Mitsopoulos v Comcare

[2012] FCA 627

FEDERAL COURT OF AUSTRALIA

Mitsopoulos v Comcare [2012] FCA 627

Citation:	Mitsopoulos v Comcare [2012] FCA 627
Parties:	FOTINI MITSOPOULOS v COMCARE
File number:	NSD 1835 of 2011
Judge:	EMMETT J
Date of judgment:	5 June 2012
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44 Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 19, 21
Date of hearing:	5 June 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	45
Counsel for the applicant:	MR Aldridge SC, SP Brennan
Solicitor for the applicant:	Maxwell Berghouse & Ives
Counsel for the respondent:	T Giugni of the Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1835 of 2011

BETWEEN:	FOTINI MITSOPOULOS Applicant
AND:	COMCARE Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	5 JUNE 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1835 of 2011

BETWEEN:	FOTINI MITSOPOULOS Applicant
AND:	COMCARE Respondent

JUDGE:	EMMETT J
DATE:	5 JUNE 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mrs Fotini Mitsopoulos, appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) made on 7 July 2011.  The proceeding concerns the entitlement of Mrs Mitsopoulos to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).  The question before the Tribunal concerned the entitlement of Mrs Mitsopoulos to compensation in respect of the work-caused disease of reactive depression.  The decision made by the Tribunal on 7 July 2011 was to set aside a reviewable decision made on 29 June 2009 by the respondent, Comcare. 

2. Mrs Mitsopoulos began to suffer from reactive depression in the course of her employment with the Commonwealth Bank of Australia (the Bank).  On 28 May 1999, the Tribunal, differently constituted, set aside a decision then under review, and remitted the matter before it to Comcare, with directions that Mrs Mitsopoulos was suffering from the work-caused disease of reactive depression, and that she was totally incapable of work for the period 2 July 1996 to 9 January 1998 and was capable of earning 50 per cent of her normal weekly earnings from 9 January 1998 to the date of the decision, being 28 May 1999.

3. It appears that Mrs Mitsopoulos made a claim for incapacity payments from 29 October 1999 and ongoing. As at 6 November 2008, Comcare was satisfied that other factors had contributed to Mrs Mitsopoulos’ condition, making her totally unfit for work. Comcare considered that, on the evidence then before it, 50 per cent of Mrs Mitsopoulos’ incapacity for work was due to her employment. A determination was therefore made under s 19 of the Act that she was capable of earning 50 per cent of her normal weekly earnings.

4. Mrs Mitsopoulos sought reconsideration of the…