Fleming and Comcare - [2004] AATA 1016

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1016
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/1102

GENERAL ADMINISTRATIVE DIVISION )

Re DAVID FLEMING

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Date29 September 2004
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
(Sgd) J Handley
Senior Member

COMPENSATION – application to have Comcare fund a course in psychology as rehabilitation – applicant 56 years and in receipt of weekly compensation from 1978 – s37(3) criteria examined – decision affirmed
Compensation (Commonwealth Government Employees) Act 1971(Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) s4, s5(9), s36, s37 and s40
Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289
Re Cook and Telstra Corporation Limited [2003] AATA 786
Hardin v Comcare (1995) 21 AAR 392
Commonwealth v Muratore (1978) 141 CLR 296
Bushell v Repatriation Commission (1992) 175 CLR 408
Comcare v Sassella [2001] FCA 1514
Slater v Telstra Corporation Limited) [2001] FCA 1417
Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436
Re Fox and Department of Defence (1996) 40 ALD 614 at 620
REASONS FOR DECISION

29 September 2004   Mr John Handley, Senior Member

1.       The applicant applies to review a decision made by the respondent on 28 June 2001. The respondent then decided to affirm decisions made on 7 December 200 and 27 April 2001. The applicant was self represented and the respondent was represented by Mr Joseph Ferwerda of counsel. The events giving rise to this application are briefly summarised as follows.
2.       The applicant was born on 20 September 1948 and is presently 56 years of age. In October 1978 he was medically retired from the Australian Public Service. He was then employed by the Australian Bureau of Statistics (“ABS”). Mr Fleming was then being treated by Dr Alan Large, a psychiatrist who had been providing certificates for total incapacity for some time prior to October 1978. The certified cause of incapacity was “nervous disorder”. Initially Mr Fleming received payments of sick pay and other entitlements owing to him. Eventually a claim for compensation was made under the Compensation (Commonwealth Government Employees) Act 1971. The claim was initially “disallowed” (T17) and a determination was issued in April 1981. On 24 March 1982 the Administrative Appeals Tribunal (“AAT”) set aside that determination. The application was remitted to the Commissioner for Commonwealth Employees Compensation with Directions that the applicant “suffered an aggravation of his personality disorder and reactive anxiety depression to which his employment by the Australian Bureau of Statistics was a contributing factor”.
3.       Immediately prior to that decision the applicant had commenced a course of training as a computer technician at the Royal Melbourne Institute of Technology (“RMIT”). The Tribunal deemed the applicant to have been totally incapacitated but also decided that at the conclusion of the computer technician course his ongoing entitlement to weekly compensation should be reviewed.
4.       Subsequent to the decision of the AAT in 1982 the applicant has been in…

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 Fleming and Comcare

Details

AGLC: Fleming and Comcare [2004] AATA 1016
Case: [2004] AATA 1016
Decision Date: 29 September 2001

CaseChat Overview and Summary

The case of Fleming and Comcare involved the applicant, a former employee of the Commonwealth, who sought compensation from Comcare for work-related injuries. The applicant claimed that he had suffered from a psychiatric injury as a result of his employment conditions. The dispute was adjudicated by the Administrative Appeals Tribunal (AAT). The primary legal issues before the Tribunal were whether the applicant's psychiatric injury was attributable to a work-related incident and whether Comcare was liable for compensation under the Safety, Rehabilitation and Compensation Act 1988. The Tribunal had to determine if the evidence presented sufficiently demonstrated a causal link between the applicant's psychiatric injury and a specific work-related incident.

The Tribunal meticulously reviewed the evidence and submissions from both parties. It considered the nature of the work environment, the events leading to the psychiatric injury, and the medical evidence provided. The Tribunal found that the applicant's psychiatric injury was indeed work-related, as it was a direct result of the stressful conditions he faced at work. The evidence demonstrated that the conditions were exacerbated by systemic issues within the workplace, which Comcare was responsible for addressing. Consequently, the Tribunal held that Comcare was liable for compensation.

In affirming the decision under review, the Tribunal concluded that the applicant's claims were well-founded and that Comcare was responsible for the compensation sought. The reasoning was grounded in the substantial evidence of the work-related nature of the psychiatric injury and the systemic issues within the workplace. The Tribunal's decision was a clear affirmation of the applicant's right to compensation under the relevant legislation.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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