Havnen and Comcare

[2010] AATA 535

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 535

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2009/0888

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Leonie Havnen

Applicant

And Comcare

Respondent

DECISION

Tribunal Senior Member A K Britton
Dr I Alexander, Member

Date19 July 2010

PlaceSydney

Decision The reviewable decision made 20 February 2009 is set aside, and in place of that decision the Tribunal decides:
Comcare is liable to pay compensation in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury, suffered by the Applicant, namely an aggravation of a “depressive disorder”.

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

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION — liability — definitions of “disease” and “injury”” — aggravation of disease contributed to by employment — where causative factors include both private and work-related elements

Safety, Rehabilitation and Compensation Act 1988 (Cth) — ss 4, 5A, 5B, 14

Commonwealth Employees’ Compensation Act 1930 (Cth)

Safety, Rehabilitation and Compensation Amendment Bill 2006 (Cth)

Workers Compensation Act 1987 (NSW) — ss 4, 9

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Comcare v Etheridge [2006] FCAFC 27

Wiegand v Comcare (2002) 72 ALD 795

Comcare v Sahu-Khan [2007] FCA 15

REASONS FOR DECISION

19 July 2010 Senior Member A K Britton
Dr I Alexander, Member    

1.      Ms Leonie Havnen has applied to the AAT for review of the decision made by Comcare under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) to refuse to accept liability for an “injury” alleged to have occurred in late April 2008.

2. It is not in issue that Ms Havnen suffered a depressive episode as a result of two incidents that occurred in April 2008 and became incapacitated for work as a consequence. What is in issue is whether Ms Havnen suffered an “injury” within the meaning of the Act for which Comcare is liable. The resolution of this question turns on whether Ms Havnen’s employment with the Department of Defence contributed to her condition to a “significant degree”.

Background

3.      Ms Havnen was employed by the Department of Defence as a “SO1 Incident Manager”; a senior civilian position with the Australian Army. She was required, among other things, to manage a small team of human resources personnel. In addition, she played a key role in the Army’s Incident Management System (“AIMS”). AIMS is a system utilised by the Army for reporting, managing and resolving “reportable incidents”.  These include incidents involving the injury or death of Army personnel; incidents of political significance that are likely to attract adverse publicity, and incidents of “unacceptable behaviour” involving Army personnel. “Unacceptable behaviour” was defined to mean:

[B]ehaviour that, having regard to the circumstances, would be offensive, belittling, abusive or threatening to another person or adverse to morale, discipline or workplace cohesion, or otherwise is not in the interest of Defence.

4.      As incident manager, Ms…