Su v Comcare

[2011] AATA 934

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 934

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3013

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PAUL SU

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date23 December 2011

PlaceCanberra

Decision The decision under review is affirmed.

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

Mr S. Webb, Member

CATCHWORDS

WORKERS COMPENSATION – disease – significantly contributed to by reasonable administrative actions taken in a reasonable manner – claimed aggravation – continuing effects of disease – no aggravation – decision affirmed

Safety, Rehabilitation and Compensation Act ss 5A, 5B, 14

Comcare v Sahu-Kahn (2007) 156 FCR 536

REASONS FOR DECISION

23 December 2011 Mr S. Webb, Member         

1.      Paul Su was employed by the ACT Government. Initially he worked at the Canberra Institute of Technology and later in the ACT Department of Education and Community Services’ Shared Services Section. He experienced depression. Mr Su became disappointed and frustrated at work. He was certified unfit for work. He claimed compensation. Comcare rejected his claim by primary determination and on reconsideration[1]. Unhappy with Comcare’s decisions, Mr Su applied for review.

[1] T76 and T109.

2.      The issue to be decided is whether Mr Su sustained an injury in the form of a disease for which Comcare is liable. For that purpose it is necessary to answer the following questions:

(a)does Mr Su suffer from a ‘disease’; and, if so

(b)is the disease excluded as an ‘injury’?

Does Mr Su suffer from a ‘disease’?

3.      At the hearing, Mr Su informed me that the basis of his claim is narrower than that set out in his compensation claim form[2], and only concerns the effects of a meeting on 27 August 2009 with his supervisor, Michelle Demetrius, and her supervisor, Heidi Martin[3]. As I understand his submission on this point, Mr Su maintains that prior to this day he was not incapacitated for work, although he had struggled with difficulties at work for some years and had experienced periods of incapacity from time to time. In his submission, it was the meeting on 27 August 2009 that rendered him unable to cope at work anymore and tipped him over into a long period of incapacity. As he carefully explained on a number of occasions during the hearing, his case is that he recovered from the illness he suffered in June 2009 and from the obsessions he had suffered hitherto in relation to his frustrated ambitions and difficulties in his (then) employment. The assertion he presses is that he was well and performing to an excellent standard up to the meeting on 27 August 2009. That meeting, in his submission, caused the injury that is the subject of his claim.

[2] T28.

[3] Mr Su handed up an Opening Statement to clarify this point, dated 20 October 2011.

4. Under Section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act), an ‘injury’ is defined to include a ‘disease’ suffered by an employee but excludes a disease suffered ‘as a…