Kay and Comcare

[2006] AATA 50

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 50

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/734, Q2004/735

GENERAL ADMINISTRATIVE DIVISION		)
Re		AMANDA KAY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date25 January 2006

PlaceBrisbane

Decision

The Tribunal:

1. Sets aside the decision under review and substitutes its decision that the respondent is liable to pay compensation to the applicant for adjustment disorder with mixed anxiety and depression under section 14 of the Act and for permanent impairment under section 24 of the Act;
2. Remits the matter to the respondent with the direction to calculate the applicant’s entitlements in accordance with its decision; and
3. Orders that the respondent pay the applicant’s costs of these proceedings in accordance with the general practice direction.

....................[Sgd]..........................

RG Kenny
  Member

CATCHWORDS

WORKERS’ COMPENSATION – benefits and entitlements – adjustment disorder with mixed anxiety and depression – condition attributable to employment with the Australian Antarctic Division at Mawson Station – applicant continuing to suffer permanent impairment from the condition – compensation payable for permanent impairment at 10% under table 5.1 of the Guide to the Degree of Permanent Impairment – calculation of compensation remitted to respondent – costs awarded in accordance with general practice direction.

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24 and 28

Administrative Appeals Tribunal Act 1975 s 37

Australian Postal Corporation v Oudyn (2003) FCA 318
Rosillo v Telstra Corporation Limited (2003) FCA 1628
Hart v Comcare [2005] FCAFC 16
Rodriguez and Telstra Corporation Ltd. (2002) FCA 1400
Wiegand v Comcare (2002) 72 ALD 795
Filla v Comcare (2001) 115 FCR 144
Comcare v Emery (1993) 32 ALD 147

REASONS FOR DECISION

25 January 2006 Mr RG Kenny, Member      

1.      Amanda Kay was employed by the Australian Antarctic Division from 9 September 1996 until 23 January 1998.  After a period of training in Tasmania, she spent the winter of 1997 at Mawson Station in Antarctica.  She returned to Australia on 11 November 1997 and, on the following day, completed a claim for rehabilitation and compensation, in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act).  Her claim was in respect of a condition which she described as “depressive reaction with personality and behavioural problems”. 

2.      On 15 January 1998, Comcare Australia (the respondent) accepted liability for an “episode of major mood disorder” and determined that liability for the condition was to cease from 23 January 1998, the date on which Ms Kay’s employment by the Australian Antarctic Division was to end.  On 17 July 2003, Ms Kay completed a claim for compensation for permanent injury.  On 29 August 2003, this claim was rejected by the respondent but it was noted that Ms Kay had sought reconsideration of the original decision to cease liability from 23 January 1998.  On 17 December 2003, the respondent affirmed the decisions to cease liability from 23 January 1998 and to deny the claim for permanent impairment.

3.…