Emery and Comcare - [2001] AATA 510

DECISION AND REASONS FOR DECISION [2001] AATA 510

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/73

GENERAL ADMINISTRATIVE DIVISION       )
           Re      IAN DOUGLAS EMERY
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr. D.W. Muller, Senior Member Miss A.M. Brennan, AM, Brennan Dr. K.P. Kennedy, OBE, Member

Date30 April 2001
PlaceBrisbane

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

CATCHWORDS
WORKERS' COMPENSATION – retrenchment package - applicant seeking re-calculation of entitlement – whether applicant received proper advice or counselling prior to accepting retrenchment package
Safety Rehabilitation and Compensation Act 1988: s 19, 20, 21, 24

REQUEST FOR WRITTEN REASONS FOR DECISION

Mr. D.W. Muller, Senior Member Miss A.M. Brennan, AM, Brennan Dr. K.P. Kennedy, OBE, Member

This is an application to review two decisions:
(i)To not change the financial arrangements made between the applicant and the Australian Taxation Office (ATO) when he ceased work with the ATO in May 1994.
(ii)To calculate the applicant's ongoing entitlements to workers' compensation in accordance with the formulae set out in sections 19 and 21 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
Mr. Emery claims that he was not given proper advice nor any counselling in early 1994, prior to his acceptance of a retrenchment package. He claims that the uninformed choice he made in 1994 has left him worse off than he otherwise might have been.
Mr. Emery also claims that the formulae used in the SRC Act should be ignored because they do not give him proper compensation.
The material placed before the Tribunal reveals the following facts:
(i)The applicant became ill in March 1989.
(ii)He was absent from work from March 1989 to October 1990.
(iii)On 8 August 1989, liability was accepted in respect of a generalised anxiety disorder deemed to have been sustained on 17 March 1989.
(iv)On 28 December 1989, the applicant was awarded –

$9,288.05 pursuant to s.24 of the SRC Act for 10% whole person impairment,
$6,617.74 pursuant to s.27 of the SRC Act.
(v)From October 1990 the applicant received workers' compensation on an ongoing weekly basis.
(vi)On 23 June 1993, the applicant made an enquiry of Comcare as to various options possibly available to him. In reply to his telephone call, Comcare sent him the following letter on 24 June 1993.
"I refer to our telephone conversation of 23/6/93.
Generally the benefits of invalidity retirement are a government financed pension of (maximum) 50% of final salary (unless reduction is required because of a Benefit Classification Certificate or insufficient years of prospective service), plus an additional pension of (maximum) 20% of final salary. This is made up of your compulsory contributions (you may opt not to receive the additional pension, and may request instead that it be paid as a lump sum. This will mean that the pension is made up only of government financed benefit of (maximum) 50% of final salary), plus any accumulated supplementary contributions (payable as a lump sum).
Sections 20 and 21 (copies enclosed) of the Compensation Act 1988 provide for consideration of…

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 Emery and Comcare

Details

AGLC: Emery and Comcare [2001] AATA 510
Case: [2001] AATA 510
Decision Date: 30 April 2001

CaseChat Overview and Summary

The applicant, Ian Douglas Emery, sought review of two decisions made by Comcare, the respondent. The first decision was to not change the financial arrangements made between the applicant and the Australian Taxation Office (ATO) when he ceased work with the ATO in May 1994. The second decision was to calculate the applicant's ongoing entitlements to workers' compensation in accordance with the formulae set out in sections 19 and 21 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act). Emery claimed that he was not given proper advice nor any counselling in early 1994, prior to his acceptance of a retrenchment package, and that the uninformed choice he made in 1994 has left him worse off than he otherwise might have been. He also claimed that the formulae used in the SRC Act should be ignored because they do not give him proper compensation.

The Tribunal found that the proposition that Emery was not given proper advice, nor offered counselling, prior to his acceptance of the conditions upon which he severed his employment with the ATO in May 1994, was clearly false. The Tribunal saw no proper basis upon which the circumstances under which Emery left the ATO should be re-visited, nor any reason why re-calculations of his various entitlements under alternative scenarios should be undertaken. The Tribunal also found that Emery's proposition that the Tribunal should ignore the provisions of sections 19 and 21 of the SRC Act, and produce a formula which gives Emery more money to live on, was an absurd submission that the Tribunal declined to treat seriously. The decisions under review were affirmed.

The final orders of the Tribunal were that the applicant's application for review be dismissed, that the applicant pay the respondent's costs of the review, and that the costs be paid within 28 days of the date of this decision.

Orders