Claasz and Comcare (Compensation) - [2019] AATA 800

Claasz and Comcare (Compensation) [2019] AATA 800 (3 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/0838
Re:Kristal Claasz
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Member William Frost
Date:3 May 2019
Place:Canberra

The Tribunal varies the decision under review so that Ms Claasz’s compensation is payable pursuant to section 21 of the Safety, Rehabilitation and Compensation Act1988 on and from 28 October 2017. The decision under review is otherwise affirmed.
............................................................
Member William Frost
Catchwords
PRACTICE AND PROCEDURE – compensation – incapacity resulting from injury – where lump sum payable under superannuation benefit scheme – date compensation payable from – calculation of superannuation amount for the purposes of s 21 of the Safety, Rehabilitation and Compensation Act 1988 – decision varied for date compensation payable – otherwise decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 43
Australian Federal Police Act 1979, s 32
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 19, 21
Superannuation Act 1976, s 54C
Superannuation Act 1990
Superannuation Act 2005, ss 10, 13, 16, 17, 18, 19, 44
Cases
Hill and Comcare [2016] AATA 257
Lushington and Comcare [2001] AATA 310
Webley and Telstra Corporation Limited [2003] AATA 539
REASONS FOR DECISION
Member W Frost
3 May 2019
introduction

Ms Claasz sought a review of Comcare’s reviewable decision dated 25 January 2018 accepting her entitlement to an amount of compensation for an injury pursuant to s 21 of the Safety, Rehabilitation and Compensation Act 1988 (‘Act’).
It is not disputed that, in accordance with s 21(1) of the Act, Ms Claasz is ‘incapacitated for work as a result of an injury’, that she ‘is retired from…her employment’, and that she received ‘a lump sum benefit under a superannuation scheme as a result of [her] retirement’. It is also not disputed that, under s 21(2) of the Act, Comcare is liable to pay compensation to Ms Claasz for the injury for each week after the date of her retirement in which she is incapacitated.
However, the dispute between the parties is the calculation (and therefore the quantum) of the compensation payable by Comcare under s 21 of the Act. Specifically, Ms Claasz challenges the basis upon which the ‘superannuation amount’ (as defined in s 4 of the Act) was determined by Comcare for the purpose of it identifying the amount of compensation payable as a result of her invalidity retirement from the Australian Federal Police (‘AFP’).
BACKGROUND
Ms Claasz commenced employment with the AFP in August 2010. For over four years, Ms Claasz held various positions with the AFP, including in ‘Child Protection Operations’, ‘Crime Reduction (Child)’ and ‘High Tech Crime Operations Strategic Business Coordination’. Throughout her employment with the AFP, Ms Claasz was a member of the Public Sector Superannuation Accumulation Plan (‘PSSAP’), being a ‘superannuation scheme’ under the Act and administered by the Commonwealth Superannuation Corporation (‘CSC’).
In December 2014, Ms Claasz, then aged 28, lodged a claim with Comcare for workers’ compensation due to ‘depression and anxiety’ as a result…

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.

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Details

Case: [2019] AATA 800
Decision Date: 3 May 2019

CaseChat Overview and Summary

This matter concerned an appeal by Ms Claasz against a decision by Comcare regarding the calculation of compensation payable under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the Act). Ms Claasz had lodged a claim for workers' compensation due to depression and anxiety, which was accepted by Comcare, leading to weekly payments. Subsequently, Ms Claasz was retired from the Australian Federal Police on the grounds of mental incapacity. The dispute centred on the quantum of compensation payable under section 21 of the Act, specifically how the "superannuation amount" was determined for the purpose of calculating her entitlement following invalidity retirement.

The court was required to determine two primary legal issues. Firstly, it needed to ascertain the correct date from which compensation was payable to Ms Claasz under section 21 of the Act. Secondly, the court had to determine the appropriate method for calculating the "superannuation amount" to be included in the assessment of incapacity payments under section 21, considering the definition of this term in section 4 of the Act and the receipt of a lump sum superannuation benefit.

The court varied Comcare's decision regarding the date from which compensation was payable, finding that it should have been calculated from the date of retirement (27 October 2017) rather than the date of receipt of the lump sum benefit (10 November 2017). This was based on the interpretation of section 21(2) of the Act, which allows for adjustments to compensation payments made prior to the receipt of a lump sum, preventing "double dipping". Regarding the calculation of the superannuation amount, the court affirmed Comcare's approach, which involved apportioning the total superannuation benefit to identify the employer-funded component. This employer-funded component, including any insurance amounts received by the superannuation fund, was correctly identified as the "superannuation amount" to be used in the section 21 calculation.

Consequently, the court affirmed Comcare's decision that $263,259.61 was the correct "superannuation amount" to be used for calculating Ms Claasz's incapacity payments under section 21 of the Act. However, the decision was varied to reflect that compensation was payable from the date of her retirement, not the date she received her lump sum superannuation benefit.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

However, the dispute between the parties is the calculation (and therefore the quantum) of the compensation payable by Comcare under s 21 of the Act. Specifically, Ms Claasz challenges the basis upon which the ‘superannuation amount’ (as defined in s 4 of the Act) was determined by Comcare for the purpose of it identifying the amount of compensation payable as a result of her invalidity retirement from the Australian Federal Police (‘AFP’). BACKGROUND Ms Claasz commenced employment with the AFP in August 2010. For over four years, Ms Claasz held various positions with the AFP, including in ‘Child Protection Operations’, ‘Crime Reduction (Child)’ and ‘High Tech Crime Operations Strategic Business Coordination’. Throughout her employment with the AFP, Ms Claasz was a member of the Public Sector Superannuation Accumulation Plan (‘PSSAP’), being a ‘superannuation scheme’ under the Act and administered by the Commonwealth Superannuation Corporation (‘CSC’). In December 2014, Ms Claasz, then aged 28, lodged a claim with Comcare for workers’ compensation due to ‘depression and anxiety’ as a result of ‘exposure to CPO [Child Protection Operations] material’ on 1 December 2014 during her employment in High Tech Crime Operations with the AFP.[1][1] Document entitled Claim for Workers’ Compensation, at T3 (pages 11-25) of the documents provided to the Tribunal pursuant to section 37 of the Administrative Appeals Act 1975 (‘AAT Act’). In January 2015, Comcare accepted Ms Claasz’s claim and its liability to pay her compensation under s 14 of the Act for ‘post-traumatic stress disorder’ (using the International Classification of Diseases and Injuries).[2] Comcare identified the date of injury as 8 December 2014, being the date Comcare was able to satisfactorily determine, based on a report provided by her treating general practitioner, that Ms Claasz first sought medical treatment for her condition the subject of the claim. [2] Comcare’s determination dated 8 January 2015 at T5 (pages 30-36) of the documents provided to the Tribunal pursuant to section 37 of the AAT Act. Ms Claasz did not return to work after she sustained her injury in December 2014 and, since January 2015, she has received compensation in the form of weekly payments from Comcare (backdated to December 2014) based on her normal weekly earnings and the application by Comcare of ss 19 and 21 of the Act. In November 2016, pursuant to s 32(1) of the Australian Federal Police Act 1979 (‘AFP Act’), Ms Claasz requested that the Commissioner of the AFP retire her because of her mental incapacity due to post-traumatic stress disorder. Pursuant to s 32(4) of the AFP Act, because Ms Claasz had not reached her maximum retiring age (within the meaning of that Act), she could only be retired on the ground of invalidity if the CSC certified in writing (in accordance with s 54C of the Superannuation Act1976) that, if she was retired, she would be entitled to receive invalidity benefits under Division 4 of Part V of the Superannuation Act1976. As a result, Ms Claasz requested the AFP to write to the CSC to apply for her to be medically retired on the basis of her total and permanent disability. In December 2016, the AFP requested that the CSC (via the PSSAP) certify that Ms Claasz would be entitled to receive invalidity benefits as required under the Superannuation Act1976.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This calculation of Ms Claasz’s compensation was set out by Comcare in its internal email dated 7 December 2017. For completeness, the Tribunal sets out the relevant parts of that email, in which Comcare noted that: superannuation to be included in the calculation of incapacity payments under section 21 of the Safety, Rehabilitation and Compensation Ace [sic] 1988 (SRC Act) would be calculated based on an apportionment using the superannuation contributions made by the employer, (which we know to be $97,104.15), and employee, excluding any monies rolled over from other funds and the insurance amount, (which is funded from both the employer and employee contributions).In this case, this would mean that the apportionment would be based on a figure of:$320,248.08 totalMinus $200,000 Insurance benefitMinus $92.60 RESTMinus $2,048.28 HESTA Minus $1,025.37 AGESTMinus $206.99 Enterprise SuperRemaining $116,874.84 Amount to be used to calculate apportionmentThe employer contributed $97,104.15 of this amount, meaning the employee contributions would equal $19,770.69. This would equate to the employer contributing 83.08% of the total contributions, whereas the employee has contributed 16.92% of the contributions. These percentages are then applied to the total superannuation benefit, (minus the amounts rolled over from other funds), to ascertain the amount attributable to the employer and employee contributions, (with only the employer funded component being included in the section 21 calculation).Total (excluding amounts rolled over from other funds: $316,874.84Employer funded component (83.08%) $263,259.61Employee funded component (16.92%) $53,615.23So, in this case the employer funded lump sum to be included in the section 21 calculation would be $263,259.61.…The superannuation amount that Comcare would be required to take into account would be the amount of pension and/or lump sum identified as being the ‘employer funded component’, i.e. that part of the pension and/or lump sum that has been funded by the contributions of the employee’s Commonwealth employer (refer ‘superannuation amount’ definition in section 4 of the SRC Act).Upon a complying exit from the superannuation scheme, any ‘insurance’ lump sum that the employee’s superannuation fund receives from the fund’s insurer will be credited to the employee’s superannuation account pending the superannuation fund calculating the value of the employee’s final benefit and payment to the employee. This would bring the insurance amount into the ambit of being a lump sum for the purposes of paragraph 21(1)(b) of the SRC Act.Therefore, the insurance amount with an employer-funded component will be assessed as a ‘superannuation amount’ for the purposes of calculating incapacity benefits pursuant to sections 20, 21 or 21A (in this particular case, section 21). CONCLUSION Having regard to the above findings of the Tribunal, the correct or preferable decision in relation to the identification of the ‘superannuation amount’ is to affirm Comcare’s decision that the amount of $263,259.61 is the ‘superannuation amount’ to be used for the purpose of calculating the amount of compensation payable to Ms Claasz under s 21 of the Act.

Ratio Decidendi

Legal Principle Established

In respect of insurance funds paid to the CSC pursuant to a claim under a member’s policy, rule 4.1.4 notes that:Any amount paid by an insurance company to CSC in response to a claim under Rule 4.1.3 [providing for an ordinary employer-sponsored member claim by CSC] against a policy providing death and invalidity cover must be paid into the PSSAP Fund and is credited to the personal accumulation account of the ordinary employer-sponsored member. CONSIDERATIONWhat is the date from which compensation is payable to Ms Claasz under s 21 of the Act? Because of its misapplication of the date from which compensation was payable pursuant to s 21 of the Act, Comcare sought a variation of this element of its reviewable decision. At the hearing, Counsel for Ms Claasz conceded that this matter was not in issue between the parties. As a result, and for the reasons that follow, the Tribunal varies the decision under review in relation to the date from which compensation is payable to Ms Claasz under s 21 of the Act. In its reviewable decision of 25 January 2018, Comcare incorrectly applied s 21 of the Act to Ms Claasz’s compensation payments from the date she received the lump sum benefit on 10 November 2017, not ‘for each week after the date of the retirement’ from the AFP on and from 27 October 2017, as required under s 21(2) of the Act. The application of s 21(2) of the Act from the date of retirement where a person has received a lump sum benefit was confirmed by the Tribunal in Webley and Telstra Corporation Limited[17] as follows:Section 21(1) of the Act comes into operation when a person receives a lump sum benefit. Subsection 21(2) then provides liability under the Act to pay the employee for each week after the date of retirement using the formula in s21(3). The Tribunal accepts the submission of the respondent that the words in accordance with this section for each week after the date of the retirement, as used in s21(2), are sufficient to allow the adjustment to be made for payments of compensation made prior to the date the person receives the lump sum. The Tribunal concludes that the definition of AC in s21(3) referring to the amount of compensation that would have been payable (if section 19 applied), includes amounts which have been paid under s19. Therefore, the use of the expression does not exclude amounts that were paid under s19. A recalculation has to occur as soon as a compensation payer knows that a lump sum has been received. The Tribunal does not accept that because s21(1) refers to the point in time when a person receives the lump sum, the section has no operation for a period prior to that point in time. If that were so, there would be no need for the words in accordance with this section for each week after the date of the retirement in s21(2). Therefore, the Tribunal rejects the submission of the applicant that the identification of a date of receipt in s21(1) creates two discrete periods of time and that the payment of compensation in the period prior to receiving the lump sum cannot be revisited. This would have the effect of allowing double dipping in the period that predated the receipt of the lump sum.[17] Webley and Telstra Corporation Limited [2003] AATA 539 at 29-30.