Makin and Comcare - [2010] AATA 432

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 432
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1626

GENERAL ADMINISTRATIVE DIVISION )

Re Rosa Makin

Applicant

And

Comcare

Respondent

DECISION

Tribunal Senior Member A K Britton
Dr M E C Thorpe, Member
Date9 June 2010
PlaceSydney

Decision The decision under review is affirmed.
....................[SGD]....................
Senior Member

CATCHWORDS
WORKERS COMPENSATION – entitlements – psychological condition – preliminary question – wilful and false representation made in connection with employment that the employee did not suffer from the claimed condition – injury not an “injury” for the purposes of the Act.
Safety, Rehabilitation and Compensation Act 1988 (Cth) — s 7(7)
Comcare Australia v Porter (1996) 138 ALR 469
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
Smith and Comcare [2007] AATA 1796
REASONS FOR DECISION

9 June 2010 Senior Member A K Britton
Dr M E C Thorpe, Member

1. These reasons address a preliminary issue raised by the Respondent, namely whether by the operation of s 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), the injury the subject of Mrs Rosa Makin’s claim for compensation is not to be taken as “an injury for the purpose of the Act”.
2. It is common ground that the subject injury is properly characterised as an injury in the nature of a disease for the purposes of s 5A(1)(a) of the SRC Act.
Background
3.      The background facts are not in issue.
4.      Mrs Makin was hospitalised for six weeks in 1992. This followed an acute episode where she felt under great stress and experienced delusional and paranoid thoughts.
5. In April 2008, Mrs Makin commenced employment with the Office of the Employment Advocate (OEA). Shortly after her commencement and at the request of her employer, she completed a Health Status Assessment which took the form of a questionnaire. At about the same time she also completed a pro forma statement at the request of the Public Sector Superannuation Scheme. The respondent contends that some of the answers given in both documents are captured by s 7(7). We will return to that issue.
6.      Seven months after starting at the OEA, Mrs Makin was again admitted to hospital suffering from acute psychological symptoms. She was absent from work for a period and returned to part-time employment in January the following year.
7. In April 2008, Mrs Makin was certified unfit for work on account of anxiety and depression. The following month, she lodged a claim for compensation in respect of “anxiety and depression”. On review, the decision to refuse liability under s 14 of the SRC Act was affirmed. That decision is the subject of Mrs Makin’s application to the AAT.
8.      The weight of evidence is that Mrs Makin now suffers from a Schizoaffective Disorder and had probably been suffering from that disorder, or a form of it, since the early 1990’s. Mrs Makin testified that she only came to learn of…

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 Makin and Comcare

Details

AGLC: Makin and Comcare [2010] AATA 432
Case: [2010] AATA 432
Decision Date: 9 June 2010

CaseChat Overview and Summary

In the case of Makin and Comcare, the Full Bench of the Administrative Appeals Tribunal considered whether the appellant was entitled to workers compensation for a psychological condition. The dispute arose when the appellant made a preliminary question regarding their entitlement to workers compensation following an injury sustained in the course of employment. The Federal Court reviewed the decision of the Administrative Appeals Tribunal, which had affirmed the Commissioner's decision to reject the appellant's claim for workers compensation.

The primary legal issue before the court was whether the appellant's injury constituted an "injury" within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Specifically, the court had to determine whether the appellant's wilful and false representation made in connection with their employment that they did not suffer from the claimed condition precluded them from receiving workers compensation for the injury. The court also had to consider whether the Commissioner's decision was legally sound and whether there were any errors in the application of the law.

The court considered the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth), as well as relevant case law, including Comcare Australia v Porter, Secretary, Department of Employment and Workplace Relations v Comcare, and Smith and Comcare. The court found that the appellant's wilful and false representation that they did not suffer from the claimed condition constituted a deliberate and dishonest act that precluded them from receiving workers compensation for the injury. The court held that the Commissioner's decision was legally sound, and that there were no errors in the application of the law. Therefore, the decision under review was affirmed.

There were no further orders made by the court. The decision of the Full Bench of the Administrative Appeals Tribunal was upheld, and the appellant's claim for workers compensation was rejected.

Orders

Orders of the court

The decision under review is affirmed.

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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