Drenth and Comcare

[2011] AATA 582

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 582

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1482

GENERAL ADMINISTRATIVE DIVISION		)
Re		SARAH DRENTH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Professor D Ben-Tovim, Member

Date23 August 2011

PlaceAdelaide

Decision The decision under review is affirmed.  

D G Jarvis
  ...[Signed]...
  Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employee – employee of Australian Taxation Office – held that applicant suffering from borderline personality disorder, depression and anxiety – asserted aggravation of conditions by work stressors – inadequate disclosure of conditions on applying for employment – held that aggravation contributed to, to a significant degree, by work stressors – relevance of reasonable administrative action not making a significant contribution to aggravation – definition of “injury” – meaning of “as a result of” – held that certain significant stressors constituted reasonable administrative action – decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 7(7) and 14

Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173

Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105

Comcare v Hart [2004] FCA 1144

Comcare v Mooi (1996) 69 FCR 439

Comcare v Sahu-Khan (2007) 156 FCR 536

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Fellowes v Military Rehabilitation and Compensation Commission (2008) 170 FCR 531

Hart v Comcare (2005) 145 FCR 29

Re Lynch and Comcare (2010) 114 ALD 394

Re Wiegand and Comcare [2010] AATA 790

Whittaker v Comcare (1998) 86 FCR 532

Wiegand v Comcare (2002) 72 ALD 795

D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (7^th Edition, LexisNexis Butterworths, 2011)

The New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993

REASONS FOR DECISION

23 August 2011   Deputy President D G Jarvis
  Professor D Ben-Tovim, Member

1.      The applicant, Sarah Drenth, was previously employed by the Australian Taxation Office (ATO).  In July 2008, she claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). She asserted in effect that she was suffering from a pre-existing psychiatric condition, namely borderline personality disorder (BPD), and that certain employment related events that occurred early in 2008 resulted in an incapacity for work.

2.      In a primary determination made in February 2009, a delegate of Comcare decided that Ms Drenth had sustained an aggravation of her condition of BPD that was significantly contributed to by Ms Drenth’s employment.  However, the delegate further decided that the injury resulted from reasonable administrative action taken in a reasonable manner by her employer, and accordingly her condition was contributed to by events that were excluded from the definition of “injury” in the SRC Act, and so compensation was not payable. In June 2009, in a reviewable decision on reconsideration made at Ms Drenth’s request, a Comcare review officer decided that while Ms Drenth’s employment played a part in the development of the aggravation of her condition, it did not add to an existing incapacity,…