Shanley and Comcare

[2008] AATA 693

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 693

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  A 200600066

GENERAL ADMINISTRATIVE DIVISION		)
Re		WENDY SHANLEY

Applicant

And   COMCARE

Respondent

DECISION

Tribunal   J.W. Constance, Senior Member

Date  7 August 2008

Place  Canberra

Decision

1.        The decision of Comcare made 7 March 2006 (ref.663568/04) is set aside.

2. In accordance with subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the matter is remitted to Comcare for reconsideration in accordance with these Reasons for Decision.

3.      The costs of the proceedings before the Tribunal incurred by Ms Shanley shall be paid by Comcare.

..........signed............................

J.W. Constance, Senior Member

CATCHWORDS

COMPENSATION – cessation of compensation payments - whether Applicant incapacitated for work by accepted injury within given period – whether Respondent liable to compensate - decision set aside and substituted.

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 19

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Commonwealth of Australia v Borg (1994) 20 AAR 299

REASONS FOR DECISION

INTRODUCTION

4.      Ms Shanley has requested a review of a decision by Comcare to cease paying her compensation for medical expenses and incapacity in respect of an injury she suffered as an employee of the Department of Health and Ageing.  For the reasons which follow I have decided that this decision should be set aside.  The matter will be remitted to Comcare to determine the medical expenses payable and the extent of the incapacity in the relevant period.

5.      Unless otherwise stated the findings of fact in these reasons are made on the basis of the evidence of Ms Shanley.  I am satisfied of the facts found on the balance of probabilities.

BACKGROUND

6.      Ms Shanley started work with the Health Insurance Commission in 1998.  In May 2003, whilst still employed by the Commission, she suffered an adjustment disorder which arose from her employment.  In July 2003 she finished working for the Commission. 

7.      From 4 August 2003 until December 2003 Ms Shanley was employed by the Department.   In September 2003 she suffered a further injury when her adjustment disorder was aggravated by her employment.  In July 2004 Comcare accepted liability to compensate her for the injury, described as an “aggravation of adjustment reaction with mixed emotional features” which I shall refer to as “the injury”.[1]  On 7 March 2006 Comcare decided that as at 1 November 2005 Ms Shanley was no longer incapacitated for work as a result of the injury.  It is this decision which she seeks to have reviewed. 

[1] T386.

ISSUE FOR DETERMINATION

8. The issue for determination is whether Ms Shanley has been incapacitated for work at any time between 1 November 2003 and the date of this decision as a result of the injury she suffered in September 2003 whilst employed by the Department. Liability to pay compensation for periods of incapacity for work is provided by section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

9. The parties have…