KZBX and Comcare (Compensation) [2024] AATA 1267 (22 May 2024)
Division:GENERAL DIVISION
File Number(s): 2021/5885
2022/3397Re:KZBX
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Member R West
Date:22 May 2024
Place:Melbourne
In Matter 2021/5885:
The decision of the delegate of the Respondent dated 9 July 2021 affirming the determination dated 12 May 2021 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) in respect of head injury, loss of consciousness, seven fractured ribs, fractured left leg patella, fractured left wrist, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste is set aside and in its place the Tribunal determines that:
(a)on 25 November 2020, the Applicant suffered an injury, namely fractured ribs, fractured left leg patella and fractured left wrist, resulting in incapacity for work, which arose out of or in the course of her employment with Services Australia (Injury), and was the subject of a claim for compensation dated 6 April 2021;
(b)the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the Injury;
(c)the matter is remitted to the Respondent to determine the Applicant’s entitlements pursuant to ss 16 and 19 of the Act; and
(d)the Respondent is ordered to pay the Applicant's costs and disbursements in respect of Matter 2021/5885 in an amount agreed between the parties or, in default of agreement, as assessed by the Registrar or an officer of the Tribunal.
In Matter 2022/3397:
The decision of the delegate of the Respondent dated 20 April 2022 affirming the determination dated 14 March 2022 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) in respect of aggravation of post-traumatic stress disorder and aggravation of major depressive disorder with anxious distress, current episode moderate is set aside and in its place the Tribunal determines that:
(e)on and from 25 November 2020, the Applicant suffered an injury, namely post-traumatic stress disorder and aggravation of major depressive disorder with anxious distress resulting in an impairment to which her employment with Services Australia contributed to a significant degree, the subject of a claim for compensation dated 14 December 2021, (Injury);
(f)the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the Injury;
(g)the matter is remitted to the Respondent to determine the Applicant’s entitlements pursuant to ss 16 and 19 of the Act; and
(h)the Respondent is ordered to pay the Applicant's costs and disbursements in respect of Matter 2022/3397 in an amount agreed between the parties or, in default of agreement, as assessed by the Registrar or an officer of the Tribunal.
........[SGD]........
Member R West
Catchwords
WORKER COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – claim for fracture left radius (wrist), fracture left patella, fractured ribs, head injury, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste…
Continue reading KZBX and Comcare (Compensation)
Sign in free to access the full text
- AGLC
- KZBX and Comcare (Compensation) [2024] AATA 1267
- Case
- [2024] AATA 1267
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicant's claimed physical and psychological injuries arose out of, or in the course of, her employment with Services Australia, and whether her employment had significantly contributed to the aggravation of her pre-existing psychological conditions. Specifically, the court had to consider the definition of "injury" under section 5A of the SRC Act, which includes physical or mental injuries arising out of, or in the course of, employment, or an aggravation of such an injury that arose out of, or in the course of, employment. The court also had to consider whether the incident, which occurred while the applicant was undertaking a designated learning and development activity away from her home, fell within the scope of her employment.
The court found that the applicant was engaged in a work-related learning and development activity at the time of the incident, which was scheduled during her work hours and recorded in the online system. The court accepted that the applicant sustained fractures to her left wrist, left patella, and ribs as a result of the incident. Furthermore, the court considered the medical evidence regarding the applicant's psychological condition, including reports from her treating general practitioner, psychiatrist, and psychologist, which indicated an aggravation of pre-existing PTSD, major depressive disorder, and anxious distress. The court noted that the applicant's perception of a breach of her medical privacy by her employer was identified as a significant cause of her mental health condition.
Ultimately, the court set aside Comcare's decisions and remitted the matters for reconsideration. The court determined that the applicant's physical injuries, including the fractures, arose out of and in the course of her employment, as she was undertaking a work-related activity at the time of the incident. The court also found that the applicant's employment had significantly contributed to the aggravation of her psychological conditions, particularly in light of the circumstances surrounding the incident and the subsequent handling of her injury by her employer.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The term "injury" is defined in s 5A(1) to mean:(a) a disease suffered by an employee; or(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.CONSIDERATION OF ISSUESThe Incident Without setting out the evidence in detail the Tribunal is satisfied that there are certain factual matters concerning the Incident giving rise to the Applicant’s claims in matters 2021/5885 and 2022/3397 which are not in dispute and which justify the following factual findings:(a)At all relevant times the Applicant was employed by Services Australia as a Services Liaison Officer. Her principal duties were to respond to customer telephone and email enquiries regarding human resources policies, employee entitlements and payroll matters.(b)The Applicant’s usual place of work was Service Australia’s People Advisory Centre (PAC) located in Box Hill but from July 2020 and at the time of the Incident she was directed to work from home as a result of restrictions imposed by the Victorian government in response to the COVID-19 pandemic.[12](c)Her home was in Chirnside Park, Victoria in a gated estate incorporating the Heritage Golf Club off Heritage Road.(d)On 25 November 2020 the Applicant’s work schedule provided for her to undertake a one hour Learning and Development (L&D) activity between 1.30 and 2.30 pm.(e)At approximately 1.30 pm on 25 November 2020, in accordance with the approved process, the Applicant changed her auxiliary code on the online system to record that she was undertaking L&D and was not available to take calls. For the L&D activity she chose to listen to a podcast on leadership using the loudspeaker function on her mobile telephone.(f)While listening to the podcast she left her home and walked along the footpath beside Heritage Road leading towards the Heritage Golf Club.(g)At around 2pm on 25 November 2020 she was found by passers-by slumped on the grassed area next to Heritage Road. (h)Ambulance Victoria attended the scene to provide medical assistance before taking the Applicant to Knox Private Hospital where the Applicant was diagnosed with multiple rib fractures and displaced fractures in her left wrist and left patella for which she subsequently underwent orthopaedic surgical intervention.[12] Exhibit A13.MATTER 2021/5885 The application for review[13] in this matter concerns the decision of the Respondent to deny the Applicant’s claim for workers’ compensation under s 14 of the SRC Act for injuries, namely “head injury, loss of consciousness, seven fractured ribs, fractured left leg patella, fractured left wrist, seizures, neuropathic pain, neurological paralysis and loss of sense of smell and taste” arising out of the Incident.[13] See Application for Review at PT3 at p.35-40 and Section 37 Statement at PT4 at p.41.