Re Radulovic and Comcare

Case [2010] AATA 777

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 777

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3743

GENERAL ADMINISTRATIVE DIVISION )
Re DRAGANA RADULOVIC

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date12 October 2010   

PlaceCanberra

Decision The decision under review, to reject liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for ‘adjustment reaction with mixed emotional features’, is affirmed.  

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

Professor RM Creyke, Presiding Member

CATCHWORDS

COMPENSATION – claim for psychiatric condition – ‘date of injury’ when disease first incapacitated for work – exclusion of liability if injury result of ‘reasonable administrative action taken in a reasonable manner’ – whether exclusionary provisions extend to all forms of management action – statutory interpretation principles – underlying purpose of Act – ‘anything reasonable done in connection with’ administrative actions in section 5A(2) – ‘administrative action’ can be inaction – overall disease suffered as a result of exclusionary provisions – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1),(2), 7(4), 14

Acts Interpretation Act 1901 (Cth), s 15AB(1)

Australian Competition and Consumer Commission v Woolworths (SA) Pty Ltd (2003) 198 ALR 419

Comcare v Chenhall (1992) 37 FCR 75

Comcare v Mooi (1996) 69 FCR 439

Domburg v Nurses Board of Victoria [2000] VSC 369

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

Hart v Comcare [2005] FCAFC 16

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) 77 ALR 577

Re Georges and Telstra Corporation Ltd [2009] AATA 731

Re Gilbert and Comcare [2009] AATA 224

Re Lopez and Australian Postal Corporation [2009] AATA 616

Re Reubinson and Comcare [2010] AATA 676

Repatriation Commission v Webb (1987) 13 ALD 421

12 October 2010                    REASONS FOR DECISION

Professor RM Creyke, Senior Member   

1.      Ms Dragana Radulovic sought compensation for a psychiatric condition described as an adjustment reaction with mixed emotional features, which she claimed she incurred while working at the Australian National University (ANU). 

2.      Comcare rejected the claim in a decision of 16 April 2009, a decision upheld on review on 28 July 2009. On 11 August 2009, Ms Radulovic sought review by the Tribunal.

Issues

3.      The central issue is whether Ms Radulovic’s condition arose as a result of ‘reasonable administrative action taken in a reasonable manner’ by her employer pursuant to section 5A(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), which excludes Comcare from liability for her condition. Preliminary issues are:

·Whether Ms Radulovic suffered from an ‘injury’, namely a ‘disease’?

·What was the date of the injury?

·Whether any such injury was contributed to, to a significant degree, by her employment with the ANU?

·If yes, was the injury excluded from being compensable under section 5A(2) of the Act because the injury was the result of ‘reasonable administrative action taken in a reasonable manner’?

·If not, is Ms Radulovic entitled to compensation under section 14 of…

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Details
AGLC
Re Radulovic and Comcare [2010] AATA 777
Case
[2010] AATA 777
Decision Date

CaseChat Overview and Summary

In this matter, the applicant, Radulovic, sought compensation for a psychiatric condition from the respondent, Comcare, under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The dispute centred on the definition of the 'date of injury', specifically when the disease first incapacitated the applicant for work, and whether Comcare's liability was excluded under section 5A of the Act. The case was heard in the Administrative Appeals Tribunal.

The primary legal issue before the tribunal was whether the exclusion of liability in section 5A(2) of the Act applied to all forms of management action, including inaction, and whether the exclusionary provisions covered the overall disease suffered by the applicant. The tribunal had to interpret the statutory provisions to determine if the applicant's psychiatric condition was the result of reasonable administrative action taken in a reasonable manner. The tribunal also considered the underlying purpose of the Act in making its decision.

The tribunal found that the exclusionary provisions of section 5A(2) of the Act extended to all forms of management action, including inaction, and that the overall disease suffered by the applicant was a result of such action. The tribunal applied statutory interpretation principles, including the purpose of the Act, to conclude that 'administrative action' could encompass inaction. Consequently, the tribunal affirmed the decision under review, rejecting liability under section 14 of the Act for the applicant's psychiatric condition.

No further orders were made by the tribunal beyond affirming the decision under review.

Orders

Orders of the court

The decision under review, to reject liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for ‘adjustment reaction with mixed emotional features’, 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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