aggravation.
Having found that Mr Vo has "an underlying intensely obsessional personality structure" and "paranoid traits" we must consider whether this condition is a "disease" as defined. There are 2 steps for the determination of this question - is the condition suffered by Mr Vo an ailment and if it is, was the ailment contributed to in a material degree by his employment?
The definition of "ailment" is very broad but we are not satisfied that Mr Vo's personality structure and paranoid traits are properly characterised as a mental ailment, disorder, defect or morbid condition. The terms "ailment" and "morbid condition" both connote a condition of disease in their ordinary meanings apart from their use as part of the definition of "disease" in the Act. In context the words "disorder" and "defect" should be interpreted accordingly. The definition of "ailment" in section 4 is somewhat circular as it includes the word "ailment" within its own definition_._ The Macquarie Dictionary (Revised Third Edition) definition of "ailment" includes "a morbid affection of the body or mind" and "morbid" includes "affected by, proceeding from, or characteristic of disease."
The fact that Mr Vo's personality is such that he experiences difficulties in situations in which others may not does not make his condition an ailment. Both Dr Skinner and Dr Saboisky are of the opinion that Mr Vo did not suffer from a psychiatric illness following his retrenchment and we have accepted their evidence in this regard. Their views are supported by Ms Hutchinson[32] and Ms Bell.[33]
As we are not satisfied that Mr Vo suffers from an "ailment" it follows that it is not necessary to consider whether there has been an aggravation of an ailment or the degree of contribution by his employment.
We have found that Mr Vo did suffer some stress from various incidents which occurred in his workplace. However, as was stated by the Federal Court in Comcare v Mooi (1996) 42 ALD 495 at 501:
".......the need to show something more than the development of a work-caused condition of the body or mind and associated impairment of capacity to work has been an essential requirement since the inception of the legislation: work-caused physical or mental fatigue that impairs an employee's capacity to work is no more compensible (sic) than debilitating work-caused distress, unless that distress amounts to or results in a condition of disease or illness."
As we have not been satisfied on the evidence that the stress suffered by Mr Vo (being stress which was contributed to by his employment) resulted in any disease or illness, this stress does not amount to an "injury" within the meaning of the Act and is not compensable_._ Even if the stress had resulted in an injury, any stress arising from the decision to terminate Mr Vo's employment in accordance with its terms was not contributed to by that employment: Australian Industry Development Corporation v Boyd (1990) 95 ALR 149 at 171.
Even if we are wrong in our conclusion that Mr Vo has not suffered an injury, any injury or aggravation which he did suffer is excluded from the operation of the Act if it is "a result of.......failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment." [34] The stress experienced by Mr Vo which arose from his failure to be transferred out of the Department and from his failure to be permitted to work from home is excluded: Re Barber and Comcare (AAT 12776, 6 April 1998).
For the reasons set out the Tribunal affirms the decision of Comcare made 13 May 2002 that Comcare is not liable to pay compensation to Mr Vo pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of "unspecified acute reaction to stress".
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member and Dr M.D. Miller AO, Member
Signed: .....................................................................................
Associate (Chelsey Bell)
Date/s of Hearing 22-23 November 2004 and 14-16 June 2005
Date of Decision 12 August 2005
Representative for the Applicant Self
Counsel for the Respondent Mr D. O'Donovan
Solicitor for the Respondent Sparke Helmore
[26] Diagnostic and Statistical Manual of Mental Disorders (4th Ed.)
[32] See report of 27/4/99 exhibit A34.
[33] See report of 15/10/00 exhibit A35.
[34] See definition of "injury" in section 4.
(1990) 95 ALR 149