Riley and Comcare

[2011] AATA 674

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 674

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2297

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEFFREY RILEY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr M E C Thorpe, Member

Date29 September 2011

PlaceSydney

Decision The decision under review is set aside and instead the Tribunal decides that Mr Riley has permanent impairments resulting from his depressive disorder and schizoaffective disorder and from his sexual dysfunction and has a combined degree of permanent impairment of 28%.  

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

Ms N Bell
  Senior Member

CATCHWORDS

COMPENSATION – Commonwealth employees – claim for permanent impairment – major depressive disorder, schizoaffective disorder and sexual dysfunction – whether impairments result from applicant’s work injuries – assessment of permanent impairment – assessment of permanent impairment of sexual function arising from psychological injury and medication – decision under review set aside

Legislative Instruments Act 2003 (Cth) s 14

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 28

Canute v Comcare (2006) 226 CLR 535; [2006] HCA 47

Comcare v Broadhurst (2011) 192 FCR 497; [2011] FCAFC 39

Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28; [2009] HCA 38

REASONS FOR DECISION

29 September 2011 Ms N Bell, Senior Member
Dr M E C Thorpe, Member            

1.      Jeffrey Riley was employed by the Department of Defence at HMAS Albatross as a purchasing officer.  In October 2006 Mr Riley claimed compensation for permanent impairment in respect of major depressive disorder, schizoaffective disorder and sexual dysfunction.  Comcare denied the claim.

2.      Mr Riley’s claim has a long history.

3.      In 1996 Mr Riley made a claim for a psychiatric injury, a depressive disorder, for which liability was accepted by Comcare.  Mr Riley returned to work after ten months.  In 1999 he was hospitalised for 40 days for surgery for diverticulitis and, after his surgery, returned to work again.  In May 2001, Mr Riley injured his right shoulder at work.  His claim for this injury was accepted by Comcare.  In July 2003 Comcare also accepted liability for reflex sympathetic dystrophy in respect of Mr Riley’s right shoulder.  In February 2005 Comcare accepted liability for major depressive disorder, schizoaffective disorder and chronic pain disorder secondary to Mr Riley’s right shoulder injury.  In May 2005, by consent order in this Tribunal, Mr Riley was awarded compensation for a 30% whole person impairment of his right shoulder.  Comcare’s denial of liability for Mr Riley’s October 2006 claim for permanent impairment in respect of major depressive disorder, schizoaffective disorder and sexual dysfunction is now the subject of this application for review.

4.      Comcare contends that any psychiatric and sexual function permanent impairments suffered by Mr Riley are either due to an underlying psychiatric condition (including the condition for which it accepted liability in 1996) or due to a new and distinct psychiatric condition – personality disorder – which is unrelated to his 2001 shoulder injury.  This is so notwithstanding that in 2005 it accepted…