Blade and Comcare - [2001] AATA 291

DECISION AND REASONS FOR DECISION [2001] AATA 291

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/23

GENERAL ADMINISTRATIVE DIVISION          )
           Re      WILLIAM BLADE
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member M J Sassella

Date11 April 2001
PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] M J Sassella
Senior Member
CATCHWORDS
Workers' Compensation - compensation payments - incapacity payment rate calculation – higher duties – refusal to adjust the rate of payment - calculation of normal weekly earnings – normal weekly earnings applied to compensation payments - overtime excluded from calculations regarding the normal weekly earnings – substantive level – substantive promotion - long-term acting arrangement - an additional amount reflecting the average higher duties

Safety, Rehabilitation and Compensation Act 1998, ss 8, 9, 19(2) 123

Re Langford and Comcare; Re Maylor and Comcare (1994) 35 ALD 704
Re Colson and Comcare (1996) 42 ALD 786
Re Watson and Comcare (AAT 12094, 6 August 1997)
Re Davies and Comcare (AAT 9637, 1 August 1994)
Bortolazzo v Comcare (1997) 75 FCR 385
Re Jefferts and Comcare (1996) 24 AAR 10

REASONS FOR DECISION

11 April 2001 Senior Member M J Sassella

History of application

Mr William Henry Blade is 62 years of age. He has been receiving compensation payments since 1970. He ceased work for the employing agency on 16 August 1985.
On 24 September 1999 the Respondent wrote to the Applicant notifying him that his incapacity payment rate had been adjusted so that it was to be calculated by reference to the amount payable to a meat inspector grade 2 working for the Australian Quarantine and Inspection Service (AQIS) rather than a rate payable to a meat inspector employed by the NSW Meat Industry Authority (T255). In the same notice the Respondent refused to adjust the rate of payment so as to include higher duties which were paid to Mr Blade when he was at work. AQIS had advised that Mr Blade's higher duties had been only temporary and it was unlikely he would have performed them indefinitely.
That determination was amended in a non-material way on 29 September 1999 (T256). On 6 October 1999 the Applicant requested that the Respondent reconsider its determination on the bases that the calculation of normal weekly earnings (NWE) did not fairly represent his overall annual salary and did not take account of his overall level of service toward the end of his 25 years of service for the Commonwealth. When he resigned from AQIS he was the third most senior officer of the 24 grade 2 officers in the Sydney metropolitan region. He was frequently called on to act as a grade 3 or grade 4 officer. Recruitment to grade 3 or grade 4 occurred from the most senior ranks of the grade 2 group. In his final 18 months with AQIS the Applicant served as a grade 2 for 9 ½ months; as a grade 4 for seven months and as a grade 3 for 1 ½ months. He…

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.

Continue reading Blade and Comcare

Details

AGLC: Blade and Comcare [2001] AATA 291
Case: [2001] AATA 291
Decision Date: 11 April 2001

CaseChat Overview and Summary

In the case of Blade and Comcare, the applicant sought a review of a decision made by Comcare regarding the calculation of compensation payments. The dispute centred around the determination of the applicant's normal weekly earnings (NWE) and the rate of incapacity payments. The matter was heard at the Administrative Appeals Tribunal (AAT). The applicant argued that the NWE should include an allowance for higher duties, while Comcare contended that it should not.

The key legal issues the Tribunal had to address were whether the NWE should include an allowance for higher duties and whether the applicant was entitled to an additional amount reflecting the average higher duties. The Tribunal considered whether the applicant's role involved higher duties, whether the duties were permanent or temporary, and whether the duties were substantively higher than the duties normally performed. The Tribunal also considered the relevant statutory provisions and previous case law on the issue.

The Tribunal concluded that the applicant's NWE should be assessed without allowing for a higher duties allowance. The Tribunal found that the applicant's role did not involve substantively higher duties than those normally performed. The Tribunal also found that the higher duties were not permanent but rather the result of a long-term acting arrangement. The Tribunal held that the applicant was not entitled to an additional amount reflecting the average higher duties. The Tribunal affirmed the decision under review.

The Tribunal's decision was based on a careful consideration of the evidence and the relevant legal principles. The Tribunal found that the applicant's NWE should be calculated based on the duties normally performed, without allowing for higher duties. The Tribunal also found that the applicant was not entitled to an additional amount reflecting the average higher duties. The decision provides useful guidance on the calculation of NWE and the entitlement to higher duties allowance in workers' compensation cases.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the above reasons the Tribunal has concluded that the Applicant's NWE should be assessed without allowing for higher duties allowance.Decision The Tribunal affirms the decision under review. I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.Signed: ..................................................................................... AssociateDate of Hearing 19 December 2000Date of Decision 11 April 2001Counsel for the Applicant Mr J HatzistergosCounsel for the Respondent Ms C Adamson

Ratio Decidendi

Legal Principle Established

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