Andrew Lloyd Hooley and Comcare - [2014] AATA 6

[2014] AATA 6

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/3820

Re

Andrew Lloyd Hooley

APPLICANT

And

Comcare

RESPONDENT

Decision

Tribunal
Deputy President PE Hack SC

Date 9 January 2014

Place Brisbane
The respondent’s decision of 3 August 2012 is set aside and the matter is remitted to the respondent for reconsideration in accordance with a direction that the applicant’s normal weekly earnings for the period 1 July 2008 to 31 October 2008 be calculated in a way that includes the payment of an enhanced responsibilities allowance to the applicant.

........................................................................
Deputy President PE Hack SC
Catchwords
COMPENSATION – normal weekly earnings – whether normal weekly earnings include overtime component – whether normal weekly earnings include enhanced responsibilities allowance component – decision set aside and remitted
Legislation
Safety, Rehabilitation and Compensation Act 1988, ss 8(2), 8(5), 8(10), 19(2)
Cases
John Holland Group Ltd v Robertson (2010) 185 FCR 566
REASONS FOR DECISION
Deputy President PE Hack SC
10 January 2014
Introduction

The applicant, Mr Andrew Hooley, was formerly employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO). In late 2007 he suffered an injury (using the term in the sense used in s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act)) in the course of that employment. The respondent, Comcare, has accepted liability to pay compensation to Mr Hooley, in accordance with the SRC Act, in respect of that injury. It accepts that it is liable to pay Mr Hooley compensation for incapacity to work during various periods between September 2007 and June 2009.
Where the parties differ is in relation to the amount of the weekly payment – whether the weekly payment should include an additional amount for overtime (the overtime issue) and whether it should include an additional amount representing an enhanced responsibilities allowance (ERA) after 30 June 2008 (the ERA issue). In April 2010 Comcare decided that Mr Hooley's incapacity payments should not include any amounts representing overtime or ERA. The initial decision was varied on reconsideration on 3 August 2012 but in a way that denied Mr Hooley any amount for overtime and, so far as the period after 30 June 2008 was concerned, for ERA.
Mr Hooley contends that his compensation should include amounts representing overtime and ERA and seeks a review of Comcare’s decision of 3 August 2012.
The legislation
By virtue of s 14 of the SRC Act, Comcare is liable to pay compensation to Mr Hooley in accordance with the Act in respect of an injury suffered by him. It is accepted that, as a result of his injury, Mr Hooley was incapacitated for work. Accordingly, s 19 of the SRC Act made Comcare liable to pay him compensation. That section, so far as is presently material, is in the following terms:
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] AATA 6
Decision Date

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an application by Mr Andrew Hooley for review of a decision by Comcare. Mr Hooley was previously employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) and suffered an injury in late 2007. Comcare had accepted liability to pay compensation to Mr Hooley in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth). The dispute centred on the amount of weekly compensation payments to be made to Mr Hooley, specifically whether these should include an additional amount for overtime and an enhanced responsibilities allowance (ERA) after 30 June 2008. Comcare had decided that Mr Hooley's incapacity payments should not include any amounts representing overtime or ERA. Mr Hooley sought a review of this decision.

The legal issues before the Tribunal were whether the weekly compensation payments should include amounts representing overtime and ERA, as per the provisions of the SRC Act. The relevant sections of the SRC Act, particularly ss 8(2), 8(5), 8(10), and 19(2), were considered in determining the normal weekly earnings (NWE) for compensation purposes. The Tribunal also referred to the Full Court decision in John Holland Group Ltd v Robertson for authoritative guidance on the calculation of NWE under s 8(10)(a) of the SRC Act.

The Tribunal found that the normal weekly earnings in the two weeks prior to the commencement of Mr Hooley's injury fairly represented his weekly rate of pay, and thus, his NWE should not contain any additional amount for overtime. Regarding the ERA, the Tribunal concluded that it was likely Mr Hooley would have continued to receive the ERA until October 2008 had he not been injured. The Tribunal set aside the decision under review and remitted the matter to Comcare with a direction to include a component for ERA in calculating Mr Hooley’s NWE for the period 1 July 2008 to 31 October 2008. The calculation of Mr Hooley’s NWE for other periods was found to be correct.

The Tribunal's final order was that the respondent’s decision of 3 August 2012 was set aside and the matter was remitted to the respondent for reconsideration in accordance with the direction provided. The applicant’s normal weekly earnings for the period 1 July 2008 to 31 October 2008 should be calculated in a way that includes the payment of an enhanced responsibilities allowance to the applicant.

Orders