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‘I’m going to f-cking kill you’: Comcare staffer compo bid fails

An employee of public service insurer Comcare who experienced post-traumatic stress and a “major” depressive episode has failed in her bid for additional compensation, after the Federal Court found she was only entitled to compensation from the date she sought medical treatment, not the date of the incident itself.

Karen Hutchinson, who has been off work since 2011, experienced mental illness after participating in a workplace “respect and diversity” workshop.

During the seminar, which included a role-playing exercise in which workers were asked to act out threats in the workplace, Hutchinson said her boss leaned over and told her: “I’m going to f-cking kill you.”

Hutchinson sought medical treatment for depression and post-traumatic stress in 2011, despite the seminar taking place in March 2010.

She received compensation from Comcare for the period after she was diagnosed but later applied to the Administrative Appeals Tribunal to have the compensation backdated to 2010.

The tribunal rejected the application and its ruling was upheld by the Federal Court this week, after Hutchinson applied to the court for more time to appeal the tribunal’s decision.

Justice Neil McKerracher rejected Hutchinson’s bid for more time, saying she failed to identify a question of law in the tribunal’s judgment:

“The underlying problem is that there is no error of law identified. Rather, Ms Hutchinson is dissatisfied with the conclusion reached by the tribunal.”

Workplace lawyer Peter Vitale told The Mandarin‘s sister title SmartCompany it is not uncommon for compensation claims to continue years after a workplace incident occurs or an initial claim is lodged.

“This case demonstrates that impairments based on mental illness have a certain latency about them,” Vitale said. “It’s important for employers to keep an eye out for signs of mental illness in your workforce.”

Andrew Klein, special counsel at Russell Kennedy Lawyers, says the tribunal and court decisions give a clear indication that section 7(4) of the Safety, Rehabilitation and Compensation Act 1988 will be applied as per “the letter of the law”, rather than interpreted more widely to grant compensation for injuries of conditions sustained before an employee seeks medical treatment or is incapacitated.

However, Klein says McKerracher’s decision not to grant Hutchinson more time for her appeal also provides “clear guidance on jurisdictional questions of what’s required to establish a question of law to progress an appeal in the Federal Court”.

“It’s likely to put a break on access to the Federal Court to appeal AAT decisions,” said Klein.

Klein says at an absolute minimum, the court is indicating an applicant like Hutchinson must be able to articulate or reference a question of law, rather than rely on the court to define the question of law.

“The court may be willing to rephrase or take a question of law from submissions even if it is not articulated clearly, but it must be articulated in some form,” he said.

Klein says the case also demonstrates that the court does not see the tribunal’s role as including “running a case” for an applicant. He says while there may be a perception that the courts are more sympathetic or “more helpful” to employees who apply for workers’ compensation, in this case, the court made it clear its view was the tribunal should leave it to the individual applicant to run his or her own case.

SmartCompany contacted Comcare but did not receive a response prior to publication.

This article was originally published at SmartCompany

Author Bio

Eloise Keating

Eloise Keating is deputy editor of SmartCompany. Previously Eloise was news editor at Books+Publishing, the trade press for the Australian book industry.