EMILE CORSARO and COMCARE - [2009] AATA 429

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 429
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0239

GENERAL ADMINISTRATIVE DIVISION ) 2008/5006

Re EMILE CORSARO

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member
Dr I Alexander, Member
Date15 June 2009
PlaceSydney

Decision
Proceedings 2007/0239

We set aside the reviewable decision and substitute the decision that Comcare is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of Adjustment Disorder manifesting with Anxiety and Depressed Moods suffered by Mr Corsaro from 20 September 2004.

Proceedings 2008/5006

The reviewable decision is varied to the extent that liability is accepted pursuant to sections 16 and 19 of the Act from 20 January 2006 to 18 March 2006.

....................[sgd].........................
Presiding Member
Mrs Josephine Kelly, Senior Member

CATCHWORDS
COMPENSATION – Health Insurance Commission employee – Claim for anxiety and depression from perceived bullying and intimidation by management - Claim for medical expenses, incapacity and permanent impairment for psychological disorder – Claims rejected - Whether suffers disease caused by employment – Held suffers from Adjustment Disorder – Applicant’s employment materially contributed to Adjustment Disorder – Decision set aside and liability found – Decision varied - Entitled to medical expenses and incapacity payments
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19, 24, 27, 36
Guide to the Assessment of the Degree of Permanent Impairment (2^nd edition), Table 5.1
Diagnostic and Statistical Manual of Mental Disorders, 4^th edition (DSM-IV)
Wiegand v Comcare (2002) 72 ALD 957
REASONS FOR DECISION

15 June 2009 Mrs Josephine Kelly, Senior Member
Dr I Alexander, Member

INTRODUCTION
1.      In 1999, Mr Emile Corsaro began working as a printer for the Health Insurance Commission (HIC), now Medicare Australia. Following an injury to his right shoulder in a motorcycle accident in December 1999, he was redeployed to a clerical position. He was working in such a position in 2004 when he alleges he suffered the injury the subject of the two proceedings before us, for which compensation is claimed pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act).
2.      Proceedings 2007/0239 relate to a claim for compensation dated 17 January 2005 for anxiety and depression which was suffered on the morning of 20 September 2004 as a result of bullying, intimidation, and verbal abuse on three occasions, by management. It is apparent that another claim was lodged at the same time for aggravation of rotator cuff (capsule) strain (right) which we understand from the evidence was accepted. However, the claim with which we are concerned was rejected on 19 May 2005. Following Mr Corsaro's request to reconsider the decision, it was affirmed on 18 October 2005. That is the reviewable decision before us.
3.      The reviewable decision in proceedings 2008/5006 was made on 23 September 2008. It affirmed a decision made on 5 February 2008 to deny liability for compensation for compensation for medical expenses, incapacity, and permanent impairment (ss 16(1), 19,…

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 EMILE CORSARO and COMCARE

Details

AGLC: EMILE CORSARO and COMCARE [2009] AATA 429
Case: [2009] AATA 429
Decision Date: 15 June 2009

CaseChat Overview and Summary

In the proceedings before the Administrative Appeals Tribunal, Emile Corsaro sought a review of a decision by Comcare to reject his claim for compensation for anxiety and depression arising from his employment. The Tribunal was tasked with determining whether Comcare was liable under the Safety, Rehabilitation and Compensation Act 1988 for the medical expenses, incapacity and permanent impairment related to Mr Corsaro's psychological disorder. The central legal issues were whether Mr Corsaro suffered a disease caused by his employment, specifically an Adjustment Disorder, and if so, whether his employment materially contributed to this condition.

The Tribunal found that Mr Corsaro did indeed suffer from an Adjustment Disorder with Anxiety and Depressed Moods, which manifested from 20 September 2004. The Tribunal accepted that his employment with the Health Insurance Commission materially contributed to this condition. This was determined by considering the evidence of bullying and intimidation by management, as well as the impact on Mr Corsaro's mental health. The Tribunal set aside the decision rejecting Mr Corsaro's claims and found Comcare liable under section 14 of the Act for the Adjustment Disorder. Additionally, the Tribunal varied the decision to accept liability for incapacity from 20 January 2006 to 18 March 2006 under sections 16 and 19 of the Act.

The Tribunal ordered that Comcare is liable for Mr Corsaro's medical expenses and incapacity payments related to his psychological disorder. The decision to reject the claims was set aside and replaced with a finding of Comcare's liability. The Tribunal also varied the decision to accept liability for incapacity during a specific period. This ruling underscores the importance of the Tribunal's role in ensuring that employees receive appropriate compensation for injuries arising from their employment, including psychological injuries.

Orders

Orders of the court

Proceedings 2007/0239

We set aside the reviewable decision and substitute the decision that Comcare is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of Adjustment Disorder manifesting with Anxiety and Depressed Moods suffered by Mr Corsaro from 20 September 2004.

Proceedings 2008/5006

The reviewable decision is varied to the extent that liability is accepted pursuant to sections 16 and 19 of the Act from 20 January 2006 to 18 March 2006.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		) 2008/5006
Re		EMILE CORSARO