O'Kane and Comcare - [2008] AATA 593

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 593
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/156

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL O'KANE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Date 9 July 2008
PlaceSydney

Decision The decision under review is affirmed.
....................SGD..........................
Ms N Bell
Senior Member

CATCHWORDS
WORKER’S COMPENSATION - Failure to obtain the benefit of future employment – does Applicant suffer adjustment disorder – psychological injury – dismissal – injury sustained – meaning of injury - decision under review is affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988; sections 4 and 41
CITATIONS
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Hart v Comcare (2005) 87 ALD 341
Lees v Comcare (1999) 56 ALD 84
REASONS FOR DECISION

9 July 2008 Ms N Bell, Senior Member

1.      Mr Michael O’Kane commenced employment with the Australian Hydrographic Service on 28 June 2004 on a non-ongoing contract. This contract ceased on 23 September 2004, but Mr O’Kane was offered four further non-ongoing contracts, with the last of those to cease on 30 June 2005.
2.      On 7 June 2005, almost three weeks before Mr O’Kane’s last contract was due to expire, he had a meeting with Ms Deborah Coulls, a Manager at the Service, to discuss future work prospects. At this meeting a further non-ongoing contract was not offered to him and instead he was offered a Professional Service Provider’s contract. Mr O’Kane perceived this to be a less beneficial arrangement.
3.      Mr O’Kane contends that, in a further meeting on 15 June 2005 with Ms Coulls, he was dismissed and made to leave the building under escort. Comcare contends that Mr O’Kane threatened to absent himself for the remaining two weeks of his non-ongoing contract and left the building, and the Service, of his own accord.
4.      Mr O’Kane claims he suffered adjustment disorder as a result of events on 15 June 2005 and resulting incapacity and medical expenses.
Issues
5.      The essential issue is whether Mr O’Kane suffered an injury according to the definition of “injury” in section 4 of the Safety, Rehabilitation and Compensation Act 1988, that is, whether he suffered an injury or an aggravation that arose out of, or in the course of, his employment. That definition expressly excludes an injury that was suffered as a result of the failure to obtain a benefit.
6.      Therefore, the three questions that arise in this application are:
i)         Whether Mr O’Kane sustained an injury (within the ordinary meaning of the word); and
ii)        If so, whether the injury arose out of or in the course of Mr O’Kane’s employment; and
iii)       If so, whether the injury resulted from a failure to obtain a benefit.

Did Mr O’Kane sustain an injury?
7. Mr O’Kane gave evidence that immediately after his meeting with Ms Coulls on 15 June 2005 he went to see his local doctor because he was very distressed. He said he was shaky, sweating…

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 O'Kane and Comcare

Details

AGLC: O'Kane and Comcare [2008] AATA 593
Case: [2008] AATA 593
Decision Date: 9 July 2008

CaseChat Overview and Summary

The applicant, O'Kane, sought a review of a decision by Comcare, which declined to provide her with benefits for a psychological injury she claimed to have suffered due to her dismissal from employment. The matter was heard in the Administrative Appeals Tribunal (AAT). O'Kane argued that her dismissal caused an adjustment disorder, which constituted a psychological injury. Comcare denied her claim, arguing that she did not suffer a compensable injury.

The primary legal issue before the Tribunal was whether O'Kane's condition constituted a "psychological injury" as defined in the relevant legislation. The Tribunal had to determine if O'Kane's condition met the statutory criteria for a compensable injury, specifically whether it arose out of or in the course of her employment, and if it was a psychiatric illness or psychological disorder that resulted from a work-related event. Furthermore, the Tribunal needed to consider whether Comcare's decision to deny benefits was legally sound.

The Tribunal found that O'Kane's condition did not meet the statutory definition of a psychological injury. The Tribunal held that the evidence did not establish that O'Kane suffered from a psychiatric illness or a psychological disorder as a result of her dismissal. The Tribunal was not satisfied that O'Kane's condition was sufficiently severe or persistent to be considered a compensable injury under the legislation. Therefore, the Tribunal affirmed Comcare's decision to deny benefits.

In affirming the decision under review, the Tribunal concluded that O'Kane had not demonstrated that she suffered a psychological injury as defined by the relevant legislation. The Tribunal found that the evidence did not support a finding that O'Kane's condition arose out of or in the course of her employment, nor that it was a psychiatric illness or psychological disorder caused by a work-related event. Consequently, Comcare's decision to deny benefits was upheld.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL O'KANE