WNBR and Comcare (Compensation) [2021] AATA 32 (20 January 2021)
Division:GENERAL DIVISION
File Number(s): 2019/6324
Re:WNBR
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:20 January 2021
Place:Sydney
The decision under review is affirmed.
..................................[sgd]......................................
Deputy President B W Rayment OAM QC
CATCHWORDS
WORKERS’ COMPENSATION – aggravation of bipolar affective disorder and post-traumatic stress disorder – where applicant engaged in return to work process with employer – whether applicant’s pre-existing condition aggravated arose out of or in the course of employment – whether return to work process part of employment – whether aggravation satisfies s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether return to work process is administrative action – whether aggravation satisfies s 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
CASES
Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 415
Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529
Federal Broom Company Pty Ltd v Semlitch [1964] HCA 31; (1964) 110 CLR 626
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21
Kavanagh v The Commonwealth (1960) 103 CLR 547
XRLC and Comcare [2019] AATA 3553Wiegand v Comcare [2002] FCA 1464; 72 ALD 795
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
20 January 2021
The applicant worked for the Australian Prudential Regulation Authority (APRA) since 2012 as a Level 4 Principal Analyst. He was recruited from England and was appointed as a permanent staff member in 2014. He became depressed when he visited the UK on account of family concerns. He had some health issues in 2015. In 2016, he took unpaid leave for three months to recover, with some success as to his mental health.
His health issues led to the prescription of drugs, from which he had adverse side effects. In April 2018, he again took time off work. A psychiatrist had diagnosed him with Bipolar II with possible post-traumatic stress disorder and prescribed some medication that required the applicant to take time off work because the medication had possible serious side‑effects. The medication did need to be changed. He experienced no serious side‑effects from the changed medication and his GP, Dr Bartlett, issued a medical certificate stating that he would be fit to return to work in September 2018.
In August 2018, APRA began to discuss a return to work program and arranged for him to attend a rehabilitation specialist to discuss the program several days later on 3 September 2018. That came as a surprise to the applicant, who had expected the arrangements to be less formal. In September 2018 and thereafter, disputes arose between APRA and the applicant about details of the proposed program, which the applicant regarded as a…
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- WNBR and Comcare (Compensation) [2021] AATA 32
- Case
- [2021] AATA 32
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicant's pre-existing mental health conditions were aggravated out of or in the course of employment, and whether such aggravation satisfied the criteria under sections 5A and 5B of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Specifically, the court considered whether the return to work process constituted part of the applicant's employment and whether any aggravation arising from it qualified for compensation under the Act, including whether the return to work process was an administrative action.
The Deputy President found that the applicant failed to satisfy the test under section 5B of the Act. This section generally requires that an injury be suffered by an employee in the course of their employment and that the employment contributed to the injury to a significant degree. The reasoning implies that the aggravation of the applicant's pre-existing conditions, as it related to the return to work process, did not meet the statutory threshold for compensation.
Consequently, the Deputy President affirmed the reviewable decision of the AAT.
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