Turnley and Comcare - [2008] AATA 560

ADMINISTRATIVE APPEALS TRIBUNAL N° V 200601125
GENERAL ADMINISTRATIVE DIVISION
Re:GLENN ALAN TURNLEY

Applicant
And: COMCARE

Respondent
CORRIGENDUM
Tribunal:       Mr G.D. Friedman, Senior Member
Date:             29 July 2008
Place:            Melbourne
Senior Member Friedman made a Decision and Reasons under s 43 of the Administrative Appeals Tribunal Act1975 (the Act) on 1 July 2008.
The respondent’s solicitor advised the Tribunal on 28 July 2008 that there is an error in the Decision dated 1 July 2008.
In accordance with s 43AA(1) of the Act, the Tribunal directs that the Registrar alter the text of the Decision by deleting sub‑paragraph 2(a) on page 1 and page 19 and replacing it with the following sub‑paragraph:
weekly payments of compensation for incapacity for the period 12 September 2005 to the present date under s 19 of the SRC Act for all periods when Mr Turnley’s actual earnings were less than his normal weekly earnings.

(sgd) G.D. Friedman
Senior Member

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 560
ADMINISTRATIVE APPEALS TRIBUNAL No V 200601125

GENERAL ADMINISTRATIVE DIVISION

Re

GLENN ALAN TURNLEY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal: G. D. Friedman, Senior Member
Date:1 July 2008
Place:Melbourne

Decision:
The Tribunal sets aside the reviewable decision of 28 September 2006 and substitutes the following decision:

1. Mr Turnley suffered incapacity and impairment as a result of injury, being major depressive disorder, arising out of or in the course of employment with the Department of Employment and Workplace Relations which gives rise to entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

2. The respondent shall pay:

(a) weekly payments of compensation for incapacity for the period 12 September 2005 to the present date under s 19 of the SRC Act for all periods when Mr Turnley’s normal weekly earnings were less than actual earnings; and

(b) the costs of medical treatment reasonably incurred by Mr Turnley under s 16 of the SRC Act.

3. The respondent shall pay the Mr Turnley’s costs and disbursements in respect of these proceedings under s 67 of the SRC Act.

Graham Friedman
Senior Member

COMPENSATION - fraud investigator - major depressive disorder - perceptions by applicant from work situations - whether material contribution by employment
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 16(1), 16(2), 19
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan (2007) 156 FCR 536
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Kirkpatrick v Commonwealth of Australia (1985) FCR 36
Migge v Wormald Industries Limited [1972] 2 NSWLR 29
O’Neill vCommonwealth Banking Corporation [1987] FCA 224
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42
Rodriguez v Telstra Corporation Limited [2002] FCA 30
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Whysprun Pty Ltd v Dixon [2003] HCA…

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.

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Details

Case: [2008] AATA 560
Decision Date: 1 July 2008

CaseChat Overview and Summary

The parties in this case were Glenn Alan Turnley, the applicant, and Comcare, the respondent. The dispute centred around whether Turnley's employment with the Department of Employment and Workplace Relations contributed materially to the onset of his major depressive disorder, thereby entitling him to compensation under the Safety, Rehabilitation and Compensation Act 1988. The case was heard in the Administrative Appeals Tribunal, with Senior Member Graham Friedman delivering the decision.

The legal issues the court had to decide were whether Turnley's employment with the Department of Employment and Workplace Relations contributed in a material degree to the onset or aggravation of his major depressive disorder and whether Comcare was liable to pay compensation under the SRC Act.

The Tribunal found that Turnley's employment with the Department did contribute in a material degree to the onset of his major depressive disorder. The Tribunal relied on the evidence of Professor Keks, the treating psychiatrist, who diagnosed major depression in Turnley, attributing it to severe work stress and difficulties. The Tribunal accepted Turnley's perception of the administrative and logistical difficulties he encountered in his employment as genuine, even though it might not have been objectively accurate. The Tribunal held that it was sufficient that the perception contributed in a material degree to the aggravation of the depressive disorder, regardless of its reasonableness. The Tribunal also found that the absence of fault by the employer was irrelevant.

The Tribunal ordered Comcare to pay Turnley weekly compensation for incapacity and the costs of medical treatment reasonably incurred by him under the SRC Act. The Tribunal also ordered Comcare to pay Turnley's costs and disbursements in respect of these proceedings.

Orders