Hardy and Comcare

[2010] AATA 342

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 342

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/24 &

GENERAL ADMINISTRATIVE  DIVISION		)               T2006/67
Re		ANGELINE DEBORAH HARDY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date10 May 2010

PlaceHobart

Decision

1.  The Tribunal affirms the decision dated 29 November 2005 which ceased liability for the applicant's condition of cervical back strain and aggravation of pre-existing degenerative changes in L5-S1 disc.

2.     The Tribunal sets aside the decision of 18 October 2005 ceasing liability for payment of compensation for stress and anxiety and in place of that decision decides:

(a)  THAT the respondent is liable for the condition of severe stress and anxiety from which the applicant has been suffering since 23 November 1994.

(b)  THAT the matter be remitted to the respondent for reconsideration in accordance with this decision

(c)    THAT liberty to apply within 14 days in relation to the costs  of the proceedings be reserved.

(d)    THAT in the absence of any such application, the respondent is to pay the applicant's costs of and incidental to the proceedings with respect to the stress and anxiety determination.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

COMPENSATION - Commonwealth employee - whether employee continues to suffer symptoms from compensable back injury - pre-existing degenerative changes - claim for severe anxiety and stress condition - whether Commonwealth employment made a material contribution to severe anxiety and stress condition - whether back injury and severe anxiety and stress condition contributed to development of fibromyalgia - whether severe anxiety and stress condition was a result of failure to obtain a promotion, transfer or benefit within the exception to the definition of injury in the Safety, Rehabilitation and Compensation Act (1988) Commonwealth; held that employee no longer suffers the effects of the work related back injury - that employment made a material contribution to the severe anxiety and stress condition - that the identified contributing employment factors did not constitute either failures to obtain a promotion, transfer or benefit within the exception provisions; decision discontinuing liability for the back injury affirmed; decision ceasing liability for the stress and anxiety condition set aside

Safety, Rehabilitation and Compensation Act 1998, ss 4(1), 14(1), 16, 19, 29

Comcare v Mooi (1996) 69 FCR 439

Carpenter v Comcare [2010] AATA 62

Trewin v Comcare [1998] FCA 713

Golds v Comcare [1999] FCA 1481

Comcare v Sahu-Kahan [2007] FCA 15

Comcare v Canute [2005] FCAFC 262

Wiegand v Comcare [2002] FCA 1464

Hart v Comcare [2005] FCAFC 16

Hillier v Comcare [2009] AATA 188

Federal Broom Company Pty Ltd v Semlitch [1964] 110 CLR

Fellowes v Military Rehabilitation and Compensation Commission [2008] 103 ALD 552 

Nicklason v Comcare  [1999] AATA 736

REASONS FOR DECISION

10 May 2010   Ms A F Cunningham (Senior Member)   

1.      During the course of her employment with the Commonwealth Government in the Department of Transport, the applicant, Angeline Hardy, suffered an injury to her back and a severe…