Trumpf and Comcare - [2008] AATA 1024

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1024
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600806

GENERAL ADMINISTRATIVE DIVISION )

Re STEPHAN TRUMPF (formerly STEPHEN FITZSIMMONS)

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr R G Kenny, Member
Dr M Denovan, Member
Date14 November 2008
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Member

CATCHWORDS
COMPENSATION – Claims – rescission of decision accepting liability for hepatitis B – claim for adjustment disorder – adjustment disorder not due to employment – no aggravation of adjustment disorder – no acceptance of liability to pay compensation – decision under review affirmed.
Compensation (Commonwealth Government Employees) Act 1971 ss 27, 45(2A), 39
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Wiegand v Comcare Australia (2002) 72 ALD 795.
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Kirkpatrick v Commonwealth (1985) 9 FCR 36
Re Madden and Australian Postal Corporation (2008) 102 ALD 406
REASONS FOR DECISION

14 November 2008 Mr R G Kenny, Member
Dr M Denovan, Member

DECISION UNDER REVIEW
1.      On 17 January 2006, Stephan Trumpf, previously known as Stephen Fitzsimmons, submitted a claim to Comcare under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for acceptance of depression as being related to his employment with the Australian Customs Service (ACS). Comcare rejected that claim on 24 May 2006 and affirmed that decision on 5 September 2006. The matter is now to be determined by the Administrative Appeals Tribunal (“the Tribunal”).
LEGISLATION
2. In accordance with s 14 of the Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. The term “injury” is defined to include a “disease”. Relevant definitions in s 4(1) of the Act read:
“aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development
disease means:
(a)       any ailment suffered by an employee; or
(b)       the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
injury means:
(a)       a disease suffered by an employee; or
(b)       an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)       an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or…

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 Trumpf and Comcare

Details

AGLC: Trumpf and Comcare [2008] AATA 1024
Case: [2008] AATA 1024
Decision Date: 14 November 2008

CaseChat Overview and Summary

The applicant, Trumpf, appealed against a decision by Comcare, which rejected his claim for compensation related to his employment. Trumpf sought compensation for adjustment disorder, which he claimed was caused by his employment. The matter was heard and determined by the Administrative Appeals Tribunal. Trumpf's appeal was based on Comcare's earlier decision to rescind its acceptance of liability for hepatitis B, which was also employment-related. The primary issue before the Tribunal was whether Comcare was correct in its decision not to accept liability for the adjustment disorder, and whether it was appropriate to affirm the decision under review. The Tribunal considered whether the adjustment disorder was related to Trumpf's employment and whether it was exacerbated by his employment.

The Tribunal examined the evidence and legal principles relevant to the case. It noted that for a claim to be compensable under the Compensation (Commonwealth Government Employees) Act 1971, the injury or disease must be due to the employment. The Tribunal also considered the requirement for the condition to have been caused by the employment or to have been aggravated by it. The Tribunal found that Trumpf's adjustment disorder was not due to his employment, and there was no evidence that it was aggravated by it. The Tribunal also held that the rescission of the decision accepting liability for hepatitis B did not impact the current claim for adjustment disorder. The decision of Comcare not to accept liability for the adjustment disorder was affirmed by the Tribunal.

The Tribunal held that the decision under review was legally sound and based on proper consideration of the evidence and applicable law. The appeal was dismissed, and the decision of Comcare was affirmed. No orders were made as a result of the appeal.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		STEPHAN TRUMPF (formerly STEPHEN FITZSIMMONS)