Court decision may have major impact on those denied compensation

Posted on May 11, 2017. Filed under: Uncategorized |

The following was recently reported in the Canberra Times by journalist Noel Towell (http://www.canberratimes.com.au/national/public-service/court-decision-on-public-service-bullying-could-open-compensation-floodgates-20170427-gvtpdf.html).

The decision effectively reverses a previous precedent relied upon by Comcare in the interpretation of the Work Health and Safety Act in which compensation is denied to injured an employee should even an insignificant incident be deemed to have been reasonable “administrative action undertaken in a reasonable manner” irrespective of any number of other factors which may considered to be unreasonable. (Hart versus Comcare)  The reinterpretation of the decision effectively relies on a determination of whether any other decisions in isolation may have lead to the same injury.

Whilst it is likely Comcare will no doubt attempt to have the new interpretation overturned, it is a massive leap forward in regards to an interpretation of legislation which many legal practitioners consider to have been totally unjust for the past 11 years.

If you have had a decision upheld in the Administrative Appeals Tribunal on the basis of Hart versus Comcare, it may be advisable to contact your legal representative to determine whether your previously denied claim may be open to a new determination.

Please don’t hesitate to contact us at victimsofcsiro@gmail.com if you have any questions regarding this or any other matter.

Court decision on public service bullying could open compensation floodgates

A landmark court decision may have opened the way for thousands of public servants and military veterans to claim tens millions of dollars in workers’ compensation they were previously denied, lawyers say.

A victory for a Canberra public servant in her six-year legal battle against the Commonwealth may have big implications for large numbers of bureaucrats and former soldiers, sailors and Air Force personnel whose compo claims have been knocked back or who have lost court or tribunal cases.

 

Canberra barrister Allan Anforth.Canberra barrister Allan Anforth. Photo: Rohan Thomson

The full bench of the Federal Court has found former Australian Communications and Media Authority public servant Sharon Lim may be entitled to be compensated for a psychological injury she suffered in 2011.

One prominent Canberra barrister says the decision overturns 12 years of case law and gives hope to the many injured public sector and military workers denied compensation because their bosses were able to prove they took “reasonable administrative action” towards their employees.

Barrister Allan Anforth is encouraging his colleagues to contact disappointed applicants from recent years, telling them the Federal Court’s decision could allow them to pursue cases thought to be lost causes.

Compensation lawyers have long argued that “reasonable administrative action” as interpreted by courts and tribunals since a 2005 decision in a case called Hart versus Comcare made it absurdly easy for the Commonwealth to avoid compensating its workers and has resulted in much injustice.

But Dr Lim is not out of the woods yet; federal workplace insurer Comcare has taken several landmark cases to the High Court in recent years and may seek leave to appeal the full bench’s decision to the nation’s highest court.

The insurer did not respond on Thursday to a request for comment and Dr Lim could not be contacted.

Dr Lim says she suffered “a sustained campaign of bullying and harassment … over a period of about 6 months” in 2010 and 2011 at the ACMA.

She applied for workers’ compensation in 2011, saying she suffered “adjustment reaction with depressant anxiety”, but was knocked-back by Comcare which decided that the middle-manager’s treatment, in relation to a performance appraisal and discussions of redundancy, constituted reasonable administrative action.

Successive legal appeals by Dr Lim against Comcare’s decision failed with the Administrative Appeals Tribunal and then the Federal Court taking the same view as the insurer.

The Hart decision established the principle in cases of multiple causes of a psych injury, that an an employer claiming that one cause was “reasonable administrative action,” did not have to compensate the worker.

But in their Judgment on the Lim case, published on Monday, Federal Court justices Richard Tracey, Susan Kenny and Mordecai Bromberg, found that employers could not simply rely on the “reasonable administrative action” of one cause of a workplace injury, to knock-out the entire claim.

The judges sent the case back to the Administrative Appeals Tribunal to be reconsidered, addressing the question of whether or not Ms Lim would have suffered her mental injury if the pivotal event in the case, a performance appraisal on January 11, 2011, had not taken place.

Mr Anforth, who has acted for Dr Lim in part of her proceedings, said the significance of the decision was huge.

“This decision is important because Comcare and Military Compensation have been rejecting claims for years based on the Hart principle. There may be thousands of people whose claims have been wrongly determined,” Mr Anforth.

“These people are now entitled to seek review of their rejected claims and to have them reassessed on the correct basis of law.”

Make a Comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Liked it here?
Why not try sites on the blogroll...

%d bloggers like this: