Wieczorek and Comcare - [2007] AATA 1852

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1852
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2006/76, 237 & 238

GENERAL ADMINISTRATIVE DIVISION )

Re ANNA WIECZOREK

Applicant

And

COMCARE

Respondent

DECISION

Tribunal
J.W. Constance, Senior Member

Dr P. Wilkins MBE, Member

Date12 October 2007
PlaceCanberra

Decision
Application A 2006/76

1.      The reviewable decision made 23 February 2006 is set aside and in substitution it is decided that Comcare is liable to pay compensation to Ms Wieczorek in respect of the cost of medical treatment provided by Dr Matias on 27 July 2005 and 3 August 2005.

Applications A2006/237 and 238

2.      The reviewable decision made 18 August 2006 is set aside.

3.      In substitution for the decision set aside, it is decided that:

(1) Comcare is liable to pay compensation to Ms Wieczorek in respect of the cost of medical treatment provided by Gungahlin Medical Centre on the following dates:

·     27/5/2005;

·     10/6/2005;

·     25/6/2005;

·     1/7/2005;

·     10/7/2005;

·     15/7/2005;

·     1/8/2005;

and in respect of the cost of medical treatment provided by Dr Grundel referred to in the account dated 14 October 2005;

(2) Comcare is liable to pay compensation to Ms Wieczorek for incapacity for the period 14 July 2005 to 14 October 2005 inclusive.

4.      The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Wieczorek.

..…..............................................
J.W. Constance, Senior Member
CATCHWORDS
Compensation – Commonwealth employees – Psychological injury/Disease – Whether there was a failure to obtain a promotion or transfer - Whether compensable injury had resolved – Whether subsequent incident aggravated condition – Whether aggravation is a separate injury - Whether medical treatment was obtained in relation to the injury
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 16, 19
Albanese v Comcare [2004] AATA 768
Australian Postal Corporation v Nadge, Unreported decision 21 June 1994, WAG 36 of 1994
Comcare v Ross [1996] 680 FCA 1
Hart v Comcare [2005] FCAFC 16
Trewin v Comcare (1998) 156 ALR 615
REASONS FOR DECISION
J.W. Constance, Senior Member
Dr P Wilkins MBE, Member
12 October 2007
INTRODUCTION
1.      In April 2005 Comcare accepted liability to compensate Ms Wieczorek in respect of injury she received whilst employed by the Department of Agriculture, Fisheries and Forestry. However Comcare has denied liability to compensate Ms Wieczorek for medical treatment received in 2005 on the basis that it was not treatment obtained in relation to the injury.
2.     For the reasons which follow we have decided that Ms Wieczorek is entitled to be compensated for the cost of this treatment.
EVIDENCE AND FINDINGS OF FACT
3.      Unless otherwise stated the following findings of fact are based on the evidence of Ms Wieczorek. For ease of reference we will make further findings when dealing with particular issues. We are satisfied of all facts found on the balance of probabilities.
4.      Ms Wieczorek…

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 Wieczorek and Comcare

Details

AGLC: Wieczorek and Comcare [2007] AATA 1852
Case: [2007] AATA 1852
Decision Date: 12 October 2007

CaseChat Overview and Summary

The applicant, Ms Wieczorek, sought compensation from Comcare for psychological injury suffered due to her employment with the Commonwealth. The dispute involved whether her psychological condition was caused by work-related stress and whether Comcare had failed to provide reasonable accommodation by not obtaining a promotion or transfer. The case was heard in the Administrative Appeals Tribunal of Australia.

The legal issues centred around whether Ms Wieczorek's psychological injury had resolved, if a subsequent incident aggravated her condition, and whether the aggravation constituted a separate injury. Another issue was whether Ms Wieczorek had obtained medical treatment specifically in relation to the work-related injury. The Tribunal examined the evidence and applicable provisions under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The Tribunal found that Ms Wieczorek's psychological condition had not resolved, and a subsequent incident at work aggravated her condition. However, the aggravation was not considered a separate injury but rather a continuation of the original injury. The Tribunal also determined that Ms Wieczorek had obtained medical treatment related to her work-induced psychological injury. Consequently, Comcare was found liable for compensation in respect of the costs of medical treatment provided on specified dates and for incapacity for a certain period.

The orders set aside previous decisions and substituted them with new decisions, making Comcare liable for compensation for specified medical treatments and incapacity period. Additionally, the parties were granted liberty to apply for costs within 14 days, with Comcare to bear the costs if no application was made.

Orders

Orders of the court

Application A 2006/76

1. The reviewable decision made 23 February 2006 is set aside and in substitution it is decided that Comcare is liable to pay compensation to Ms Wieczorek in respect of the cost of medical treatment provided by Dr Matias on 27 July 2005 and 3 August 2005.

Applications A2006/237 and 238

2. The reviewable decision made 18 August 2006 is set aside.

3. In substitution for the decision set aside, it is decided that:

(1) Comcare is liable to pay compensation to Ms Wieczorek in respect of the cost of medical treatment provided by Gungahlin Medical Centre on the following dates:

· 27/5/2005;

· 10/6/2005;

· 25/6/2005;

· 1/7/2005;

· 10/7/2005;

· 15/7/2005;

· 1/8/2005;

and in respect of the cost of medical treatment provided by Dr Grundel referred to in the account dated 14 October 2005;

(2) Comcare is liable to pay compensation to Ms Wieczorek for incapacity for the period 14 July 2005 to 14 October 2005 inclusive.

4. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Wieczorek.

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		ANNA WIECZOREK