Guy Laviano and Comcare

[2013] AATA  229

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/1882
Re	Guy Laviano
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton Dr Alexander, Member
Date	16 April 2013
Place	Sydney

The decision under review is affirmed.

............[SGD]............................................................

Senior Member A K Britton

CATCHWORDS

COMPENSATION — Commonwealth employees — Anxiety adjustment disorder and depressed mood — Whether the employee suffered from a disease — Whether the employee suffered a recognised psychiatric illness — Whether the employee suffered a psychiatric disorder or a condition “outside the bounds of normal mental functioning” — Decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4; 5B(1); 14;

CASES

Amity Group Pty Ltd v Yusuf [2009] NSWWCCPD 152

Comcare v Mooi (1996) 69 FCR 439

SECONDARY MATERIALS

American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 (DSM–IV).

REASONS FOR DECISION

Senior Member A K Britton
Dr Alexander, Member

16 April 2013

1. Mr Guy Laviano is employed as an administrative officer with the Fair Work Ombudsman (formerly the Office of the Employment Advocate). He seeks review of a decision made by Comcare to refuse to accept liability for his claimed conditions of “anxiety adjustment disorder and depressed mood” and “anxiety (acute)” said to have been caused by his employment. The stated reason for that decision was that Mr Laviano did not suffer from a psychiatric disorder or a condition “outside the bounds of normal mental functioning” and therefore had no entitlement to compensation under the Safety, Rehabilitation and Compensation Act1988 (Cth) (the Act).

2. Comcare will be liable to pay compensation to Mr Laviano if he suffers a “disease”, which results in impairment or incapacity for work (s 14 of the Act). “Disease” is defined to mean: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth (s 5B(1)).

3. The sole issue addressed in these Reasons is whether at any time between commencing employment with the Ombudsman and the making of a claim for compensation, March 2004 to June 2009 (the claim period), Mr Laviano suffered from a psychiatric “ailment”.

   BACKGROUND

4. Mr Laviano claims that throughout the claim period he suffered from a number of physical conditions that had been caused, or aggravated by, work, including eye strain, neck and back discomfort and right arm pain. Throughout this period a number of assessments of Mr Laviano’s immediate work environment were carried out and recommendations made. The parties disagree on both the quality of those assessments and the extent to which any recommendations made were implemented. Mr Laviano was of the opinion that the duties he was allocated throughout the claim period were unsuitable having regard to his “physical disabilities” and, as a consequence he was subjected to an unsafe work environment. He asserts that the treatment meted by his employer was unreasonable and did not comply with relevant health and…