Forbes and Comcare - [2001] AATA 527

DECISION AND REASONS FOR DECISION [2001] AATA 527

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/208

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PAMELA ANNE FORBES
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

Date13 June 2001
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that the respondent is liable to pay compensation, pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, from 17 December 1997 until 6 October 1999 inclusive.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
COMPENSATION – depressive disorder – events at work and after leaving work - whether material contribution – material contribution considered – necessary connection between actual employment and impairment – circumstances of actual employment and after leaving employment considered
Safety Rehabilitation and Compensation Act 1988 ss.4, 14
Re Van Houten and Comcare (AAT 12339, 24 October 1997
Comcare v Mooi (1996) 69 FCR 439
Re Malicki and Comcare [2000] AATA 832
Federal Broom Company Pty Ltd v Semlitch(1964) 110 CLR 626
Re Mills and Australian Postal Corporation (AAT 8300, 12 October 1992)

REASONS FOR DECISION

13 June 2001 Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

This is an application by Ms Pamela Anne Forbes (the applicant) for review of a decision of an Independent Review Officer of the respondent dated 16 April 1999 (T45) which affirmed a decision of a delegate of the respondent dated 20 November 1998 (T30) disallowing the applicant's claim for compensation in respect of "major depressive disorder".
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T45), together with 18 exhibits, 9 lodged by the applicant (Exhibits A1-A9) and 9 lodged by the respondent (Exhibits R1-R9). In addition, the Tribunal heard evidence from the applicant, who also called Dr N. McCleave, Medical Practitioner, Mr D. Sladden, Psychologist, and Ms P. Barrett, Psychologist. The respondent called as witnesses Dr T. Davis, Psychiatrist, as well as Mr K. Schrapel, Ms S. Peisley, Ms R. Bell, Mr J. Mannow, Mr T. O'Riley and Mr B. Aldridge, all of whom have a current or prior working relationship with the Australian Federal Police. The applicant was represented by Mr G. Britton and the respondent was represented by Mr S. Apps, both of counsel.
The issues before the Tribunal are whether or not the applicant's employment contributed to any depressive disorder she may have (or had); and if so, for what period of time is the respondent liable to pay compensation?
history of the application
The applicant joined the Commonwealth Police, later called the Australian Federal Police (AFP) in March 1978. On 25 May 1997 she returned to work following a period of long service leave and initially performed administrative duties before becoming involved in various investigative operations. On 17 December 1997, following an incident at work, the applicant left the workplace, and attended Dr McCleave, her…

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 Forbes and Comcare

Details

AGLC: Forbes and Comcare [2001] AATA 527
Case: [2001] AATA 527
Decision Date: 13 June 2001

CaseChat Overview and Summary

In the Administrative Appeals Tribunal, the applicant, a former police officer, sought compensation for a depressive disorder from Comcare, the respondent. The applicant argued that her employment as a police officer contributed materially to her condition. The Tribunal was required to determine whether the depressive disorder was caused by events occurring during her employment and, if so, whether the employment materially contributed to the impairment. The relevant legal principles included the definition of "injury" under the Safety Rehabilitation and Compensation Act 1988, and the concept of material contribution as considered in previous cases such as Re Van Houten and Comcare, Comcare v Mooi, and Re Malicki and Comcare.

The Tribunal examined the evidence presented regarding the events that occurred both during and after the applicant's employment, considering the circumstances of her actual employment and the events that occurred after she left employment. The Tribunal noted the applicant's long and acrimonious career, and her dedication to law enforcement, which at times was detrimental to her mental health. The Tribunal concluded that there was a necessary connection between the events during her employment and the depressive disorder, and that her employment materially contributed to the impairment. The Tribunal also considered the relevant legal authorities, including the decision in Federal Broom Company Pty Ltd v Semlitch, and the principles established in Re Mills and Australian Postal Corporation.

The Tribunal found that the respondent was liable to pay compensation from 17 December 1997 until 6 October 1999, as the applicant's depressive disorder was caused by events occurring during her employment as a police officer. The Tribunal set aside the decision under review and ordered the respondent to pay compensation to the applicant, as well as the applicant's costs. The Tribunal also noted that if the parties could not agree on the costs, they could apply to a District Registrar or Deputy District Registrar for taxation of the costs.

This decision provides guidance to employers and employees on the issue of compensation for mental health conditions in the workplace. It highlights the importance of considering the circumstances of actual employment and the events that occur after leaving employment when determining whether an injury is caused by events occurring during employment. The decision also confirms the relevance of previous cases and legal authorities in determining the issue of material contribution.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is unfortunate that the applicant's employment as a police officer ended with such acrimony after such a long career. She was a very dedicated officer, and as the Tribunal was able to observe, committed to law enforcement with a fervour that was obviously such so as to be detrimental to her own mental health at times. Hopefully the applicant's prognosis and continuing symptoms will improve as these proceedings come to a close. decision For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that the respondent is liable to pay compensation, pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, from 17 December 1997 until 6 October 1999 inclusive. The Tribunal, pursuant to s.67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties. I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Ms U. Dahl (Member)Signed: ..................................................................................... Personal AssistantDate/s of Hearing 30 April, 1, 2 & 4 May 2001 Date of Decision 13 June 2001Counsel for the Applicant Mr G. Britton Solicitor for the Applicant T.F. Owen & Co. Counsel for the Respondent Mr S. Apps Solicitor for the Respondent Sparke Helmore

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.