Daff and Comcare
[2010] AATA 732
•24 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 732
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2009/1365
) 2009/2850
GENERAL ADMINISTRATIVE DIVISION ) Re WAYNE DAFF Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date24 September 2010
PlaceCanberra
Decision The decisions under review are affirmed.
.........................[sgd].....................
Mr S. Webb, Member
CATCHWORDS
WORKERS COMPENSATION - rehabilitation - former employee - entitlement to weekly rehabilitation compensation payments after the age of 65 - calculus to be used when determining the amount of compensation payable - decision affirmed
WORKERS COMPENSATION - incapacity payments - former employee - entitlement to incapacity payments after the age of 65 - meaning of 'for the time being' - accrued right - comparative disadvantage - for injured workers who were under 65 and receiving less than 70 percent total benefit on the commencement day the rate of compensation reduces to zero at age 65 - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 19, 23, 37, 123, 124, 127, 128, 131, 134
Compensation (Australian Government Employees) Act 1971 ss 38, 45, 104
Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42
Bird v Commonwealth (1988) 165 CLR 1
Brede and Department of Defence (1994) 33 ALD 669
Chang v Laidley Shire Council [2007] HCA 37
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Comcare v Meng Chang [1996] FCA 1844
Esber v Commonwealth [1992] HCA 20
Fisher v Hebburn Ltd [1960] HCA 80
Hardin v Comcare (1995) 21 AAR 392
I W v City of Perth (1996) 191 CLR 1
Magill v Magill [2006] HCA 51
Newcastle City Council v GIO General Limited (1997) 191 CLR 85
Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273
Ogden Industries Pty Ltd v Lucas [1967] HCA 30
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518
Stingel v Clark (2006) 226 CLR 442
Telstra Corporation Limited v Warner (1994) 20 AAR 259
Waters v Public Transport Corporation (1991) 173 CLR 349
Wilson v Wilson's Tile Works Pty Limited (1960) 104 CLR 328
Yule v Junek (1978) 139 CLR 1
REASONS FOR DECISION
24 September 2010 Mr S. Webb, Member 1. Wayne Daff was injured in employment by the Australian Federal Police in 1984. Presently, he has two claims for compensation on foot: the first concerns his entitlement to compensation payments during a rehabilitation program and the second concerns his entitlement to compensation payments for incapacity. Comcare has rejected both claims by primary determination and on reconsideration. These decisions are the subject of separate applications for review.
2. Mr Daff is legally represented in application 2009/1365 and he is representing himself in application 2009/2850. For convenience the applications were listed on the same day, but were heard in series. As the applications turn on similar facts, it is convenient to deal with them in one decision, albeit in two parts. Documents have been filed in each application under section 37 of the Administrative Appeals Tribunal Act 1975. For ease of reference the documents filed in relation to application 2009/1365 will be referred to as ‘T’ and ‘ST’ documents, whereas the documents filed in relation to application 2009/2850 will be referred to as ‘AT’ documents.
3. At this point it is convenient to set out the factual context in which these proceedings arise. I was informed at the outset of the hearing that all relevant facts were agreed. These are to be found in Exhibit 1. I am satisfied that the agreed facts are established on the materials before, and I will proceed on that basis. For present purposes, it is sufficient to observe that:
(a)Mr Daff was injured in compensable circumstances in 1984, he was retired on invalidity grounds in 1985 and he was paid compensation under the Commonwealth (Australian Government Employees) Act 1971 (the 1971 Act) and, subsequently, under the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act);[1]
[1] T5 folio 8.
(b)on commencement of the 1988 Act on 1 December 1988, Mr Daff was 45 years of age[2] and his ‘total benefit’[3] was less than 70 percent;
[2] Date of birth: 1 January 1943, see T4 folio 9 for example.
[3] As defined in section 123 of the Safety, Rehabilitation and Compensation Act 1988.
(c)on 20 September 2007 the AFP, the rehabilitation authority, referred him to Dysaran Consulting (Dysaran) “to assess the necessity for, and your capability to undertake, a Return To Work Plan (RTWP);[4]
[4] ST1 folio 53.
(d)on 1 October 2007 Comcare informed Mr Daff that he would not be entitled to weekly payments of compensation after his 65th birthday on 1 January 2008;[5]
[5] AT5 folio 12.
(e)on 14 October 2007 Mr Daff sought additional information concerning Comcare’s letter of 1 October 2007;[6]
[6] AT7 folios 19 and 20.
(f)on 16 October 2007 Dysaran completed an Initial Needs Assessment for Mr Daff and recommended creation of a return to work program;[7]
[7] ST3 folio 58.
(g)on 15 November 2007 Dysaran completed a rehabilitation assessment of Mr Daff for the purposes of section 36 of the 1988 Act;[8]
[8] ST5 folio 61; ST8 folio 80 refers.
(h)on 10 December 2007 Mr Daff claimed travelling expenses relating to rehabilitation that were subsequently paid;[9]
[9] ST4 folio 60 and ST6 folio 63.
(i)on 1 January 2008 Mr Daff turned 65 and his weekly compensation payments ceased;
(j)on 25 March 2008 the AFP determined a rehabilitation program in the form of a return to work program for Mr Daff under section 37 of the 1988 Act;[10]
[10] ST8 folios 78 to 83.
(k)on 12 July 2008 Mr Daff applied for reimbursement of travel expenses and for payments for to his attendance at the rehabilitation program “based on my NWE”;[11]
(l)on 17 July 2008 Mr Daff’s rehabilitation program was closed;[12]
(m)on 19 July 2008 Mr Daff wrote to Comcare seeking a reply to his letter of 14 October 2007;[13]
(n)on 17 October 2008 Comcare issued a primary determination rejecting Mr Daff’s claim for payment for attendance at the rehabilitation program;[14]
(o)on 21 October 2008 Comcare issued a primary determination rejecting Mr Daff’s claim to weekly incapacity payments from 1 January 2008;[15]
(p)on 18 November 2008 Mr Daff applied for reconsideration of that decision;[16]
(q)on the same day he applied for reconsideration of Comcare’s determination to reject his claim for payments relating to his attendance at the rehabilitation program;[17]
(r)on 18 March 2009 Comcare decided to affirm this decision in a reconsideration decision;[18]
(s)on 22 April 2009 Comcare issued a reconsideration decision affirming the earlier decision to reject Mr Daff’s claim for weekly compensation for incapacity;[19]
(t)on 3 April 2009 and 24 June 2009 Mr Daff applied for review of these decisions, respectively.
[11] T10, T11 and T12.
[12] T13 folio 35.
[13] AT7 folio 18.
[14] T14 folio 36-37.
[15] AT10 folios 44-47.
[16] AT11 folio 48; AT13 refers.
[17] T15 folio 38.
[18] T16 folios 39-41.
[19] AT14 folios 55-58.
application 2009/1365
4. The issue to be determined in this application is whether Mr Daff is entitled to payments of compensation for his attendance at the rehabilitation program.
5. There is a preliminary issue concerning the period of the rehabilitation program.
6. Mr Daff says that the rehabilitation program commenced on 19 November 2007 even though the AFP made no determination under section 37 of the 1988 Act or section 38 of the 1971 Act to that effect.
7. Comcare says that the rehabilitation program did not commence until a determination was made under subsection 37(1) of the 1988 Act on 25 March 2008.
8. It appears that Dysaran provided Mr Daff with “job seeking skills and techniques as part of his rehabilitation” and that Mr Daff participated in activities arranged by Dysaran prior to the formal determination of a rehabilitation program.[20] It also appears that Dysaran liaised with Ms Jenny Pacor and Comcare about Mr Daff’s rehabilitation and related activities in November 2007.[21] A further vocation assessment was completed on 11 March 2008 and this was submitted to the AFP, with recommendations, on 13 March 2008.[22] Subsequently on 25 March 2008 a formal determination under subsection 37(1) of the 1988 Act was issued.[23]
[20] See Exhibit 1, Chronology.
[21] ST5 folio 61.
[22] ST7 folio 64.
[23] ST8.
9. There are three things to say about this. Firstly, to my mind, section 37 of the 1988 Act is cast prospectively. An assessment under section 36 of that Act does not confer any right or obligation upon Mr Daff to actually undertake a rehabilitation program.[24] That, unavoidably, is a function of subsection 37(1).[25] Secondly, a rehabilitation authority is required to serve on the particular employee notice in writing of a determination under section 37(1). There is no evidence that this was done prior to 25 March 2008 in respect of the determination under section 37 on that date. Thirdly, the ‘relevant authority’, in this case Comcare, is required to pay the costs of a rehabilitation program, but that requirement only applies to a rehabilitation program ‘under this section’, that is, a rehabilitation program that has been the subject of determination pursuant to subsection 37(1). There is no basis on which to conclude that Comcare is required to pay costs associated with rehabilitation activities undertaken prior to the formal determination on 25 March 2008, even though that result may produce unfairness.[26]
[24] Comcare v Meng Chang [1996] FCA 1844 at [13].
[25] Hardin v Comcare (1995) 21 AAR 392 at 395.
[26] Ibid at 396.
10. I do not accept the proposition that the present evidence is sufficient basis on which to draw an inference that the AFP made a determination under section 37(1) in November 2007. The suitability and appropriateness of a rehabilitation program must be assessed in the particular circumstances having regard to the matters set out at s.37(3) of the Act . It appears that the assessment process was not completed until 25 March 2008, following finalisation of a vocational assessment report. As it appears to me, the activities that Dysaran arranged by way of job seeking skills and techniques for Mr Daff prior to 25 March 2008 were not part of a formal rehabilitation program determined in the proper way under subsection 37(1), with regard to subsection 37(3) of the 1988 Act. I so find.
11. The substantive issue in this application concerns Mr Daff’s entitlement to compensation payments while undertaking the rehabilitation program as determined.
12. Counsel for Mr Daff, Mr Anforth, asserts that Mr Daff is entitled to payment of compensation for time spent attending the rehabilitation program. In Mr Anforth’s submission, Mr Daff’s entitlement arises under subsection 37(5) of the 1988 Act, which requires the relevant authority to determine the quantum of compensation payable by reference to either section 19 or section 131 of that Act. This, Mr Anforth says, is a particular head of compensation entitlement that is distinct from any entitlement arising under any other section of the 1988 Act, including section 19 and section 131. On that basis, Mr Anforth maintains that the entitlement to compensation for rehabilitation cannot simply be expunged because Mr Daff is over 65 years old and may not otherwise be entitled to compensation for incapacity under Division 3 of Part II of the 1988 Act by application of section 23, or under Division 3 of Part X of the Act by operation of section 134, for example. In Mr Anforth’s submission, a consistent and fair result is required. He says that there is a ‘lacuna’ in subsection 37(5) that is the result of poor drafting or omission – an injured employee who is required to attend a rehabilitation program and who has no entitlement to incapacity payments under section 19, including all ‘former employees’ and other employees whose incapacity entitlements are calculated under other sections of Part II, will have no entitlement to compensation payments during the period of a rehabilitation program. Mr Anforth asserts that the Parliament could not have intended such an unjust and unfair result. In his submission, the remedy is to construe subsection 37(5) of the 1988 Act as a separate head of entitlement to weekly rehabilitation payments that are quantified by applying the particular incapacity calculus without regard to any other provision or test.
13. Even though there are some difficulties with the construction of these sections, I do not agree with the construction contended for by Mr Anforth.
14. There are a number of things to say about this. Firstly, the starting point is Mr Daff’s injury. Plainly enough this occurred while the 1971 Act was in force. In consequence, his entitlements to compensation are subject to the operation of the savings and transitional provisions set out in Part X of the 1988 Act. To be clear, Mr Daff is a ‘former employee’ as defined in section 123 of the 1988 Act. His entitlement to weekly compensation for incapacity, on the agreed facts, is to be determined under section 131 of that Act. Section 19 does not strictly apply to him.[27]
[27] Telstra Corporation Limited v Warner (1994) 20 AAR 259.
15. Secondly, under subsection 124(2), Mr Daff is not entitled to compensation for rehabilitation under the 1988 Act if such compensation was not or would not have been payable under the 1971 Act. As can be seen, the template of subsection 37(5) of the 1988 Act is cast in similar terms to the equivalent provision in the 1971 Act, subsection 38(5). It is tolerably clear that both Acts establish a distinct entitlement to compensation for rehabilitation and both subsections provide distinct mechanisms for determining the amount of such compensation in respect to a full time rehabilitation program and a part time program. I note in passing, that I have no difficulty in determining that Mr Daff’s rehabilitation program was a part time program. As it appears to me, these provisions allow for weekly payments of compensation during a rehabilitation program that are equivalent to payments that may otherwise be payable in relation to incapacity if the incapacity suffered by the employee is deemed to continue. That being so, applying section 124 of the 1988 Act, it is tolerably clear that Mr Daff’s entitlement to compensation for rehabilitation during the particular period is to be determined under the 1988 Act.
16. Thirdly, subsection 37(5) of the 1988 Act expressly disapplies an injured employee’s entitlement to compensation under sections 19 and 31, but provides a related mechanism for the determination of the weekly amount of compensation. Subsection 38(5) of the 1971 Act is similarly cast, with reference to section 45 of that Act. As can be seen, with regard to the 1988 Act, subsection 37(5) only disapplies sections 19 and 31; it does not disapply the operation of section 131 or any other section under which incapacity entitlements may be determined. There is no bar to the continuing operation of such sections during the period of a rehabilitation program. Thus, it is tolerably clear that in the case of an injured former employee, such as Mr Daff, his entitlement to weekly compensation during a rehabilitation program is not determined under subsection 37(5) of the 1988 Act, but weekly payments for incapacity will continue under section 131. A similar construction arises in relation to subsections 38(5) and 104(2) of the 1971 Act.
17. Fourthly, the difficulty for Mr Daff, is whether section 134 applies to reduce the amount of his weekly compensation payments under subsection 131(4) to zero when he turned 65. This issue is the subject of Mr Daff’s second application concerning his entitlement to incapacity payments, to which I will return. I am not persuaded by the proposition that section 134 should not apply to Mr Daff if his weekly compensation during a rehabilitation program is to be determined under section 131. For that to occur it would be necessary to proceed on the basis that subsection 37(5) operates to suspend the calculation of incapacity payments under section 131 (and Part X) and in place thereof implant a mechanism that applies the calculus of section 131 alone. There are some attractions to this approach, insofar as it could be construed, by extension, as consistent with the approach set out in subsection 37(5) of the 1988 Act and 38(5) of the 1971 Act. But there are some difficulties, too. One would need to adopt an unnatural construction that exceeds and is not consistent with the express terms of the Act or the specific terms of subsection 37(5). Furthermore, adopting this construction would create a fresh anomaly – a person over the age of 65 would not be entitled to weekly compensation for incapacity, but would be entitled to weekly compensation for rehabilitation.
18. The issue is one of statutory construction and it is appropriate to briefly consider the established principles to be followed. Considering section 15AA of the Acts Interpretation Act 1901, subsection 37(5) must be construed in its context, so that it is consistent with the language and promotes the objects and purposes of the 1988 Act.[28] But this does not permit an unreasonable or unnatural construction or a rewriting of the provision.[29] Effect must be given ‘to the will of Parliament as expressed in the law’.[30] Nevertheless, there is ample authority for the proposition that worker’s compensation legislation, being beneficial and remedial legislation, should be interpreted in accordance with its remedial and beneficial purposes[31] - a generous construction is required.[32] Where more than one interpretation is possible, the construction to be adopted should accord with the purposes of the legislation and produce a fair result, without creating anomalies or harsh outcomes.[33] The established principle identified by Fullagar J in his dissenting judgment in Wilson v Wilson's Tile Works Pty Limited[34] ‘where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred’[35] applies if the circumstances of a particular case fall within the general spirit of such legislation;[36] ‘any ambiguity ought not be construed narrowly’.[37]
[28] CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 (per Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 (per McHugh, Gummow, Kirby and Hayne JJ); Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273 at 280-281 (per McHugh A-CJ, Gummow and Hayne JJ).
[29] Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113 per McHugh J.
[30] Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ.
[31] I W v City of Perth (1996) 191 CLR 1 per Brennan CJ and McHugh J at 12.
[32] Waters v Public Transport Corporation (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ.
[33] Stingel v Clark (2006) 226 CLR 442 at 454 per Gleeson CJ, Callinan, Heydon and Crennan JJ.
[34] (1960) 104 CLR 328.
[35] Ibid at 335.
[36] Bird v Commonwealth (1988) 165 CLR 1 at 9 per Gaudron and Deane JJ.
[37] Ibid at 6 per Mason CJ, Brennan and Toohey JJ.
19. Bearing these principles in mind, it appears to me that the purpose of subsection 37(5), and its predecessor in the 1971 Act, is to provide for weekly payments of compensation to an injured employee while undertaking a rehabilitation program that are in equal measure to the weekly compensation that otherwise would have been payable to the person under section 19 or section 31. The words ‘would…have been payable’ require an assessment of the amount that would, but for subsection 37(5), be payable in respect of incapacity. If, applying the formula ‘NWE-AE’ at subsection 19(2) and the calculus set out in succeeding subsections, the resulting amount is zero, then the amount that is payable under subsection 37(5) would also be zero. Similarly, to my mind, if the amount resulting from the section 19 assessment is zero because the person is over 65 years old, by application of section 23, the same result will be produced for the purposes of subsection 37(5).
20. There is no ambiguity in subsection 37(5). The subsection provides that compensation is not payable under section 19 and section 31 during a rehabilitation program. That bar does not apply to sections 20, 21, 21A or 22 concerning injured employees who are retired or who are institutionalised, and it does not apply to provisions concerning former employees under Part X. It is tolerably clear that the legislature intended that subsection 37(5) would only apply to injured employees who would, but for the operation of the subsection, have been entitled to compensation payments under section 19. It would have been a simple matter to extend the operation of subsection 37(5) to cover retired, institutionalised or former employees if that had been the intention. But that was not done. Was this an error or an omission, as Mr Anforth suggests? I am satisfied that it was not. The clear intention expressed in the provisions to which I have referred is to treat retired, institutionalised and former employees differently, in respect to weekly compensation during a rehabilitation program, than other injured employees.
21. For example, if a retired employee’s weekly incapacity payments are calculated under section 20 and the person undertakes a rehabilitation program under section 37, subsection 37(5) does not apply. Subject to section 23, the retired employee’s weekly incapacity payments as calculated under section 20 would continue during the rehabilitation program – the subsection does not disapply section 20. Clearly, in this example, if the person is over 65 years of age, section 23 raises a bar to payment of weekly compensation for incapacity under section 20. This bar applies whether or not the person engages in a rehabilitation program. Applying the same approach to former employees, incapacity payments under section 131 would continue during a rehabilitation program, subject to the operation of section 134. Thus it can be seen that the 1988 Act and subsection 37(5) in particular provides a framework for the payment of weekly compensation to an injured employee during a rehabilitation program so long as the person is under 65 years of age or, in the case of certain former employees, is subject to continuing payments after that age pursuant to Part X of the 1988 Act.
22. The construction for which Mr Anforth contends is not consistent with the framework established by the 1988 Act in relation to the payment of weekly compensation to injured employees during a rehabilitation program. And it requires an unnatural construction of subsection 37(5).
23. Nevertheless, it can be accepted that the imposition of an age barrier to such payments during a rehabilitation program may be productive of unfairness, as in Mr Daff’s case for example. The difficulty here arises in relation to an injured employee or former employee with no entitlement to weekly payments for incapacity who is required to participate in a rehabilitation program. Mr Anforth says a person in such circumstances would be required to give up their time and their income, if any, without any compensation in order to attend a rehabilitation program, when failure to do so may result in the suspension of all compensation entitlements, in relation to medical treatment expenses, for example. This, he says, could not have been intended by the Parliament as it gives rise to inconsistency and manifest unfairness.
24. One must be careful to consider the specific terms of the legislation in relation to particular circumstances; general propositions are not helpful here. The difficulty for Mr Daff is that he was over the age of 65 when he was required to participate in the rehabilitation program determined by the AFP. That, itself, is a very unusual circumstance. Under the construction I have outlined, his entitlement to payment of weekly compensation for rehabilitation will rise under section 131 of the 1988 Act. His difficulty is if section 134 applies to him, and I am satisfied that it does, his entitlement to weekly compensation reduced to zero when he turned 65.
25. To my mind, the terms of section 37 are sufficiently broad to contemplate the possibility that an injured employee may not be entitled to weekly compensation during a rehabilitation program, although, in practical terms, those examples may be few. Subsection 37(6) the 1988 Act excludes an employee from obtaining compensation under subsection 37(5) as well as a rehabilitation allowance under the Social Security Act 1991. It is tolerably clear that the contrary circumstance may hold: an employee who is not entitled to compensation under subsection 37(5) is not excluded from obtaining a rehabilitation allowance under the Social Security Act 1991.
26. To the extent that Mr Anforth contends subsection 37(5) should be construed such that an injured employee undertaking a rehabilitation program would have their entitlement to weekly payments calculated in relation to section 19, whether or not that section otherwise applied, I do not agree. That approach would be productive of inconsistency and unfairness. A person with no entitlement to incapacity payments, or with a fixed entitlement under section 131 for example, who undertakes a rehabilitation program would then have a different entitlement applying the calculus set out in section 19 for the duration of that program. In other words, that person would be entitled to an amount that is different than a person in the same circumstances but for the rehabilitation program. As it appears to me, a construction of that kind is not consistent with the purposes of section 37 to provide for consistency in weekly compensation amounts that are payable for incapacity and for rehabilitation. As I have said, the correct approach is to construe the legislation purposively and in a manner that does not produce an anomalous result. That being so, I am satisfied that the amount of Mr Daff’s entitlement to weekly payments during the rehabilitation program is the same as the amount of his entitlement to weekly payments for incapacity at that time or that otherwise would apply.
27. It is true that Part X of the 1988 Act provides an inconsistent result for employees who were injured prior to the commencement of the 1988 Act and those injured after that date. But those matters are subject to the operation and specific purposes of savings and transitional provisions in that Part of the 1988 Act, which do not assist Mr Daff in this case.
28. Thus, in sum on this point, Mr Daff’s entitlement to weekly compensation during the period of his participation in the rehabilitation program from 25 March 2008 to 25 June 2008 is to be determined under Part X of the 1988 Act. That being so, as will appear, the amount of his entitlement to weekly payment of compensation during the rehabilitation program he undertook from 25 March 2008 to 25 June 2008 is zero.
29. It remains to address the issue of unfairness as, by this decision, Mr Daff is not entitled to recover weekly compensation during the rehabilitation program. To my mind, however, that result and any related unfairness is the product of two factors: the particular provisions of Part X of the 1988 Act that reduce his entitlement to weekly compensation to zero, and the determination by the rehabilitation authority requiring him to participate in a rehabilitation program even though he was over the age of 65. While it may be desirable to assist all injured employees to return to work, regardless of their age, it appears to me that requiring a person who is over the age of 65 to participate in a rehabilitation program is not consistent with the clear age limits that are imposed by sections 23 and 134 of the 1988 Act in respect of weekly compensation payments for incapacity. The present legislative settings, with some limited exceptions in relation to certain former employees, do not provide for people over the age of 65 to be paid weekly amounts of compensation for incapacity or during rehabilitation programs. This is not a matter that is amenable to be addressed by adopting forced or unnatural constructions of the applicable legislative provisions. It is a matter of policy that will require further consideration as more people over the age of 65 choose or are encouraged to remain in the workforce, or are compelled to return to paid employment after retirement. Of course, it is for rehabilitation authorities to determine, in the first instance, whether or not it is appropriate in the particular circumstances of each case to require an injured employee to undertake a rehabilitation program. Age may be a relevant matter to have regard to when making such a determination under section 37.
30. With regard to Mr Daff’s claim for weekly payments during the rehabilitation program from March to June 2008, I can understand the particular unfairness about which he has complained, and it may be reasonable for him, and for others in similar circumstances, to expect to recover an amount of weekly compensation during the conduct of the rehabilitation program. As it stands, however, the 1988 Act does not provide a mechanism for this to occur. The mechanism proposed by Mr Anforth is attended by significant difficulties – it would be productive of inconsistency and unfairness. Whether it is desirable or necessary to change the legislative settings concerning injured employees over the age of 65, especially in respect to rehabilitation, is a matter for policy makers to consider.
31. Unfortunately for Mr Daff, the decision under review in this application must be affirmed.
32. In closing I feel compelled to observe that Mr Daff’s case is highly unusual – it is not common for an injured employee over the age of 65 to be required to attend a rehabilitation program, when failure to do so may result in the suspension of all rights to compensation under the 1988 Act. While one may applaud the provision of rehabilitation in the case of someone being assisted to return to work beyond the age of retirement, the present state of the 1988 Act does not allow for weekly payment of compensation to such a person despite the severe sanction that may flow from failure to comply. As I have said, any resulting unfairness cannot adequately be addressed by any construction that is permissible at law that may be decided by this Tribunal. Nevertheless, it is important to note that rehabilitation is intended to assist an injured employee to return to suitable employment.[38] I note in passing that on 25 March 2008 the AFP informed Mr Daff that:
“I wish to advise that as a result of your Invalidity retirement you are no longer employed by the AFP. Therefore, the AFP no longer have any obligation to provide you with suitable employment, or find you a suitable position now that your GP has certified you fit to return to work.” [39]
[38] Section 40, Safety, Rehabilitation and Compensation Act 1988.
[39] ST10 folio 85.
This statement stands contrary to sections 124 and 40 of the 1988 Act. Furthermore, the contents of the AFP letter to Mr Daff on 25 March 2008 appear to convey a cursory attitude to rehabilitation. If that is correct, it is a matter for the AFP to carefully consider in relation to the obligations imposed by Part III of the 1988 Act.
33. To my mind, in the unusual circumstances of Mr Daff’s rehabilitation case, it may be appropriate for further consideration to be given to the manner in which his rehabilitation program was determined and whether it may be reasonable for an ex gratia payment to be made. But those are not matters for me to decide.
application 2009/2850
34. In this application Mr Daff is seeking ongoing payments for incapacity from 1 January 2008, after his 65th birthday. He provided eloquent oral submissions, supported by written submissions that were handed up during the hearing. Essentially he raises three points. First, his entitlement arises under the previously applicable sections of the 1971 Act, in relation to which he was informed that his entitlement would continue for life. Second, he has an accrued right under the 1971 Act that cannot be removed by operation of any section of the 1988 Act. Third, the calculation of his entitlement to incapacity following the commencement of the 1988 Act is under subsection 131(4). This subsection, he says, has not been amended and is clearly distinguished from other sections of Part X of the 1988 Act, which have been subject to amendment, by the inclusion of the words ‘for the time being’. Accordingly, in his submission, subsection 131(4) has precedence over section 134, which should not apply in the circumstances, as to do so would be productive of disadvantage and unfairness.
35. I do not agree.
36. Mr Daff’s entitlement to compensation in relation to the injury that occurred prior to the commencement of the 1988 Act arose originally under the 1971 Act and, subsequently, under the 1988 Act. Presently, pursuant to section 124 of the 1988 Act, Mr Daff’s entitlement is to be determined under Part X of the 1988 Act with reference to the 1971 Act. In the particular circumstances, Mr Daff’s entitlement to compensation for incapacity is to be calculated under subsection 131(4) of the 1988 Act – he was under the age of 65 and was unable to engage in any work on the commencement day, and his total benefit (as defined by section 123) was less than 70 percent of his normal weekly earnings at that time. Thus, following Brede and Department of Defence[40] his entitlement following the commencement day is to be maintained at a total benefit “amount equal to 70 percent of normal weekly earnings for the time being”.[41]
[40] (1994) 33 ALD 669.
[41] (1994) 33 ALD 669 at 674.
37. Plainly enough, the reference to the phrase ‘for the time being’ contemplates the adjustment of the amount of compensation from time to time. One mechanism whereby adjustment is to be made is by the operation of section 134. This section reduces the amount of compensation that is payable under Part X to an injured employee after the age of 65 by application of a formula. In effect, the formula reduces the amount of compensation that otherwise would apply under sections 131, 132 or 132A when a person turns 65 by an increasing factor of 5 percent for each year after the commencement date of the 1988 Act. Thus, after the passage of 20 years from the commencement date, the section reduces to zero the weekly compensation of a former employee who turns 65.
38. Mr Daff says this is unfair. And in one sense it is, he is worse off than a person in similar circumstances simply because of his age – he is worse off than a former employee who turned 65 within 20 years following the commencement date of the 1988 Act and is still entitled to receive weekly compensation payments, and, temporarily at least, he is worse off than a former employee who has not yet turned 65 and is receiving weekly compensation payments. But this is what section 134 imposes and any resulting unfairness is not unfairness that is amenable to be addressed by a decision of this Tribunal.
39. Unfortunately for Mr Daff, his submissions concerning an accrued right are not made out. The cases to which he referred, Esber v Commonwealth[42] for example, do not assist him. Esber’s case turned on different facts as is distinguished. For present purposes it is not necessary to deal with each of those cases specifically. Having regard to sections 8 and 20 of the Acts Interpretation Act 1901, repealing an enactment does not affect the previous operation of the Act or an accrued right or liability unless the contrary intention appears.[43] Plainly enough, having regard to sections 123, 124, 127 and 128 of the 1988 Act and the provisions of Division 3 of Part X more generally, that is precisely what has been done in respect to section 134. Section 134 clearly expresses the Parliament’s intention to reduce the amount of weekly compensation that is payable to a former employee when he or she turns 65, contrary to the operation of section 45 of the 1971 Act. Having regard to the authoritative cases on this subject, albeit in relation to different enactments, I am unable to find any basis on which Mr Daff’s assertions concerning an accrued right may be sustained against the clear contrary intention expressed in Part X and section 134 of the 1988 Act.
[42] [1992] HCA 20.
[43] See, for example, Chang v Laidley Shire Council [2007] HCA 37 per Kirby J at [80]; Magill v Magill [2006] HCA 51 applying Yule v Junek (1978) 139 CLR 1 per Mason J at 9; Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42 per Gaudron, McHugh, Gummow and Hayne JJ at [52]; Ogden Industries Pty Ltd v Lucas [1967] HCA 30 per Barwick CJ at [38]; Fisher v Hebburn Ltd [1960] HCA 80 per Kitto and Menzies JJ at [12].
40. Finally, Mr Daff is correct in his submission that when calculating his entitlement to compensation for incapacity, first one must address subsection 131(4). But he is not correct that section 134 does not then apply. It plainly does. The inclusion of the words ‘for the time being’ does not remove subsection 131(4) from the scope of subsection 134(1). The effect of section 134 is to reduce the quantum of his entitlement to weekly compensation to zero from 1 January 2008. Mr Daff’s submissions concerning disadvantage and amendments to various subsections of section 131 do not take the matter further.
41. For these reasons, the decision under review in application 2009/2850 is affirmed.
conclusion
42. In conclusion, therefore, even though there are aspects of unfairness that are apparent in Mr Daff’s case, the unfairness is a product of the clearly expressed intent of the savings and transitional provisions of Part X of the 1988 Act. With regard to the rehabilitation issues raised in this case, the unfairness is not the product of the legislation alone, it is also the result of the determination to require Mr Daff to undergo a rehabilitation program when he was over the age of 65 and not entitled, therefore, to obtain weekly compensation for the duration of his participation. This raises questions of policy in terms of the legislation and in terms of the rehabilitation of injured employees over the age of 65.
43. Nevertheless, as I have said, the resulting unfairness is not amenable to be addressed by a decision of this Tribunal. While sympathetic to Mr Daff’s circumstances, especially in relation to the rehabilitation issue, both decisions under review must be affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ........................[sgd]........................................................
T. Amos (Associate)Date/s of Hearing 21 September 2010
Date of Decision 24 September 2010
Counsel for the Applicant Mr A. Anforth
Solicitor for the Applicant Nicholls & Co.
Counsel for the Respondent Mr B.Dube
Solicitor for the Respondent Sparke Helmore
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