DAVID SUMMERVILLE and COMCARE - [2009] AATA 509

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 509
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No 2007/0203
  )          No 2007/4621

GENERAL ADMINISTRATIVE DIVISION )

Re DAVID SUMMERVILLE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Ion Alexander, Member
Date3 July 2009
PlaceSydney

Decision
The decisions under review are varied as follows:

a. The reviewable decision dated 22 December 2006 is varied to find that the applicant has an entitlement to receive compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) in respect of adjustment reaction with mixed emotional features, major depressive disorder, recurrent episode and psychogenic pain, site unspecified; and

b. The reviewable decision of 18 September 2007 is varied to find that the applicant has an entitlement to receive compensation pursuant to sections 24 and 27 of the Act in respect of at least 10% permanent impairment.

The tribunal makes no order as to costs but notes that the applicant is entitled to reimbursement of costs as agreed or taxed, and the parties have leave to apply and make submissions in this regard.

...................[Sgd].....................
Ms Robin Hunt
Senior Member

CATCHWORDS
WORKERS’ COMPENSATION – claim for stress, depression, adjustment disorder – applicant employed at Sydney Airport – psychological injury or aggravation of pre-existing condition – whether employment materially contributing factor – consideration of exclusionary provisions – decisions under review varied.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 7(7), 14, 24, 27
Comcare v Porter (1996) 138 ALR 469
Hart v Comcare (2005) 145 FCR 29
Re Newham and Australian Telecommunications Corporation (1990) 22 ALD 783
Weigand v Comcare (2002) 72 ALD 795
REASONS FOR DECISION

3 July 2009 Ms Robin Hunt, Senior Member
Dr Ion Alexander, Member

introduction
1. Mr David Summerville was working with the Border Control team at Sydney Airport when he became distressed and was taken to Kareena Private Hospital. Mr Sullivan recovered sufficiently for release from hospital and subsequently made a claim for compensation against his employer. He had commenced employment with the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) (the predecessor to the Department of Immigration and Citizenship) in November 1999. He claims he suffered a psychological injury or aggravation of a pre-existing condition to which his employment with the Department was a materially contributing factor.
2. He is seeking review of two decisions made by the respondent, Comcare. The first application (2007/0203) concerns a determination made on 3 July 2006 denying liability to pay compensation, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’), for “adjustment reaction with mixed emotional features”, “major depressive disorder, recurrent episode” and “psychogenic pain, site unspecified”. The determination was affirmed on reconsideration on 22 December 2006.
3. The second application (2007/4621) concerns a determination made on 5 July 2007 denying liability to pay compensation, pursuant to sections 24 and 27 of the Act, for permanent impairment and non-economic loss. This determination was affirmed on reconsideration on…

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 DAVID SUMMERVILLE and COMCARE

Details

AGLC: DAVID SUMMERVILLE and COMCARE [2009] AATA 509
Case: [2009] AATA 509
Decision Date: 3 July 2009

CaseChat Overview and Summary

David Summerville brought a claim against Comcare regarding a psychological injury he sustained while employed at Sydney Airport. The primary dispute centred on whether his employment materially contributed to his stress, depression, and adjustment disorder. The case was heard by the Federal Circuit Court of Australia, which had to determine the eligibility for compensation under the Safety, Rehabilitation and Compensation Act 1988.

The central legal issues were whether the applicant's psychological conditions were work-related and if there were any exclusionary provisions that might affect the entitlement to compensation. The court had to assess the evidence presented to ascertain if the applicant's employment was a significant factor in the onset or aggravation of his psychological conditions. Additionally, the court needed to examine whether any of the provisions in the Act excluded Comcare's liability for the claimed conditions.

In its reasoning, the court found that the applicant's employment did materially contribute to his psychological injury, which included adjustment reaction with mixed emotional features, major depressive disorder, recurrent episode, and psychogenic pain. The court acknowledged the applicant's entitlement to compensation under section 14 of the Act for these conditions. Furthermore, the court determined that the applicant was also entitled to compensation for at least 10% permanent impairment under sections 24 and 27 of the Act. The court varied the previous decisions to reflect these findings, establishing the applicant's eligibility for compensation. The court did not order costs but noted that the applicant could seek reimbursement of agreed or taxed costs.

Orders

Orders of the court

The decisions under review are varied as follows:

a. The reviewable decision dated 22 December 2006 is varied to find that the applicant has an entitlement to receive compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) in respect of adjustment reaction with mixed emotional features, major depressive disorder, recurrent episode and psychogenic pain, site unspecified; and

b. The reviewable decision of 18 September 2007 is varied to find that the applicant has an entitlement to receive compensation pursuant to sections 24 and 27 of the Act in respect of at least 10% permanent impairment.

The tribunal makes no order as to costs but notes that the applicant is entitled to reimbursement of costs as agreed or taxed, and the parties have leave to apply and make submissions in this regard.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID SUMMERVILLE