Rutledge and Comcare

[2011] AATA 865

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 865

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2010/4725
  )          2011/1689

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MARY RUTLEDGE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date7 December 2011

PlaceCanberra

Decision

The decision under review in application 2010/4725 is affirmed. The decision under review in application 2011/1689 is set aside and in place thereof it is decided that Mrs Rutledge suffered an aggravation injury in relation to which Comcare is liable to pay compensation.

The parties have 14 days in which to file submissions in relation to orders for costs.  

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

Mr S. Webb, Member

CATCHWORDS

WORKERS COMPENSATION - compensable injury - Chronic Adjustment Disorder - substantial recovery - continuing impairment and restriction in employment - susceptibility to aggravation - relapse - new injury - medical treatment obtained in relation to new injury - decision affirmed

WORKERS COMPENSATION - disease - susceptibility to aggravation - conversation with supervisor - aggravation of disease - aggravation significantly contributed to by employment - exclusionary factors – informal conversation between colleagues not administrative action - aggravation not contributed to by reasonable administrative action - injury - decision set aside

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 7, 14, 16, 67

Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385

Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19

Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626

Mellor v Australian Postal Corporation [2009] FCA 504

Re Dyer and Comcare [2011] AATA 748

Re KRDV and National Australia Bank Limited [2011] AATA 210

Re Radulovic and Comcare [2010] AATA 777

Re Reeve and Commonwealth Bank of Australia [2010] AATA 893

Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157

REASONS FOR DECISION

7 December 2011 Mr S. Webb, Member         

1.Mary Rutledge is a teacher. She was injured in her employment and suffered from a Chronic Adjustment Disorder. She claimed and was paid compensation. With treatment and rehabilitation she returned to work. Later, following a conversation with her school principal, she became unwell and sought medical treatment. She claimed compensation for the medical treatment, but this was denied. She also claimed compensation for a fresh injury, but this, too, was denied. She applied for review of those decisions.

2.The brief facts follow. Mrs Rutledge was and is employed as a Level 1 teacher at the Torrens Primary School. She was injured in 2003 and suffered from a Chronic Adjustment Disorder. She obtained treatment. The treatment was substantially effective and she returned to work in 2004. She ceased pharmacological treatment in 2005 and consulted her treating general practitioner periodically thereafter. She continued to experience anxiety from time to time, notably for periods in 2008 and 2009. In August 2009 Dr Sanderson, her then treating general practitioner, certified her fit for full duties and full hours, with 2 provisos: Mrs Rutledge was to continue working at the Torrens Primary School – she was not to be transferred under the teacher mobility provisions of the Enterprise Agreement then in force; and her condition was to be reviewed in March 2010.

3.Sue Mueller took up duties as the Principal of the Torrens Primary School in the second Term of 2009. Toward the end of that year, Mrs Rutledge experienced difficulties with her voice. These became worse during the summer break. She returned to work on 28 January 2010, the first day of Term 1, and informed Ms Mueller and her immediate supervisor, a Level 2 Executive Teacher, that she had a sore throat and was experiencing difficulties with her voice. Mrs Rutledge sought medical treatment and was diagnosed with laryngitis. She was certified unfit for work until 9 April 2010 (the end of Term 1).

4.On 10 April 2010, during a stand-down period, Mrs Rutledge returned to work to attend a professional learning program at the Torrens Primary School. In the course of that day, she had at least one conversation with Ms Mueller about which there is some controversy (to which I will return). Mrs Rutledge attended work at the commencement of Term 2 on 26 April 2010 and worked to 30 April 2010. The following day, on 1 May 2010, she consulted Dr Batchelor, her treating general practitioner, who certified that she was not fit for work and referred her to Anna Crichton, a clinical psychologist, for treatment. The Doctor reported that Mrs Rutledge was suffering from a relapse of her previous Disorder. This was later confirmed by Dr Sheehan, a consultant psychiatrist. She remained unfit for work for an extended period.

5.Mrs Rutledge claimed compensation for treatment she obtained from Dr Batchelor and Ms Crichton. Her claim was denied on the basis that the treatment was not treatment she obtained in relation to her 2003 injury[1]. This decision was affirmed on reconsideration. And that reconsideration decision is the subject of application 2010/4725.

[1] T28.

6.Mrs Rutledge claimed compensation in respect of a fresh injury arising from the conversation with Ms Mueller on 10 April 2010 and related events. At the hearing I was informed that Comcare accepts that Mrs Rutledge’s employment and the events on 10 April 2010 contributed to a significant degree to the relapse of symptoms. There is no dispute that these symptoms are a ‘disease’ for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (the Act). As that conclusion is consistent with the evidence, I accept it. Nevertheless, Mrs Rutledge’s claim was rejected on the basis that the claimed injury was excluded as it resulted from reasonable administrative action taken in a reasonable manner. This reconsideration decision is under review in application 2011/1689.

7.The issues to be decided are:

(a)was the medical treatment Mrs Rutledge obtained, medical treatment in relation to the 2003 Chronic Adjustment Disorder injury?

(b)is the disease Mrs Rutledge suffered following the events on 10 April 2010 excluded as an injury?

Was the medical treatment Mrs Rutledge obtained, medical treatment in relation to the 2003 Chronic Adjustment Disorder injury?

8.Mrs Rutledge says that the effects of the Adjustment Disorder injury in 2003 had not ceased on 10 April 2010. In her submission, if she had not suffered from the Disorder, the events on 10 April 2010 would not have had such an effect on her. She relies on the evidence of Dr Batchelor, Dr Sheehan and Ms Crichton. Mrs Rutledge asserts that the medical treatment she obtained from Dr Batchelor and Ms Crichton, on referral, was, in part at least, in relation to the Disorder she suffered when injured in 2003.

9.I do not agree.

10. Under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), compensation is payable in respect of medical treatment obtained in relation to an injury. An ‘injury’ under the Act includes a ‘disease’, which is defined to include the aggravation of an ailment that is significantly contributed to by the employee’s employment. The term ‘aggravation’ is defined to include acceleration or recurrence. It is synonymous with exacerbation, in the sense that an ailment is made worse[2] or the experience of it is “increased or intensified by an increase or intensifying of symptoms"[3] – “Neither the absence of change in the underlying condition nor the temporary nature of the symptoms experienced preclude the existence of an aggravation of an ailment for the purposes of the SRC Act”[4].

[2] Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157; Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385.

[3] Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626, per Kitto J at 634-635.

[4] Mellor v Australian Postal Corporation [2009] FCA 504 at [26].

11.To my mind, on the evidence of Dr Batchelor, Ms Crichton and Dr Sheehan, it is very clear that Mrs Rutledge’s Disorder was aggravated following the events on 10 April 2010. It appears that Mrs Rutledge, by her own account, ruminated about the conversation with Ms Mueller on 10 April 2010 – she perceived that Ms Mueller was attempting to force her into an administrative or office position, or to transfer to another school, or to retire. She felt under-valued as a result. She also perceived that Ms Mueller had prevented her from attending the school prior to the commencement of Term 2 to prepare her classroom, having been away during Term 1. This caused her to become stressed and anxious. Nevertheless, she attended work on 26 April 2010 to resume her teaching duties at the school. She continued at work that week, but experienced increasing symptoms. In consequence, Mrs Rutledge consulted Dr Batchelor on Saturday 1 May 2010. The Doctor certified that she was not fit for work. Mrs Rutledge remained unfit and did not return to work for an extended period.

12.Dr Batchelor reported that prior to these events Mrs Rutledge’s Disorder was “well controlled” and “had this incident in late April not occurred there is no reason to believe that she would have had a recurrence of her symptoms”[5]. I accept this evidence and so find.

[5] T15 folio 59.

13.It can be accepted that the 2003 injury rendered Mrs Rutledge susceptible to a recurrence of symptoms or relapse – on the evidence of Dr Batchelor, Mrs Rutledge experienced increased symptoms when she was faced with the annual prospect of her transfer to another school[6]. Dr Batchelor also reported that the events of 10 April 2010 “would not have resulted in such a severe reaction but in the context of all her previous issues with Comcare and her adjustment disorder this incident caused a severe reaction/recurrence”[7].

[6] T15 folio 59.

[7] ST12 folio 180.

14.Considering this evidence, it appears that the treatment Mrs Rutledge obtained on 1 May 2010 from Dr Batchelor was treatment for the recurrence of symptoms of anxiety and depression that followed her conversation with Ms Mueller on 10 April 2010. Even though the previous Disorder from 2003 provided a context and to some extent influenced the intensity of Mrs Rutledge’s response, weighing the present evidence, it cannot fairly be said that the treatment under claim that she obtained on and after 1 May 2010 from Dr Batchelor and Ms Crichton was in relation to the 2003 injury. I am reasonably satisfied that it was not. Rather, it is probable that the treatment was obtained in relation to the increased symptoms Mrs Rutledge experienced following the events on 10 April 2010. And those increased symptoms are consistent with an aggravation of her previous Disorder, being a new ‘disease’ for the purposes of the Act.

15.It follows that the decision under review in application 2010/4725 must be affirmed.

Is the disease Mrs Rutledge suffered as a result of the events on 10 April 2010 excluded as an injury?

16.Comcare says that the aggravation of Mrs Rutledge’s Disorder is excluded because it resulted from reasonable administrative action taken in a reasonable manner. In Comcare’s submission the reasonable administrative action was the conversation Mrs Rutledge had with Ms Mueller on 10 April 2010.

17.Comcare’s submission rises on two legs. Firstly, Comcare says that during the conversation Mrs Rutledge raised the option of a transfer into a Learning Assistant or an English as a Second Language position, but Ms Mueller informed her that no such transfer was possible in the Torrens Primary School. This, Comcare says, is ‘reasonable administrative action’ within the terms of section 5A(2)(f) of the Act – ‘anything reasonable done in connection with the employee’s failure to obtain a … transfer or benefit … in connection with his or her employment’.

18.Secondly, Comcare asserts that the conversation is properly characterised as a legitimate human resource management action taken by Ms Mueller, the school Principal, in respect of Mrs Rutledge, a Level 1 teacher in the school, to address issues relating to her employment. In Comcare’s submission, having regard to the Explanatory Memorandum concerning the amendments whereby the reasonable administrative action exclusions were introduced in April 2007, the conversation can clearly be seen to be within the meaning of ‘reasonable administrative action’ that was intended by the Parliament. This, in Comcare’s submission, squarely places the conversation within the ‘reasonable administrative action taken in a reasonable manner’ exclusion under section 5A(1) of the Act.

19.I do not agree.

20.With regard to the terms and purposes of the legislation, the first question to answer is whether this conversation is an ‘administrative action’ in connection with Mrs Rutledge’s employment. The term ‘administrative action’ is not given any special meaning under the Act, whereas the term ‘reasonable administrative action’ is explicated in section 5A(2). It is through this frame, having regard to the purposes of the exclusionary aspects of section 5A(1) and the purposes of the Act more generally, that ‘administrative action’ must be considered.

21.In common usage the words ‘administrative action’ have the following meaning: ‘administrative’ means ‘Pertaining to, or dealing with, the conduct or management of affairs; executive’, and ‘executive’ means ‘Pertaining to execution; having the function of executing or carrying into practical effect’; ‘action’ means ‘Something done or performed, a deed, an act’[8]. Thus, applying the common meaning of these words in the context of an employee’s employment, it can be seen that an ‘administrative action’ involves something that is done to effect the conduct or management of the employee’s employment.

[8] Oxford English Dictionary, Online Edition 2011.

22.When viewed through the frame of the legislation, however, it does not follow that any interaction between a supervisor or manager and a subordinate employee that occurs in the context of employment will meet this test to the extent that it may be considered to be an ‘administrative action’. This is such a case.

23.Section 5A(2) offers guidance as to the kinds of administrative actions that are to be considered as ‘reasonable administrative actions’ for the purposes of the Act. That section is inclusive in terms and not exhaustive. Even though not expressly included, it may be accepted that ‘legitimate human resource management actions’[9] are within the terms of the section insofar as those actions are ‘in connection with’ the actions set out in section 5A(2) concerning performance appraisal, formal and informal counselling, formal or informal disciplinary action, failure to obtain a promotion, reclassification, transfer or benefit, or the retention of a benefit, in connection with the particular employment. It is conceivable that administrative actions other than those that are expressly set out in section 5A(2) may be within the meaning of ‘reasonable administrative action’ for the purposes of section 5A(1), as Comcare contends. But as I have said, the common meaning of the words must be applied.

[9] Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth), page v.

24.Thus, in order to determine whether the conversation between Mrs Rutledge and Ms Mueller on 10 April 2010 is within the meaning of ‘reasonable administrative action’ it is necessary to consider whether the conversation, in whole or in part, was engaged in to effect the conduct or management of Mrs Rutledge’s employment. For that purpose, it is necessary to consider the context in which the conversation occurred, the particular circumstances of the conversation, as well as its content and purpose.

25.Mrs Rutledge and Ms Mueller agree that the conversation was brief and it was conducted in the presence of other participants in the professional learning program. There are areas of disagreement, however, about certain aspects of the content of the conversation and about whether the conversation was foreshadowed by Ms Mueller earlier that day – Mrs Rutledge says that it was; Ms Mueller says that it was not.

26.Ms Mueller says that

“I had asked after the welfare of Ms Rutledge. She had informed me that she was thinking of other options rather than teaching a class eg the LA [Learning Assistant] position. I informed her that as she is aware from discussions held with staff in 2009 and at the start of 2010 the LA positions in all schools was no longer an option as they had developed into Literacy and Numeracy teams. She then suggested maybe the ESL [English as a Second Language] position. I also stated that this was not an option at Torrens as we already had a teacher in the position. I offered further suggestions for consideration of office positions as they were advertised, transfer to another school if she wished to pursue ESL positions, small group work or part time work (as we had no positions available at Torrens) or possibly retirement. This conversation was not singling Ms Rutledge out nor suggesting one course of action over any others. I have these conversations with various staff from time to time as they grapple with career planning, change of careers and work/life balance issues.”[10]

[10] ST13 folio 194.

Ms Mueller confirmed, orally, that Mrs Rutledge asked about the possibility of her attending the school during the holiday stand-down period - Ms Mueller says that she informed Mrs Rutledge that she would need to make an arrangement for that to occur in the usual way[11].

[11] For example, ST13 folio 194 refers.

27.Mrs Rutledge says that

‘Ms Mueller said to me words to the effect, “Mary, with your voice problems you need to apply for an office job in the transfer round.”

I replied, “My doctor says that my voice will get better and I want to teach. If I was to move from classroom teaching I thought an LA (Learning Assistance) or an ESL (English as a second language) position would be more appropriate than an office job.”.

Ms Mueller said to me words to the effect, “Those positions would be no good for you as you would still need to use your voice.”.

I then asked Ms Mueller, “Could I come to the school during the holidays to help prepare and get organised for next term.”.

Ms Mueller advised that this was not possible.’[12]

[12] Exhibit A1, p2.

28.As can be seen, these varying accounts serve to confirm the essential contents and nature of the conversation. Clearly enough, it traversed issues concerning Mrs Rutledge’s vocal difficulties, her return to work in Term 2 and options that may be open to her in her employment, and the possibility of Mrs Rutledge attending the school during the stand-down period.

29.On the evidence of Ms Mueller, the conversation was an informal interaction between colleagues - the conversation was not one that was planned or premeditated on her part; it was, in effect, spontaneous and very brief, lasting only a few minutes. It did not result in any action being taken. The context of the conversation included the fact that Mrs Rutledge had been unfit for work and experienced difficulties with her voice during Term 1 of 2010. It occurred on the first day of her return to work after that absence, in the school library, during a break in the professional learning program in which Mrs Rutledge and Ms Mueller were participating, while other participants in that program were present. I accept this evidence. On Dr Batchelor’s evidence, the precipitant of Mrs Rutledge’s relapse was a suggestion by Ms Mueller “that Mary move into an administrative job”[13] – “she should think about transferring to an office job rather than returning to her teaching position”[14]. Dr Batchelor was not called to give evidence. Dr Sheehan reported that “Mrs Rutledge has suffered a relapse of her chronic adjustment disorder subsequent to meeting with her school principal, where it is alleged that the principal suggested that she undertake office work and alleged other comments that Mrs Rutledge should consider retirement”[15]. Dr Sheehan was not called to give evidence. It can be accepted, nevertheless, that these reports are based on information provided by Mrs Rutledge, and they reflect Mrs Rutledge’s perception of events.

[13] T15 folio 59.

[14] ST12 folio 180.

[15] T27 folio 91.

30.It appears that Mrs Rutledge perceived the content of the conversation and its purpose differently than Ms Mueller. In Mrs Rutledge’s perception the conversation was not supportive and was intended to pressure her to work in an office, or to transfer to another school, or to retire. By Ms Mueller’s account, for her, the purpose of the conversation was simply to say hello to Mrs Rutledge and to see how she was. By her account she commonly engaged in conversations of this kind with staff. Ms Mueller informed me that the conversation traversed options raised by Mrs Rutledge or that may be open to her in the event that she experienced further difficulties with her voice, and it was not as Mrs Rutledge perceived.

31.I found Mrs Rutledge and Ms Mueller to be straightforward witnesses, who gave their evidence frankly. But both cannot be correct. I am reasonably satisfied that Mrs Rutledge construed Ms Mueller’s words as more directive and with greater significance, with a different meaning or purpose, than was intended. I accept Dr Batchelor’s evidence that the severity of Mrs Rutledge’s reaction to the conversation derived, in part at least, from her previous injury in 2003. This injury left Mrs Rutledge susceptible to relapse and it is possible that this affected her perceptions concerning the content of the conversation with Ms Mueller.

32.Even though Ms Mueller was the School Principal, with over-arching responsibilities, she was not Mrs Rutledge’s direct supervisor; that role was the responsibility of a Level 2 teacher. It is not established that the conversation between Ms Mueller and Mrs Rutledge occurred in the context of any express or ongoing management or administrative actions relating to Mrs Rutledge’s employment. It is established that Ms Mueller confirmed Mrs Rutledge’s attendance at the professional learning exercise a number of days earlier and she had a conversation with Mr Rutledge in March 2010[16]. But these actions do not alter the essential nature of the conversation she had with Mrs Rutledge during the professional learning program.

[16] Exhibit A2.

33.I am reasonably satisfied that the conversation between Mrs Rutledge and Ms Mueller on 10 April 2010 was of a collegiate, spontaneous kind, in passing. It was not planned and no notice was given – Mrs Rutledge’s assertion that Ms Mueller put her on notice prior to commencement of the professional learning program is a possibility, but this is not established as a fact. I accept Ms Mueller’s evidence that it was not a conversation for an administrative purpose or that occurred in an administrative context. Even though the content of the conversation traversed options relating to Mrs Rutledge’s employment, the conversation was not something done to effect the conduct or management of her employment.

34.To my mind, a conversation of this kind, in which a supervisor or manager interacts with an employee in an informal collegiate manner, without planning, notice, or an administrative context or purpose, is not an ‘administrative action’ for the purposes of section 5A(1) of the Act.

35.Even if I am wrong on that point, I do not accept Comcare’s submission that the conversation was in connection with Mrs Rutledge’s failure to obtain a transfer or a benefit, or to retain a benefit. Ms Mueller’s contribution to the conversation in respect of possibilities concerning transfer to Learning Assistant or English as a Second Language positions is no more than that. This is not properly or fairly construed as something reasonable done in connection with Mrs Rutledge’s failure to obtain anything in connection with her employment – more is required. It is not established that Mrs Rutledge was actively seeking transfer to either of these positions. Moreover, there is no evidence that this aspect of the conversation, however construed, significantly contributed to cause the disease under claim. The factor in the conversation that appears to have contributed to cause the recurrence of symptoms is reported by Dr Batchelor to be Mrs Rutledge’s perception that she may be transferred into an office job or to another school. Clearly Mrs Rutledge did not want or seek to obtain any such transfer. On Ms Mueller’s evidence she did not intend to take any administrative action to transfer Ms Rutledge into an office job (and no such action was taken), it was simply a possible option that may be considered in the event that Mrs Rutledge experienced further difficulties with her voice. I prefer the evidence of Ms Mueller on this point.

36.That being so, the conversation is not an administrative action for the purposes of section 5A(2)(f) of the Act.

37.I do not accept Comcare’s submission that the conversation between Mrs Rutledge and Ms Mueller is properly characterised as legitimate human resource management action for the purposes of the exclusionary aspect of section 5A(1) of the Act. Simply put, a spontaneous informal conversation between a school principal and a member of her teaching staff, in which possible options to meet hypothetical scenarios in the context of employment briefly arise, to my mind does not constitute a legitimate human resource management action (or any form of administrative or management action) for the purposes of the Act. That is especially so if, as here, the conversation was conducted without planning, notice, or documentation, in public and in passing, without any clear administrative context, purpose, effect or result.

38.If a conversation of that kind is taken to be within the meaning of administrative action for the purposes of section 5A(1) or (2) of the Act, then almost any conversation between an employee and a supervisor or manager in the context of employment may be encompassed in the exclusionary provision. To my mind, this was not what the Parliament intended.  Having regard to the purposes of the exclusionary provision in section 5A(1) and the Act as a whole, and applying the ordinary meaning of ‘reasonable administrative action’, collegiate conversations of this kind are not administrative actions that may exclude an injured employee from obtaining compensation for an employment-related injury that, otherwise, would be compensable.

39.The facts of this case differ from those in the case of Re Reeve and Commonwealth Bank of Australia[17]. That case is on appeal in the Federal Court of Australia. Both parties submitted that it is not necessary to await the Full Court judgement in Reeve before deciding this case. It is noteworthy that, in Reeve’s case, the Tribunal construed the exclusionary terms of section 5A(1) in a manner that does not include “matters of general administration, management and the implementation of policy, even if such action indirectly or incidentally affects the employment of employees”[18]. In this case, the exclusionary factor does not concern general administration or the implementation of policy, but rather concerns a particular interaction between a manager and an employee, in the form of an informal conversation.

[17] [2010] AATA 893.

[18] Re Reeve and Commonwealth Bank of Australia [2010] AATA 893 at [49].

40.I also note the case of Re Radulovic and Comcare[19], in which the Tribunal considered the scope of the exclusionary provisions in section 5A(1)[20], again on different facts, and concluded that “the exclusionary provisions are not intended to be at large”. This approach was followed in Re KRDV and National Australia Bank Limited[21], which is on appeal in the Federal Court. Neither party suggested that this case should be delayed pending judgement in KRDV. It is also appropriate to mention Re Dyer and Comcare[22] in which the Tribunal said “it is fair to say that any action undertaken by those in management roles in the course of managing the workplace in which the employee is engaged would fall within the expression administrative action”[23]. These cases are distinguished from Mrs Rutledge’s case simply because the controversial conversation in her case, to my mind, is not a management action – it was not an action undertaken in managing her employment. To my mind, management action is not properly understood to include an informal collegiate conversation between a manager and an employee. The concept of management action in the context of an employee’s employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather it relates to actions undertaken when managing the employee’s employment.

[19] [2010] AATA 777.

[20] Re Radulovic and Comcare [2010] AATA 777 at [72] to [74].

[21] [2011] AATA 210.

[22] [2011] AATA 748.

[23] Re Dyer and Comcare [2011] AATA 748 at [58].

41.In conclusion, I am reasonably satisfied that the conversation between Ms Mueller and Mrs Rutledge on 10 April 2010 was not administrative action for the purposes of section 5A of the Act. It follows that the disease in respect of which Mrs Rutledge claimed compensation is not excluded as an injury under section 5A(1) of the Act. It is an injury for which Comcare is liable under section 14 of the Act. For this reason the reviewable decision in application 2011/1689 must be set aside.

42.The parties have not been heard as to orders for costs under section 67 of the Act. Written submissions on this subject, if any, are to be filed within 14 days. If no submissions are filed, I will then order Comcare to pay Mrs Rutledge’s reasonable costs in application 2011/1689, as agreed or taxed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

Signed:         .....................[sgd]..........................................................
  H.Choi, Associate

Date of Hearing  23 November 2011
Date of Decision        7 December 2011
Counsel for the Applicant               Mr D. Richards
Solicitor for the Applicant                Mr B. Redpath, Nicholl & Co
Counsel for the Respondent          Ms S. Callan
Solicitor for the Respondent           Ms A. Danti, Dibbs Barker