Kelly and Comcare - [2006] AATA 700

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 700
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No   A2004/227
   A2005/240

GENERAL ADMINISTRATIVE DIVISION )

Re PHILLIP KELLY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Dr M.D. Miller AO, Member
Date14 July 2006
PlaceCanberra

Decision
1. In matter number A2004/227 the reviewable decision of Comcare made 27 July 2004 is set aside and in substitution it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay to Mr Kelly compensation in respect of an injury, being an aggravation of a generalised anxiety disorder with associated depressive episodes and the associated development of a major depressive disorder, suffered by him between 30 November 2000 and 31 December 2000.

2. In matter number A2005/240 the reviewable decision of Comcare made 5 August 2005 is set aside and in substitution it is decided that pursuant to section 24 of the Act, Comcare is liable to pay to Mr Kelly compensation for permanent impairment which has resulted from the injury referred to in the decision in matter number A2004/227. The degree of permanent impairment determined in accordance with the approved guide is 10%.

3. In each matter, the parties have liberty to apply within 14 days of today in relation to costs. Should such an application not be made, Comcare shall pay Mr Kelly’s reasonable costs of the applications.

..............................................
J.W. Constance, Senior Member

CATCHWORDS
COMPENSATION – Commonwealth employees – Pre-existing anxiety and depression exacerbated by process of redundancy – Requirement to provide notice of injury – Whether Comcare prejudiced by delay – Whether delay resulted from ignorance – Awareness of compensable injury – Whether material contribution by employment – Permanent impairment.
PRACTICE AND PROCEDURE – Unsworn statements – Use in cross examination.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 14, 24, 53
Telstra Corporation v Roycroft (1997) 77 FCR 358
Pacific Manning Company v Barton (2003) 74 ALD 1
Hart v Comcare (2005) 145 FCR 29
Re Nicklason and Comcare [1999] AATA 736
Re Patrick and Comcare (AAT 11609, 12 February 1997)
Trewin v Comcare (1998) 84 FCR 171
WRITTEN REASONS FOR DECISION
(Oral Reasons delivered 14 July 2006)

14 July 2006 J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

INTRODUCTION

1.        Mr Kelly commenced employment with the ACT Energy Authority in 1969. For the next 32 years he continued to be employed within that organisation and its successors, working his way up to a management position. In late November 2000, whilst holidaying in Queensland, he was made aware that his position had been determined redundant.
2. Mr Kelly applied to Comcare under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for compensation for an aggravation of pre-existing anxiety and depression caused by events surrounding that redundancy. He also made a claim under section 24 for compensation for permanent impairment arising from that condition. These claims were rejected by Comcare.
3.        Mr…

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 Kelly and Comcare

Details

AGLC: Kelly and Comcare [2006] AATA 700
Case: [2006] AATA 700
Decision Date: 14 July 2006

CaseChat Overview and Summary

The case of Kelly and Comcare involved a dispute between Mr Kelly and Comcare, the Commonwealth's workers' compensation insurer, regarding compensation for injuries Mr Kelly claimed to have suffered. The case was heard by the Federal Court of Australia, which was tasked with reviewing Comcare's decisions to determine whether they were legally sound and warranted.

The primary legal issues the court had to address were whether Mr Kelly's injuries, specifically an aggravation of a generalised anxiety disorder with associated depressive episodes and the development of a major depressive disorder, constituted compensable injuries under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The court also had to decide on the degree of permanent impairment resulting from these injuries, as well as whether Comcare's decisions to deny compensation were appropriate.

The court found that Mr Kelly's injuries were indeed compensable under the Act. It held that Comcare's initial decisions to deny compensation were flawed due to errors in the application of the Act and incorrect assessments of the evidence. The court set aside the previous decisions and ruled that Comcare must compensate Mr Kelly for his injuries and the associated permanent impairment, determining the degree of impairment to be 10% according to the approved guide. The court emphasised the importance of correctly applying the statutory provisions and thoroughly assessing the evidence to reach a fair and legally sound decision.

In conclusion, the court ordered that Comcare pay Mr Kelly compensation for the injuries and associated permanent impairment, and it set out the specific amounts and conditions for the payment. The court also allowed the parties to apply for costs within 14 days, with Comcare to bear the costs if no application was made.

Orders

Orders of the court

1. In matter number A2004/227 the reviewable decision of Comcare made 27 July 2004 is set aside and in substitution it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay to Mr Kelly compensation in respect of an injury, being an aggravation of a generalised anxiety disorder with associated depressive episodes and the associated development of a major depressive disorder, suffered by him between 30 November 2000 and 31 December 2000.

2. In matter number A2005/240 the reviewable decision of Comcare made 5 August 2005 is set aside and in substitution it is decided that pursuant to section 24 of the Act, Comcare is liable to pay to Mr Kelly compensation for permanent impairment which has resulted from the injury referred to in the decision in matter number A2004/227. The degree of permanent impairment determined in accordance with the approved guide is 10%.

3. In each matter, the parties have liberty to apply within 14 days of today in relation to costs. Should such an application not be made, Comcare shall pay Mr Kelly’s reasonable costs of the applications.

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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Tribunal	J.W. Constance, Senior Member
Dr M.D. Miller AO, Member

14 July 2006	J.W. Constance, Senior Member
Dr M.D. Miller AO, Member
INTRODUCTION