Ascic and Comcare (Compensation)
[2017] AATA 1436
•7 September 2017
Ascic and Comcare (Compensation) [2017] AATA 1436 (7 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/0767
Re:Marko Ascic
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:7 September 2017
Place:Perth
The decision under review is affirmed.
...............[sgd].........................................................
L M Gallagher, Member
CATCHWORDS
COMPENSATION – former Commonwealth employee – depression and acute paranoid reaction to perceived stress in employment – superannuation pension – invalidity retirement – independent review of determinations - average weekly earnings – normal weekly earnings
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth) – s 1(a), s1(b), s 25(2), s 25(4), s 25(5), s25(11), s 27, s 45(1), s 45(2), s 45(2A), s 452B), s 45(2C), s 45(3), s 45(4), s45(7)
Safety, Rehabilitation and Compensation Act 1988 (Cth) - s 123, s 131(1), s 131(2), s 131(2A), s 131(3), s 131 (4), s 131(5), s 131(6)
CASES
Telstra Corporation Limited v Warner [1994] FCA 1312
SECONDARY MATERIALS
Compensation (Commonwealth Government Employees) Regulations (Amendment) (Statutory Rules 1988 No. 122) – regulation 3, regulation 4(a)
Compensation (Commonwealth Government Employees) Regulations – Schedule 4
REASONS FOR DECISION
L M Gallagher, Member
7 September 2017
INTRODUCTION
1. Mr Ascic was employed with the Australian Federal Police (then, the Commonwealth Police) (‘the Police’) from 25 December 1973 until he was retired on invalidity grounds on 1 September 1988.
2. Mr Ascic has had, since 25 May 1988, an accepted claim for ‘depression and acute paranoid reaction to perceived stress in employment,’ the deemed date of injury being 11 December 1987 while employed by the Police (‘the injury’) (T31, page 144).
3. Mr Ascic went on extended sick leave from the deemed date of injury until the date of his retirement.
4. Mr Ascic has been continuously certified as being totally incapable of engaging in any work since the deemed date of injury.
5. Mr Ascic has, since 1988, been in receipt of a pension under a superannuation scheme.
6. Comcare has made various determinations of Mr Ascic’s Average Weekly Earnings (‘AWE’) and Normal Weekly Earnings (‘NWE’) in relation to the injury, pursuant to the relevant provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (‘the 1971 Act’) and the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’) (‘the determinations’), respectively.
7. Mr Ascic requested Comcare conduct an independent review of every determination ever made concerning his entitlement to compensation for incapacity. Mr Ascic submitted that:
(a)his compensation for incapacity had been incorrectly calculated because, at the commencement date of the 1988 Act, he was ‘receiving a superannuation pension of $18,655.73 per annum and Comcare benefits of $14,456.09 per annum, being a total of NWE of $33,111.82 per annum (T41);
(b)his combined total benefit was $33,982.00 (being a salary of $26,375.00 per annum and penalties and overtime of $7,607.00);
(c)95% of his NWE was $32,282.90;
(d)his combined benefit was more than 95% of his NWE; and
(e)his entitlement to compensation for incapacity should have been calculated, and should still be calculated, under subsection 131(2) of the 1988 Act (T41).
8. Comcare completed its reconsideration and on 23 December 2015 and decided that the determinations were correct and affirmed them (‘the reviewable decision’), finding that (T50):
(a)Mr Ascic’s entitlement to incapacity payments had been correctly calculated having regard to subsections 131(3), (4) and (5) of the 1988 Act;
(b)the result of paragraph 8(a) above was that Mr Ascic should have been paid at 70% of his NWE from 28 June 1991, that is, subsection 131(3) of the 1988 Act was the appropriate provision under which to calculate Mr Ascic’s entitlements to compensation since 1 December 1988.
9. On 13 February 2016, Mr Ascic sought review of the reviewable decision on the basis that ‘it is not the correct or preferable decision’ (T2).
RELEVANT LEGISLATION AND REGULATIONS
The 1988 Act
10. The entitlement of former Commonwealth employees’ to incapacity payments stems from Part X of the 1988 Act (and not from Part II of the 1988 Act) (Telstra Corporation Limited v Warner [1994] FCA 1312], which commenced on 1 December 1988. Relevantly, section 123 of the 1988 Act provides the following definitions for the purposes of Part X:
combined benefit, in relation to a former employee, means an amount equal to the sum of:
(a)the amount of compensation payable to the former employee under this Act; and
(b) the employee's superannuation amount.
commencing day means the day on which this Part commences.
former employee means a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in incapacity and had ceased to be an employee within the meaning of that Act before that day.
total benefit, in relation to a former employee, means an amount equal to the sum of:
(a)the amount of compensation payable per week to the former employee under the 1971 Act[1]; and
[1] See 1971 Act provisions at paragraphs 16 to 17 of this decision regarding the amount of compensation that was, immediately before the commencement day, payable per week to a former employee under the 1971 Act.
(b)the employee's superannuation amount.
1971 amount, in relation to a former employee, means the amount of compensation that was, immediately before the commencing day, payable per week to the former employee under the 1971 Act.
[emphasis added]
11. Section 131 of the 1988 Act provides for former employees under the age of sixty five who are in receipt of superannuation benefits and are unable to engage in any work. Section 131 provides:
(1) This section applies to a former employee who:
(a)on the commencing day, was under 65 and in receipt of a pension under a superannuation scheme; and
(b) is not capable of engaging in any work.
(2) Subject to this Division, if the former employee's total benefit immediately before the commencing day was equal to or more than 95% of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is the amount that, when added to the former employee's superannuation amount, results in a combined benefit equal to 95% of those normal weekly earnings.
(2A)If, as a result of an increase in the amount of a former employee's normal weekly earnings, the amount of combined benefit payable to the former employee under subsection (2) is less than 70% of those increased normal weekly earnings, the amount of compensation must be increased or further increased (as the case may be) until it is equal to 70% of those increased normal weekly earnings.
(3)Subject to this Division, if the former employee's total benefit immediately before the commencing day was equal to or more than 70%, but less than 95%, of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is an amount equal to the employee's 1971 amount.
(3A)If, as a result of an increase in the amount of a former employee's normal weekly earnings, the amount of compensation payable to the former employee under subsection (3) is less than 70% of those increased normal weekly earnings, the amount of compensation must be increased or further increased (as the case may be) until it is equal to 70% of those increased normal weekly earnings.
(4)Subject to this Division, if the former employee's total benefit immediately before the commencing day was less than 70% of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is the amount that, when added to the former employee's superannuation amount, results in a combined benefit equal to 70% of his or her normal weekly earnings for the time being.
(5)Whenever the superannuation amount of a former employee referred to in subsection (2), (3) or (4) is increased, the amount of compensation payable under that subsection shall be reduced, or further reduced, as the case requires, by:
(a) an amount equal to the amount of the increase; or
(b) an amount that will result in a combined benefit equal to 70% of the former employee's normal weekly earnings as at the date of the increase;
whichever is less.
(6) Subsection (5) does not require a reduction or further reduction in the amount of compensation payable to a former employee under subsection (2), (3) or (4) where the reduction or further reduction would result in a combined benefit of less than 70% of the employee's normal weekly earnings as at the date of the increase in the superannuation amount.
12. In essence, subsections 132(2), 132(3) and 132(4) of the 1988 Act effectively apply to calculate the combined benefit payable to a former employee whose total benefit immediately before the commencing day was:
(a)equal to or more than 95% of their NWE as at that day (subsection 131(2) of the 1988 Act);
(b)equal to or more than 70% but less than 95% of their NWE as at that day (subsection 131(3) of the 1988 Act); or
(c)less than 70% of their NWE as at that day (subsection 131(4) of the 1988 Act).
13. Each case in paragraph 12 above requires a determination to be made as to what a former employee’s ‘total benefit immediately before the commencing day’ was.
The 1971 Act
14. Compensation was payable under the 1971 Act of the requirements of section 27 of the 1971 Act were satisfied, relevantly:
(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
[emphasis added]
15. Under section 29 of the 1971 Act, a disease, aggravation, acceleration or recurrence of a disease is deemed to be an injury in the following circumstances:
(1) Where -
(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
[emphasis added]
16. Section 25 of the 1971 Act provides for the calculation of AWE, including:
(2) A reference in the succeeding provisions of this section to earnings of an employee in relation to any employment shall be read as including a reference to any allowance payable to the employee in respect of that employment other than an allowance that is payable in respect of special expenses incurred or likely to be incurred by the employee in respect of that employment.
…
(4) Subject to the succeeding provisions of this section, the average weekly earnings of an employee before the injury shall be calculated in relation to the period immediately preceding the date of the injury in which he was continuously employed by the Commonwealth but any part of that period that was earlier than twelve months before that date shall be disregarded.
(5) Subject to the next succeeding sub-section, if, during the period ascertained in accordance with the last preceding sub-section, the minimum amount per week payable to the employee in respect of his employment by the Commonwealth was varied as a result of the operation of a law of the Commonwealth or of a State or Territory, or as a result of the making, alteration or operation of an award, order, determination or industrial agreement, or of the doing of any other act or thing, under such a law, so much of that period as occurred before the variation took place or, if there was more than one variation, before the last variation took place, shall be disregarded for the purposes of the last preceding sub-section.
…
(11) If the minimum amount per week payable in respect of employees included in a class of employees in which the employee was included at the date of the injury is increased or reduced on or after that date as a result of the operation of a law of the Commonwealth or of a State or Territory, or as a result of the making, alteration or operation of an award, order, determination or industrial agreement, or of the doing of any other act or thing, under such a law, the amount that is, by virtue of the preceding provisions of this section, to be taken to be the amount of the average weekly earnings of the employee before the injury shall be increased or reduced by the same percentage as the percentage by which that minimum amount was so increased or reduced, as the case may be.
[emphasis added]
17. As Mr Ascic has been totally incapacitated for work since his retirement, section 45 of the 1971 Act would have applied in calculating Mr Ascic’s weekly amount of compensation for incapacity at that time, relevantly:
(1) Where an injury to an employee results in the employee being totally incapacitated for work, the succeeding provisions of this section have effect.
(2) Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to -
(a) $90, or such higher amount as is prescribed, plus any amount or amounts required to be added to that amount in accordance with the succeeding provisions of this section; or
(b) the average weekly earnings of the employee before the injury,
whichever is the less.
(2A) Notwithstanding the last preceding sub-section, but subject to the succeeding provisions of this section, if the prescribed amount applicable to the employee under the next succeeding sub-section in respect of a week, being one of the first twenty-six weeks of the period, or of the aggregate of the periods, of the incapacity, is greater than the amount of compensation that would, but for this sub-section, be payable to him in respect of that week under the last preceding sub-section (including sub-sections (3) and (4), if applicable), the amount of compensation payable to him in respect of that week is that prescribed amount.
(2B) For the purposes of the last preceding sub-section, the prescribed amount applicable to an employee in respect of a week is-
(a) in the case of an employee who is, during that week, employed by the Commonwealth under conditions of employment providing for sick leave payments -an amount equal to the sum of-
(i)the sick leave payment that he would receive in respect of that week if, during that week, he were entitled to, and were granted, sick leave on full pay by reason of an illness that is not attributable to an injury in relation to which this Act applies; and
(ii)the amount, if any, that was payable to the employee under the next succeeding section in respect of the week that ended immediately before the commencement of the period of the incapacity or, where there are two or more periods of incapacity, the last of those periods;
(b) in the case of an employee who is not employed by the Commonwealth during that week, but was, immediately before he ceased to be employed by the Commonwealth, employed under conditions of employment providing for sick leave payments - an amount equal to the amount that would be applicable to him under the last preceding paragraph if he had continued in that employment; or
(c) in any other case-an amount determined by the Commissioner, having regard to the following:
(i) if the employee is, during that week, employed by the Commonwealth-the amount of the earnings, if any, payable to him in respect of that week in respect of that employment;
(ii) if the employee is not, during that week, employed by the Commonwealth-the amount of the earnings, if any, that, if he had continued in the employment in which he was engaged immediately before he ceased to be employed by the Commonwealth, would have been payable to him in respect of that week in respect of that employment; and
(iii)any other matter that the Commissioner considers to be relevant.
(2C) For the purposes of the last preceding sub-section -
(a) an employee who would be, or would have been, employed but for his incapacity shall be taken to be employed, or to have been employed, as the case may be;
(b) a reference to a sick leave payment is a reference to a payment by way of salary, wages or pay in respect of a period during which the employee concerned is absent from his employment by reason of illness; and
(c)a reference to earnings, in relation to an employee-
(i)includes a reference to the earnings that would be or would have been, payable to the employee but for his incapacity; and
(ii) does not include a reference to a payment in respect of overtime or a reference to an allowance that is intermittent or is payable in respect of special expenses incurred or likely to be incurred by the employee in respect of his employment.
(3) If there is a prescribed person who is, or there are prescribed persons who are, wholly or mainly dependent upon the employee, there shall be added to the amount specified in paragraph (a) of sub-section (2) the amount of $23.60 or such higher amount as is prescribed.
(4) If there is a child in relation to whom this Act applies (whether born before, on or after the date of the injury) who is wholly or mainly dependent upon the employee or there are children in relation to whom this Act applies (whether born before, on or after the date of the injury) who are wholly or mainly dependent upon the employee, there shall be added to the amount specified in paragraph (a) of sub-section (2) the amount of $11.25, or such higher amount as is prescribed, for that child or each of those children, but an amount shall not be so added for a child in relation to any time before the date of the birth of that child.
…
(7) If the employee-
(a) is retired from his employment as a result of the incapacity for work; and
(b) as a result of the retirement is in receipt of a pension under a superannuation or provident scheme established or maintained by the Commonwealth or by a prescribed authority of the Commonwealth, the compensation payable to the employee in respect of each week during the period of the incapacity shall not exceed the amount, if any, by which the average weekly earnings of the employee before the injury exceed-
…
[emphasis added]
Compensation (Commonwealth Government Employees) Regulations (Amendment) (Statutory Rules 1988 No. 122)
18. Regulation 3 of the Compensation (Commonwealth Government Employees) Regulations (Amendment) (Statutory Rules 1988 No. 122), (‘the Regulations’) (repealed on 1 December 1988) substituted Schedule 4 of the Compensation (Commonwealth Government Employees) Regulations with the following schedule, which relevantly itemises the prescribed amounts of compensation as they relate to the 1971 Act as follows:
| Item | Provision of the Act | Amount Prescribed |
| 13 | Paragraph 45 (2) (a) …………………………………………………… | $192.80 |
| 14 | Subsection 45 (3) …………………………………………………… | $50.50 |
| 15 | Subsection 45 (4) ……………………………………………………. | $24.00 |
19. Regulation 4(a) of the Regulations provides that the amendments effected by those regulations (including the substituted schedule) apply in relation to weekly payments of compensation under the 1971 Act in respect of any period commencing after 12 June 1988.
ISSUES FOR DETERMINATION
20. The key issue before the Tribunal is whether the review delegate was correct in having regard to subsection 131(3) of the 1988 Act in calculating Mr Ascic’s entitlement to incapacity payments or whether another provision ought to have been applied. This issue requires the Tribunal to determine:
(a)Mr Ascic’s ‘total benefit’ immediately before the commencing day;
(b)Mr Ascic’s NWE ‘as at that day’;
(c)the correct provision or provisions in the 1988 Act from which to calculate Mr Ascic’s entitlement to incapacity payments, relevantly:
(i)Mr Ascic contends that his compensation benefits should be calculated under subsection 131(2) of the 1988 Act; and
(ii)Comcare contends that Mr Ascic’s compensation benefits should be calculated under subsections 131(3), 131(4) and 131(5) of the 1988 Act; and
(d)if Mr Ascic is entitled to receive incapacity payments calculated under subsection 131(2) of the 1988 Act, the amount of compensation he is entitled to receive.
21. The Tribunal notes that, although it has not found that subsection 131(2) of the 1988 Act ought to have been applied in calculating Mr Ascic’s incapacity payments, if it had done so then it would have remitted the matter to Comcare to complete the necessary calculations. In its role in determining the present matter, the Tribunal is only to determine which of the relevant subsections are applicable in performing that calculation.
EVIDENCE
22. The matter was heard in Perth on 28 June 2017. Mr Ascic appeared in person and was self-represented. Comcare was represented by Counsel, Ms Slack, instructed by Mr Burgess from Sparke Helmore Lawyers.
Evidence before the Tribunal
23. The Tribunal received the following evidence:
·Applicant’s Amended Statement of Issues, Facts and Contentions received 22 June 2017 (A1);
·Australian Federal Police Minute Paper dated 7 June 1988 (A2, also at T46A);
·Commonwealth Employee’s Compensation Determination dated 30 June 1988 (A3)
·a 265 page set of T-Documents (T1-T59) (R1);
·Respondent’s Amended Statement of Issues, Facts and Contentions, including annexures, dated 25 May 2017 (R2); and
·Statement of Agreed Facts and Issues dated 18 April 2017 (signed by both parties) (R3).
24. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
Agreed Facts and Issues
25. Before canvassing the oral evidence of both parties at hearing, the Tribunal considers it appropriate to summarise the agreed factual matters, so as to limit the scope of the evidence to those matters that remain in dispute.
26. Having regard to the Statement of Agreed Facts and Issues dated 18 April 2017 (R3) and the T-Documents (R1), the Tribunal is satisfied that the parties agree on the following:
(a)The matters set out at paragraphs 1 to 9 above.
(b)Mr Ascic’s superannuation amount ‘immediately before the commencing day’ was $358.76.
27. While the Statement of Agreed Facts and Issues dated 18 April 2017 (R3) sets out Mr Ascic’s NWE ‘as at that day’ being $734.46 as an agreed fact, Comcare now takes the view (R2, at paragraph 4.8) that, following further calculations undertaken by it, this figure is incorrect and did not include an ‘Exam allowance,’ ‘Investigator Allowance,’ ‘Plain Clothes Allowance,’ or ‘Higher Duties Allowance’ that should have been included in the calculation of Mr Ascic’s NWE.
28. Comcare has reached a revised figure of $769.13 for Mr Ascic’s NWE ‘as at that day’ and relies upon Annexure A of R2 (being the details of Mr Ascic’s salary, wages and weekly rate for the various allowances etc. for AWE purposes) in taking this view.
29. Mr Ascic disagrees with Comcare’s alternative NWE figure of $769.13 (refer to paragraph 16 of the Applicant’s Amended Statement of Issues, Facts and Contentions received 22 June 2017, A1) on the basis that the various allowances added were never actually paid to him at the time (other than the Higher Duties Allowance, which Mr Ascic states he was never paid but also that he was not actually entitled to it). Ms Slack said that Comcare acknowledges that until recently, the applicable allowances were not in fact paid to Mr Ascic. The revised NWE figure is addressed further below (paragraphs 54 to 56).
30. In light of these agreed facts, the parties at hearing addressed the Tribunal on the following disputed matters:
(a)Mr Ascic’s ‘total benefits’ immediately before the commencing day. As Mr Ascic’s superannuation amount has been agreed, this leaves in dispute ‘the amount of compensation payable per week’ to Mr Ascic under the 1971 Act, for the purposes of subsections 131(2), 132(3) and 132(4) of the 1988 Act) (see definition of ‘total benefit’ at paragraph 10 above).
(b)Mr Ascic’s NWE ‘as at that day’ (for the purposes of subsections 131(2), 132(3) and 132(4) of the 1988 Act).
(c)Whether the references to an employee’s NWE ‘as at that day’ in subsections 131(2) to 131(4) (inclusive) are references to the NWE as at 30 November 1988 or 1 December 1988 or some other date.
(d)The correct provision, or provisions, in the 1988 Act from which to calculate Mr Ascic’s entitlement to incapacity payments.
Relevant documentary evidence
31. Australian Federal Police Minute Paper dated 7 June 1988 (A2, T46A) states that the standard incapacity compensation rate current at 1 July 1988 was $267.30 being the sum of $192.80 (in relation to Mr Ascic) plus $50.50 (in relation to Mrs Ascic) plus $24.00 (in relation to their child). The Minute Paper also states that:
(a)Mr Ascic received full sick pay from 12 December 1987 to 1 July 1988; and
(b)Mr Ascic’s current salary was $26,375.00 per annum with no allowances.
32. Commonwealth Employees’ Compensation Determination dated 30 June 1988 (A3), determined the rate of incapacity compensation for the period 5 July 1988 to 8 August 1988 was $267.30.
33. Commonwealth Employees’ Compensation Determination dated 25 July 1988 (T46D, pages 222 and 223) determined the rate of incapacity compensation as at 9 August 1988 was $267.30 in accordance with subsection 45(2) of the 1971 Act (currently $192.80 - Mr Ascic), subsection 45(3) of the 1971 Act (currently $50.50 – Mrs Ascic) and subsection 45(4) (currently $24.00 - child).
34. Letter from Comcare to the Australian Federal Police dated 22 December 1988 (R2, Annexure C) advised that:
“…Mr Ascic’s compensation entitlement has not changed as a result of the commencement of [the 1988 Act]. Compensation payments should continue at the rate of $267.30 per week unless otherwise advised by this office…”
[emphasis added]
35. Comcare Incapacity Determination List run on 22 June 2015 (‘the List’) (T35, page 195) lists the following relevant entries:
Start Date End Date Incap Durn 45 weeks calc Weekly Rate Liability Amount Stat Type Actual Re-cur Section Payee Det No Wks Hrs Mns Durn Total Hrs Mns 01/07/89 31/12/89 26 26.0000 123.13 245.52 6,383.52 A N N 131 3 Ascic, Mar 513353 01/02/89 30/06/89 21 22 3 21.58 97.13 267.30 5,773.68 A N N 131 3 Ascic, Mar 513352 01/12/88 31/01/89 8 29 24 8.7737 75.55 2,352.24 A N N 131 3 Ascic, Mar 503203 01/07/88 30/11/88 21 29 24 21.7737 66.77 5,838.04 A N N Ascic, Mar 503202 Oral evidence and submissions at hearing
36. On commencement of the hearing, the Tribunal sought clarification from Comcare regarding the blank fields contained in the List, in particular the ‘weekly rate’ fields pertaining to determination numbers 503202 (start date 1 July 1988) and 503203 (start date 1 December 1988).
37. In relation to the blank fields in the List, Ms Slack stated that in 1990, Comcare underwent a change to its record keeping processes. Ms Slack said that as such, some of the fields relating to periods prior to 1990 were entered onto the List manually and retrospectively.
38. Mr Ascic stated that Ms Slack’s advice regarding the ‘gaps’ in the List was ‘false.’ Mr Ascic said that subsection 45(7) of the 1971 Act applies to his circumstances and hence after the date of his retirement, the weekly compensation payable should be an adoption of the pre-injury AWE amount (A1, paragraph 3).
39. Mr Ascic said the entry on the List for the period 1 July 1988 to 30 November 1988 (being determination number 503202) under ‘Duration’ of 21.7737 (weeks) is ‘an impossible fraction’ and further, the period 1 July 1988 to 30 November 1988 was ‘stretched’ to include ‘an extra period of time.’ Mr Ascic said that there was no determination dated 1 July 1988, that is, it did not exist because he was on full sick pay until his retirement until 1 September 1988 and he was not in receipt of incapacity payments until his retirement when his sick leave payments ceased.
40. Ms Slack then stated that while Comcare could not manipulate the amount of compensation for a period (in the case of determination number 503202, the liability amount was $5,838.04), it could manipulate the duration of the period to which the amount relates. Ms Slack also stated it would not have been possible for Mr Ascic to have received compensation payments prior to his retirement.
41. The Tribunal then confirmed with Mr Ascic that he did not dispute that the actual liability amount for determination number 503202 of $5,838.04 was correct.
42. Ms Slack then stated that while the entries listed on the List were relevant, they were extrinsic information and ultimately regard must be had to the application of the legislation.
43. Ms Slack reiterated that Mr Ascic’s position was that:
(a)he relied on subsection 45(7) of the 1971 Act in submitting that after his retirement date, only his AWE could be used as the weekly compensation amount; and
(b)he criticises determination 503232 of the List on the basis that Comcare did not discount the period prior to his retirement from the determination period to reflect that incapacity payments were only payable following his retirement date, that is, the period for determination 503202 should have started on 2 September 1988 rather than on 1 July 1988.
44. Ms Slack said that in response to Mr Ascic’s reliance on subsection 45(7) of the 1971 Act, while Mr Ascic does satisfy subsections 45(7)(a) and 45(7)(b), the ‘compensation payable’ in subsection 45(7) is referring back to the ‘compensation that is payable to the employee’ in accordance with subsection 45(2) of the 1971 Act.
45. Ms Slack said that in response to Mr Ascic’s criticism of the start and end dates for determination 503202, determinations dated 30 November 1988 or 1 December 1988 may indeed never have existed as those dates may not have reflected the start date of a particular period of incapacity for Mr Ascic.
46. Ms Slack noted that Mr Ascic’s base salary at the time of claim (without any allowances, which would in turn increase the figure) was $25,048.00 (T31, page 164 and R2, Annexure A). Ms Slack noted that this document (R2, Annexure A) records Mr Ascic’s annual salary for leave bonus purposes (including any higher duties allowance) as $25,164.00 per annum. Mr Ascic confirmed he was prepared to accept those salary figures ($25,048.00 and $25,164.00). Ms Slack also referred to subsections 25(2), (4), (5) and (11) of the 1971 Act in submitting that in calculating AWE, an employee’s earnings shall include payable allowances (other than special expenses) and shall be calculated in relation to the period in the 12 months immediately preceding the injury (in this case, from 10 December 1986 to 10 December 1987).
47. As to the identification of the date of a person’s NWE as at ‘that day’ referred to in section 131 of the 1988 Act, Ms Slack submitted that this day is a reference to 1 December 1998 because:
(a)section 131 of the 1988 Act commenced on that day; and
(b)the 1988 Act introduced the concept of NWE whereas prior to the 1988 Act the earnings amount was AWE. Therefore, ‘that day’ in the context of NWE can only be a reference to 1 December 1988 because NWE did not exist prior to then.
48. As to the identification of the date ‘immediately before the commencing day’ in the 1988 Act, Mr Ascic submitted that as the 1988 Act commenced on 1 December 1988, the date ‘immediately before’ the commencing day is 30 November 1988.
49. In response to Mr Ascic’s submission at paragraph 48 above, Ms Slack submitted that the date ‘immediately before the commencing day’ does not refer to a fixed date per se, rather it refers to ‘a date.’ Ms Slack said that if it had been the intention that the date ‘immediately before’ the commencing day be 30 November 1988, then the legislation would have read ‘on a date immediately before the commencing day,’ rather than ‘immediately before the commencing day.’
CONSIDERATION
50. Mr Ascic, in essence, seeks an order that the reviewable decision should be set aside and substituted with a decision to the effect that his entitlement to compensation for incapacity should have been calculated, and should still be calculated, under subsection 131(2) of the 1988 Act. Comcare takes the view that the reviewable decision correctly calculated Mr Ascic’s entitlement to incapacity payments, subsection 131(3) of the 1988 Act being the appropriate provision of reference.
51. It is not in dispute, and it is supported by the evidence, that Part X of the 1988 Act applies to Mr Ascic’s circumstances and that Mr Ascic meets the criteria set out in subparagraph 131(1) of the 1988 Act.
52. The remaining issues falling for consideration are addressed in turn below.
Mr Ascic’s ‘total benefit’ immediately before the commencing day
53. ‘Total benefit’ is defined in section 123 of the 1988 Act as the amount of compensation payable per week to Mr Ascic under the 1971 Act plus Mr Ascic’s superannuation amount. Mr Ascic’s superannuation amount is agreed at $358.76. What remains for determination, therefore, is the weekly amount of Mr Ascic’s compensation under the 1971 Act.
Weekly compensation payable to Mr Ascic under the 1971 Act
54. As to the amount of compensation payable per week to Mr Ascic under the 1971 Act (and as defined, immediately before the commencing day), the Tribunal finds as follows:
(a)Mr Ascic’s weekly amount of compensation payable as at 1 July 1988 (A2, T46A, refer to paragraph 31 above), 9 August 1988 (T46D, refer to paragraph 33 above) (and 22 December 1988 [R2, Annexure C, refer to paragraph 34 above]) was $267.30.
(b)The phrase ‘immediately before the commencing day’ for the purpose of Part X of the 1988 Act may (but may not necessarily always) refer to the date of 30 November 1988. As a matter of practicality, the Tribunal considers it reasonable to interpret the words ‘immediately before’ as meaning ‘during the applicable determination period that immediately preceded 1 December 1988.’ Depending upon when that determination period commenced, ‘immediately before’ may refer to, for example, a period of several days or several weeks.
(c)Given that Mr Ascic’s weekly amount of compensation payable remained the same throughout the points in time prior to and after the commencement of the 1988 Act (as confirmed by R2, Annexure C, refer to paragraph 32 above), the Tribunal considers that it can reasonably be inferred that ‘immediately before the commencing day,’ as interpreted at subparagraph 54(b) above, the amount of compensation payable to Mr Ascic at the relevant time under the 1971 Act (i.e. Mr Ascic’s AWE prior to the injury) was $267.30. This figure is also supported by:
(i)regulation 3 of the Regulations; and
(ii)subsection 45(2) of the 1971 Act.
(d)Given the facts that:
(i)Mr Ascic does not dispute the actual liability amount for determination number 503232 (refer to paragraph 41 above);
(ii)Mr Ascic accepts the base salary figure (with no allowances) of $25,048 (refer to paragraph 46 above), which gives a weekly figure that is in excess of $267.30; and
(iii)the fact that the various amounts Mr Ascic has claimed are payable to him under the 1971 Act (as summarised at paragraph 5.13 in the Respondent’s Amended Statement of Issues, Facts and Contentions, including annexures, dated 25 May 2017, R2) are in excess of $267.30,
then on Mr Ascic’s own evidence, subsection 45(2)(a) of the 1971 Act applies (rather than subsection 45(2)(b), as submitted by Mr Ascic).
55. In finding so, the Tribunal accepts Comcare’s submission that the ‘compensation payable’ in subsection 45(7) of the 1971 Act is referring back to the compensation payable under subsection 45(2), rather than ‘compensation payable’ more generally, as submitted by Mr Ascic. To find in the alternative would give a result that all former employees retired due to incapacity would have a weekly compensation amount under the 1971 Act equal to their pre-injury AWE, which the Tribunal considers is not the intent of the legislation. The Tribunal also accepts Comcare’s explanation regarding the ‘gaps’ in the List and considers nothing turns on these ‘gaps’ in any event given Mr Ascic’s agreement with the actual liability amount for determination number 503232.
56. As such, the Tribunal finds that Mr Ascic’s ‘total benefit’ as defined in section 123 of the 1988 Act is $626.06 (being the superannuation amount of $358.76 plus the weekly amount of Mr Ascic’s compensation under the 1971 Act of $267.30).
Mr Ascic’s NWE ‘as at that day’
57. Comcare submits that Mr Ascic’s NWE ‘as at that day,’ being 1 December 1988 for the purposes of section 131 of the 1988 Act, was $769.13, based on the base salary and allowances set out in Annexure A of R2. Mr Ascic takes issue with this figure on the basis that was never entitled to the Higher Duties Allowance that was included in the figure and he has never, over the years, actually been paid the other allowances (being the ‘Exam allowance,’ the ‘Investigator Allowance,’ the ‘Spending Allowance’ and the ‘Plain Clothes Allowance’).
58. Comcare has conceded Mr Ascic’s latter point at paragraph 57 above that he was not paid the applicable allowances until recently. Even when this concession is taken into consideration, the Tribunal maintains the inclusion of these allowances in the NWE figure because, as detailed contemporaneously in Annexure A of R2, they were the applicable allowances at the relevant time in light of subsections 25(2), (4), (5) and (11) of the 1971 Act.
59. On the basis that the Tribunal accepts that Ms Ascic was never entitled to the Higher Duties Allowance but was and is entitled to the remaining allowances, and adopting the figures set out in Annexure A of R2, the Tribunal finds that Mr Ascic’s NWE ‘as at that day’ is $777.59, being the total sum of the following amounts:
·Mr Ascic’s total NWE excluding allowances as at that day = $734.46, plus the applicable weekly allowances[2], being the:
oExam allowance = $21.65;
oInvestigator’s allowance = $9.82; and
oSpending allowance = $11.66.
[2] The Tribunal has excluded the ‘Plain Clothes Allowance’ detailed in Annexure A of R3 from the calculation of Mr Ascic’s NWE as at that day as the Tribunal has deemed it a ‘special expense’ in accordance with subsection 25(2) of the 1971 Act. The Tribunal has done so on the basis that the ‘Plain Clothes Allowance’ was payable only for the period 1 October 1987 to 31 March 1988 and in any event, was not payable for the entire twelve months prior to the date of injury as required by subsection 25(4) of the 1971 Act. The Tribunal also notes that the term ‘special expense’ is not defined in the 1971 Act.
Correct provisions from which to calculate Mr Ascic’s entitlement to incapacity payments
60. Mr Ascic is of the view that subsection 131(2) applies to him on the basis of his interpretation of subsection 45(7) of the 1971 Act that on and from his retirement, and given his being in receipt of a superannuation pension as a result of the retirement, his weekly compensation payable is the amount of his pre-injury AWE. Mr Ascic also says that the phase ‘immediately before the commencement day’ refers to 30 November 1988, the date immediately prior to the commencement of the 1988 Act on 1 December 1988.
61. The Tribunal reiterates its findings regarding:
(a)its interpretation of the phrase ‘compensable payable’ in subsection 45(7) of the 1971 Act (refer to paragraph 55 above); and
(b)its interpretation of the phrase ‘immediately before the commencement day,’ made above at sub-paragraphs 54(b), 54(c) and paragraph 55;
(c)Mr Ascic’s ‘total benefit’ as defined in section 123 of the 1988 Act is $626.06 (refer to paragraph 56 above); and
(d)Mr Ascic’s NWE ‘as at that day’ was $777.59 (refer to paragraph 59 above).
62. Based on the figures at subparagraph 61(c) and 61(d) above, the Tribunal finds that Mr Ascic’s total benefit immediately before the commencing day of the 1988 Act was 80.52% of his NWE ‘as at that day.’
63. As this percentage is equal to or more than 70% but less than 95% of his NEW ‘as at that day’, the Tribunal finds that subsection 131(3) of the 1988 Act has been correctly applied to calculate Mr Ascic’s entitlement to compensation since the commencement of the 1988 Act.
64. The Tribunal also notes that:
(a)if it had reached the same figure as Comcare of $769.13 for Mr Ascic’s NWE ‘as at that day’; and/or
(b)if Mr Ascic in fact was and is entitled to the weekly ‘Higher Duties allowance’ of $2.23 (Annexure A, R2) and hence his NWE ‘as at that day’ was $779.82 (on the Tribunal’s figures) or $771.36 (on Comcare’s figures),
then Mr Ascic’s NWE ‘as at that day’ would still fall within the ‘equal to or more than 70% but less than 95%’ range expressed in subsection 131(3) of the 1988 Act.
65. Given the Tribunal has not found that Mr Ascic’s total benefit immediately before the commencing day of the 1988 Act was equal to or more than 95%, the Tribunal has not gone on to consider any further calculations under the 1988 Act. It is not required to do so.
DECISION
66. Comcare’s reviewable decision of 23 December 2015 determining that:
(a)Mr Ascic’s entitlement to incapacity payments had been correctly calculated having regard to subsections 131(3), (4) and (5) of the 1988 Act; and
(a)subsection 131(3) of the 1988 Act was the appropriate provision under which to calculate Mr Ascic’s entitlements to compensation since 1 December 1988,
is affirmed.
I certify that the preceding 66 (sixty six) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
................[sgd]...................................................
Administrative Assistant - Legal
Dated: 7 September 2017
Date(s) of hearing: 28 June 2017 Applicant: In person Counsel for the Respondent: Ms K Slack Representative for the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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