KETI JOVANOVSKA and AUSTRALIAN POSTAL CORPORATION

[2009] AATA 242

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 242

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4836
  )          No 2008/1871

GENERAL ADMINISTRATIVE DIVISION		)
Re		KETI JOVANOVSKA

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Member

Date14 April 2009

PlaceSydney

Decision

The tribunal sets aside the reviewable decisions made on 27 September 2007 and 30 April 2008 and remits the matter to the respondent on the basis that the respondent will issue the following determinations under the Safety, Rehabilitation and Compensation Act 1988 (the Act):

1.        A determination in respect of the applicant’s entitlement from 1 August 2007 for incapacity payments under section 19 of the Act and medical expenses under section 16 of the Act, pursuant to the applicant’s claim for anxiety and depression dated 1 August 2000; and

2.        A determination in respect of the applicant’s entitlement for a 15 per cent whole person impairment under section 24 of the Act, pursuant to the applicant’s claim for anxiety and depression dated 1 August 2000.

Note: The tribunal notes that the Australian Postal Corporation wished to consent to the setting aside of the two reviewable decisions in question and to make determinations in favour of Ms Jovanovska. The tribunal’s decision therefore is favourable to the applicant.

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

Ms Robin Hunt
  Senior Member

CATCHWORDS

COMPENSATION – claim for compensation in respect of anxiety and depression – claim for permanent impairment – respondent accepted liability for earlier claim arising from sexual harassment – decisions under review set aside.

Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 24, 27

REASONS FOR DECISION

14 April 2009 Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Member

decisions under review

1.      The applicant, Keti Jovanovska, seeks review of two decisions made by the Australian Postal Corporation. The first application (2007/4836) concerns the determination that the applicant was not entitled to compensation in respect of anxiety and depression which was alleged to have been sustained at work on 1 August 2007. The determination was made on 31 August 2007 and affirmed on reconsideration on 27 September 2007. The second application (2008/1871) concerns the determination that the applicant was not entitled to compensation pursuant to sections 24 and 27 of the Act in respect of a psychological condition. This determination was made on 23 April 2008 and affirmed on reconsideration.

background

2.      The applicant commenced her employment with the respondent in 1998.

3.      The applicant submitted a claim on 1 August 2000 that she was suffering “severe stress, insomnia, weight loss, anxiety and depression” as a result of sexual harassment and sexual assault that had occurred in various areas within Marrickville Post Office whilst she was carrying out her duties. The applicant supplied a statement outlining the alleged sexual harassment and assault.

4.      On 24 August 2000, the respondent accepted liability pursuant to section 14 of the Act up to and including 24 July 2000 in respect of “stress, anxiety and depression”. The date of injury was determined to be 1 February 2000. The respondent also accepted liability pursuant to section 16 of the Act in respect of the applicant’s reasonable medical expenses related to her conditions.

5.      The perpetrator of the sexual harassment left the employment of the respondent and the applicant transferred from Marrickville Post Office.

6.      Between 2000 and 2007, the applicant experienced ongoing problems including feeling that she was being treated differently at work since reporting her sexual harassment and felt harassed at work, experienced relationship difficulties, continued to suffer symptoms of anxiety and depression, started suffering panic attacks and was prescribed antidepressant medication. However, she only had leave due to anxiety on one occasion, in 2002, and there had never been a claim that this had been related to the incident that was accepted as having occurred in 2000, it being attributed on this occasion to “work stress.”

7.      The applicant suffered a panic attack at Chester Hill Post Office on 1 August 2007. This was the first time she had suffered a panic attack at work. On 20 August 2007, she made a claim for compensation for anxiety and depression sustained on 1 August 2007. A series of medical certificates were submitted by the applicant indicating she was unfit for work. The applicant claimed that the anxiety and depression arose from the incidents that occurred in 2000. She has not worked since 1 August 2007.

8.      The determination made on 31 August 2007 denied liability pursuant to section 14 of the Act on the basis that “the absence of an identifiable reason or cue that precipitated the panic attack of 1 August 2007, leaves me unable to confidently relate this diagnosis to your duties as a Postal Services Officer.” The decision was affirmed on review on 27 September 2007. The applicant lodged an application for review of this decision by the tribunal on 5 October 2007.

9.      On 17 April 2008, the applicant’s solicitor lodged a Compensation Claim for Permanent Impairment and a Non-Economic Loss Questionnaire in respect of depression and anxiety. A medical report of Dr Canaris, consultant psychiatrist, dated 13 March 2008 was submitted in support of the claim. Dr Canaris assessed the applicant as suffering 15 per cent whole person impairment under Table 5.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment.

10.     The respondent by determination, dated 23 April 2008, denied the claim for compensation for permanent impairment pursuant to sections 24 and 27 of the Act on the basis that any current psychological distress suffered by the applicant was not materially caused or contributed to by her employment. This decision was affirmed on review on 30 April 2008. The applicant lodged an application for review of this decision by the tribunal on 5 May 2008.

11. The applications were listed for hearing for three days in the tribunal. In the course of the hearing, the tribunal heard evidence from the applicant; Dr Keshava, consultant psychiatrist; Robin Nathaniel, postal manager at the time the applicant suffered her panic attack at work; Janeen Plain; Dr Canaris and Dr Lovric, consultant psychiatrist. The tribunal took into evidence a bundle of medical documents (exhibit A1), the notes of Dr Keshava and reports dated 21 October 2003, 5 March 2004 and 3 December 2007 (exhibit A1(a)) and reports of Dr Lovric dated 5 June 2008 and 30 June 2008 (exhibit R1). The tribunal also had available to it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

12.     On the final day of hearing, counsel for the respondent indicated that the respondent wished to consent to the setting aside of the two reviewable decisions and to make certain determinations in favour of the applicant. The tribunal, having considered the evidence before it, considers that a decision consistent with the respondent’s concession would be the correct or preferable decision in the circumstances of this matter.

decision

13.     The tribunal sets aside the reviewable decisions made on 27 September 2007 and 30 April 2008 and remits the matter to the respondent on the basis that the respondent will issue the following determinations under the Act:

1.A determination in respect of the applicant’s entitlement from 1 August 2007 for incapacity payments under section 19 of the Act and medical expenses under section 16 of the Act, pursuant to the applicant’s claim for anxiety and depression dated 1 August 2000; and

2.A determination in respect of the applicant’s entitlement for a 15 per cent whole person impairment under section 24 of the Act, pursuant to the applicant’s claim for anxiety and depression dated 1 August 2000.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Maxwell Thorpe, Member

Signed: .........................[Sgd]............................
  Jennifer Wong, Associate

Dates of Hearing  9-11 March 2009
Date of Decision  14 April 2009
Counsel for the Applicant         Mr D Richards
Solicitor for the Applicant          Slater & Gordon Lawyers
Counsel for the Respondent     Ms R Henderson
Solicitor for the Respondent     Graham Jones Lawyers