KATHLEEN REEVES and COMCARE

[2009] AATA 92

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 92

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4223

GENERAL ADMINISTRATIVE DIVISION		)
Re		KATHLEEN REEVES

Applicant

And COMCARE

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date12 February 2009

PlaceBrisbane

Decision

The Tribunal sets aside the decision under review and substitutes the decision that Comcare is liable to pay compensation to the applicant for major depressive episode.

Comcare should pay Ms Reeves’ costs of the application, if any.

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

SENIOR MEMBER

CATCHWORDS

COMPENSATION – injury – major depressive disorder – whether excluded for failure to obtain benefit – decision under review set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 16 and 19.

Kay and Comcare [2006] AATA 50

Hart v Comcare (2005) 145 FCR 29

Wiegand V Comcare [2002] FCA 1464

Comcare v Sahu-Khan [2007] FCA 15

REASONS FOR DECISION

12 February 2009 M J Carstairs, Senior Member      

1.      Kathleen Reeves has been refused compensation for a stress-related anxiety and depression condition which she claims she suffered when she was working at Centrelink in 2006.

2.      The respondent’s denial of Ms Reeves’ compensation claim was not based on grounds that Ms Reeves’ work was not stressful, nor on grounds that she has not suffered a psychiatric disorder, identified as a major depressive episode.  Rather, the respondent’s refusal of her claim rests on the operation of one particular exclusionary provision, to be found in the Safety Rehabilitation and Compensation Act 1988 (the Act). That provision has the effect that compensation will not be payable where an injury can be attributed to the person’s failure to obtain a workplace benefit. 

3.      It is a minimum requirement, for the exclusionary provision to come into play and deny a person compensation in otherwise compensable circumstances, that the failure to obtain the benefit resulted in psychiatric disturbance. 

4.      I have come to the conclusion that that minimum requirement is not met on the facts before me.  Accordingly I have decided that Ms Reeves was entitled to compensation. 

MEDICAL REPORTS

5.      I would firstly observe that the medical evidence was consistent in its conclusions that Ms Reeves suffered a depressive episode that was markedly evident towards the end of October 2006.  Ms Reeves’ condition at that time was difficult for her to manage and her medical practitioners recommended that she take sick leave.  She did so, from 27 October to 24 November 2006. 

6.      A brief summary of the key aspects of the medical evidence will suffice to demonstrate the factors at play in Ms Reeves’ condition.  The source of the evidence was the reports of two psychiatrists, Dr C Gray and Dr D Alcorn, and from Ms Reeves’ general practitioner, Dr C Kondos.  In addition, there was a brief written report prepared by the psychologist, Ms Celia Roots, who Ms Reeves consulted under an Employee Support Program run by Centrelink. 

7.      The doctors agreed that issues in the workplace had indeed taken a toll on Ms Reeves during 2006.…