Russell and Comcare - [2008] AATA 897

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 897
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600055

GENERAL ADMINISTRATIVE DIVISION )

Re KATHRYN GRACE RUSSELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member L Hastwell
Dr E T Eriksen (Member)
Mr S J Ellis AM (Member)
Date8 October 2008
PlaceAdelaide

Decision
The Tribunal sets aside the decision under review and in substitution for that decision determines that Comcare is liable to pay compensation to Mrs Russell for her psychological disorder. The Tribunal reserves liberty to apply within 14 days in respect of the costs of these proceedings and orders that, in the absence of any such application. Comcare pays the costs of the proceedings.

..............................................
L HASTWELL
(Senior Member)

CATCHWORDS
COMPENSATION – Commonwealth employees – adjustment disorder with anxiety symptoms and panic arising out of course of employment – bus phobia arising out of employment – inability to travel to work in city because of phobia and the effects of medication prescribed for trigeminal neuralgia – relocation close to home while unable to drive to city – direction to return to city based office – decompensation and inability to return to work – exclusions to definition of injury considered – was there a failure to obtain a promotion or benefit in connection with employment? – causative factors – more than one factor giving rise to injury – material contribution – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4,14
Wiegand v Comcare Australia (2002) 72 ALD 795
Hart v Comcare (2005) 145 FCR 29
Weigand v Comcare (No 2) (2007) 94 ALD 154
Re Davill and Australian Postal Corporation (AAT 10629, 22 December 1995)
Comcare v Ross [1996] FCA 1669
Re Albanese and Comcare [2004] AATA 768
Comcare v Canute [2005] FCAFC 262
Comcare v Sahu-Khan (2007) 156 FCR 536
REASONS FOR DECISION

8 October 2008   Senior Member L Hastwell
  Dr E T Eriksen (Member)
  Mr S J Ellis (Member)

1.      Kathryn Grace Russell was a Centrelink employee who sustained an adjustment disorder with anxiety symptoms and panic, which condition arose out of and in the course of her employment. She ceased work in November 2004 and has not worked since that time.
2.      Mrs Russell is a long-term resident of Mount Barker in the Adelaide Hills. From 2002 onwards, her substantive position with Centrelink was based in the Child Care Benefits team (CCB) at Naylor House in Adelaide. Buses are the only form of public transport available between Adelaide and Mount Barker and as she suffers from a bus phobia, arising out of a work related incident in 1999, she drove herself to the city to work each day.
3.      In 2003, she suffered a bout of trigeminal neuralgia which prevented her working for a number of months. The side effects of the medication required to manage this condition were sleepiness and confusion and she was advised not to drive a vehicle while taking the medication. She used up all her leave entitlements…

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 Russell and Comcare

Details

AGLC: Russell and Comcare [2008] AATA 897
Case: [2008] AATA 897
Decision Date: 8 October 2008

CaseChat Overview and Summary

Mrs Russell brought a claim against Comcare for compensation for an adjustment disorder with anxiety and panic symptoms, and a bus phobia, which arose out of her employment. The claim was heard by the Administrative Appeals Tribunal. Mrs Russell was unable to travel to her place of work in the city due to her phobia and the effects of medication prescribed for trigeminal neuralgia. She was relocated close to her home but was unable to drive to her city office. She was directed to return to the city office, which led to her decompensation and inability to return to work.

The Tribunal was required to decide whether there was a failure to obtain a promotion or benefit in connection with employment, and whether the exclusions to the definition of injury applied. The Tribunal also needed to consider the causative factors of Mrs Russell’s injury, and whether more than one factor contributed materially to the injury. The Tribunal found that there was no failure to obtain a promotion or benefit in connection with employment, and that the exclusions to the definition of injury did not apply. The Tribunal also found that more than one factor contributed materially to Mrs Russell’s injury.

The Tribunal set aside the decision under review and in substitution for that decision determined that Comcare was liable to pay compensation to Mrs Russell for her psychological disorder. The Tribunal reserved liberty to apply within 14 days in respect of the costs of these proceedings and ordered that, in the absence of any such application, Comcare would pay the costs of the proceedings. The Tribunal relied on several cases in reaching its decision, including Wiegand v Comcare, Hart v Comcare, and Re Davill and Australian Postal Corporation.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution for that decision determines that Comcare is liable to pay compensation to Mrs Russell for her psychological disorder. The Tribunal reserves liberty to apply within 14 days in respect of the costs of these proceedings and orders that, in the absence of any such application. Comcare pays the costs of the proceedings.

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		KATHRYN GRACE RUSSELL