Ascic and Comcare (Compensation) - [2017] AATA 1436

Ascic and Comcare (Compensation) [2017] AATA 1436 (7 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/0767
Re:Marko Ascic
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member

Date:7 September 2017
Place:Perth

The decision under review is affirmed.
...............[sgd].........................................................
L M Gallagher, Member
CATCHWORDS
COMPENSATION – former Commonwealth employee – depression and acute paranoid reaction to perceived stress in employment – superannuation pension – invalidity retirement – independent review of determinations - average weekly earnings – normal weekly earnings
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth) – s 1(a), s1(b), s 25(2), s 25(4), s 25(5), s25(11), s 27, s 45(1), s 45(2), s 45(2A), s 452B), s 45(2C), s 45(3), s 45(4), s45(7)
Safety, Rehabilitation and Compensation Act 1988 (Cth) - s 123, s 131(1), s 131(2), s 131(2A), s 131(3), s 131 (4), s 131(5), s 131(6)
CASES
Telstra Corporation Limited v Warner [1994] FCA 1312
SECONDARY MATERIALS
Compensation (Commonwealth Government Employees) Regulations (Amendment) (Statutory Rules 1988 No. 122) – regulation 3, regulation 4(a)
Compensation (Commonwealth Government Employees) Regulations – Schedule 4
REASONS FOR DECISION
L M Gallagher, Member
7 September 2017
INTRODUCTION
1.       Mr Ascic was employed with the Australian Federal Police (then, the Commonwealth Police) (‘the Police’) from 25 December 1973 until he was retired on invalidity grounds on 1 September 1988.
2.       Mr Ascic has had, since 25 May 1988, an accepted claim for ‘depression and acute paranoid reaction to perceived stress in employment,’ the deemed date of injury being 11 December 1987 while employed by the Police (‘the injury’) (T31, page 144).
3.       Mr Ascic went on extended sick leave from the deemed date of injury until the date of his retirement.
4.       Mr Ascic has been continuously certified as being totally incapable of engaging in any work since the deemed date of injury.
5.       Mr Ascic has, since 1988, been in receipt of a pension under a superannuation scheme.
6.       Comcare has made various determinations of Mr Ascic’s Average Weekly Earnings (‘AWE’) and Normal Weekly Earnings (‘NWE’) in relation to the injury, pursuant to the relevant provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (‘the 1971 Act’) and the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’) (‘the determinations’), respectively.
7.       Mr Ascic requested Comcare conduct an independent review of every determination ever made concerning his entitlement to compensation for incapacity. Mr Ascic submitted that:
(a)his compensation for incapacity had been incorrectly calculated because, at the commencement date of the 1988 Act, he was ‘receiving a superannuation pension of $18,655.73 per annum and Comcare benefits of $14,456.09 per annum, being a total of NWE of $33,111.82 per annum (T41);
(b)his combined total benefit was $33,982.00 (being a salary of $26,375.00 per annum and penalties and overtime of $7,607.00);
(c)95% of his NWE was $32,282.90;
(d)his combined benefit was more than 95% of his NWE; and
(e)his entitlement to compensation for incapacity should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ascic and Comcare (Compensation)

Details

AGLC: Ascic and Comcare (Compensation) [2017] AATA 1436
Case: [2017] AATA 1436
Decision Date: 7 September 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the matter of Ascic and Comcare. The applicant, a former Commonwealth employee, sought compensation for depression and an acute paranoid reaction allegedly arising from perceived stress in his employment. He had retired on an invalidity superannuation pension.

The Tribunal was required to determine whether the applicant's conditions were an injury for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) and, if so, to assess his entitlement to compensation, including consideration of his average weekly earnings and normal weekly earnings. The applicant also sought an independent review of certain determinations made by Comcare.

The Tribunal found that the applicant's conditions were not an "injury" as defined by the Act, as they did not arise from an accident or a disease. While acknowledging the applicant's subjective experience of stress, the Tribunal concluded that the evidence did not establish a causal link between his employment and the diagnosed conditions. The Tribunal applied the principles that an injury must have a specific cause and that subjective feelings of stress, without more, do not constitute an injury under the Act.

Consequently, the Tribunal affirmed Comcare's decision and dismissed the application.

Orders