Davies and Comcare

[2007] AATA 1829

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1829

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A 2005/150

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		KERRY DAVIES

Applicant

And COMCARE

Respondent

DECISION

Tribunal       J.W. Constance, Senior Member

Dr M.D Miller AO, Member

Date3 October 2007

PlaceCanberra

Decision

1.      The reviewable decision made 24 June 2005, which affirmed a determination of 1 March 2005, is set aside.

2.      The matter is remitted to Comcare for reconsideration in accordance with the following directions:

1)     during the whole of the period from 3 December 2001 to 19 April 2006 inclusive, Ms Davies was incapacitated for work as a teacher as a result of the injury, being anxiety and depression, ongoing liability for which was accepted by Comcare on 18 July 1997;

2) the offer of employment in the Department of Defence made to Ms Davies by letter of 27 July 1999 was not an offer of suitable employment within the meaning of section 19 of the Safety, Rehabilitation and Compensation Act 1988;

3) during the period 28 September 1999 to 19 April 2006, any employment requiring Ms Davies to work in the Commonwealth, State or Territory Public Services was not suitable employment within section 19 of the Act;

4)     during the period 28 September 1999 to 19 April 2006 inclusive, the self employment of Ms Davies in the business known as Bali Gardens was suitable employment within the meaning of section 19 of the Act; and

5)     during the period 3 December 2001 to 30 June 2004  inclusive, the amount which Ms Davies was able to earn in employment in the business was nil.

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

J.W. Constance, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth employees – Anxiety and depression- Incapacity – Suitable employment – Failure to accept offer of employment - Whether offer of employment suitable under section 19

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19

Re Ferreira and Comcare (1995) AATA 10281

Moon v Telstra Corporation [2006] AATA 996

Re Prica and Comcare (1966) 44 ALD 45 at 51

Re West and Comcare (1994) AATA 9320

Smith v Comcare [2002] AATA 249

REASONS FOR DECISION

J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

3 October 2007

INTRODUCTION

1. In 1998 Ms Davies was injured whilst working as a teacher employed by the Australian Capital Territory.  In September 1999 Ms Davies accepted an offer of voluntary redundancy.  At the time she was not working as a result of the injury she had suffered.  Following the redundancy Comcare ceased to compensate Ms Davies in respect of her incapacity, although she continued to receive compensation for treatment expenses.

2. In 2001 Ms Davies sought a resumption of compensation payments for incapacity.  Ultimately this request was refused by Comcare on the ground that she was not incapacitated for work as a result of the injury.  It was therefore unnecessary to determine the amount to which Ms Davies would have been entitled had she been partially incapacitated.

3. Ms Davies is seeking a review of this…