After almost $500k, seven-year legal battle, Comcare admits liability
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After almost $500k, seven-year legal battle, Comcare admits liability

Comcare will face a total legal bill of more than half a million dollars, after withdrawing an appeal to the Federal Court and accepting liability for a worker's compensation after a seven-year legal battle.

Less than 24 hours before Comcare was due in front of the full bench of the Federal Court for a second time regarding the bullying case of ABC producer Peta Martin, Ms Martin's lawyers were notified the insurer would be withdrawing its appeal and accepting liability.

Comcare had been locked in a legal stoush with Ms Martin since 2012. The aborted hearing was set to be the sixth court or tribunal to hear the case, after it went all the way to the High Court, to be sent back to the Administrative Appeals Tribunal last year.

Comcare has confirmed it spent $425,000 on the case, in which it attempted to deny liability for Ms Martin's claim for worker's compensation after she was allegedly bullied by her manager while working as a producer at the ABC in Renmark, South Australia.

The insurer is also now expected to pay legal costs for Ms Martin. These are expected to also reach into the hundreds of thousands of dollars.

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Senior associate at Maurice Blackburn Lawyers Georgia Plunkett-Scott said, "We see many examples of Comcare taking what we consider to be an aggressive, an unrealistic and uneconomical approach to claims but this is a particularly egregiuous approach to appealing a statutory right to compensation.

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"There was no benefit to the public by Comcare appealing Ms Martin's claim and the taxpayer deserves to know how much was spent and the economic rationale for doing so."

The appeal to the Federal Court was set to rest on three legal technicalities, not on the events that happened at the workplace. Ms Martin's legal representation had serious concerns about the legal basis for the appeal, and made it known in the preliminary directions hearing.

Comcare's case first appeared to be falling apart two weeks before the case was to begin on February 8, when the insurer told Ms Martin's lawyers it would be no longer be arguing two of the grounds of appeal. The final reason was withdrawn while Ms Martin and her lawyer were flying to Sydney on February 7.

The producer's dealings with Comcare aren't over after the decision, which now allows her to make claims for her psychological injury.

"What she has entitlement to now is to lodge additional claims for the certain types of compensation benefits available under the scheme that she requires," Ms Plunkett-Scott said.

"At no stage was Ms Martin ever claiming for a considerable amount of compensation, at no stage was she taking steps to sue the ABC, it is a simply a statutory right to an accepted claim for workers compensation claim that she has been fighting for."

Ms Martin said she asked at many points in the legal process for the issue to be resolved and for Comcare and the ABC to help her return to work with a supported return to work plan.

"All the way along, at every stage I've made it clear through legal representation that I would like to resolve this matter and even before it became a legal process I've always asked 'Could we just resolve this and support me in a graduated return to work?'" she said.

Ms Martin said she was speaking up because many others wouldn't have been able to go through the long legal process, which had been made more difficult when dealing with mental health issues.

"While I'm a little afraid of speaking, I think it's really important that I do speak. Because I think that [it is] in the public interest that we talk about the behaviour of Comcare and the ABC because they are publicly-funded institutions," she said.

Ms Plunkett-Scott said the conduct of Comcare in the case had been aggressive and highlighted issues with the system overall.

"This case calls into question both Comcare's conduct and also the Comcare scheme more broadly. The Comcare scheme is fundamentally flawed and this is an example of the reasons for that," she said.

A Comcare spokesman said the insurer had decided to withdraw the appeal "after further scrutiny of Ms Martin's submissions and all available evidence".

"This has been a complex matter and Comcare has consistently sought to ensure the Safety, Rehabilitation and Compensation Act has been applied appropriately and in accordance with the law. The position was reinforced by Comcare’s successful appeal to the High Court in 2016."

The spokesman defended the insurer's decision to appeal the decision to the federal court.

"The Full Federal Court appeal had sought to challenge a finding of the Administrative Appeals Tribunal in relation to an earlier injury that was only partly considered by the High Court. Ms Martin also introduced new evidence at the AAT hearing," he said.

Sally Whyte is a reporter for The Canberra Times covering the public service.

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