DMDV and Comcare (Compensation)

This matter concerned an appeal by DMDV against decisions made by Comcare concerning the application of section 20 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The central dispute revolved around whether DMDV's involuntary redundancy from his employment, which was unrelated to his compensable injury, constituted "retirement from his employment" for the purposes of section 20(1) of the Act, thereby impacting his incapacity payments. The decision was made by Member L M Gallagher of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether, for subsection 20(1) of the *Safety, Rehabilitation and Compensation Act 1988* to apply, the employee's retirement from employment must be caused by their compensable injury. This question arose in the context of DMDV receiving a pension under a superannuation scheme following his redundancy, which Comcare argued should lead to a deduction from his incapacity payments. DMDV contended that his retirement was not a result of his injury, and therefore section 20(1) should not apply.

The Tribunal considered the interpretation of "retirement from his or her employment" within section 20(1) of the Act, particularly in light of the decision in *Brockett and Military Rehabilitation and Compensation Commission* [2014] AATA 224. The Tribunal found that the reasoning in *Brockett* indicated that for section 20(1) to apply, an employee must retire from the employment out of which, or in the course of which, the injury arose, and crucially, that this retirement must result from the injury. The Tribunal noted that Comcare's argument that redundancy did not require a causal link between the retirement and the injury was not supported by the full context of the *Brockett* decision. The Tribunal also referred to the *Keen v Telstra Corporation* (2005) FCA 241 decision, which held that "retirement" could include involuntary retrenchment, but this did not address the requirement for the retirement to be caused by the injury.

The Tribunal concluded that the application of section 20(1) of the *Safety, Rehabilitation and Compensation Act 1988* requires that the employee's retirement from employment be a consequence of their compensable injury. As it was not disputed that DMDV's involuntary redundancy was unrelated to his compensable injury, the Tribunal found that section 20(1) did not apply to his situation. Accordingly, the Tribunal set aside the reviewable decisions and ordered that subsection 20(1) deductions from incapacity payments be restored to DMDV.