Hart and Comcare

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 601

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1468

GENERAL ADMINISTRATIVE DIVISION		)
Re		Victoria Hart

Applicant

And Comcare

Respondent

DECISION

Tribunal Senior Member Jill Toohey and Dr Tony Austin AM  

Date30 August 2011

PlaceSydney  

Decision The decision under review is set aside and in substitution the Tribunal decides that Ms Hart suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 and is entitled to compensation.

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

Senior Member

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment: s 5A.

7.      Section s 5B defines disease 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 or a licensee.            

8.      Significant degree means a degree that is substantially more than material:    s 5B (3).

9.      By s 5A (2) of the Act, reasonable administrative action is taken to include:

(a)a reasonable appraisal of the employee's performance;

(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;

(c)a reasonable suspension action in respect of the employee's employment;

(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;

(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

(f)anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

The issues

10.     We have to determine whether the respondent is liable under s 14 of the Act to pay compensation to Ms Hart.  That requires us to determine:    

(i)whether, on or about 29 April 2009, Ms Hart suffered an injury which arose out of or in the course of her employment, or a disease to which her employment significantly contributed;

(ii)if so, whether her condition is not compensable because, to a significant degree, it was contributed to by reasonable administrative action taken in a reasonable manner.

Did Ms Hart suffer a work-related injury in April 2009

11.     Ms Hart claims she suffered an aggravation of her adjustment disorder as result of a particularly abusive phone call from customer in April 2009.  She cannot recall the exact date of the call but says it happened a week or two before she saw her doctor who certified her unfit for work.

12.     Ms Hart claims the female customer wanted to know if her child support payments were available, and became abusive when Ms Hart told her they were not, because they had not been received from the woman’s partner.  Ms Hart says she tried to explain various legal requirements and CSA processes but the customer started swearing at her, repeatedly used foul language including “f---“ and “c---“. 

13.     The customer then demanded to speak…