Re Dunkerley and Comcare

[2010] AATA 915

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 915

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0667

GENERAL ADMINISTRATIVE DIVISION		)
Re		ULLA-MAIJA DUNKERLEY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date17 November 2010

PlaceCanberra, ACT

Decision The decision under review, in which Comcare denied liability to pay Ms Dunkerley compensation for an ‘aggravation of adjustment reaction disorder with mixed emotional features’, is affirmed. 

..................[sgd]...................

Professor RM Creyke, Senior Member

CATCHWORDS

COMPENSATION – liability for aggravation of psychological injury – exclusionary provisions – reasonable administrative action taken in a reasonable manner – reasonable appraisal of employee’s employment – recruitment – flexibility in policy – manager’s actions not ‘untoward, irrational, absurd or ridiculous – decision under review affirmed

Public Service Act 1999 (Cth) s 10(1)(b)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 7(4), 14

British Oxygen Co Ltd v Minister of Technology [1971] AC 610

Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105

Comcare v Chenhall (1992) 37 FCR 75.

Comcare v Mooi (1996) 69 FCR 439.

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Gilbert and Comcare [2009] AATA 224

Re Georges and Telstra Corporation Ltd [2009] 731

Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42.

Kucks v CSR Ltd (1996) 66 IR 182.

Repatriation Commission v Webb (1987) 13 ALD 421

Re Reubinson and Comcare [2010] AATA 676

Wetzel v District Court of New South Wales (1998) 43 NSWLR 687

REASONS FOR DECISION

1.      On 24 October 2007, Ms Dunkerley suffered an 'adjustment disorder with anxious mood'. The condition was substantially contributed to by her employment at the Department of Education, Science and Training (Department). In a consent decision by the Tribunal, on 16 June 2009, Comcare accepted liability for the condition.  

2.      On 1 September 2009, Ms Dunkerley claimed that she had suffered an aggravation of her condition on 20 July 2009 for which she sought compensation.  On 8 December 2009, her claim was rejected. That decision was upheld on review on 11 February 2010. Ms Dunkerley sought further review by the Tribunal on 18 February 2010.

3.      At the hearing, Ms Dunkerley was self-represented.  Evidence was provided by Ms Dunkerley and Mr Michael Schwager, Head of the Corporate Division of the Department.

Legislation

4.      To be eligible for compensation, Ms Dunkerley must establish that she is seeking compensation in accordance with the Act ‘in respect of an injury suffered by an employee [which] results in … incapacity for work, or impairment’.[1]

[1] Act, s 14.

5.      To be an ‘employee’ requires, as relevant, that the applicant be ‘a person who is employed by the Commonwealth or by a Commonwealth authority’.[2]

[2] Act, s 5(1)(a) – ‘employee’.

6.      ‘Injury’ is defined, as relevant, as a ‘disease suffered by an employee’.[3] ‘Disease’ is further defined, as…