[2012] AATA 887
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/4913
Re
Violeta Paunovska
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Dr Isles, MemberDate 17 December 2012 Place Sydney Decision Summary
The reviewable decision made on 17 November 2010 is set aside and in place of that decision the Tribunal decides:
Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being a disease, namely an adjustment disorder.
...................[SGD].....................................................
Senior Member A K Britton
CATCHWORDS
WORKER’S COMPENSATION – Injury – Onset of condition – Whether the employee’s employment by the Commonwealth contributed to or aggravated her medical condition “in a material degree” – Relative contribution – Reasonable administrative action – Incapacity for work – Impairment – Safety, Rehabilitation and Compensation Act 1988 (Cth)
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14
CASES
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan 156 FCR 536
Drenth and Comcare [2011] AATA 582
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
R v Abadom [1983] 1 WLR 126
Wiegand v Comcare (2002) 72 ALD 795REASONS FOR DECISION
Senior Member A K Britton
Dr Isles, Member17 December 2012
Former Centrelink employee Ms Violeta Paunovska seeks review of a decision made by Comcare to refuse to accept liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an “injury” in the form of a disease, namely an Adjustment Disorder. In a decision made in September 2010 Comcare accepted that Ms Paunovska’s adjustment disorder was significantly contributed to by her employment with Centrelink but concluded that it was a result of “reasonable administrative action” and therefore, by the operation of s 5A of the Act, it was not liable for that disorder.
While there is no argument that Ms Paunovska suffers from an adjustment disorder, Comcare now contends that employment did not contribute to a significant degree to that disorder and, in the alternative, that it was the result of “reasonable administrative action”. Ms Paunovska disagrees. A further issue between the parties is whether Ms Paunovska had been suffering from the adjustment disorder prior to the purported reasonable administrative action said to have taken place in the latter part of 2009. Comcare submits that the condition post-dated that action and did not develop until early 2010; Ms Paunovska on the other hand contends that she has been suffering from the condition since January 2009.
LEGISLATIVE SCHEME
Comcare will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Ms Paunovska if it results in impairment or incapacity for work (s 14 of the Act).
The Act defines “injury” to include “a disease suffered by an employee” but not a disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment (s 5A(1)).
“Disease” is defined to mean: (a) an ailment…
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- Paunovska and Comcare [2012] AATA 887
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- [2012] AATA 887
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CaseChat Overview and Summary
The central legal issues addressed by the court were the determination of the onset date of Ms Paunovska's psychological condition, the extent to which her employment contributed to or aggravated the condition, and whether Comcare is liable for the condition under the Act. The court had to weigh conflicting expert opinions on the onset date of the condition, assess the reliability of Ms Paunovska's evidence given the inconsistencies in her accounts, and consider the significance of her failure to disclose her full medical history to the examining experts.
The tribunal found that Ms Paunovska's evidence, while not entirely reliable due to inconsistencies and omissions, was supported by multiple expert opinions indicating that she had been suffering from an adjustment disorder since early 2009. Despite Comcare's argument that the delay in treatment until late 2009 should indicate a later onset date, the tribunal accepted that the condition could still be traced back to early 2009 based on the overall medical evidence. The tribunal concluded that Ms Paunovska's employment did contribute to or aggravate her condition to a material degree, thereby making Comcare liable for the condition under the Act.
The tribunal ordered Comcare to provide Ms Paunovska with worker's compensation for her psychological condition, acknowledging the material contribution of her employment to the onset or aggravation of her condition. The decision highlights the importance of a comprehensive and reliable assessment of medical evidence in worker's compensation claims, particularly where the onset and nature of a psychological condition are in dispute.
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Background
Background to the litigation
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Evidence Before The Court
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