Destro and Telstra Corporation Limited (Compensation) - [2018] AATA 4278

Destro and Telstra Corporation Limited (Compensation) [2018] AATA 4278 (16 November 2018)
Division:GENERAL DIVISION
File Number(s): 2015/4073
Re:John Destro
APPLICANT

AndTelstra Corporation Limited
RESPONDENT

DECISION
Tribunal:Deputy President P Britten-Jones
Date:16 November 2018
Place:Adelaide

The Tribunal sets aside the reviewable decision dated 20 July 2015.
The matter is remitted to the respondent to quantify the applicant’s entitlements to weekly payments for the period 3 May 2010 to 30 June 2013 in accordance with and in light of these reasons for decision.
The Tribunal further orders the respondent to pay the costs of the proceedings incurred by Mr Destro pursuant to section 67(9) of the Safety, Rehabilitation and Compensation Act 1988.
................................[SGD]........................................
Deputy President P Britten-Jones
CATCHWORDS
WORKERS’ COMPENSATION – NWE and AE amounts – Whether AE amount should be actual weekly earnings or average earnings per week – Whether AE amount should deduct GST or expenses – Whether applicant failed to seek suitable employment – Decision under review set aside and remitted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4, 8, 9, 14, 19, 21
CASES
Watson and Comcare
[1997] AATA 271

Jagtenberg and Australian Postal Corporation
[1998] AATA 600

Lieschke and Telstra Corporation Ltd
[2016] AATA 351

KCZH and Comcare [2009] AATA 861
Fleming and Comcare [2011] AATA 939
Comcare v Wuth [2018] FCAFC 13
Comcare v Davies [2008] FCA 393
Comcare v Line [2002] FCA 553
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)
(2009) 239 CLR 27

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Brennan v Comcare
(1994) 50 FCR 555

Comcare v Pires
[2005] FCA 747; (2005) 143 FCR 104
REASONS FOR DECISION
Deputy President P Britten-Jones
16 November 2018

The primary issue in dispute in this matter is one of statutory construction. Specifically, the issue is whether, when calculating an applicant’s entitlement to weekly incapacity payments, an applicant’s AE amount (AE) under s 19(2)(a) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) should be:
-the actual amount earned by the applicant in that week; or
-an average of what the applicant has earned per week over a relevant period.
This discrete issue (the Averaging Issue) arises in the following circumstances.
BACKGROUND
Mr John Destro, the applicant, was employed by the respondent on 5 July 1976. On 25 January 2001, the applicant sustained an injury described as a “right knee strain”. On 5 February 2001, the respondent accepted liability under s 14 of the SRC Act.
On 1 October 2003, the respondent terminated the applicant’s employment. As a result of that termination, the applicant received a lump sum benefit under a superannuation scheme. The applicant has since been self-employed, working irregular hours.
The applicant has over the years applied for weekly incapacity payments pursuant to the SRC Act.
On 2 September 2013, a delegate of the respondent determined that it was not presently liable to pay compensation for incapacity for work in respect of the injury pursuant to s 21 of the SRC Act as it deemed the applicant as able to earn an amount greater than his normal weekly earnings (NWE). In reaching that conclusion, the delegate used an averaging process. In other words, in calculating the amount earned by the applicant per week, the delegate divided the actual amount earned by the applicant in the claim period by the number of weeks in that period. The claim period at that stage was 3 May 2010 to 25 November 2011 (83 weeks).
The applicant applied for a reconsideration of that decision.
On 20 July 2015, a reconsideration officer varied the initial determination by, among other things, calculating the AE of the applicant in weekly segments rather than averaging his earnings.
The applicant applied for a review to the Tribunal on 11 August 2015.
LEGISLATIVE FRAMEWORK
The relevant provision of the SRC Act in relation to weekly incapacity payments is s 19, which relevantly provides:
Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
"AE" is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
AGREEMENT BETWEEN THE PARTIES
Relevant period
Although the primary delegate and the reconsideration officer only determined the applicant’s entitlement to incapacity payments in the 83 week period from 3 May 2010 to 25 November 2011, the parties are in agreement that the relevant period before me is 3 May 2010 to 30 June 2013 (the relevant period). This is because prior to the making of the initial decision, the applicant by letter dated 21 June 2013 had requested a determination of his entitlement up to 30 June 2013, which means that the claim period under consideration by the initial decision-maker was not confined to 25 November 2011 but extended to 30 June 2013. I agree with the parties that the period to be considered by the Tribunal is the relevant period.
GST and Expenses
In calculating Mr Destro’s AE, the primary delegate did not deduct GST or expenses from Mr Destro’s actual earnings. On reconsideration, GST was deducted but as the available evidence could not quantify any expenses incurred, Mr Destro’s expenses were assumed to be nil. The parties are in agreement and I am satisfied that as a matter of law, AE should be actual earnings less GST and less expenses. However, the applicant conceded that due to the practical difficulties with proving expenses, the Tribunal should find that Mr Destro’s actual earnings were the amounts specified in the invoices, not including GST. In essence, the applicant asked the Tribunal to assume that expenses were nil. The respondent agreed with that approach and I accordingly adopt the approach urged by the parties.
Matters to be remitted for reconsideration
The parties are also in agreement that ultimately the decision under review should be set aside and remitted to the respondent for reconsideration for a number of reasons, namely:
-the reconsideration officer used inaccurate NWE figures;
-there is insufficient evidence for the Tribunal to determine the number of hours worked by Mr Destro in a particular week, and therefore it is impossible to calculate the relevant adjustment percentage under s 19(3) of the SRC Act, which is a necessary component in the calculation of Mr Destro’s entitlements; and
-there is insufficient evidence for the Tribunal to determine the lump sum, the weekly interest rate and the “SC” amount for the purposes of s 21 of the SRC Act.
ISSUES IN DISPUTE
The parties are, however, not in agreement as to all of the issues that need to be remitted.
In addition to the Averaging Issue, the parties are not in agreement as to whether the applicant’s AE figure should incorporate a determination of what the applicant was able to earn in other suitable employment (the Suitable Employment issue). I will first address the Averaging Issue.
The Averaging Issue: should the “AE” figure under s 19 of the SRC Act be calculated by reference to actual weekly earnings or by an averaging process?
Both parties acknowledged that there were no or very few case authorities directly on the Averaging Issue. By and large, the submissions of both parties came down to first principles of statutory interpretation.
Counsel for the applicant, Mr Warren, referred to the use of the phrase “during that week” in s 19 as support that the calculation of AE under s 19 does not contemplate the use of any averaging process. This is in contrast to other provisions in the SRC Act that clearly contemplate the use of an averaging process. For instance, Mr Warren referred me to the definition of normal weekly hours in s 4:
"normal weekly hours" , in relation to an employee, means the average number of hours (including hours of overtime) worked in each week by the employee in his or her employment during the relevant period as calculated for the purpose of applying the formula in subsection 8(1) or (2).
I was also referred to the use of the word “average” in s 8 of the SRC Act, which is used to calculate the NWE of an employee. It relevantly states:
Normal weekly earnings
(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH x RP) + A
where:
"NH" is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
"RP" is the employee's average hourly ordinary time rate of pay during that period; and
"A" is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
(2) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:
(NH x OR)
where:
"NH" is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and
"OR" is the employee's average hourly overtime rate of pay during that period.
Mr Warren made the observation that the word “average” was not used in the calculation of AE in s 19.
Mr Warren for the applicant submitted further that there was no identifiable period within s 19 or within the SRC Act for which any averaging was to be done. Any averaging process therefore required the nomination of an arbitrary period.
Counsel for the respondent, Mr Wallace, submitted that notwithstanding the omission of the word “average” in s 19, the statutory scheme clearly strives to ascertain an accurate NWE. In support of this submission, the respondent referred me to s 9 of the SRC Act, which states that the “relevant period” for the calculation of NWE is, in most cases, the two week period before the date of the injury. However, the respondent stressed that there was an exception to this, and that provisions in ss 8 and 9 of the SRC Act allow a different period to be deemed the “relevant period” if deeming the relevant period to be two weeks does not result in a weekly rate that fairly represents the weekly rate an applicant was being paid in respect of employment prior to an injury. For instance, in relation to the calculation of an average hourly overtime rate, s 8(5) says:
"OR" is the employee's average hourly overtime rate of pay during that period.
…
(5) Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.
In addition, in relation to what is the “relevant period”, s 9(3) states:
(3) Where in any case the application of subsection (2) would require that a period be disregarded for the purposes of calculating the relevant period in relation to an employee, and as a result of disregarding that period:
(a) …
(b) the normal weekly earnings as so calculated would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment by the Commonwealth or a licensed corporation before the injury;
subsection (2) shall not apply in that case, but the normal weekly earnings of the employee during that period shall be taken to be the amount that would have been his or her normal weekly earnings during that period if the variation had taken effect at the beginning of that period.
The respondent referred me to three Tribunal cases that apply these provisions: Watson and Comcare [1997] AATA 271, Jagtenberg and Australian Postal Corporation [1998] AATA 600 and Lieschke and Telstra Corporation Ltd [2016] AATA 351.
The respondent conceded that the cited sections of the SRC Act and the cases are concerned with NWE and not AE. Nevertheless, the respondent submitted that an averaging process was embedded within the calculation of NWE and thus that process “ought to flow through into all of the calculations”. The respondent said that that does not mean that an averaging process must be used, only that it may be used. This is because s 19(2) refers to AE as an amount earned “per week”, which in and of itself does not preclude the use of an averaging process.
Before addressing the submissions made by both parties, I turn first to the relevant case authorities. Both parties at the hearing acknowledged that the cases they referred to did not go directly to the Averaging Issue, as on their research, there had been no cases that had dealt with the issue before. In my research, however, I discovered the case of this Tribunal, KCZH and Comcare [2009] AATA 861 (KCZH) which has some consideration of the Averaging Issue.
KCZH concerned an applicant who was engaged in part-time self-employment. The respondent in that case had made a decision that the applicant had nil entitlement due to his AE exceeding his NWE, but in doing so had equated the applicant’s gross earnings as his AE without deducting expenses. Relevantly to the issue before me, the Senior Member states:
[19] A feature of this review was the absence of evidence of the amount actually earned per week by the applicant in the period in issue.
[20]Income tax returns, profit and loss statements and a summary of client contact hours were submitted but there was nothing which identified the amounts earned each week.
[21] For practical purposes I do not suggest that the AE figure for each week in the period should be identified for the purposes of defining the compensation amount for each week in the same period. That will cause an enormous workload for all parties and I would have thought that it would be appropriate and expedient to identify the nett amount earned in the period and that sum be averaged and the amount then determined be fixed as the AE amount.
[22] However it is not possible on the evidence of the applicant and the documents tendered for that exercise to be conducted.
[23] Income tax returns and profit and loss statements for the two income years which traverse the period in issue will not permit an exercise of that type because those documents do not record the amounts earned each week.
Although the Senior Member concluded that an averaging process “would be appropriate and expedient”, little justification is given for the use of an averaging process beyond that attempting to ascertain AE figures for each week would be burdensome to the parties. In the present matter the applicant has already helpfully produced a schedule which illustrates the applicant’s weekly earnings. There is thus no issue with respect to overburdening the parties to produce a week-by-week breakdown of the applicant’s earnings. I have therefore decided that KCZH does not assist me any further in resolving the Averaging Issue.
For an authority to support that a week by week analysis is required under s 19 see Fleming and Comcare [2011] AATA 939, where the Tribunal stated:
The AE amount
[53] It is necessary to determine Ms Fleming’s AE amount, being the greater of the amount she actually earned in employment or the amount she was able to earn in suitable employment, week by week, during the periods under claim.
(emphasis added)
Ultimately, the Averaging Issue must be decided as a matter of statutory interpretation.
CONSIDERATION
Sections 19(2) and (3) of the SRC Act impose a liability on Comcare to pay compensation “for each week… during which the employee is incapacitated”. The amount of the compensation is determined by formulae.
The compensation amount “for each week” provided by s 19(2) is the normal weekly earnings minus the amount earned (NWE minus AE).
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns … during that week.
Normal weekly earnings are determined by reference to another formula under s 8(1) in Part 1 of the SRC Act and is an amount which reflects pre-injury earnings. The calculation of this amount is not in dispute. The NWE figures are agreed as follows:
3 May 2010 to 30 June 2010              $1205.26
1 July 2010 to 30 June 2011              $1240.21
1 July 2011 to 30 June 2012              $1287.34
1 July 2012 to 30 June 2013              $1334.97
In determining the AE amount, it is evident from the terms of s 19(2) that consideration will need to be given to how much an employee was able to earn or actually did earn on a weekly basis i.e. an amount “for each week” will need to be calculated.
Whereas in this case, the actual amount earned fluctuates from week to week, a separate calculation deducting the AE amount from the NWE amount in each week will be required. It is only by this process that one achieves the legislative purpose of ensuring “a measure of compensation which approximates the loss occasioned by a worker through injury”: Comcare v Wuth [2018] FCAFC 13 at [83]. This is because the loss suffered and therefore the appropriate compensation to be paid will differ depending on how much is earned in each week.
If the AE amount for a particular week exceeds the NWE then Comcare is not liable to pay compensation for that week because the employee will be no worse off financially as a result of the injury i.e. no loss is suffered for that week.
If the AE amount is less than the NWE then Comcare is liable to pay compensation for the difference because that approximates the loss to the employee arising from the injury. The legislative intent is that an employee is not entitled to retain his actual earnings and also to retain normal weekly earnings: Comcare v Davies [2008] FCA 393 at [3] citing Comcare v Line [2002] FCA 553 at [60].
Section 19(2) requires the above analysis “for each week” of the period for which compensation is claimed. In this case, the relevant period is 3 May 2010 to 30 June 2013.
The respondent contends that a weekly analysis is not appropriate and that some form of averaging over a period is required. I reject that contention for the reasons that follow.
Sections 19(2) and (3) expressly create a liability for Comcare to pay compensation “for each week… during which the employee is incapacitated”. The starting point in the task of statutory construction is the legislative text: Comcare v Wuth [2018] FCAFC 13 at [81] citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47]. The language of the subsections makes no mention of an averaging process and to read into the text a requirement to use averaged figures instead of actual weekly figures would be to give the text a construction contrary to its terms. The wording of s 19, particularly in its repeated use of the phrases “amount per week” and “during that week”, strongly suggests that s 19 contemplates a week-by-week analysis of AE.

Sections 19(2) and (3) provide no mechanism for a calculation of an average because they include no period over which an averaging is to be calculated. Is it the average weekly amount earned or able to be earned over the whole period from May 2010 to June 2013? Or do you calculate an average weekly amount for each calendar year or perhaps for each financial year? No answer is provided by the legislation. For example, the initial decision maker on 2 September 2013 calculated an average weekly amount earned over the period then in consideration. The decision maker said:
7. … you have continued to work and have provided records that your earnings for the period of 3 May 2010 to 25 November 2011 (83 weeks) total $154,581.32.
8. Your earnings throughout this period can be averaged out to $1814.36 per week. Accordingly we consider that you are able to earn an amount of $1814.36 per week which is an amount over and above your normal weekly earnings (NWE) of $1173.90 (as at 1/7/2009), therefore we find that your present entitlement to compensation under section 21 of the SRC Act is nil.
By contrast to the above approach, the reconsideration dated 2 July 2015 said:
10. … I think it reasonable to conclude that your actual earnings in the period 3 May 2010 to 25 November 2011, are $140,518.46.
11. You consider that averaging out your earnings over the period (83 weeks) is incorrect. Having regard to sections 19 and 21 of the SRC act, I agree with your position that it is appropriate to determine your compensation entitlements in weekly segments rather than from a simple calculation of dividing 83 weeks into a single total figure of your earnings in the period, 3 May 2010 to 25 November 2011.
12. The spreadsheet below shows whether you have an entitlement to compensation in each week, in the period 3 May 2010 to 25 November 2011. The week commenced is Sunday and week ended is Saturday.
13. Where the amount earned in a specific week is equal to, or greater than the NWE, I find that you are not entitled to compensation under s 21 of the SRC Act.
14. Where the amount earned in a specific week is less than the NWE, and where an amount has not been earned in a specific week, I have remitted the matter to the primary delegate to investigate and determine whether you are entitled to compensation in accordance with s 21 of the SRC Act.
The adjustment to the compensation provided for in s 19(3) requires consideration of a “particular week” which assumes a calculation for each week as opposed to a calculation of an average over a period.
If a process of averaging was required by the legislative terms then one would have expected some express direction so as to enable a calculation of an average. For example, the calculation with respect to normal weekly earnings provides for a period in s 9 which enables the calculation of an average amount. When construing s 19 “by reference to the language of the instrument viewed as a whole”: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, it becomes apparent that there was no legislative intention in s 19 to require a process of averaging when determining the amount per week in the AE amount.
The statement by Burchett J in Brennan v Comcare (1994) 50 FCR 555 at 561 with respect to the SRC Act, that “[i]t would be impossible, in construing beneficial legislation, to reject the literal effect in favour of restricting the availability of the benefits”, lends some further support to the construction which I prefer. This is not a case where construing the Act beneficially would strain the language of the provision or take no account of its context: Comcare v Pires [2005] FCA 747; (2005) 143 FCR 104 at [47].
The Suitable Employment Issue: Did Mr Destro fail to seek suitable employment?
The respondent contends that after becoming incapacitated for work, the applicant failed to seek suitable employment. The failure to seek suitable employment has an impact on the AE value due to s 19(4)(e), which states:
(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:
…
(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 in such employment if he or she were engaged in such employment…
The respondent’s submission was based on the evidence of Mr Destro’s treating general practitioner, Dr Verrall. Dr Verrall’s reports and clinical notes were tendered as exhibits and he gave oral evidence at the hearing.
Under cross-examination, Dr Verrall conceded that because Mr Destro could sit, he could do alternative duties and was capable of doing “some office work”.
Consequently, the respondent contends that the applicant was able to undertake sedentary employment and that regard should be had to the income that he could reasonably be expected to earn in that capacity under s 19(4)(e) for the purpose of determining the amount per week that the applicant is able to earn in suitable employment under s 19(2)(a).
The respondent further contends that the Tribunal should remit the Suitable Employment Issue to the respondent to investigate whether and the extent to which the applicant could have engaged in other sedentary suitable employment.
I am not satisfied that I should remit the Suitable Employment Issue for reconsideration.
Suitable employment is defined in s 4 of the SRC Act:
"suitable employment" , in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed--employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence--whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case--any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
The question as to whether there was alternative suitable employment was not raised by the respondent until the cross-examination of Dr Verrall when he said, for the first time, that the applicant had capacity to undertake sedentary employment. The applicant objected to the respondent running a case based on s 19(2)(a) when it was not raised until after the commencement of the hearing. The respondent clarified position in its written closing submissions as follows:
The respondent isn’t advancing the proposition that the tribunal should, in the circumstances, do anything other than set aside the reviewable decision; and in conjunction with what was necessary in any event, remit the matter for the respondent to take the steps necessary to investigate and determine what is the full extent of the applicant’s capacity, and what he could reasonably be expected to earn in suitable sedentary employment having regard to the state of the labour market at the relevant times.
Whilst the suitable employment issue was raised late, it was the applicant’s medical witness who raised it. I do not consider that there is any prejudice to the applicant in dealing with this issue. It requires an analysis of the applicant’s employment history after he became incapacitated. Evidence was given about this at the hearing and I will now turn to consider that evidence.
From about late October 2003 the applicant applied for and obtained work as a contractor with various companies who carried out telecommunications work for Telstra. This work was similar to the work he did whilst employed by Telstra. In addition, the applicant worked as a contractor for Sarah Homes doing deliveries.
From about July 2006 the applicant worked as a contractor for Utilities Asset Management (UAM). The predominant work for UAM was inspecting stobie poles. The applicant did some contract work for other companies who provided services in the telecommunications industry, but he mainly worked with UAM up until 2014.
During the relevant period from May 2010 to June 2013 the applicant was experiencing pain to his knee but generally he was able to manage it and continue to work. When the pain got too much the applicant obtained a medical certificate from Dr Verrall certifying him as being totally unfit for work.
In November 2014 the applicant’s lawyers wrote to Telstra requesting the provision of suitable employment with Telstra. The request was not successful.
The applicant was cross-examined as to why he continued to seek employment as a contractor doing similar work to the work he carried out before being incapacitated. He said that he was always looking for work and that he had asked Telstra for more suitable work which was not provided. Despite numerous periods of incapacity, it is not in dispute that the applicant’s earnings in the period May 2010 to November 2011 (83 weeks) was $154,581.32 or $94,346.72 per annum.
The evidence shows that after becoming incapacitated the applicant applied for, obtained and engaged in numerous contracts of employment in the period up to and including 2014. Throughout the relevant period from May 2010 to June 2013 the applicant was engaged in contracting work with UAM and to a much lesser extent other companies servicing the telecommunications industry. Whilst true that at times during this period he was certified as being totally unfit for work, the longest period of certification was a period of 21 days in October 2012 (which equates to 15 business days). There was another period of 16 days (12 business days). Otherwise the periods for which the applicant was certified unfit for work did not exceed 14 days (or 10 business days). During the relevant period of 1151 days the applicant was only unfit for work for 220 days, which is less than 20% of the time.
I do not consider that continuing with his contracting in the field in which he was experienced amounts to a failure to seek suitable employment. I find that the applicant’s contracting work during the relevant period was suitable employment. The evidence from Dr Verrall that the applicant had capacity to undertake sedentary employment is not a sufficient reason on its own to remit the matter back to Telstra.
The question of the amount per week that can be earned in suitable employment for the purpose of s 19(2)(a) only becomes a question on the respondent’s case if the applicant failed to seek suitable employment after becoming incapacitated. I do not consider that the applicant failed to seek suitable employment after he became incapacitated.
MATTERS TO BE CONSIDERED ON REMISSION
There is no evidentiary foundation to support a determination of the AE amount by reference to s 19(2)(a). The appropriate determination is by reference to s 19(2)(b) requiring a determination of the amount per week that the applicant earns from any employment undertaken by the applicant during that week. In other words, it is appropriate to determine the AE amount on the basis of the amount he actually earns as opposed to what he may have been able to earn in some alternative employment. Further, as found above, it is appropriate to determine the AE amount on the basis of the actual amounts earnt per week during the relevant period as opposed to an amount averaged over a period.
The amount earned per week is to be calculated by reference to the invoices submitted by the applicant for the relevant period less GST and less expenses, although expenses are nil. The applicant accepts that in those weeks in which the applicant’s earnings exceed his NWE, no entitlement to weekly payments arises.
The weeks in the relevant period in which the applicant has earned less than the NWE can be characterised as follows:
-first, the weeks in which the applicant was certified as being incapacitated and during which the applicant earned no income; and
-secondly, the weeks in which the applicant otherwise was able to work in his self‑employment, but earned less than the NWE.
The applicant accepts that he has been unable to provide invoices as evidence of the earnings for work performed in the period 2 July 2012 to 5 August 2012 and 22 August 2012 to 30 September 2012. In respect of such weeks, the applicant has failed to establish that his earnings for the work performed in any specific week were less than his NWE, and accordingly the applicant has no entitlement to compensation for such weeks.
In respect of the period 1 July 2011 to 3 May 2012, for the weeks in which the applicant was certified as incapacitated but was able to find work in self-employment, I find that by reason of the payments made in that period for self-employed work which the applicant performed as a contractor with Leed Engineering, the applicant cannot establish that his earnings for work performed in any specific week were less than his NWE, and the applicant is therefore not entitled to compensation for those weeks.
The question of the quantification of the applicant’s entitlement to weekly payments for weeks in the relevant period should be remitted to the primary delegate for determination including with respect to the weekly interest on the lump sum received under a superannuation scheme, the determination of the “SC amount” as per s 21(4) of the SRC Act and the adjustment percentage as per s 19(3) of the SRC Act.
DECISION
The Tribunal sets aside the reviewable decision dated 20 July 2015.
The matter is remitted to the respondent to quantify the applicant’s entitlements to weekly payments for the period 3 May 2010 to 30 June 2013 in accordance with and in light of these reasons for decision.
The Tribunal further orders the respondent to pay the costs of the proceedings incurred by Mr Destro pursuant to s 67(9) of the SRC Act.

70. I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten‑Jones

............................[SGD].....................................
Associate
Dated: 16 November 2018

Date of hearing: 23-24 July 2018

Counsel for the Applicant: Mr J Warren

Solicitors for the Applicant: Moloney & Partners

Counsel for the Respondent: Mr J Wallace

Solicitors for the Respondent: Clarke Legal

Date of hearing:	23-24 July 2018
Counsel for the Applicant:	Mr J Warren
Solicitors for the Applicant:	Moloney & Partners
Counsel for the Respondent:	Mr J Wallace
Solicitors for the Respondent:	Clarke Legal