MLSD and Comcare

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1018

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200601170

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MLSD

Applicant

And COMCARE

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member

Date12 November 2008

PlaceMelbourne

Decision

The Tribunal sets aside the decision under review and substitutes its decision that the Applicant is entitled to compensation pursuant to s 14 and s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

The Respondent shall pay weekly payments of compensation for incapacity between 15 September 2005 and 31 March 2007 under s 19 of the SRC Act for all the periods when MLSD’s normal weekly earnings were less than actual earnings; and the Respondent shall pay the cost of medical treatment reasonably incurred by MLSD under s 16 of the SRC Act.

The Respondent shall pay MLSD’s costs and disbursements in respect of these proceedings under s 67 of SRC Act.

(sgd) Miss E.A. Shanahan

Member

compensation – claim for weekly payment for incapacity and medical expenses – workplace stress – excessive workload – depression – material contribution – contribution of inappropriate behaviour by treating medical practitioner – family and general interpersonal relationships – questionable pre-existing vulnerability – other physical and medical conditions – decision set aside. 

Safety, Rehabilitation and Compensation Act 1988 s 4, s 14, s 16

Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan (2007) 156 FCR 536
Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533
Re Welsford v Commonwealth Banking Corporation  [1984] 1 AAR 42
Re Turnley v Comcare [2008] AATA 560
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Weigand v Comcare 72 ALD 795

REASONS FOR DECISION

12 November 2008 Miss E.A. Shanahan, Member      

1. On 7 December 2005 MLSD submitted a claim for compensation for depression and anxiety resulting from an excessive workload as a result of understaffing.  Her depression was exacerbated by the alleged inappropriate behaviour (sexual advances and stalking) on the part of the medical practitioner from whom she sought treatment for depression.  The Respondent denied liability for compensation in a determination dated 2 June 2006.  Following review, the Respondent affirmed the decision on 20 October 2006.  The Applicant applied to the Administration Appeals Tribunal (AAT) for review of the decision on 4 December 2006. 

2. MLSD was represented by Mr Mark Carey of counsel, instructed by Slater and Gordon and the Respondent was represented by Mr Joe Lenczner of counsel instructed by Dibbs, Abbott, Stillman. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑Documents).  The parties tendered the following documents:

   for the Applicant:

   ·MLSD’s Performance Assessment of September 2005 – Exhibit A1

   ·PAJA Statistics for 17 June 2005 to 2 September 2005 – Exhibit A2

   ·the Report of Dr N Serry dated 12 December 2007 – Exhibit A3

   ·statement of Doula Gerassimou dated 23 January 2008 – Exhibit A4

   ·statement of Doula Gerassimou dated 28 April 2008 –…