Bergersen and Comcare

[2007] AATA 1373

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1373

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos A 200500269 &

GENERAL ADMINISTRATIVE DIVISION		)                A 200600132
Re		FRANK BERGERSEN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date28 May 2007

PlaceCanberra

Decision The Tribunal:
(a) sets aside the first decision under review and substitutes a decision that the applicant suffers a 10 percent impairment under Table 5.1 of the Guide and is entitled to compensation under s 24 of the Safety, Rehabilitation and Compensation Act 1988 (the Act); and
(b) affirms the second decision under review insofar as it found that the applicant had no entitlements under the Act, pursuant to s 16, for ongoing medical treatment.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

COMPENSATION – Commonwealth employees – depression – disease – aggravation major depressive disorder single episode – respondent accepted liability for injury – injury resolved – impairment consequence of injury – degree of impairment – minor loss of personal and social efficiency – fear of recurrence – employment at lower level of responsibility because of fear of recurrence – constant lifestyle vigilance because of fear of recurrence – feelings of vulnerability and diminished self worth – minor distortions of thinking – 10 percent impairment – first decision set aside – entitlement to weekly payments – incapacity – no proven ongoing incapacity for work – medical treatment – episode treated and fully resolved – second decision affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24

Brennan v Comcare (1994) 50 FCR 555
Canute v Comcare [2005] FCA 299
Re D’Costa and Comcare (2004) 83 ALD 475
Re O’Maley and Comcare (1997) 48 ALD 300
Re Dwight  and Comcare [2006] AATA 730
Re Cobern and Comcare [1998] AATA 221

REASONS FOR DECISION

28 May 2007   Senior Member L Hastwell

1.      Frank Bergersen (the applicant) was employed as an Executive Level 1 by Environment Australia at the time that he suffered the onset of an episode of major depression.  This was the fourth episode of significant depression that the applicant had suffered over a period of 20 years. 

2. In September 2002 the applicant lodged a claim for compensation for his major depression asserting that it was a workplace injury. The respondent (Comcare) accepted liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) for an aggravation of major depressive disorder, single episode with the date of injury taken to be 6 March 2002.  Liability was accepted on 13 January 2004 (T28).

3. On 26 April 2004 the applicant lodged a claim for permanent impairment under s 24 of the Act. Liability was rejected and a reviewable decision rejecting liability for permanent impairment under s 24 of the Act was made on 15 July 2005. The applicant seeks a review of that decision (the first decision) by this Tribunal.

4. On 10 January 2005 Comcare made an initial determination to cease ongoing liability to pay compensation to the applicant…