Ferrini and Comcare

[2003] AATA 1137

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1137

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2001/524

GENERAL ADMINISTRATIVE DIVISION		)
Re		LUCIANA FERRINI

Applicant

And COMCARE

Respondent

DECISION

Tribunal Michael Sassella
Senior Member

Date14 November 2003

PlaceCanberra

Decision The decision under review is affirmed.  The applicant does not qualify for payment of her costs by Comcare.

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Senior Member

CATCHWORDS

WORKERS' COMPENSATION – whether employee sustained injury – whether injury in form of psychiatric condition – whether employee made wilful and false representation relating to earlier incidence of disease – whether desire for revised duty statement and performance agreement is desire for benefit connected with employment

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) (“aggravation”, “ailment”, “disease”, “injury”, 7(6), (7), 14(1), 16

Public Service Act 1999 s 13(5)

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626

Schofield and Comcare, Re (1995) 38 ALD 124

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Trewin v Comcare (1998) 156 ALR 615

Wiegand v Comcare Australia [2002] FCA 1464

REASONS FOR DECISION

14 November 2003 Michael Sassella
Senior Member     

RESULT

1.      The tribunal agrees with Comcare’s decision.  The tribunal has found that Ms Ferrini has no compensable injury for two reasons.  One is that she did not fully declare her psychiatric history when medically examined as part of her induction in the Australian Taxation Office.  The other is that such disease or aggravation that she may have sustained because of her employment was connected with her failure to obtain a benefit associated with her employment.  This means that Ms Ferrini does not qualify for a costs award in respect of her application.

BACKGROUND

2.      Ms Luciana Ferrini (“the applicant”, “the employee”) claimed compensation on 15 August 2001 for the psychiatric condition, anxiety and reactive depression which she said was caused by distress flowing from conflict and unclear job duties (T4)[1]. Comcare (“the respondent”) rejected the claim because, although it was accepted that Ms Ferrini suffers from a disease, in as much as work may have been a cause of Ms Ferrini’s condition, she was suffering because she had failed to obtain a benefit at work. This would prevent the disease from being an injury because of the way injury is defined in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[2].

[1] References to T documents are references to the documents provided as part of the Section 37 Statement by the respondent.  This and other exhibits are listed in Schedule 1 of these reasons.

[2] Extracts from the Act are in Schedule 2 of these reasons.

3.      In more detail, Ms Ferrini’s complaints were that she accepted a position in the Australian Taxation Office (“ATO”) in Canberra at APS 6 level while working for the ATO in Adelaide.  When she took up the job in Canberra the duties assigned her were not, in her view, those in the APS 6 duty statement she…