Graves and Comcare

[2008] AATA 965

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 965

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2006/1457

GENERAL ADMINISTRATIVE DIVISION		)                   2007/0791   2008/1047
Re		LOUISE GRAVES

Applicant

And COMCARE

Respondent

DECISION

Tribunal Dr I Alexander, Member  

Date30 October 2008  

PlaceSydney

Decision

For the reasons given below the Tribunal decides that:

a)    The reviewable decision of 5 October 2006 is set aside.

b)    The reviewable decision of 6 March 2007 is varied so that Mrs Graves has suffered 10% Whole Person Impairment as a result of her work related injury of “Major Depressive Disorder with secondary co-morbid Alcohol Dependence” and is entitled to claim compensation pursuant to s 24 and s 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

c)    The reviewable decision of 7 March 2008 is set aside and in substitution it is decided that Mrs Graves continues to suffer the effects of her work related injuries namely:

(i)      injury to her right ear resulting in permanent tinnitus; and

(ii)     Major Depressive Disorder with secondary Alcohol  Dependence;

and is entitled to claim compensation under s 16 and s 19 of the Act.

d)    The decision on the matter of costs is reserved. The parties have 14 calendar days from the date of this decision to advise the Tribunal if they wish to put further argument on the matter of costs. If they do not, the Tribunal will make an order pursuant to s 67(8) of the Act that the respondent pay Mrs Graves’ costs.

...............[sgd]........................

Dr I Alexander
  Member

CATCHWORDS

COMPENSATION – Injury – Disease – Ailment – Tax Office Employee – Claim for injury to acoustic nerve right ear – Major Depressive Disorder – Liability accepted – Determination no longer suffers effects – Whether continues to suffer effects of injury or disease – Whether contributed to in a material degree by employment – Whether permanent impairment – Held injury to right ear with permanent tinnitus – Major Depressive Disorder with secondary Alcohol Dependence – Injury materially contributed to by employment – Continues to suffer effects – Psychiatric condition permanent impairment – Reviewable decisions set aside and varied – Costs reserved

Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19, 24, 27, 67

Canute v Comcare (2006) 226 CLR 535

Comcare v Sahu Khan (2007) 156 FCR 536

Wiegand v Comcare (2002) 72 ALD 795

Guide to the Assessment of the Degree of Permanent Impairment, Table 5.1, Table 7.1, Table 7.2, Table 13.1

REASONS FOR DECISION

30 October 2008  Dr I Alexander, Member

INTRODUCTION

1.      Mrs Graves seeks review of three decisions that arose from an incident that occurred in the course of her employment as a client service representative by the Australian Tax Office (“ATO”).

2.      On the 6 April 2004, while working at the ATO call centre in Parramatta, Mrs Graves experienced two loud high pitched noises through the headset on her right ear. As a result of this incident she claimed to have suffered immediate symptoms that included…