"SAN" and Comcare

[2004] AATA 445

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 445

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2001/378

GENERAL ADMINISTRATIVE DIVISION		)
Re		“SAN”

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President D G Jarvis and Dr E T Eriksen, Member

Date6 May 2004

PlaceAdelaide

Decision The Tribunal sets aside the decision under review, and in substitution therefor decides that the applicant is not entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 in respect of the conditions of paranoid psychosis and post traumatic stress disorder.

D G Jarvis

(Signed)
  Deputy President

CATCHWORDS

COMPENSATION – paranoid psychosis – post traumatic stress disorder – conditions not employment related – army service – notice of injury – respondent not prejudiced by delay in notice of injury – claim for compensation – respondent not prejudiced by delay in serving claim for compensation – determination of applicable legislation – decision under review varied

Safety, Rehabilitation and Compensation Act 1988 s 53
Compensation (Commonwealth Government Employees’) Act 1971
Compensation (Commonwealth Government Employees’) Regulations 1971 (Cth)
Australian Postal Corporation v Burch (1998) 26 AAR 312
Buttfield and Comcare (2001) 64 ALD 281
Comcare v Luck (1999) 29 AAR 403
Re Deveson and Comcare (1999) 53 ALD 794; (1999) AATA 80
Comcare v Mooi (1996) 69 FCR 439
Thompson v Goold & Co [1910] AC 409
Re Welsford and Commonwealth Banking Corporation (1984) 5 ALN N570; 1 AAR 42
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Suters v Australian Postal Corporation (1992) 28 ALD 320
Wiegand v Comcare (2002) 72 ALD 795
Federal Commissioner of Taxation v Grbich and Shen (1993) 31 ALD 97

REASONS FOR DECISION

6 May 2004 Deputy President D G Jarvis and Dr E T Eriksen, Member   

Introduction

1.      The applicant enlisted in the Australian Army on 14 October 1980 and was discharged from the Army on 14 July 1982.  On 28 August 2001, the applicant made a claim against the respondent for rehabilitation and compensation for “psychotic paranoid reaction” resulting in a “mental condition” attributed to “emotional and physical harassment by the other defence force members at Adelaide, Kapooka and Bandiana” during his service with the Australian Army (T4, page 42).  He subsequently asserted that the “correct diagnosis” should have been “post-traumatic disorder with features of paranoid pscizonphrenia (sic)” (T6).

2.      In a reviewable decision dated 28 September 2001, a delegate of the respondent rejected the applicant’s claim.  He referred to a previous claim for compensation in respect of “acute depression” which the applicant had lodged on 4 September 1984 due to asserted severe racial discrimination during his employment by the Army.  The delegate went on to say that an earlier decision of this Tribunal had affirmed an earlier decision by a delegate of the respondent that the applicant was entitled to compensation in relation to his psychiatric condition only up to and including 11 April 1985.  He said that he had reviewed the 1988 Tribunal decision and noted that it dealt with “the same…