Horne and Comcare (Compensation) [2018] AATA 4021

Horne and Comcare (Compensation) [2018] AATA 4021

Tribunal: Deputy President Dr Peter McDermott RFD

The applicant suffered a back injury that required surgery during his employment with Airservices Australia in 2013. Comcare was found liable to pay the applicant compensation for his back injury. Following this, the applicant made two further claims for compensation. The applicant claimed that he suffered an “adjustment disorder and depression” as well as an impotency condition in relation to the accepted back injury.  Comcare denied liability for both of these conditions and the applicant applied to the AAT for review of these decisions.

Comcare is liable to pay compensation to a Commonwealth employee if they suffer an injury that results in death, incapacity or impairment.[1] The issue in this matter was whether the applicant’s conditions could be considered an “injury” within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (the Act) which defines “injury” as either:

• a disease;[2]or
• an injury (other than a disease) that is a physical or mental injury;[3] or
• an aggravation of a physical or mental injury (other than a disease).[4] 

A “disease” is defined as an “ailment” or aggravation of such ailment that was contributed to, to a significant degree, by the employee's employment by the Commonwealth.[5] An “ailment” is defined as any physical or mental ailment, disorder or morbid condition (whether of sudden onset or gradual development).[6]

Importantly, the disease or injury must arise out of, or in the course of, the employee’s employment.

The applicant claimed that his psychiatric condition should be classified as a “disease” because it was an “ailment” that was contributed to, to a significant degree, by the back injury. The applicant also claimed that his impotency condition should be classified as an “injury” (other than a disease) as classified by the act.

The AAT was provided with a range of opinions from medical professionals on the applicant’s conditions. The AAT determined that there was no cogent and probative evidence before it that could consider the psychological condition an “ailment” and relied upon the opinion of Dr Shaikh. The AAT also noted that even if the applicant did suffer from an “ailment” within the definition, it was unable to make a finding that the ailment was contributed to, to a significant degree, by the applicant’s employment. The AAT recognised that the applicant had experienced pain from his back condition, but the evidence indicated that there had been an improvement of his back condition. The AAT also relied upon the opinion of Dr Du Plessis, who considered that the pain was more likely to be due to his “diabetic neuropathy” than his back injury.[7] 

In relation to the applicant’s impotency condition, the AAT found that the medical evidence, particularly in relation to the period following the applicant’s back operation, did not support a finding that the impotency condition was caused by the back condition. The AAT ultimately found that there was no cogent evidence to support that the impotency condition was related to his back condition or his employment. The AAT relied on the opinions of Dr Anderson and Dr du Plessis and concluded that it was more probable than not, that the cause of the applicant’s impotency condition was his diabetic neuropathy condition.

The AAT affirmed the decision under review and concluded that neither the applicant’s psychological condition or impotency condition could be classified as an injury within the meaning of the Act and thus Comcare was not liable to pay compensation.   

Read the full written decision on AustLII.