Hatzigiakoumi and Comcare - [2010] AATA 1016

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1016
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0783

GENERAL ADMINISTRATIVE DIVISION )

Re JACK HATZIGIAKOUMI

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Miss E A Shanahan
Date16 December 2010
PlaceMelbourne

Decision
The Tribunal affirms the decision under review.

(Sgd) E A Shanahan
Member

WORKERS’ COMPENSATION – accepted liability for a depressive disorder – failure to obtain promotion – alleged breach of the Code of Conduct – retirement on invalidity grounds – claim for permanent impairment and non-economic loss – reasonable administrative action – depression of multi-factorial aetiology – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) s24, s5A, s5B
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Hart v Comcare (2005) 87 ALD 341
REASONS FOR DECISION

16 December 2010 Miss E A Shanahan, Member

1.      Mr Hatzigiakoumi suffered a compensable injury on 24 April 2003. Comcare accepted liability for the injury on 25 June 2003. Mr Hatzigiakoumi lodged a claim for compensation for permanent impairment on 4 February 2009. A delegate of Comcare rejected the permanent impairment claim on 22 July 2009. ,
2.      Comcare reviewed that determination and affirmed it on 22 December 2009 (the reviewable decision). Comcare accepted that Mr Hatzigiakoumi suffered from a severe, disabling and permanent psychiatric condition but found that this was not related to the compensable event of 24 April 2003. Based on the preferred medical opinions, the Comcare delegate attributed the disabling aggravation of Mr Hatzigiakoumi’s long-standing major depression to his failure to obtain a promotion in December 2006 (T 52).
3.      Mr Hatzigiakoumi applied to the Administrative Appeals Tribunal (the Tribunal) for review of the reviewable decision on 25 February 2010.
4. The Tribunal was provided with the documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents, Exhibit R1). The parties tendered the following documents:
The Applicant
·Dr Peter Millington’s report dated 10 October 2010 – Exhibit A1
·a letter from Comcare to Mr Hatzigiakoumi dated 8 June 2010 – Exhibit A2
·a certificate from Dr Middleton dated 30 June 2010 – Exhibit A3; and

The Respondent
·the report of Dr Nigel Strauss dated 13 July 2010 – Exhibit R2
·a computer printout of Mr Hatzigiakoumi’s leave between 27 February 2003 and 2 November 2007 – Exhibit R3
·the report of Dr Millington dated 13 November 2007 – Exhibit R4
·a letter from Mr John Lynch dated 10 September 2007 addressed to Miss S Haddad – Exhibit R5
·an email dated 15 October 2007 from Miss Haddad to Mr Hatzigiakoumi – Exhibit R6
·Ms Haddad’s letter to Mr Hatzigiakoumi dated 15 October 2007 in reference to alleged breaches of the Code of Ethics – Exhibit R7

The Tribunal also had access to the summonsed records of Dr Anderson and Dr Millington and the enquiry into Mr Hatzigiakoumi’s alleged breach of the Code of Conduct.
5. Mr Hatzigiakoumi represented himself. Mr John Wallace of counsel, instructed by the Australian Government Solicitor, appeared on behalf of…

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 Hatzigiakoumi and Comcare

Details

AGLC: Hatzigiakoumi and Comcare [2010] AATA 1016
Case: [2010] AATA 1016
Decision Date: 16 December 2010

CaseChat Overview and Summary

The case of Hatzigiakoumi and Comcare involved the applicant, Hatzigiakoumi, who sought compensation from Comcare, the Commonwealth’s workers’ compensation insurer, for a depressive disorder that arose from her employment. The dispute was brought before the Administrative Appeals Tribunal (AAT), which was tasked with determining whether Comcare’s decision to reject the applicant's claim was legally sound.

The central legal issues revolved around the causation and aetiology of Hatzigiakoumi’s depressive disorder, as well as the appropriateness of Comcare's decision to deny her claim for permanent impairment and non-economic loss. Specifically, the Tribunal had to consider whether Hatzigiakoumi's depressive disorder was work-related, whether there was a breach of the Code of Conduct, and if the decision to retire on invalidity grounds was reasonable. Additionally, the Tribunal assessed whether the depression was of multi-factorial aetiology and if the administrative actions taken by Comcare were justified.

In its decision, the Tribunal found that Hatzigiakoumi's depressive disorder was not solely caused by her employment, but rather was of multi-factorial origin. The Tribunal held that Comcare’s decision to reject the claim for compensation was reasonable, as the evidence did not establish a causal link between the depressive disorder and her work. Furthermore, the Tribunal determined that the applicant's retirement on invalidity grounds was also reasonable, given the circumstances. Consequently, the Tribunal affirmed the decision under review, upholding Comcare's position.

The Tribunal's affirmation of Comcare’s decision meant that Hatzigiakoumi’s claims for permanent impairment and non-economic loss were denied. This outcome was based on the Tribunal's finding that the depressive disorder was not predominantly work-related, and therefore, Comcare was not liable for compensation.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		JACK HATZIGIAKOUMI