Kaloudis and Comcare - [2009] AATA 892

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

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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

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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…

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 Kaloudis and Comcare

Details

AGLC: Kaloudis and Comcare [2009] AATA 892
Case: [2009] AATA 892
Decision Date: 19 November 2009

CaseChat Overview and Summary

In the matter of Kaloudis and Comcare, the Federal Circuit Court was tasked with reviewing a decision made by the respondent concerning a claim for workers' compensation. The applicant, Mr. Kaloudis, alleged that he suffered a psychiatric injury, specifically Post Traumatic Stress Disorder (PTSD), due to circumstances arising from his employment. The central dispute focused on whether the claimed injury was a result of a failure to obtain a promotion within his workplace. The court was required to determine the validity of the decision to dismiss Mr. Kaloudis's claim and whether the administrative decision was legally sound.

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