SANDS and COMCARE

[2011] AATA 710

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 710

ADMINISTRATIVE APPEALS TRIBUNAL      )         No 2010/1209

)          

GENERAL ADMINISTRATIVE DIVISION		)
Re		JANE AMANDA SANDS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date14 October 2011

PlaceCanberra

Decision The decision under review is set aside and in substitution the Tribunal decides that Comcare is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for Ms Sands’s injury.

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

Professor RM Creyke, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – claim for psychological condition – condition was contributed to, to a significant degree by employment – exclusionary provisions – no wilful and false previous representation – whether injury suffered as a result of reasonable administrative action – formal investigation and suspension – application of  collective agreement – gathering of sufficient information – denial of natural justice – administrative action not reasonable – decision under review set aside and substituted.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A 5B, 7(4), 7(7) and 14

Briginshaw v Briginshaw (1938) 60 CLR 336

Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105

Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Comcare v Chenhall (1992) 109 ALR 361

Comcare v Mooi (1996) 69 FCR 439

Comcare v Porter (1996) 70 FCR 139

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Our Town FM Pty ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465

Perrett v Commissioner for Superannuation (1991) 29 FCR 581

R v Connell;  Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407

Re Georges and Telstra Corporation Ltd [2009] AATA 731

Re Lynch and Comcare (2010) 114 ALD 394

Re Radulovic and Comcare (2010) 120 ALD 311

SZFDE v Minister for Immigration and Citizenship (2007)_232 CLR 189

REASONS FOR DECISION

1.Ms Jane Sands made a claim for compensation for anxiety, depression and an adjustment disorder on 24 June 2009 said to be due to the behaviour and procedures adopted by her senior manager in the ACT Department of Disability, Housing and Community Services (Agency).

2.The application was rejected by Comcare on 10 November 2009, a decision upheld in a reviewable decision on 11 March 2010. On 29 March 2010, Ms Sands sought further review by the Tribunal.

Issues

3.The issues are:

· Has Ms Sands suffered a disease being a psychological ailment under section 4(1) of the Act?

·     If so, what was the date of the injury?

·     If so, was any psychological ailment suffered by Ms Sands contributed to, to a significant degree, by her employment with the Agency?

·     Is Ms Sands’ condition excluded from the definition of injury by virtue of section 7(7) of the Act?

·     Is Ms Sands’ condition excluded from the definition of injury because it was due to ‘reasonable administrative action’ on the part of the Agency?

· Is Ms Sands entitled…