Lenz and Comcare (Compensation) [2015] AATA 659 (31 August 2015)
Division
GENERAL DIVISION
File Number(s)
2013/6063
Re
Andre Lenz
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Gary Humphries and Dr Peter Wilkins, Member
Date 31 August 2015 Place Canberra The decision under review is affirmed.
.............................[sgd]...........................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – Commonwealth employee – condition of major depressive disorder – incident in East Timor in 2003 – whether incident contributed to a significant degree to applicant’s injury – whether caused by reasonable administrative action – applicant offered voluntary redundancy – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14
Cases
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Hart v Comcare (2005) 145 FCR 29
Lombardo and Comcare [2013] AATA 470
Zdziarski v Telstra Corporation Limited [2015] FCA 207
REASONS FOR DECISION
Deputy President Gary Humphries and Dr Peter Wilkins, Member
31 August 2015
Summary
The reviewable decision dated 4 September 2013, denying liability to pay compensation to the applicant for major depressive disorder (single episode) under s 14 of the Safety, Rehabilitation and Compensation Act 1988, is affirmed.
Background
Andre Lenz was a sworn member of the Australian Federal Police (AFP) for some 27 years. He served in a variety of roles and in places as diverse as Arnhem Land and Christmas Island. His service included six months as part of the United Nations-sponsored international policing effort in East Timor in 2003. During that deployment, he was assigned duties involving close personal protection of the President and First Lady of East Timor and as a technical adviser on national security to the East Timor government. He spent most of the last few years of his AFP service at the Robina office of the AFP on the Gold Coast in Queensland, where he and his wife live.
On 19 March 2013, Mr Lenz lodged a workers’ compensation claim in which he claimed to be suffering from post-traumatic stress disorder (PTSD) arising out of two traumatic incidents during his deployment to East Timor. In an initial determination of 25 June 2013, and again in a reconsideration dated 4 September 2013, Comcare rejected his claim. He now seeks review of the latter decision before this Tribunal.
Comcare accepts that Mr Lenz suffered mental illness at the time of his claim for workers’ compensation, and further accepts that his employment with the AFP contributed materially to that illness. However, it denies that Mr Lenz suffered a mental illness arising from his service in East Timor in 2003, and instead asserts that events surrounding the closure of the AFP’s Robina office in 2012 (the Robina incidents) were factors which contributed to his illness, and that the particular administrative actions which the AFP took at that time, and which contributed to his illness, constituted reasonable administrative action under s 5A of the Safety, Rehabilitation and Compensation Act 1988 (the Act). As a result,…
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- AGLC
- Lenz and Comcare (Compensation) [2015] AATA 659
- Case
- [2015] AATA 659
- Decision Date
CaseChat Overview and Summary
The Tribunal found that, even if the East Timor incident occurred, it did not contribute to a significant degree to Lenz's injury. Furthermore, the Tribunal found that, even if the East Timor incident did contribute to Lenz's injury, the date of that injury was no earlier than the date he sustained an injury from the Robina incidents. The Tribunal considered that the Robina incidents constituted reasonable administrative action, and therefore, pursuant to section 5A and the principles in Hart v Comcare (2005) 145 FCR 29, Lenz's condition was not an injury under the Act.
The decision under review was affirmed.
Orders
Orders of the court
The decision under review is affirmed.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Under cross-examination, Mr Lenz agreed that he had described to the doctors different times when he first began to experience flashbacks to the East Timor incident. He told Dr Danesi that he first began to experience them after his pulmonary embolism in 2005, told Dr Hagan it was mid-2004 and Professor Macleod it was 2003. Consideration It is obviously critical to the case put to the Tribunal by Mr Lenz that the East Timor incident actually occurred. Mr Lenz gave an extensive and detailed account of that incident, details of which were broadly corroborated by what was in the diary and the copy of the UN incident report he produced. There remain, however, some troubling matters facing the Tribunal in accepting that this incident occurred. We note in particular that:·there is no AFP record of the incident;·no surviving paperwork from that period corroborates the incident, except for the diary and incident report copy produced by Mr Lenz on the first day of the hearing;·in his detailed statement of 7 February 2013, Mr Lenz makes no reference to keeping a diary or submitting an incident report;·despite Mr Lenz describing the incident as the most traumatic event of my life, he was unable to accurately remember prior to the hearing either the month or location in which the incident occurred;·despite so describing the incident, Mr Lenz appears to have told nobody about it or recorded it in writing at any time from his return from East Timor until 2013. The members who made up the Tribunal in this hearing came to different views on the first issue for determination, namely whether the East Timor incident occurred. Deputy President Humphries finds on balance that the incident did occur, although he cannot be sure that the incident occurred in precisely the way Mr Lenz said that it did. Dr Wilkins finds that the evidence before the Tribunal is insufficient to determine whether the incident occurred or not. However, it is unnecessary for the Tribunal to come to a resolved position on this issue, as the members agree as to the other issues before them. We find that, even if the East Timor incident did occur, it did not contribute to a significant degree to an injury to Mr Lenz within the meaning of ss 5B and 14 of the Act. We further find that, even if the incident occurred and even if it contributed to a significant degree to such an injury, the date of injury was no earlier than the date Mr Lenz sustained an injury within the meaning of ss 5B and 14 of the Act that was contributed to to a significant degree by the Robina incidents. For reasons set out below, we consider that the Robina incidents constitute reasonable administrative action and therefore, pursuant to s 5A and the principles in Hart v Comcare (2005) 145 FCR 29, Mr Lenz’s condition is not an injury under the Act. Hart’s case is authority for the proposition that, if there are multiple causes of a disease or injury which could otherwise fall within the definition of a compensable injury under the Act, and at least one of those causes constitutes reasonable administrative action under s 5A, then the disease or injury is not an injury for the purposes of the Act.