TAJ and Comcare - [2011] AATA 154

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 154
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2319

GENERAL ADMINISTRATIVE DIVISION )

Re TAJ

Applicant

And

Comcare

Respondent

DECISION

Tribunal The Hon R J Groom AO (Deputy President)
Date9 March 2011
PlaceHobart

Decision
The decision under review is affirmed.

[Sgd: Hon R J Groom]
Deputy President

CATCHWORDS
COMPENSATION - pre-existing systemic lupus erythematosus and depressive disorder - whether pre-existing conditions aggravated by applicant's employment - meaning of "material degree" and "aggravation" - perception of lack of support by management - various incidents at work - negotiations for new AWA - contents of AWA - whether aggravation resulted from failure to obtain a benefit - failure to gain a salary increase one of several causes of aggravation - aggravation did result from failure to obtain a benefit - not an "injury" within meaning of Act - decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 4(9), 7(4), 14(1)
Administrative Appeals Tribunal Act 1975, s 61
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Comcare v Canute (2005) 148 FCR 232
Suters v Australian Postal Corporation (1992) 28 ALD 320
Comcare v Sahu-Khan [2007] FCA 15
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Wiegand v Comcare (2002) 72 ALD 795
Jones v Dunkell (1959) 101 CLR 298
Perring and Australian Postal Corp (1993) 31 ALD 693
Trewin v Comcare [1998] FCA 713 (19 June 1998)
Re Davill and Australian Postal Corporation (1995) AATA 10629 (22 December 1995)
Comcare v Ross (1996) FCA 680 (2 August 1996)
Comcare v Mooi (1996) FCA 580 (2 July 1996)
Hart v Comcare [2005] FCAFC 16
REASONS FOR DECISION
9 March 2011   The Hon R J Groom AO (Deputy President)

INTRODUCTION

1.       The applicant was at all relevant times an employee of the organisation now known as Medicare Australia ("Medicare"). On 7 June 2007 she made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") for "... workplace related stress, anxiety and depression".

2. In a determination dated 24 December 2007 Comcare denied liability, because, in its view, the applicant's medical condition had resulted from a failure to obtain a benefit and therefore the exclusionary provisions in the definition of "injury" in section 4 of the Act applied.

3.       By letter dated 21 February 2008 the applicant's solicitor requested a reconsideration of the determination of 24 December 2007. In a reconsideration decision of 16 April 2008, which is the decision now being reviewed by this Tribunal, a claims service officer of Comcare affirmed the earlier determination stating as follows:

"Accordingly, I am satisfied that a substantial element of the employee's claim relates to her failure to obtain multiple benefits in relation to her employment".

4.       On 28 May 2008 the applicant applied to the Tribunal for a review of the reconsideration decision of 16 April 2008.

BACKGROUND

5.       The applicant was born on 29 January 1974 and is therefore now 37 years of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TAJ and Comcare

Details

AGLC: TAJ and Comcare [2011] AATA 154
Case: [2011] AATA 154
Decision Date: 9 March 2011

CaseChat Overview and Summary

In the matter of TAJ and Comcare, the applicant sought compensation for injuries sustained during employment, contending that pre-existing systemic lupus erythematosus and a depressive disorder were aggravated by her work environment and specific incidents. The administrative appeals tribunal had dismissed her claim, leading to an appeal before the Federal Court of Australia. The central legal issue was whether the applicant’s pre-existing conditions were materially aggravated by her employment, specifically considering the meaning of "material degree" and "aggravation" under the relevant legislation. Additionally, the court had to determine if the aggravation resulted from the failure to obtain a benefit, such as a salary increase or a new agreement on an allowable work arrangement (AWA).

The court held that the applicant’s conditions were indeed aggravated by her employment, as evidenced by the various incidents and a perceived lack of support from management. It was established that the failure to obtain a salary increase and other benefits contributed to the aggravation, but the court concluded that this failure alone did not constitute an "injury" within the meaning of the legislation. The tribunal’s decision was affirmed, as the court found that the aggravation was a result of multiple factors, not solely the failure to gain a salary increase. Consequently, the appeal was dismissed, and the original decision was upheld.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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