Ellenberger and Comcare (Compensation) [2025] ARTA 1342 (12 August 2025)
Applicant:Ingo Ellenberger
Respondent: Comcare
Tribunal Number: 2022/7931
Tribunal:Senior Member D Thomae
Place:Brisbane
Date:12 August 2025
Decision: The Tribunal affirms the decision under review.
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Statement made on 11 August 2025 at 3:16pm
CATCHWORDS
COMPENSATION – applicant lodged claim for workers’ compensation for adjustment disorder – respondent denied liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – reasonable administrative action – Australian Federal Police – COVID-19 Mandate – applicant’s failure to be vaccinated – whether reasonable to refuse delay to obtain medical opinion for exemption - affirm decision under review
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Australian Federal Police Act1979 (Cth)
Cases
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) [2013] FCA 439
Comcare v Power [2015] FCA 1502
Comcare v SDCS [2023] FCA 1509
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Department of Education v Dawking [2024] NSWCA 4
Johnston & Ors v Carroll [2024] QSC 2
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Moradi v Comcare [2024] FCA 812
Secretary, Department of Education v Dawking [2024] NSWCA 4
Shearer v Chief Commissioner of Police [2024] VSC 181
Teague & Ors v Department for Health and Wellbeing [2023] SAET 80
Wilson v Australian Federal Police (on behalf of the Commonwealth) [2024] FWC 18
Secondary Material
Australian Federal Police Regulations 1978
Australian Federal Police Regulations 2018
Statement of Reasons
INTRODUCTION
The applicant, Mr Ingo Ellenberger (Mr Ellenberger), made an application for review[1] to the General Division of the Administrative Appeals Tribunal (the AAT)[2] of the decision by Comcare, affirming its determination denying liability to pay Mr Ellenberger compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for what was described as ‘adjustment disorder’ (the Condition).
[1] Exhibit R1.
[2] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Mr Ellenberger seeks the Tribunal to set aside Comcare’s determination and vary it so that Comcare is liable under s 14 of the SRC Act for the Condition.
At the hearing Mr Ellenberger gave evidence. Mr Kim Wilson, a former member of the Australian Federal Police (AFP) gave evidence. Detective Sergeant Tim Murphy, Commander Andrew Donoghue, Commander Andrea Quinn and Dr Alison Money of the AFP also gave evidence.
Mr Ellenberger was self-represented.…
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- Ellenberger and Comcare (Compensation) [2025] ARTA 1342
- Case
- [2025] ARTA 1342
- Decision Date
CaseChat Overview and Summary
In Ellenberger and Comcare (Compensation), the applicant, Mr Ellenberger, sought compensation for an adjustment disorder he claimed was caused by his termination from the Australian Federal Police (AFP) due to his refusal to comply with the COVID-19 vaccination mandate. Comcare, the insurer for the AFP, denied his claim, asserting that his condition did not qualify for compensation as it resulted from reasonable administrative action taken by the AFP. The primary issue before the court was whether the AFP's actions in denying Mr Ellenberger's request for a delay in complying with the vaccination mandate were reasonable and thus excluded from compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
The court examined whether the AFP's refusal to grant Mr Ellenberger an extension to obtain a medical opinion for an exemption from the vaccination mandate constituted reasonable administrative action. The applicant argued that the AFP's failure to provide him with adequate time to be reassessed medically led to significant stress and contributed to his mental health condition. The court considered medical evidence from Dr Velimir Kovacevic, a consultant psychiatrist, who opined that Mr Ellenberger's condition was a reaction to the stress caused by his employment termination, particularly the vaccination mandate and the denial of his medical exemption request.
The court also reviewed the actions of the AFP in handling Mr Ellenberger's application for a temporary non-medical exemption and their subsequent decision to terminate his employment. Mr Ellenberger presented evidence that he had applied for a temporary exemption based on his medical condition, raised homocysteine levels, which posed a significant risk if vaccinated. Despite providing medical documentation supporting his exemption request, the AFP denied his application and pressured him to comply with the mandate, leading to increased stress and anxiety.
Ultimately, the court found that the AFP's actions were reasonable under the circumstances. It held that the AFP had a legitimate interest in ensuring the safety of its employees and the public by mandating vaccination. The court concluded that the AFP's decision to deny Mr Ellenberger an extension to obtain a medical opinion was not unreasonable, given the urgency and public health context of the COVID-19 pandemic. As a result, the decision to affirm Comcare's denial of the compensation claim was upheld.
The final orders of the court were to affirm the decision of Comcare to deny Mr Ellenberger's claim for workers' compensation.
The court examined whether the AFP's refusal to grant Mr Ellenberger an extension to obtain a medical opinion for an exemption from the vaccination mandate constituted reasonable administrative action. The applicant argued that the AFP's failure to provide him with adequate time to be reassessed medically led to significant stress and contributed to his mental health condition. The court considered medical evidence from Dr Velimir Kovacevic, a consultant psychiatrist, who opined that Mr Ellenberger's condition was a reaction to the stress caused by his employment termination, particularly the vaccination mandate and the denial of his medical exemption request.
The court also reviewed the actions of the AFP in handling Mr Ellenberger's application for a temporary non-medical exemption and their subsequent decision to terminate his employment. Mr Ellenberger presented evidence that he had applied for a temporary exemption based on his medical condition, raised homocysteine levels, which posed a significant risk if vaccinated. Despite providing medical documentation supporting his exemption request, the AFP denied his application and pressured him to comply with the mandate, leading to increased stress and anxiety.
Ultimately, the court found that the AFP's actions were reasonable under the circumstances. It held that the AFP had a legitimate interest in ensuring the safety of its employees and the public by mandating vaccination. The court concluded that the AFP's decision to deny Mr Ellenberger an extension to obtain a medical opinion was not unreasonable, given the urgency and public health context of the COVID-19 pandemic. As a result, the decision to affirm Comcare's denial of the compensation claim was upheld.
The final orders of the court were to affirm the decision of Comcare to deny Mr Ellenberger's claim for workers' compensation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Mr Ellenberger also stated that he was challenging the lawfulness of CO10.MEDICAL EVIDENCE The clinical notes of Mr Ellenberger’s attendance during the relevant period to his general practitioners and his psychologist are summarised above. These practitioners were not called to give evidence and no adverse inference from them not giving evidence was contended or found.Dr Velimir Kovacevic On 23 October 2023, Dr Velimir Kovacevic (Dr Kovacevic), a consultant psychiatrist, provided a report that relevantly states:[27][27] Exhibit R19.It would seem that Mr Ellenberger suffers from a chronic adjustment disorder with anxiety and depressed mood, as well as some issues with excessive drinking.This disorder is a reaction to stress experienced due to the circumstances of his employment termination. The precipitating stressor is clearly identifiable, and the response is of clinical significance and requires a clinical intervention. The stress has now become chronic and the patient has difficulty moving on.As a differential diagnosis, a major depressive disorder with significant anxiety should also be considered, given the extent and duration of depressive symptomatology.…It would appear that Mr Ellenberger started experiencing symptoms of an adjustment disorder with anxiety and depressed mood during the second half of 2021, and in the context of the workplace vaccination mandate.…The main factors that have impacted on the development of Mr Ellenberger's condition are employment related. In addition to the vaccination mandate, Mr Ellenberger was also under some pressure due to the role change and the fact that he was placed with a different team following his return from medical leave in 2021.There were no signs of any pre-existing psychological condition or personal stressors unrelated to work, including the relationship or financial problems preceding the termination.Mr Ellenberger did however acknowledge that in the context of his knee injury, he experienced some lowering in mood in 2021, and that he occasionally felt overwhelmed having been placed in a new work area, and later denied the opportunity to work from home.However, the principal stressor that led to the development of Mr Ellenberger’s condition was the vaccination mandate and the denial of his medical exemption, with the associated threat to his employment, and the eventual termination. Therefore, the factors that made significant contribution to the condition were all employment related.He said he was disappointed that the AFP did not listen to medical evidence that he had presented, and regretted he had not been given an extension, or some extra time to be reassessed medically. Dr Kovacevic was prepared to give evidence at the hearing, but as Mr Ellenberger accepted Dr Kovacevic’s opinions contained in his report and did not require him to be available and subject to cross examination. Dr Singhal On 1 July 2022, Dr Singhal, general practitioner provided a letter to Comcare[28], opining that Mr Ellenberger’s mental health condition had a clinical onset of early November 2021. Dr Singhal noted that Mr Ellenberger had seen him on 9 November 2021 and provided a mental health care plan on 12 November 2021.[28] Exhibit A11, pp 55-56
Decision
Reasons for decision
On 5 August 2022, Comcare affirmed the Primary Determination (the Reviewable Decision).[25][25] Exhibit R5. The SRC Act relevantly provides:5A Definition of injury(1) In this Act:injury means:(a) a disease suffered by an employee; or(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.14 Compensation for injuries(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment. Mr Ellenberger provided a written statement, dated 25 September 2024. The Tribunal has put the statement in full as it provides Mr Ellenberger’s point of view as to how he contends the AFP actions were unreasonable:[26][26] Exhibit A1.On 29 October 2021 the AFP Commissioner issued Commissioner’s Order 10 (CO10). The effect of this was to mandate all staff to submit to vaccination against Covid 19 (the mandate).Sometime after the 29 October 2021, I submitted a Temporary Non-Medical Exemption application, as I have had a family history of medical issues including the death of my father with blood clotting (pulmonary embolism), I wanted to make sure that I did not have a hereditary medical issue and discuss with my doctor which vaccine would be most appropriate for me. On 9 November 2021, I commenced a period of sick leave as the introduction of CO10 excluded me from attending any Australian Federal Police (AFP) work premises as I had not yet been vaccinated for Covid -19.On 9 November 2021, I attended Caloundra Health Hub and was diagnosed with Anxiety, Stress, Impaired decision making, agitation, and insomnia. Doctor Deepak referred me to the Integrated Wellness Clinic for Psychological assessment. On 12 November 2021, I made an appointment to attend the Integrated Wellness Clinic for psychological assessment.On 12 November 2021, the AFP responded to my Temporary Non-Medical Exemption and did not support an extension of time to be assessed by my medical Doctor about my concerns. The AFP indicated that “It is not considered reasonable to wait”. The AFP indicated that I had 2 weeks to comply with the CO10 mandate. I then appealed the AFP’s decision requesting to be assessed by my Medical Doctor and for advice. On 16 December the AFP again responded and once again did not support my application to be assessed and obtain advice from my medical Doctor. The AFP indicated that I had until 10 January 2022 to comply with the CO10 mandate. On 10 January 2022, I attended Doctor Edward OSBORNE’s clinic, Lotus Holistic Medicine. There, after a physical assessment and the consequential results from my blood tests, revealed that I was suffering from a medical condition known as raised Homocystine levels. With this medical condition the chances of contracting coronary artery disease or blood clotting (pulmonary embolism) would be twice as likely compared to the average person. With both coronary artery disease and blood clotting (pulmonary embolism) listed as side effects in the Pfizer study, page 32 & 36 highlighted in green. my father having passed away due to blood clotting (Pulmonary embolism) and the possibility of the disease being hereditary. My doctor was of the opinion that at this time a temporary medical exemption was appropriate. A treatment plan to lower my Homocystine levels, anticipated to take between 3 and 9 months was implemented. This temporary medical exemption was registered with the Australian Immunization Registry (AIR) and appears in my, my Gov account. The certificate for this was forwarded to the AFP as evidence and to allow them to upload to the HUB, (computer database).On 17 January 2022, I attended the Integrated Wellness Clinic and met with Psychologist Stuart Le Marseny in relation to stress, anxiety, causing impaired decision making, agitation and difficulty sleeping. With his help a continuous treatment program was implemented.I supplied the AFP with the Psychologist report, treatment plan and waited for a response.On 15 February 2022, I submitted a workplace incident report, Number 29310 in relation to my mental and physical welfare. This would later become unsupported by comcare, even after evidence including Doctor reports, Psychologist report, comcare psychiatrist report and Freedom of Information (FOI) documents. Mid-February 2022, I had a conversation with my team leader at NOSSC Northern, D/Sgt Tim MURPHY and in consultation with AFP management, it was decided that I was to work from home as I did have a current temporary medical exemption lodged with the Australian Immunization Registry and working from home would risk manage my duty of care towards my fellow work colleagues.I commenced working from home on the 21 February 2022, which was part of my Psychology plan to integrate back into the AFP work force, regain confidence and ease my mental health issues. This seemed to work well as I was able to engage with work members and feel like I was contributing again. After this process I was contacted by a member of the AFP rehabilitation case manager-Shield people & culture command, where it appeared that they were unaware of my situation and being on sick leave prior, but supportive of being able to work from home. I successfully continued working from home, which was both beneficial to myself and my work area.On 1 March 2022, I received an email from Commander Andrew DONOGHOE stating, ‘that I had not given the AFP any evidence of my vaccination status and accordingly I was in breach of CO10’. Even though I had forwarded my temporary medical exemption certificate to the AFP, they still deemed me as not complying with CO10.On 2 March 2022, I spoke with Commander DONOGHOE via phone, where I was urged to supply a medical report from my doctor to support the doctor’s issue of the temporary medical exemption.I contacted Doctor OSBORNE and although advised that I did not have to supply any medical information to a third party due to confidentiality laws, I asked my doctor to write a report supporting the decision for the temporary medical exemption. Dr OSBORNE wrote ‘This is to certify that Ingo has a raised homocysteine level, such that he has double the average person risk of clotting and coronary artery disease, we are currently undertaking a treatment plan for this which we envisage will likely take between 3-9 months.’ On the 7 March 2022, I submitted to the AFP Dr OSBORNE’s report along with my temporary medical exemption certificate and continued working from home. On 16 March 2022, I received a response to Dr OSBORNE’s Report and temporary medical exemption certificate from AFP employee Alison MONEY. Dr MONEY’s email information suggested that my medical condition was not a contraindication to any COVID-19 vaccine in Australia and declined to support my Temporary Medical exemption.On 17 March 2022, Commander DONOGHOE phoned me to make sure that I had received Dr MONEY’s email and directed me to comply with CO10 by the 30 March 2022. At this time, I was still working from home, but struggled mentally to adapt to all this information and pressure, suggesting that I had not complied with CO10, and my temporary medical exemption was not supported.With my anxiety levels raised, I found sleeping that night very difficult as conflicting information kept going through my mind, such as, • Should I go against my doctor’s advice and get vaccinated, and possibly risk suffering from serious life-threatening injuries or death?• How would my family cope if I passed away?• Should I not get vaccinated, and risk losing my job and means to support my family?• Why does the AFP not show a duty of care and treat each individual and their health condition separately?• Why does the AFP not care about my health and support my treatment plan for the time suggested, until future tests?• Are the AFP suggesting I play Russian roulette with my health?• Why all this pressure coercing me into a procedure, where there is the existence of a medical condition that could harm my health?All these questions and conflicts going through my mind were causing me stress and anxiety.On 21 March 2022, in consultation with my doctor and the continual struggle dealing with concentration issues, stress and anxiety, I commenced a new period of sick leave. I continued my medical treatment plan to lower my Homocystine levels; to put myself in a better physical and medical position, should I require vaccination in the future. I also continued my psychological plan to improve my mental health. On 5 April 2022, I received an email from AFP Manager Peoples Strategies, People and Culture Command, Brooke EVERETT, informing me that the AFP were considering my termination from employment for not complying with CO10. I was required to show cause why I should not be terminated. On 21 April 2022, Industrial relations acknowledged the receipt of my “Show cause notice”.On 6 May 2022, Industrial relations notified me that my application is being considered by a delegate.On 3 June 2022, Industrial relations notified me that my application is currently being considered.On 20 June 2022, I emailed an update on my medical circumstance to Industrial relations, which they acknowledged.On 7 July 2022, Industrial relations informed me to submit a non – medical exemption under another AFP option.On 8 July 2022, I emailed Industrial relations to seek clarification under what basis would I apply for a non – medical exemption.On 8 July 2022, Industrial relations replied indicating that the AFP have allocated another pathway for medical exemptions to be considered under non-medical exemption.On 11 July 2022, I submitted my non – medical exemption application to Industrial relations.On 12 July 2022, Industrial relations acknowledged receipt of my application and advised that it has been forwarded to the SHIELD team. Where it would be adjudicated on by a member of the AFP.On 15 August 2022, I received a text from my work team leader D/Sgt Murphy, informing me that he had heard about my non -medical exemption outcome.On 16 August 2022, I contacted D/Sgt Murphy, where he told me that on 8 August 2022, he received notification that a decision had been recommended on my non – medical exemption. This information was sent to my work area and my work email, which I had not viewed as I was on leave. As a result, I was not aware of this decision. On 16 August 2022, I accessed my work emails and viewed the non-supportive response by Jason Kennedy. His determination based on the Delta and Omicron COVID 19 strains, protecting our people (AFP members) and providing a safe workplace, as well as protecting the community we serve. As stated in the “Show cause notice”, I supplied evidence, studies and information supporting that a vaccinated persons would be no more of a threat to work colleagues, or the general public then vaccinated persons. I was also prepared to work from home as per previous work agreement.As a result of my condition In July 2022, I had further blood tests to update my condition.On 22 August 2022 I attended Doctor OSBORNE’s office where I was informed the results from my blood test were being analysed.On 29 August 2022, I spoke to Dr OSBORNE who explained to me my blood test results. There had been a slight improvement in most of my blood markers since my original diagnosis, this indicates the treatment plan I am undertaking, was slowly working. The Doctor believed at this time, some markers were still higher than he would like and would still put me in the high-risk category for side effects from a vaccine. He advised me that I should continue the treatment plan for another 4 months, where again I would be assessed to view my progress. This would make my next medical assessment time January/February 2023. Medically and psychologically, I was advised to continue my treatment plan in an attempt to lower my blood markers to a safe manageable level before considering which vaccine to take.On 30 August 2022, I addressed an email to IR setting out my circumstances and the Doctors advice. I also asked if the AFP could facilitate a discussion between myself and their then AFP Doctor Randell.On 2 September 2022, I received an email response, stating that IR had received my information, and the delegate is considering my employment suitability. They would supply me with an update when available. They did not respond to my request to facilitate audience with the AFP Doctor.On 7 December 2022, I received an email informing me that I had been terminated from employment with the AFP. I had previously initiated a Comcare (AFP insurer) claim due to the stress I had experienced since the beginning of this process. The way I have been treated, coerced, discriminated against during this process concerning the vaccine mandate and other continued stresses showed a complete lack of duty of care to me as an employee.Comcare was aware of my mental state (adjustment disorder) as described by the Doctor, and agreed it was brought on by the workplace. Comcare arranged for me to see their AFP selected Psychiatrist on 5 October 2023, Dr Kovacevic. He too found that my condition was brought on and exacerbated by the workplace and suggested I continue psychological treatment. Stating, In the context of the loss of employment, Mr Ellenberger has developed a variety of psychological symptoms. At the time of the interview, he presented with signs of depression and anxiety. He appeared to meet the diagnostic criteria for an adjustment disorder with depressed mood and anxiety (I could not rule out the diagnosis of a major depressive disorder) in the context of the loss of employment and the lack of purpose and direction. “It is my opinion that Mr Ellenberger would benefit from a more extended psychological treatment” (general counselling and CBT in weekly to fortnightly intervals) I was open with communication to both the AFP and Comcare offering to work from home to mitigate any perceived risk to work colleagues and the public. I also requested an audience with the AFP Doctor, where I was prepared to be assessed by them, in case they did not believe my doctors diagnosis.I believe during this complete process (Comcare incident report, February 2022) with the AFP and Comcare, I have been cooperative and supplied as much evidence as required to support my case. I feel that the AFP and Comcare have prolonged my psychological condition by not supporting my, doctors, psychologist and the AFP psychiatrist professional opinions in relation to my medical diagnosis. Their actions have been negligent in their duty of care towards my psychological welfare. At the request of my family, I facilitated my own psychological welfare by engaging a psychologist and implementing psychological management plan, as I struggled to deal with family and everyday life. Comcare appeared to have little concern about assisting me with my welfare.In 2024, I requested and received Freedom of Information statistics (FOI) that showed the AFP were aware of both minor and serious adverse reactions from the Covid vaccine between 2020 and 2024. This highlights a lack in their duty of care toward my situation. The AFP and Comcare were aware of adverse reactions yet were happy to put my welfare at risk by not supporting my temporary medical exemption requests and pressuring me to be vaccinated before being medically cleared by my doctor.
Ratio Decidendi
Legal Principle Established
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