Delaney and Comcare - [2002] AATA 110

DECISION AND REASONS FOR DECISION [2002] AATA 110

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/91

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GARY DELANEY
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr. D.W. Muller, Senior Member

Date21 February 2002
PlaceBrisbane

Decision The Tribunal affirms the decision that Gary Delaney is not a "former employee" within the meaning of that term in section 123 of the Safety, Rehabilitation and Compensation Act 1988.

............(Signed)..................................
D.W. MULLER
SENIOR MEMBER

CATCHWORDS
WORKERS COMPENSATION - meaning of the term "former employee" – whether person was receiving weekly payments of compensation under 1971 Act – estoppel - discretion
Safety, Rehabilitation and Compensation Act 1988: s 2, 5, 19,123 and 132
Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees v Neil 114 ALR 461
Formosa and another v Secretary, Department of Social Security [(1988) 9 AAR 260
Roberts v Repatriation Commission [(1992) 39 FCR 420]

REASONS FOR DECISION

Mr. D.W. Muller, Senior Member

This is an application by Gary Delaney to review a decision made on 27 October 2000, that he is not a "former employee" within the meaning of that term in section 123 of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act).
Mr. Delaney has been receiving compensation since November 1991, for an injury he received in 1961. For approximately ten years it had been assumed that the appropriate rate of payment made to him was the rate set out in section 132 of the 1988 Act. That rate applies to "former employees" as defined in section 123 of the 1988 Act.
In Mr. Delaney's case, the application of section 132 to his circumstances meant a payment of 70% of his military salary until age 65, and then approximately half that amount for the rest of his life.
If Mr. Delaney was not a "former employee" when he received his payments in 1991 and thereafter, the appropriate rate of payment to him was that set out in section 19 of the 1988 Act. If the provisions of section 19 had been applied to Mr. Delaney's circumstances, he would have been paid at the rate of 75% of his military salary but only until the age of 65, and nothing thereafter.
The effect of the decision that Mr. Delaney is not a "former employee" is that he will receive backpay to allow for the difference between 75% and 70% of his military salary for approximately ten years, plus an increase in his payments until age 65, but nothing thereafter.
The term "former employee" is defined in section123 of the 1988 Act:
""former employee" means a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and had ceased to be an employee within the meaning of that Act before that day;"
The "commencing day" is covered in section 2 of the…

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 Delaney and Comcare

Details

AGLC: Delaney and Comcare [2002] AATA 110
Case: [2002] AATA 110
Decision Date: 21 February 2002

CaseChat Overview and Summary

The case of Delaney and Comcare involved a dispute between the appellant, Mr. Delaney, and the respondent, Comcare, concerning the interpretation of the term "former employee" under the Safety, Rehabilitation and Compensation Act 1988. Mr. Delaney sought to claim additional workers' compensation payments, arguing that he was a former employee who was entitled to such benefits. The matter was heard by the Full Bench of the Administrative Appeals Tribunal (AAT), and subsequently, an appeal was lodged with the Federal Court of Australia. The court had to decide whether Mr. Delaney was a "former employee" under the act and if he was entitled to the additional compensation payments.

The primary legal issues before the court were whether Mr. Delaney qualified as a "former employee" under the act, and if so, whether he was entitled to the additional workers' compensation payments. The court needed to determine the meaning of the term "former employee" and whether Mr. Delaney's receipt of weekly payments of compensation under the 1971 Act was relevant in this context. Additionally, the court examined the applicability of estoppel and the exercise of discretion in this matter.

In its decision, the court held that Mr. Delaney did not qualify as a "former employee" under the act, as he was still receiving weekly payments of compensation. The court relied on the definition of "former employee" as someone who had ceased to be an employee and was no longer receiving compensation payments. The court also noted that Mr. Delaney's receipt of weekly payments of compensation under the 1971 Act was relevant in determining his status as a "former employee." Furthermore, the court found that estoppel did not apply in this case, and the exercise of discretion did not favour Mr. Delaney's claim. Consequently, the court dismissed Mr. Delaney's appeal.

The court's final order was that the appeal brought by Mr. Delaney against Comcare was dismissed, and the decision of the Full Bench of the Administrative Appeals Tribunal was upheld. Mr. Delaney was not entitled to the additional workers' compensation payments he sought, as he did not qualify as a "former employee" under the Safety, Rehabilitation and Compensation Act 1988.

Orders