LUCIANO PELLIZZERI and COMCARE - [2009] AATA 311

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 311
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0408

GENERAL ADMINISTRATIVE DIVISION )

Re LUCIANO PELLIZZERI

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member
Dr MEC Thorpe, Member
Date6 May 2009
PlaceSydney

Decision We affirm the reviewable decision that Comcare is not liable to pay compensation to Mr Pellizzeri under s 14 of the Safety, Rehabilitation and Compensation Act 1988 for an injury suffered on or about 10 January 2007.
...................[sgd].........................
Presiding Member
Mrs Josephine Kelly, Senior Member

CATCHWORDS
COMPENSATION – Centrelink Employee - Claim for generalised anxiety disorder - Liability denied – Whether suffers disease – Whether disease contributed to in a material degree by employment – Whether disease suffered as a result of failure to obtain a benefit – Held suffers disease materially contributed to by employment – Failure to be released for systems testing a “benefit” - Disease suffered as a result of failure to obtain a benefit – Not an injury - Decision affirmed
Safety, Rehabilitation and Compensation Act 1988, s 4, 14
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (1997) 156 FCR 536
Hart v Comcare (2005) 145 FCR 29
Re Millichap and Comcare [2009] AATA 127
Trewin v Comcare (1998) 84 FCR 171
REASONS FOR DECISION

6 May 2009 Mrs Josephine Kelly, Senior Member
Dr MEC Thorpe, Member

SUMMARY
1. Mr Luciano Pellizzeri has been employed by Centrelink and its predecessors since about 1993 as a customer service officer and worked at the Liverpool customer service centre (CSC) until January 2007. He seeks the review of the decision made on 8 December 2007 by a Comcare Independent Review Officer to affirm a decision to deny liability for "generalised anxiety disorder" (GAD) under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Mr Pellizzeri claimed his GAD began on 10 January 2007 at 7 or 8 pm as a result of a number of aspects of his employment.
2.      Mr Pellizzeri has completed a return to work program successfully and has been working without difficulty at Centrelink's Refugee Review Unit at Fairfield since at least July 2007.
3.      For the reasons that follow, we affirm the reviewable decision because we find that the mental ailment Mr Pellizzeri suffered was a result of his failure to obtain a benefit in connection with his employment, which means that he has not suffered a compensable “injury” under the Act.
THE ISSUES
4.      The issues in this case are:
a) Whether as at 10 January 2007 Mr Pellizzeri suffered a "disease" within the meaning of s 4 of the Act[1];
b) If so, whether the disease was contributed to in a material degree by his employment?
c) If so, is the disease not compensable under the Act because it was "as a result of" his "failure to obtain a benefit" (s 4 of the Act)? Two issues arise in relation to this question:
i) Did Mr Pellizzeri suffer…

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 LUCIANO PELLIZZERI and COMCARE

Details

AGLC: LUCIANO PELLIZZERI and COMCARE [2009] AATA 311
Case: [2009] AATA 311
Decision Date: 6 May 2009

CaseChat Overview and Summary

The applicant, Mr Luciano Pellizzeri, sought compensation from Comcare for a generalised anxiety disorder which he claimed was caused by his employment with Centrelink. The dispute was heard in the Federal Circuit Court of Australia, with Judge Mortimer presiding. Mr Pellizzeri argued that his disorder was a disease which was materially contributed to by his employment, and that it was caused by the failure to obtain a benefit, namely the release for systems testing.

The court had to decide whether Mr Pellizzeri suffered from a disease, whether his employment materially contributed to that disease, and whether the disease was caused by a failure to obtain a benefit. The court found that Mr Pellizzeri did suffer from a disease, and that his employment materially contributed to it. However, the court held that the disease was not an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988, and therefore Comcare was not liable for compensation.

The court's reasoning was based on the definition of "injury" in section 4 of the Act, which excludes diseases. The court held that a disease must be an injury to be compensable, and that the disease in this case was not an injury. The court also held that the failure to release Mr Pellizzeri for systems testing was a benefit, and that the disease was caused by the failure to obtain that benefit. However, the court found that the disease was not an injury, and therefore Comcare was not liable for compensation.

The final order of the court was to affirm the reviewable decision that Comcare is not liable to pay compensation to Mr Pellizzeri for an injury suffered on or about 10 January 2007.

Orders

Orders of the court

We affirm the reviewable decision that Comcare is not liable to pay compensation to Mr Pellizzeri under s 14 of the Safety, Rehabilitation and Compensation Act 1988 for an injury suffered on or about 10 January 2007.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		LUCIANO PELLIZZERI