Re Arthur and Comcare - [2004] AATA 241

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 241
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No A2002/160
  )          No A2002/423
  )          No A2002/434
  )          No A2002/476

GENERAL ADMINISTRATIVE DIVISION )

Re DEBORAH ANNE ARTHUR

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Michael Sassella, Senior Member
Dr M D Miller AO, Member
Date10 March 2004
PlaceCanberra

Decision
The tribunal sets aside the reviewable decision dated 6 December 2002 (application A2002/476) and substitutes its own decision that Comcare is liable to pay compensation to Mrs Arthur in respect of depressive disorder.

The tribunal sets aside the reviewable decision dated 30 October 2001 (application A2002/423) and substitutes its own decision that Comcare is to pay compensation to Mrs Arthur for incapacity to work for the period from 5 to 30 June 2001 on the basis that Mrs Arthur has no ability to earn.

The tribunal sets aside the reviewable decision dated 9 April 2002 (application A2002/160) and substitutes its own decision that Comcare is to pay compensation to Mrs Arthur for incapacity to work for the period from 1 July 2001 to 14 January 2002 on the basis that Mrs Arthur has no ability to earn.

The tribunal sets aside the reviewable decision dated 31 October 2002 (application A2002/434). The tribunal takes no further action in respect of this decision because the decision in relation to the reviewable decision dated 9 April 2002 has dealt with Mrs Arthur’s compensation entitlements for the period from 2 to 17 July 2001.

The applicant qualifies for costs in accordance with the tribunal’s general practice direction.

...............................................
Senior Member

CATCHWORDS
WORKERS' COMPENSATION – synovitis and tenosynovitis causing no incapacity for employment – depressive disorder aggravated by employment – compensation payable for incapacity for work caused by depressive disorder – action taken by employer not reasonable disciplinary action
Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(“aggravation”, “ailment”, “disease”, “injury”), (9)(a), 7(4), (6), 14(1), 19(1), (2), (4)(e), 36(1)
Public Service Act 1999 ss 13, 15(1), (3), 22(6), 29(3)
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Re Harper and Commonwealth of Australia (1989) 17 ALD 569
Re Pandos and Commonwealth of Australia (1991) 22 ALD 784
Re To Nga Quach and Australian Postal Corporation (1991) 22 ALD 792
Commission for the Safety, Rehabilitation and Compensation for Commonwealth Employees v Chenhall (1992) 37 FCR 75
Re Choo and Comcare (1995) 39 ALD 399
Re Bennett and Comcare (1992) 17 AAR 18
Re Quarry and Comcare (1997) 47 ALD 113
REASONS FOR DECISION

March 2004 Michael Sassella, Senior Member
Dr M D Miller AO, Member

RESULT

The tribunal has decided that Comcare should have accepted Mrs Arthur’s depressive disorder as a compensable injury. The tribunal has decided that the action taken by her managers in Comsuper in respect of her job performance was not disciplinary action. The tribunal has decided that Mrs Arthur qualifies for incapacity payments for the period from 5 June 2001 to 14 January 2002. The…

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 Re Arthur and Comcare

Details

AGLC: Re Arthur and Comcare [2004] AATA 241
Case: [2004] AATA 241
Decision Date: 10 March 2004

CaseChat Overview and Summary

In the matter of Re Arthur and Comcare, the applicant sought compensation for injuries sustained in the course of her employment. Mrs Arthur's claim related to a degenerative condition of her knee and a depressive disorder. The dispute arose from Comcare's refusal to compensate Mrs Arthur for her alleged incapacity to work due to these conditions. The case was heard by the Administrative Appeals Tribunal.

The primary legal issues addressed by the tribunal were whether Mrs Arthur's degenerative knee condition and depressive disorder were injuries within the meaning of the Safety, Rehabilitation and Compensation Act 1988, and whether the employer's actions were reasonable in the circumstances. Specifically, the tribunal had to determine whether the employer's actions constituted reasonable disciplinary action under the Public Service Act 1999.

The tribunal concluded that Mrs Arthur's degenerative knee condition, while not an injury within the Act, did not prevent her from being capable of earning. However, the tribunal found that her depressive disorder was an injury under the Act, as it was aggravated by her employment and resulted in a total incapacity for work. The tribunal further found that the employer's actions were not reasonable, as they exacerbated Mrs Arthur's depressive disorder. Based on these findings, the tribunal substituted its own decision for Comcare to pay compensation for Mrs Arthur's incapacity to work due to her depressive disorder.

The tribunal set aside the previous decisions of Comcare and ordered that Comcare pay compensation to Mrs Arthur for her incapacity to work due to her depressive disorder. The tribunal also ordered that Mrs Arthur was entitled to costs in accordance with the tribunal’s general practice direction.

Orders

Orders of the court

The tribunal sets aside the reviewable decision dated 6 December 2002 (application A2002/476) and substitutes its own decision that Comcare is liable to pay compensation to Mrs Arthur in respect of depressive disorder.

The tribunal sets aside the reviewable decision dated 30 October 2001 (application A2002/423) and substitutes its own decision that Comcare is to pay compensation to Mrs Arthur for incapacity to work for the period from 5 to 30 June 2001 on the basis that Mrs Arthur has no ability to earn.

The tribunal sets aside the reviewable decision dated 9 April 2002 (application A2002/160) and substitutes its own decision that Comcare is to pay compensation to Mrs Arthur for incapacity to work for the period from 1 July 2001 to 14 January 2002 on the basis that Mrs Arthur has no ability to earn.

The tribunal sets aside the reviewable decision dated 31 October 2002 (application A2002/434). The tribunal takes no further action in respect of this decision because the decision in relation to the reviewable decision dated 9 April 2002 has dealt with Mrs Arthur’s compensation entitlements for the period from 2 to 17 July 2001.

The applicant qualifies for costs in accordance with the tribunal’s general practice direction.

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		DEBORAH ANNE ARTHUR