ROSLYN TOWNSEND and COMCARE

[2009] AATA 155

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 155

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1069

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ROSLYN TOWNSEND

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr Egon Fice, Member  

Date11 March 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Egon Fice

Member

CATCHWORDS  Compensation – work related stress – the meaning of mental ailment – outside the boundaries of normal mental functioning and behaviour – delayed medical examination – diagnosis – reasonable disciplinary action – failure to give notice of injury as soon as practicable – no reasonable cause - prejudice

Parliamentary Service Act 1999

Public Service Act 1999 s 13, s 33(3)

Safety, Rehabilitation and Compensation Act 1988 s 4, s 14, s 16, s 53(1), s 62

Safety, Rehabilitation and Compensationand Other Legislation Amendment Act 2007

Comcare v Chenhall (1992) 37 FCR 75

Comcare v Eames [2008] FCA 422

Comcare v Mooi (1996) 69 FCR 439

REASONS FOR DECISION

11 March 2009 Mr Egon Fice, Member      

1.      Ms Roslyn Townsend, an employee of the Department of Veterans’ Affairs (DVA), lodged a compensation claim on 20 October 2005 for what she described as work related stress.  Her claim was rejected by Comcare on 11 May 2006. Upon reconsideration under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) on 29 January 2007, a delegate of Comcare affirmed the decision to refuse Ms Townsend’s compensation claim. 

2.      Although Ms Townsend’s claim was lodged in October 2005, she claimed that she was first injured or first noticed that she had been injured in November 2004.  She claimed that her injury arose out of continuous unnecessary monitoring of her work; harassment and bullying by a superior; and that she had been victimised.  She claimed that this was treatment in retaliation against her because she complained about the harassment of a co-worker and because she was the union delegate at DVA.  As I understand Ms Townsend’s claim, the conduct giving rise to it continued from November 2004 until she made the claim. 

3.      The issues which arise for consideration in this case are:

(a)whether Ms Townsend suffered an ailment as that term is defined in the Act;

(b)if Ms Townsend suffered an ailment in the period claimed, the date on which it arose;

(c)if Ms Townsend suffered an ailment, was it contributed to in a material degree by her employment with DVA;

(d)if the answers to (a) and (c) above are affirmative, whether her ailment resulted from reasonable disciplinary action or failure by her to obtain a promotion, transfer or benefit in connection with her employment; and

(e)whether s 53 of the Act should apply to Ms Townsend’s claim on the basis that she failed to give notice in writing of her injury to DVA as soon practicable after she became aware of it.

EVENTS LEADING UP TO THE CLAIM

4.      A little needs to be said about Ms Townsend’s medical history and her employment with DVA.  It…