Davies and Comcare - [2000] AATA 513

DECISIONS AND REASONS FOR DECISIONS [2000] AATA 513

ADMINISTRATIVE APPEALS TRIBUNAL ) No. Q1998/880

) No. Q1999/434

GENERAL ADMINISTRATIVE DIVISION )

Re ADRIAN DAVIES
Applicant

And COMCARE
Respondent

DECISIONS

Tribunal Mr K L Beddoe (Senior Member)

Date27 June 2000
PlaceBrisbane

Decision The decisions under review are affirmed.

(Sgd) K L Beddoe
Decision No. 513/2000 Senior Member
CATCHWORDS
COMPENSATION : Incapacity payments – Incapacity for work – Permanent incapacity to work – Degree of permanent impairment – Loss of function – Calculation of normal weekly earnings – Calculation of overtime – Normal weekly hours of overtime

Safety, Rehabilitation and Compensation Act 1988 – s4(1), s8(1), s8(2), s8(10), s8(10)(a), s9, s19, s19(3)(e), ss24(1), (2), (5), (6), (7)

Bortolazzo v Comcare (1997) 25 AAR 290
Comcare v Amorebieta (1996) 66 FCR 83
McDermott v Owners of SS "Tintoretto" [1911] AC 35
Wilson v Wilsons Tileworks (1960) 104 CLR 328

27 June 2000 REASONS FOR DECISIONS

Mr K L Beddoe (Senior Member)

By a decision (No. 12097) dated 8 August 1997 this Tribunal decided to set aside decisions of the respondent to cease liability for compensation including medical expenses. The matter was remitted to the respondent with the following directions:
(a)(no longer relevant);
(b)(no longer relevant); and
(c)that in calculating the applicant's entitlement to compensation, the respondent is to apply paragraph (e) of section 19(3) of the Safety Rehabilitation and Compensation Act 1988 ("the Act") and to make the necessary adjustments accordingly.
The respondent subsequently decided that the applicant's entitlement to compensation should be adjusted to a total amount of $1,309.26 (Q1998/880). No adjustment was made for those weeks where the applicant's actual earnings exceeded 95% of normal weekly earnings. The overtime component of normal weekly earnings was determined as follows:
(a)from 2 July 1994 to 3 October 1995 at 10 hours overtime per week; and
(b)from 4 October 1995 to 30 April 1996 at 8.5 hours overtime per week.
The applicant says that normal weekly earnings should be calculated on the basis of 15 hours overtime per week.
Section 19 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides for the calculation of compensation for injuries resulting from incapacity. The respondent is liable to pay compensation for each week in which the employee is incapacitated, (after 45 weeks) of an amount that when added to the amount that he was able to earn during the week in suitable employment results in an amount equal to 95% of his normal weekly earnings where he is employed for more than 75% but less than 100% of his normal weekly hours of work (s.19(3)(e) of the Act).
Normal weekly hours is defined in section 4(1) of the Act to mean the average number of hours (including hours of overtime) worked in each week by the employee in his employment during the relevant period. The relevant period is the period calculated under section 9 (s.4(1) of the Act).
Section 8(10) provides, in effect, that the calculated amount of normal weekly earnings based on…

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 Davies and Comcare

Details

AGLC: Davies and Comcare [2000] AATA 513
Case: [2000] AATA 513
Decision Date: 27 June 2000

CaseChat Overview and Summary

In the matter of Davies and Comcare, the applicant, Mr Davies, appealed against a decision of the Administrative Appeals Tribunal (AAT) regarding his entitlement to workers' compensation benefits. Mr Davies sustained a shoulder injury in the course of his employment with Qantas. The dispute centred around the calculation of his normal weekly earnings for the purpose of determining his compensation entitlements under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Federal Court of Australia was called upon to decide whether the availability of overtime, which had reduced due to company policy unrelated to the applicant's injury, should be considered in the calculation of his normal weekly earnings.

The court had to determine the appropriate interpretation of the term "normal weekly earnings" under the Act and whether it should include overtime that was available to the applicant before his injury but subsequently reduced by the employer for reasons unrelated to the injury. The respondent, Comcare, argued that the reduction in overtime availability should be taken into account, while the applicant contended that only the overtime available at the time of injury should be considered. The court also had to consider the legislative intent behind the Act, which aimed to ensure that injured employees are neither worse nor better off due to their injuries.

The court held that the reduction in overtime availability due to company policy should not be factored into the calculation of normal weekly earnings. The court emphasised that the Act should be construed liberally in favour of injured employees but cautioned against rewriting the statute. The court found that the applicant's entitlement to overtime was not a permanent right and that the reduction in availability was unrelated to his injury. Consequently, the court concluded that the Act's purpose to prevent injured employees from being better off should not be overridden by considering the reduced overtime availability.

The court ordered that the AAT's decision be set aside and that the matter be remitted to the AAT for reconsideration in light of the court's findings. The court directed that the calculation of normal weekly earnings should exclude the reduced overtime availability, aligning with the legislative intent to ensure that injured employees are not placed in a better position than they would have been had they not been injured.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Exhibits C & D are statements by two employees of Qantas that satisfy me that the applicant had the choice to work additional overtime during the relevant period. Such overtime could be up to 20 hours per week and I so find. It is not entirely clear as to whether the upper limit is in addition to operational overtime but in the light of the statements I have inferred that it is.The Medical Evidence Exhibit E is a copy of a medical report by Dr White, Orthopaedic Surgeon dated 24 February 1999 and addressed to the applicant's solicitors. After setting out a history which is consistent with the evidence, Dr White was of the opinion that the applicant suffered from a right rotator cuff lesion consistent with the history given. After surgery there was a limitation of movement of the shoulder, a mild degree of supraspinatus muscle wasting and complaints of pain associated with activities involving elevation of the arm at or above the shoulder height. He did not expect the condition to improve and assessed whole person impairment at 10 under Table 9.1 with no assessable impairment under Table 9.4. Exhibit F is a supplementary report by Dr White dated 1 November 1999 made following a further examination of the applicant. The applicant described pain in the right shoulder depending on the activity undertaken. In particular forking and raking when gardening were said to significantly aggravate the applicant's discomfort. Dr White confirmed his earlier opinion. In oral evidence Dr White confirmed moderate restriction in range of movement in the right shoulder. He conceded he had not used the more scientific tests used by Dr Gilpan but said the applicant had been unable to replicate left shoulder movement with the right shoulder therefore there was loss of range of movement. In cross-examination Dr White said that he had not detected crepitus. Document T5 includes a report by Dr Patel, General Practitioner, which is undated but was an exhibit before the Tribunal in 1997. Dr Patel's report is essentially a history taken from clinical notes commencing in 1984. It concludes that the applicant has remained pain free since October 1995. Document T5 also includes a copy of a report by Dr Gillett, Orthopaedic Surgeon dated 17 May 1996 and addressed to the applicant's then solicitors. The report is detailed and draws a clear causative link between the shoulder condition and incidents in the course of the applicant's employment. That causative link is described as follows:"…relates to the aging process and the repetitive multiple injuries and aggravations that have occurred in his work practices." Dr Gillett's opinion is confirmed by a short report by Dr Gilpin, Orthopaedic Surgeon, dated 1 June 1993 and addressed to Dr Patel (T9/61). Dr Gilpin found symptoms "due to intrinsic cuff degeneration rather than any mechanical component". In a detailed report to the respondent dated 6 June 1995 Dr Gilpin noted that there were still symptoms but they had occurred more in relation to home activities than work activities (T4).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent also says that the impairment of the shoulder is minimal because there is only minimal limitation of movement and pain is not a relevant factor for the purposes of Table 9.1. In so far as there is disagreement in the medical evidence the evidence of Dr Gilpin, the treating surgeon, is much more thorough and should be preferred.Consideration The calculation of normal weekly earnings includes an additional amount calculated in relation to the relevant period under the formula "NH x OR". "NH" is the average number of hours of overtime worked in each week by the employee in his employment during the relevant period and "OR" is the employee's average hourly rate of overtime pay during the relevant period. The relevant period is determined by section 9 of the Act. As determined in decision number 12097 the relevant period is the two weeks period before that date of injury of the applicant i.e. the two weeks prior to 2 July 1994. I am satisfied that the prima facie position would be that the calculation of normal weekly earnings under sections 8(1) and 8(2) of the Act would result in a situation not contemplated by the Act. That arises because of the evidence, which I accept, that availability of overtime to the applicant has reduced for reasons unconnected with the applicant's injury. The evidence satisfies me that Qantas has reduced the availability of overtime to employees working in the applicant's field of work. In Bortolazzo v Comcare (1997) 25 AAR 290 at 293 Heerey J said:"In my opinion the Tribunal was correct in its construction of s8(10)(a). The applicants' construction would require a reading into s8(1)(a) of something like "in the employment in which he or she was engaged at the date of inquiry".I accept the submission of counsel for the applicants that the Act is social legislation which ought to be construed, in the event of ambiguity, liberally in favour of injured employees: McDermott v Owners of SS "Tintoretto" [1911] AC 35; Wilson v Wilsons Tileworks (1960) 104 CLR 328 at 335. But a liberal interpretation is one thing, rewriting the statute is another.Moreover, the construction for which the respondent contends is consistent with the structure and purpose of the Act. The provision of compensation is to operate from week to week; see, for example, the detailed formulae in s19. The underlying policy is that an injured employee should not be worse off during the period of incapacity as a result of work-related injury. However, it follows conversely that the injured employee should not be better off.I do not doubt for a moment that the sudden termination of regular penalty payments would create great hardship for people like Mrs Bortolazzo and Mrs Saffron. Financial commitments and lifestyle would be drastically affected. The figures already quoted in this judgment make that clear enough. Nevertheless, most terms and conditions of employment do not include a permanent right to overtime. Had they not been injured, Mrs Bortolazzo and Mrs Saffron would from 11 March 1994 have suffered the reduction in income as a result of the cessation of overtime work. The Act does not place them in any better position because they were not working at that date but in receipt of compensation."