Burgess and Comcare

[2007] AATA 1637

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1637

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1664

GENERAL ADMINISTRATIVE DIVISION		)
Re		KATIE BURGESS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date7 August 2007  

PlaceBrisbane

Decision

The Tribunal:

1.    sets aside the respondent’s decision of 3 April 2007;

2. substitutes a decision that the applicant is entitled to compensation pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 at the rate of $842.05 (75% of her normal weekly earnings) from 18 October 2006 to 18 January 2007;

3.    orders that the costs of these proceedings incurred by the applicant be paid by the respondent.  

..............Signed.................

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – compensation for incapacity – normal weekly earnings – suspension without pay – whether the amount of earning a suspended employee would receive if not incapacitated would be zero – decision set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth.) - ss 8(1), 8(10), 14, 19

Acts Interpretation Act 1901 (Cth.) - s 15AA

CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273  

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

Bortolazzo v Comcare (1997) 75 FCR 385

Commissioner of Taxation of the Commonwealth of Australia v Ryan (2000) 201 CLR 109

REASONS FOR DECISION

7 August 2007 Deputy President P E Hack SC    

1.The applicant, Ms Katie Burgess, is an employee of the Commonwealth. In September 2004 Ms Burgess suffered an injury, as that term is used in the Safety, Rehabilitation and Compensation Act 1988 (Cth.), (“the SRC Act”) in the course of that employment.

2.The respondent, Comcare, has accepted that it is liable to pay compensation to Ms Burgess in accordance with the SRC Act in respect of the injury. It has accepted that it is liable to pay her compensation in accordance with s 19 of the SRC Act because she is incapacitated for work as a result of the injury. The amount of compensation payable under s 19 of the SRC is determined by reference to an employee’s “normal weekly earnings”.

3.The calculation of normal weekly earnings is undertaken by reference to s 8 of the SRC Act, particularly s 8(1). The terms of the sub-section need not be considered. It is agreed that during the period from 18 October 2006 to 18 January 2007 Ms Burgess’s normal weekly earnings, calculated by reference to s 8(1) of the SRC Act, were $1,122.73.

4.On 18 October 2006, for reasons that are not relevant here, Ms Burgess was suspended from her employment without pay. When Comcare learned of that it reconsidered, of its own motion, the amount of Ms Burgess’s entitlements to compensation under s 19 of the SRC Act. On 3 April 2007 Comcare decided that Ms Burgess was,