Klemke and Comcare

[2005] AATA 321

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 321

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2004/84

GENERAL ADMINISTRATIVE DIVISION		)
Re		TANIA LOUISE KLEMKE

Applicant

And   COMCARE

Respondent

DECISION

Tribunal

Mr J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

Date8 April 2005

PlaceCanberra

Decision The decision of Comcare made 12 November 2002 affirming the decision that Comcare is not liable to pay compensation to Ms Klemke pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (Cth) is affirmed.

..............................................

CATCHWORDS

COMPENSATION – permanent impairment – psychiatric condition – whether impairment – whether impairment is permanent – whether further medical treatment may reduce impairment – whether work injury was a temporary aggravation of underlying condition – whether impairment resulting from compensable injury is less than 10% whole person impairment – impairment nor shown to be permanent – no impairment of at least 10% attributable to compensable injury – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 24, 27

Australian Postal Corporation v Bessey [2001] FCA 266

Comcare v Amorebieta (1996) 66 FCR 83

REASONS FOR DECISION

8 April 2005

Mr J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

1.        Ms Klemke is seeking a review of Comcare’s decision refusing her application for compensation for permanent impairment arising from an injury she sustained on 26 April 2001.

2.        For the reasons set out we have decided to affirm Comcare’s decision.

FACTS

3.        We are satisfied as to the following facts on the balance of probabilities. Unless otherwise stated the findings are based on the evidence of Ms Klemke.

4.        Ms Klemke was born on 11 June 1971 and is 33 years old.

5.        Ms Klemke joined the Australian Public Service in July 1987 and apart from a period between 1995 and 1997 continued in that employment until she resigned on 20 June 2001.  Her resignation came about as a result of particularly distressing rumours being spread about her in her workplace by a group of fellow employees.  Ms Klemke suffered a depressive disorder as a result of learning of these rumours.

6.        On 20 September 2001 Comcare accepted that the depressive disorder was contributed to in a material degree by Ms Klemke’s employment.[1]  

[1] Section 37 document, T18.

7.        As it is an issue between the parties as to the effect (if any) of Ms Klemke’s medical history prior to April 2001 on her subsequent condition, it is necessary to set out our findings as to factors relevant to her mental condition.

8.        Between the ages of 7 and 10 years Ms Klemke was sexually assaulted by a neighbour.  Her parents separated when she was about 10 years old, reconciled about 4 years later and separated again about 2 years after the reconciliation.  Ms Klemke had an abortion when she was 14 and lived with her first partner from age 14 for 6 years.  Her partner became violent towards her during this relationship.

9.        In 1987, at the…