ELIASEK and COMCARE

[2010] AATA 918

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 918

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos. 2006/1284 & 2008/5151

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MILLIE ELIASEK

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Air Vice-Marshal Austin AM, Member

Date18 November 2010   

PlaceSydney

Decision The decisions under review are affirmed. 

……................[sgd]..................................

Ms N Bell, Presiding Member   

CATCHWORDS – Compensation – permanent impairment - psychiatric disease – material contribution – failure to obtain a benefit – payment of overtime - flex time in lieu of a payment for overtime

Safety, Rehabilitation and Compensation Act 1988

Comcare v Mooi (1996) 42 ALD 495

Re Carpenter and Comcare (2010) 116 ALD 190

Trewin v Comcare (1998) 84 FCR 171

REASONS FOR DECISION

Ms N Bell, Senior Member
Air Vice-Marshal Austin AM, Member      

1.      Millie Eliasek began work with the Department of Immigration and Ethnic Affairs shortly after she completed the HSC, some 36 years ago.

2. In September 2005, Ms Eliasek made a claim for compensation in relation to “depression, anxiety due to longstanding harassment in the workplace” for which she claimed she had sought treatment in July 2002. Comcare rejected this claim on the basis that Ms Eliasek had consistently raised a failure to be paid for overtime as a cause of her psychiatric condition. Comcare characterised this as a “benefit” within the meaning of the exclusionary provisions of section 4 of the Safety, Rehabilitation and Compensation Act 1988, as it then was, and concluded that Ms Eliasek did not have an “injury” within the meaning of the Act.  Comcare continued with that approach in the hearing before the Tribunal.

3.      Ms Eliasek also made a claim for permanent impairment in February 2008.  Comcare rejected the claim on the same basis. Ms Eliasek seeks a review of both decisions by Comcare.

4.      The questions for the Tribunal to consider are:

(a)Does Ms Eliasek suffer from a psychiatric disease to which her employment materially contributed?

(b)

If so, did a failure to obtain a benefit materially contribute to

Ms Eliasek’s condition?

(c)If not, does Ms Eliasek have a permanent impairment of 10% or more under the Comcare Guide to the Assessment of the Degree of Permanent Impairment?

does ms eliasek suffer from a psychiatric disease to which her employment materially contributed?

5.      While there is no dispute that Ms Eliasek has a psychiatric condition, the precise diagnosis of her condition is in issue. Dr Robert Gertler diagnosed major depression while Dr Yvonne Skinner, after initially diagnosing major depression, diagnosed adjustment disorder after she was provided with additional information about Ms Eliasek’s social and other activities.  Other psychiatrists, including Dr Margaret Gibson, Dr Michael Prior and Dr Fernando Roldan also diagnosed major depression.

6.      The question of diagnosis may have implications for aspects of Ms Eliasek’s permanent impairment claim, but whatever the precise diagnosis all medical evidence reflects a history provided by Ms Eliasek that focuses on her employment and events in the workplace. Events at…