Bacic and Comcare (Compensation)

This matter concerned an appeal by the applicant, Ms. Bacic, against a decision by Comcare concerning her entitlement to incapacity payments under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The dispute centred on the period between 2 April 2008 and 29 February 2012, during which the applicant claimed she was incapacitated for work due to an accepted knee condition. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant was indeed incapacitated for work as a result of her knee condition during this period, and if so, whether she had an ability to earn in suitable employment and was therefore entitled to incapacity payments.

The Tribunal considered the definition of "incapacity for work" under section 4(9) of the SRC Act, which includes an incapacity to engage in any work or to engage in work at the same level as immediately before the injury. The Tribunal referenced the case of *Fleming and Comcare* to interpret "work at the same level" as encompassing not only salary or grade but also the nature, complexity, and duration of tasks. The Tribunal noted evidence from Mr. Mills indicating the applicant was incapacitated for her usual work due to her knee condition and resultant nerve injury. The applicant's own evidence suggested her duties changed upon returning to work, involving more filing, which exacerbated her knee pain and led to further pain in her shoulder and thumb due to reliance on a crutch. Crucially, the Tribunal found that no suitable alternative duties were offered to her.

The Tribunal was satisfied that the evidence supported a finding that the applicant remained incapacitated for work due to her accepted knee condition throughout the period from 7 June 2004 to 29 February 2012. Consequently, the Tribunal determined that the applicant was entitled to incapacity payments. The Tribunal set aside Comcare's reviewable decision and substituted it with a decision that the applicant is entitled to compensation payments for incapacity for the period 2 April 2008 to 29 February 2012. The matter was remitted to Comcare to determine the specific amount of weekly compensation payable.