Workers Compensation Comcare Claims NSW

A recent Comcare claim Reconsideration and Appeal to the Administrative Appeals Tribunal… determined on 29 April 2016


The Applicant is female, aged 35, was employed by the Respondent, which operated a freight company, between 2006 and 2014. The Applicant is currently unemployed and receives Centrelink benefits.

On 12 August 2014, the Applicant was involved in an accident at work while she was driving a forklift on her employer’s premises in Kewdale, Western Australia. It is not disputed that the Applicant hit a colleague while driving the forklift and that the colleague suffered a serious leg fracture.

The Applicant claimed she left the premises about an hour after the accident as she was “shaken and upset”.

On 13 August 2014, the Applicant saw Dr Jeff Veling. On 19 August 2014, the Applicant was seen by Dr Simon O’Connell. On 20 August 2014, the Applicant was seen by Dr Rachel Harris.

The Applicant stated that all of these appointments were necessary because she was suffering “stress and anxiety” arising out of the accident.

The Claim

On 20 August 2014, Dr Harris provided a workers’ compensation certificate to the Applicant and she lodged a workers’ compensation claim with her employer claiming “stress and anxiety” arising out of the accident pursuant to section 14 of the Safety, Rehabilitation Act 1988 (the “SRC Act”).

On 18 September 2014, the employer made a determination that it was not liable to pay compensation to the Applicant on account of stress for the injuries she suffered as a result of the forklift incident. The stated reason for this was that her stress related injury was caused by her own “serious and wilful misconduct” while driving the forklift and because the Applicant submitted to an abnormal risk of injury while driving the forklift as she did when she hit her colleague.

The Reconsideration

The Applicant requested the employer reconsider its decision which it did on 31 October 2014, affirming its original Determination.

The Appeal to the Administrative Appeals Tribunal

The Applicant then lodged an appeal to the Administrative Appeals Tribunal (AAT).

Before the AAT, the employer conceded that the Applicant suffered a stress related injury within the meaning of section 5A of the SRC Act. Further, it was accepted that employment with the employer was a significant contributing factor.

At the hearing of this Appeal, the only issue the AAT was required to determine was: did the Applicant’s injury result from her own “serious and wilful” conduct, thus rendering the employer not liable to compensate her?

The evidence before the AAT

This matter was heard over one day.

In addition to the documents noted below, the AAT was assisted by a thorough set of T documents comprising over 450 pages.

The T documents contained a considerable number of medical documents.

The AAT also received a set of colour photographs of the accident scene.

The Applicant gave oral evidence before the AAT, as did her former supervisor. It was not necessary for the AAT to hear from medical expert witnesses.

Prior to the hearing both parties submitted a Statement of Facts, Issues and Contentions.

The decision of the AAT

The AAT set aside the decision under review and, in substitution therefor, decided that the employer is liable to pay compensation to the Applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of a stress related injury sustained on the 12 August 2014.

The AAT ordered the Applicant’s claim be remitted to the employer for assessment of the amount payable to the Applicant on the basis of the decision of the AAT.

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