Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 892
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2008/1588
GENERAL ADMINISTRATIVE DIVISION )
ReMaria KALOUDIS
Applicant
And Comcare
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Dr M E C Thorpe, Member
Date19 November 2009
PlaceSydney
DecisionThe decision under review is set aside.
..................[sgd]............................
Ms N Isenberg
Senior Member
CATCHWORDS
WORKER’S COMPENSATION – claim for Post Traumatic Stress Disorder – issue of PTSD not pursued - whether injury was result of failure to obtain promotion - decision under review set aside
…
RELEVANT ACT/S
Safety, Rehabilitation and Compensation Act 1988: ss 4, 5A, 5B,14
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CITATIONS
Comcare v Mooi (1996) 69 FCR 439 at 443; 23 AAR 160
Hart v Comcare (2005) 87 ALD 341
…
REASONS FOR DECISION
| 19 November 2009 | Ms N Isenberg, Senior Member Dr M E C Thorpe, Member |
Introduction
Maria Kaloudis, now aged 41 , is an employee of the Australian Customs Service (‘Customs‘) and has worked there since September 2001. She seeks review of a reviewable decision dated 5 March 2008, which affirmed an earlier determination dated 19 December 2007.
Liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) (the Act) for Post Traumatic Stress Disorder (PTSD), was denied on the basis Ms Kaloudis’ condition resulted from a failure to obtain a benefit and was therefore excluded as an injury pursuant to section 5A(2) of the Act.
background
Ms Kaloudis works at Sydney Kingsford Smith Airport as a Customs Officer Level 1. Mr Hoy was her team leader and immediate superior from December 2006 until 9 March 2007 when he went on long service leave. During that time she observed that Mr Hoy often appeared to have been affected by alcohol while he was on duty. Ms Kaloudis alleges she was subjected to frequent, aggressive and verbal abuse from him. She was shocked by his behaviour and subsequently became frightened of Mr Hoy.
On about 7 May 2007 Ms Kaloudis was informed that Mr Hoy was shortly to return to the workplace after a period of extended leave. She was "scared" and "worried and stressed" about his return and concerned that he would resume his abusive treatment of her.
On 22 June 2007 Ms Kaloudis was informed that Mr Hoy was returning to work and would be her team leader and supervisor.
On 29 May 2007, Ms Kaloudis lodged an official complaint against Mr Hoy and, later, an official investigation was conducted into Mr Hoy’s conduct generally.
On 24 June 2007, when there had been no response to her complaint, Ms Kaloudis completed an incident report. In this report she alleged that over the past six months she had been under a lot of stress and had been subjected to verbal abuse, harassment and discrimination by Mr Hoy. Ms Kaloudis lodged a further two incident reports in relation to her experience of stress, anxiety and depression in the workforce on 11 August 2007 and…
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- Kaloudis and Comcare [2009] AATA 892
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- [2009] AATA 892
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court included the interpretation and application of the Safety, Rehabilitation and Compensation Act 1988. Specifically, the court needed to examine sections 4, 5A, 5B, and 14 of the Act to ascertain whether the decision made by Comcare was just and reasonable. Additionally, the court considered the relevance of previous cases such as Comcare v Mooi and Hart v Comcare, which had established precedents regarding the scope and limits of compensable psychiatric injuries under the Act.
Upon reviewing the evidence and the applicable legal principles, the court found that the decision made by Comcare was flawed. The court concluded that the decision to dismiss Mr. Kaloudis's claim was not supported by the relevant statutory provisions and was therefore set aside. The court emphasised that the correct approach to determining compensability of psychiatric injuries must be carefully adhered to, ensuring that the applicant's rights and entitlements under the Act are properly considered. Given the findings, the court ordered the decision under review to be annulled and remitted for reconsideration in light of the court's determination.
Orders
Orders of the court
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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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