JQWK and Comcare

[2013] AATA 830

[2013] AATA 830

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2011/4797, 2012/1470, 2013/1463
Re	JQWK
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	22 November 2013
Place	Melbourne

The Tribunal affirms the decisions under review.

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

Regina Perton, Member

COMPENSATION – whether injury result of earlier claim – whether condition caused or aggravated through employment – whether employment contributed to a significant degree – whether condition permanent

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 24, 70, 71

Kilpatrick v Commonwealth (1985) 9 FCR 40

TMLP and Comcare [2010] AATA 218

Wiegand v Comcare Australia [2002] FCA 1501

REASONS FOR DECISION

Regina Perton, Member

22 November 2013

1. JQWK is a former public servant who has been superannuated from the public service due to her medical condition.  She is not happy at being forced to leave the workforce.  JQWK believes her ongoing medical condition has been caused, or aggravated, by inappropriate treatment by her employer well before the decision on superannuation.

2. JQWK presently has three cases before the Tribunal.  The first is for aggravation of her medical condition by various workplace incidents, particularly revelation to Comcare of certain private details held by her employer (2011/4797).  She lodged the first claim with this Tribunal on 13 April 2011.  The initial decision-maker and the subsequent review officer rejected her claim for compensation on the basis that the condition had not been contributed to, in a significant degree, by her employment.

3. JQWK lodged her second claim with this Tribunal on 26 March 2012 for permanent impairment as a result of the aggravation or injury (2012/1470).  The third claim relates to the reimbursement of medical and other expenses that have arisen due to the aggravation or injury (2013/1463)

4. JQWK has previously sought review by this Tribunal and some issues raised in her previous appeal are relevant to current proceedings.  In March 2010 the Tribunal, differently constituted, affirmed a decision by Comcare concerning a workplace injury (TMLP and Comcare [2010] AATA 218). In an oral decision, the Tribunal determined that JQWK suffered from a personality disorder rather than a psychological condition:

   …

   I find that there was not a psychological condition outside the boundaries of normal mental functioning as required under the [Safety, Rehabilitation and Compensation Act 1988] and I find that in those circumstances there was no ailment in relation to a psychological condition and, as such, there could be no injury. And, consequently, as there was no injury, Ms TMLP cannot succeed in her application for compensation and, consequently, given my findings in relation to the first of the issues, there is no need for me to consider the other issues such as contribution, if any, by her employment, and the question of reasonable administrative action.

   Because even if I were to find that those matters were made out, the fact that there is no injury under the Act would preclude her from succeeding in her application and, on that basis, I affirm the decision under review.