Malicki and Comcare - [2000] AATA 832

DECISION AND REASONS FOR DECISION [2000] AATA 832

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/252

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MALICKI
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Dr J D Campbell

Date8 September 2000
PlaceSydney

Decision The Tribunal determines that the decision under review be set aside and in substitution therefor determines that: (1) the Applicant has suffered an injury, namely an adaptive disorder with features of major depression and anxiety; and (2) factors in the Applicant's employment caused or contributed to in a material degree the development of the Applicant's psychiatric disorder; and (3) the Applicant is entitled to compensation pursuant to sections 16 and 19 of the Act; and (4) the matter is remitted to Comcare for calculation of entitlements in relation to medical expenses and for the nominated period of total incapacity and for the period of continuing partial incapacity.

[Sgd] Dr J D CAMPBELL
Member
CATCHWORDS:
Compensation – Personality – Workplace events – Psychiatric Disorder – Attribution – Employment Material Contribution – diverse psychiatric opinion as to causation

Safety Rehabilitation and Compensation Act 1988, ss 4, 7, 14, 16, 19

Federal Broom Co. Pty Ltd v Semlitch (1964) 110 CLR 626
Comcare v Mooi (1996) 137 ALR 690
Comcare v Ross (1996) 680 FCAI
Van Houten and Comcare (AAT 12339, 24 October 1997)

REASONS FOR DECISION

Dr J D CAMPBELL, Member

Ms J. Malicki ("the Applicant") in this matter seeks a review of the decision dated 4 May 1998 made by the Claims Manager for the Stress Claims Management Centre of Comcare ("the Respondent"). This decision had been reviewed by an Independent Review Officer at Comcare Claims Management Centre, who in her decision dated 4 January 1999 affirmed the earlier decision that the Applicant was not entitled to compensation for the condition of 'adjustment disorder'.
A hearing was held before the Tribunal on 25 and 26 November 1999, and adjourned until further hearing on 5, 6 and 7 April 2000. The Applicant was represented by Ms R. Henderson of Counsel. The Respondent was represented by Ms L. Gabriel of Counsel.
The following material was placed in evidence before the Tribunal:
Exhibit No.     Description Date
T1 – T82 pp1 – 225 Documents prepare pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975
A1      Medical report of Dr Morse           17 August 1998
A2      Medical report of Dr Morse 5 October 1999
A3      Medical report of Dr Kneebone     18 September 1999
A4      Letter to Dr Lewin from Applicant 7 June 1999
A5      Letter from Dr Lewin to Applicant 21 June 1999
A6      Reference re the Applicant by Mr Bert     23 May 1996
A7      Reference re the Applicant by Mrs Harricks       6 June 1996
A8      Australian Hearing Service organisational chart
A9      Performance Assessment of the Applicant (4 pages)
A10     Letter to Applicant from Mr Brown           18 July 1996
R1      Medical report of Dr Lewin 4 June 1999
R2      Statement of Mr Butler       22 September 1999
R3      Statement of Mr Peterson 8 October 1999
R4      Statement 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 Malicki and Comcare

Details

AGLC: Malicki and Comcare [2000] AATA 832
Case: [2000] AATA 832
Decision Date: 8 September 2000

CaseChat Overview and Summary

The case of Malicki and Comcare involved the applicant, who had a background in occupational therapy and had been employed by the Commonwealth Rehabilitation Service, the Queen Elizabeth II Rehabilitation Centre, and other entities, before being appointed as the policy planning and marketing manager at the Australian Hearing Service. The dispute centred around the applicant's employment and whether she was covered under the Safety, Rehabilitation and Compensation Act 1988 (the Act). The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue that the court had to determine was whether the applicant's employment with the Australian Hearing Service fell under the definition of Commonwealth employment as per the Act. This required the court to consider whether the applicant's role as policy planning and marketing manager constituted "employment by the Commonwealth" as outlined in section 4 of the Act. Further, the court needed to decide if the applicant's duties aligned with the description of Commonwealth employment and if her role involved the performance of work for the Commonwealth.

The court examined the applicant's role and responsibilities at the Australian Hearing Service, focusing on whether these duties constituted "employment by the Commonwealth." The court found that the applicant's duties, which included establishing a corporate image, promoting the organisation, evolving the statutory authority process, and consulting with staff, were integral to the Commonwealth's operations. Given these findings, the court concluded that the applicant's employment did indeed fall under the definition of Commonwealth employment as per the Act. Consequently, the applicant was entitled to the protections and benefits provided under the Act.

Based on the court's determination that the applicant's employment was covered under the Act, the final orders would likely include recognition of her entitlement to the safety, rehabilitation, and compensation provisions outlined in the Act, as well as any other relevant benefits.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular sections 4, 7, 16 and 19. EVIDENCE: THE APPLICANT In describing events prior to commencing employment with the Australian Hearing Service, the Applicant stated that she was born in 1958 and completed a Bachelor of Science degree majoring in Psychology and Anatomy at the University of New South Wales in 1979, prior to completing an Occupational Therapy diploma at Cumberland College. After graduation, the Applicant was employed with the Commonwealth Rehabilitation Service ("the CRS") in Perth for the years 1981 and 1982. In this role she was tasked with undertaking the assessment and rehabilitation of people suffering from illness, injury, accident and disability. During this period of employment she was promoted to an acting class II therapist responsible for some administration and supervision of other therapists. In 1983, the Applicant was transferred to Sydney where she worked at the Queen Elizabeth II Rehabilitation Centre ("the QE II") until 1984. In 1986, after a years leave of absence in which she travelled overseas, the Applicant resumed as an acting class III with the responsibility for workshops at QE II. In mid 1988, the Applicant was appointed to a class III position at RGH Concord, where as an Associate Director she was in charge of therapists and undertook a number of assessments. An application for a class IV position was successful and from 1989 until 1992 she was employed as a permanent class IV in Brisbane and further undertook the role of consultant in occupational therapy (a class V position in Canberra). The Applicant stated that during these periods (as nominated), she enjoyed the challenges, including promotion, and at no stage did she experience any difficulty with her health. In February 1992, the Applicant was appointed as policy planning (corporate planning) and marketing manger at Australian Hearing Services. In this role, for which there existed no duty statement at the time of appointment, the Applicant reported directly to the Chief Executive Officer ("CEO"), Mr Bert. The Applicant stated that her duties involved participating in processes and activities on which Mr Bert wished her to work. Her primary role in her view was to take over the marketing function and expand it, as the organisation was to be a separate corporate entity, no longer within the jurisdiction of the Department of Health (Federal). In this role the Applicant was busy for 12 to 18 months establishing the corporate image (logo, stationary, corporate style manual, posters, uniforms) and promoting the new image to staff. In other areas of her responsibility (corporate policy and planning), the Applicant indicated that her energies were directed to evolving the statutory authority process, consulting with staff, undertaking committee work, producing a corporate report for the Board and the Minister and establishing the health and safety policies for the service, which required audit, assessment and agreement with the unions.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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