Burke and Telstra Corporation Ltd

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 843

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2403

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHANE ALLAN BURKE

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Senior Member K Bean

Date29 November 2011

PlaceAdelaide

Decision

1.     The decision under review is varied so as to provide that:

(a) between 4 May 2009 and 29 November 2009, Mr Burke was entitled to be paid incapacity payments, pursuant to Part II, Division 3 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), on the basis that the amount per week that he was able to earn in suitable employment was nil;

(b)       from 30 November 2009 to date, Mr Burke’s entitlement to incapacity payments should be calculated on the basis that the amount per week that he was able to earn in suitable employment was $700; and

(c)       as at the date of this decision, Mr Burke’s ability to earn in suitable employment is $700.00 per week.

2.     The matter is remitted to the respondent for calculation of the amount of incapacity payments payable to Mr Burke as a result of this decision.

3.      The Tribunal:

(a)      reserves liberty to apply within 14 days in relation to the costs of the proceedings; and

(b) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant pursuant to s 67(8) of the SRC Act.

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K BEAN
  (Senior Member)

NWE is the amount of the employee’s normal weekly earnings.

…

(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:

(a)where the employee is in employment (including self-employment)—the amount per week that the employee is earning in that employment;

(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;

(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn…