Ilian and Comcare - [2006] AATA 148

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 148
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/472

GENERAL ADMINISTRATIVE DIVISION )

Re TITA ILIAN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President S D Hotop
Ms L Tovey, Member
Dr D Weerasooriya, Member
Date 23 February 2006
PlacePerth

Decision
The Tribunal sets aside the reviewable decision of the respondent dated 8 November 2004 and, in substitution therefor, decides that the respondent is liable, under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), to pay compensation in accordance with that Act to the applicant in respect of an injury, namely, aggravation of major depressive disorder, suffered by her on or about 22 April 2004.

The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.

... Sgd [S D Hotop]..............
Deputy President

CATCHWORDS
COMPENSATION - Commonwealth employees – applicant employed by Australian Broadcasting Corporation (“ABC”) – applicant absent from work on maternity and other leave from September 2001 to January 2004 – applicant suffered postnatal depression during leave – applicant returned to work in January 2004 – applicant worked at ABC until April 2004 – applicant diagnosed as suffering from major depressive disorder – applicant has been absent from work from 22 April 2004 to date – applicant’s employment by ABC contributed in material degree to aggravation of applicant’s major depressive disorder – aggravation of major depressive disorder not suffered by applicant as result of reasonable disciplinary action or failure to obtain benefit - aggravation of applicant’s major depressive disorder an injury resulting in impairment and incapacity for work – respondent liable to pay compensation to applicant in respect of that injury – reviewable decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4 and s 14
Re Albanese and Comcare [2004] AATA 768
Comcare v Ross (1996) 680 FCA 1
Re Davill and Australian Postal Corporation AAT Decision No 10629, 22 December 1995
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION

23 February 2006                Deputy President S D Hotop
   Ms L Tovey, Member
  Dr D Weerasooriya, Member

Introduction

1.       The applicant has been employed by the Australian Broadcasting Corporation (“ABC”) since 1980 and was appointed as a full-time permanent employee in January 1984.
2.       On 10 September 2001 the applicant commenced maternity leave. Before returning to work she also had periods of recreation leave, long service leave, leave without pay and sick leave, and a further period of maternity leave. She eventually returned to work at the ABC on 21 January 2004.
3.       The applicant then worked at the ABC until 21 April 2004 but, although she continues to be an employee of the ABC, she has not returned to work at the ABC since that date.
4.       On 18 May 2004 the applicant lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act

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 Ilian and Comcare

Details

AGLC: Ilian and Comcare [2006] AATA 148
Case: [2006] AATA 148
Decision Date: 23 February 2006

CaseChat Overview and Summary

The applicant in this case, Ilian, was employed by the Australian Broadcasting Corporation (ABC) and had been absent from work due to maternity leave and other reasons from September 2001 to January 2004. During her leave, Ilian suffered from postnatal depression. Upon returning to work in January 2004, she continued until April 2004, when she was diagnosed with major depressive disorder. Since then, she has been absent from work. The applicant contended that her employment with ABC contributed materially to the aggravation of her major depressive disorder, which was not a result of reasonable disciplinary action or failure to obtain a benefit. The respondent, Comcare, argued otherwise.

The central legal issue before the court was whether the aggravation of Ilian’s major depressive disorder, which resulted in impairment and incapacity for work, constituted an injury for which Comcare was liable to pay compensation under section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The court also had to determine if the aggravation of the major depressive disorder was attributable to her employment with ABC to a material degree.

The court found that Ilian’s employment with ABC did contribute materially to the aggravation of her major depressive disorder, and this aggravation constituted an injury. The court relied on the decision in Re Davill and Australian Postal Corporation, which provided that an aggravation of a condition can be considered an injury if it results in impairment and incapacity for work. Additionally, the court noted that the aggravation was not due to disciplinary action or failure to obtain a benefit, aligning with the statutory requirements. Consequently, the court set aside the reviewable decision of Comcare dated 8 November 2004 and held Comcare liable to pay compensation to Ilian in respect of her injury.

Orders

Orders of the court

The Tribunal sets aside the reviewable decision of the respondent dated 8 November 2004 and, in substitution therefor, decides that the respondent is liable, under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), to pay compensation in accordance with that Act to the applicant in respect of an injury, namely, aggravation of major depressive disorder, suffered by her on or about 22 April 2004.

The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.

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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23 February 2006	Deputy President S D Hotop Ms L Tovey, Member Dr D Weerasooriya, Member
Introduction