Wilson and Comcare

[2010] AATA 396

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 396

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3419

GENERAL ADMINISTRATIVE DIVISION		)
Re		GARY WILSON

Applicant

And COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date28 May 2010   

PlaceCanberra

Decision The decision under review is affirmed.  

..............................................

Professor RM Creyke, Senior Member

CATCHWORDS

COMPENSATION – whether reasonable administrative action taken in a reasonable manner in respect of employment – whether steps taken by management fall within exclusionary provisions of section 5A of Act – meaning of ‘administrative action’ – meaning of ‘as a result of’ management action – meaning of ‘reasonable administrative action taken in a reasonable manner – whether ‘lawful’ – eight administrative actions subject of claim – decision under review is affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A(1), 5A(2)

Defence Instruction (General) 35-3, Management and Reporting of Unacceptable Behaviour

Abrahams v St Virgil’s College [1998] TASSC 53

Ansell v Wells (1982) 43 ALR 41

Comcare v Caldwell [2008] FCA 2015

Comcare v Canute [2005] FCAFC 262

Comcare v Chenhall (1992) 37 FCR 75

Comcare v Sahu-Khan (2007) 156 FCR 536

Re George and Telstra Corporation Ltd [2009] AATA 731

Re Gilbert and Comcare [2009] AATA 224

Hart v Comcare (2005) 145 FCR 29

HIH Winterthur Workers Compensation (SA) v Hickman [1997] SAWCT 17

Kucks v CSR Ltd (1996) 66 IR 182

Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203

Repatriation Commission v Webb (1987) 13 ALD 421

Russel v Duke of Norfolk [1949] 1 ALL ER 109

Swanson v Northern Territory (2006) 204 FLR 392

Wattyl Australian Pty Ltd v York [1997] NTSC 86

Wiegand v Comcare (No 2) [2007] FCA 237

Workcover Corporation of South Australia v Summers (1995) 65 SASR 243

28 May 2010   REASONS FOR DECISION

Professor RM Creyke, Senior Member   

1.      Mr Gary Wilson was employed by the Department of Defence (the Department) as a financial officer at the Australian Public Service (APS) Level 2.  He claimed to have suffered ‘anxiety’ due to ‘ongoing systemic unacceptable behaviour’, stress and bulling.  He submitted a claim for workers’ compensation for ‘anxiety’ on 21 May 2008. 

2. On 24 November 2008, Comcare determined that Mr Wilson was not entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for ‘adjustment reaction with mixed emotional features’.

3.      Comcare decided that although Mr Wilson’s condition of adjustment reaction with mixed emotional features was contributed to, to a significant degree, by his employment the condition was the result of ‘reasonable administrative action’ and thus not an ‘injury’ within section 5A of the Act.

4.      On 17 December 2008, Mr Wilson requested a review of the Comcare determination.  On 20 May 2009, Comcare affirmed the decision.  On 9 August 2009 Mr Wilson applied to the Tribunal for a further review.

Legislation

5. Section 14 of the Act provides that Comcare is liable to provide compensation…