Fleming and Comcare
[2011] AATA 936
•23 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 936
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/1548
) 2011/1345
GENERAL ADMINISTRATIVE DIVISION ) Re DEBORAH FLEMING Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date23 December 2011
PlaceCanberra
Decision The decisions under review are set aside. As of 6 January 2010 Ms Fleming suffered an incapacity for work as a result of her 2002 injury. She is entitled to weekly compensation from 1 September 2009 to 31 January 2010 and from 6 April 2010 to 24 January 2011.
The matter is remitted to Comcare to determine the amounts of weekly compensation that are payable to Ms Fleming under the terms of this decision.
The parties have 28 days in which to file submissions in respect to orders for costs. If no submissions are filed, Comcare will be ordered to pay Ms Fleming’s reasonable costs in these proceedings as agreed or taxed.
.......................[sgd]..........................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - incapacity for work - weekly compensation - NWE amount - adjustment percentage - AE amount - suitable employment - Commonwealth employment contract - hours reduced as a result of injury - Commonwealth employment ceased - self-employment in private design and construction business - intermittent commercial work - evaluation of earnings in self-employment - market variables - meaning of 'employed' - adjustment percentage of normal weekly hours based on average weekly hours - decisions set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 19, 67
Cage Developments Pty Ltd v Schubert (1983) 151 CLR 584
Comcare v Heffernan (2011) 196 FCR 494
Comcare v Rowe [2002] FCA 1034
Henderson v Federal Commissioner of Taxation [1970] 119 CLR 612
Re Moon and Telstra Corporation Ltd [2006] AATA 996
Re Prica and Comcare (1996) 44 ALD 46
REASONS FOR DECISION
23 December 2011 Mr S. Webb, Member 1.Deborah Fleming injured her neck and shoulder while employed under contract to the Department of Industry, Tourism and Resources (presently the Department of Industry, Innovation, Science, Research and Tertiary Education) (the Department). Ms Fleming successfully claimed compensation. She returned to full time work and was promoted, but required ongoing treatment. She suffered from a chronic pain disorder as a result of her accepted injury. Later, she reduced her hours of work. She engaged in project work, privately. Her Commonwealth employment was terminated. Ms Fleming continued with her private business project work. She engaged in real estate sales work for a time. Subsequently, she continued with her efforts in relation to her private business, but with only limited success.
2.Ms Fleming claimed weekly compensation on the basis of incapacity[1]. Comcare decided that, as of 6 January 2010, she did not suffer an incapacity for work as a result of her neck and shoulder injuries[2]. This is the subject of application 2010/1548.
[1] T102.
[2] T137 and T151.
3.Ms Fleming made further claims for weekly compensation. Comcare decided that her normal weekly earnings (NWE) amount should be reduced as of 8 June 2008 on the basis that she reduced her hours of work, and that she had no incapacity entitlements from:
16 June 2008 to 22 March 2009
30 July 2009 to 5 January 2010
7 January 2010 to 24 January 2011[3].
[3] ST20.
These decisions are the subject of application 2011/1345.
4.During the hearing, Comcare conceded that the decision to reduce Ms Fleming’s NWE amount was not correct. Agreement was reached as to the amount of her NWE during the relevant periods. These concessions and agreements are consistent with the evidence; they are well made and I accept them.
5.At hearing, as the documents before the Tribunal include taxation records of entities. I ordered that taxation identifiers, including tax file numbers, of those entities are not to be published or accessed by persons other than the parties and their representatives and officers and members of the Tribunal for the purposes of these proceedings.
6.The issues remaining are:
(a)did Ms Fleming suffer an incapacity for work as a result of her neck and shoulder injuries as of 6 January 2010;
(b)is Ms Fleming entitled to weekly compensation as a result of her accepted injuries during the periods under claim; and if so
(c)what is the amount of weekly compensation that is payable?
Did Ms Fleming suffer an incapacity for work as a result of her neck and shoulder injuries as of 6 January 2010?
7.Comcare says that Ms Fleming did not suffer an incapacity for work as of 6 January 2010 as a result of her neck and shoulder injuries. In Comcare’s submission, while these injuries required ongoing treatment (for which Comcare paid) they were not productive of incapacity.
8.I do not agree.
9.Under section 4(9) of the Safety Rehabilitation and Compensation Act 1988 (the Act), the term ‘incapacity for work’ includes an incapacity to engage in any work or in work at the same level as the work in which the employee was engaged prior to injury. The correct approach to this issue was considered by Merkel J in Comcare v Rowe[4]. As can be seen, there are four factual questions of relevance:
(a)When did the injury happen?
(b)What was the work in which Ms Fleming was engaged immediately before the injury happened?
(c)What was the level of that work immediately before the injury happened?
(d)As of 6 January 2010, did Ms Fleming suffer an incapacity to engage in work at the same level?
[4] [2002] FCA 1034 at [7].
When did the injury happen?
10.The date on which Ms Fleming was injured is deemed to have been on 20 November 2002 under section 7(4) of the Act, the date on which she first obtained medical treatment for the claimed neck and shoulder injury[5]. I note that Comcare accepted liability for a Chronic Pain Disorder injury, secondary to her accepted neck and shoulder injury[6].
[5] T4 folio 9; T7 and T114 folio 199 refer.
[6] T102, T129 and T153 refer.
What was the work in which Ms Fleming was engaged immediately before the injury happened?
11.The work in which Ms Fleming was engaged immediately prior to the injury was that of a Strategic Development Officer employed by the Department of Industry, Tourism and Resources[7].
[7] T4 folio 13.
What was the level of that work immediately before the injury happened?
12.When assessing the level of work, one must assess all the characteristics of the particular work being undertaken, including the rank or grade of the particular position or job, the nature and complexity of the duties being undertaken[8].
[8] Re Prica and Comcare (1996) 44 ALD 46 at 51.
13.The Strategic Development Officer work Ms Fleming undertook immediately prior to her injury was at the Executive Level 1 grade on a full time basis, 36.75 hours per week – 36 hours and 45 minutes[9]. On Ms Fleming’s unchallenged account, the work involved developing a product certification scheme, developing the framework for that scheme, consulting stakeholders and implementing the scheme. This work was largely desk-based work in an office and it required use of a standard telephone and use of a computer to produce documents and emails, typing with the keyboard and using the mouse.
[9] T4 folio 13.
As of 6 January 2010, did Ms Fleming suffer an incapacity to engage in work at the same level as a result of the neck and shoulder injury?
14.Prior to the cessation of her Commonwealth employment on 29 July 2009[10], on or about 16 June 2008 Ms Fleming reduced her hours of work from 5 days per week (36.75 hours) to 3 days per week (22.05 hours – 22 hours and 3 minutes) as a result of her injuries[11]. This arrangement continued until 22 March 2009, when Ms Fleming ceased attending work. It appears that she suffered from a number of health episodes, accompanied by loss of awareness, that required further investigation[12].
[10] T108 folio 173.
[11] T109 folio 181.
[12] T88 folio 138 and T92 folio 143 refer.
15.Dr Fung and Dr Bleasel, consultant neurologists, reported that investigations into these episodes or turns were inconclusive, but identified two possible explanations – the episodes may have a neurological epileptic basis (complex partial seizures or transient epileptic amnesia) or they may be related to anxiety and stress[13]. Dr Fung remained “strongly suspicious that these represent complex partial seizures”[14]. Dr Jane Taylor, Ms Fleming’s treating general practitioner, prescribed Tegretol, an antiepileptic medication[15]. Ms Fleming did not experience further turns for some months while taking this treatment, although with a poor compliance record. Dr Knox and Dr Bertucen, consultant psychiatrists, reported that the episodes may be dissociative episodes, or a form of conversion disorder, that are psychogenic in origin, arising in relation to anxiety and stress. Dr Jane Taylor concurred. There is some doubt about whether the panic attacks Ms Fleming experienced at various times are related to the episodes or “funny turns” investigated by Dr Fung. For example, on Dr Taylor’s clinical notes, it appears that Ms Fleming suffered “3 episodes ? anxiety” over 2 days prior to Christmas 2009[16]. Whether these episodes were panic attacks relating to anxiety or episodes of an epileptic kind is very far from clear. It appears that Ms Fleming experienced a further turn in September 2010 that was witnessed by her then partner. This apparently occurred after a period in which she did not take Tegretol at all. On 20 November 2010, Dr Fung reported that “the eyewitness account of staring and lip smacking during her turns with confusion essentially proves that she has complex partial seizures”[17]. I accept Dr Fung’s assessment. I note that Dr Bleasel was of the opinion that incontinence, as experienced by Ms Fleming during some of the episodes, was not consistent with a psychogenic explanation. It is more probable than not, therefore, that incapacity Ms Fleming suffered as a result of the episodes that affected her awareness is not attributable to her accepted neck and shoulder injury.
[13] T114i, T114L and ST12g refer.
[14] T114L folio 222.
[15] T114 folio 200.
[16] Exhibit R6, clinical note 8 January 2010.
[17] Exhibit R8, p2.
16.On 10 July 2006, Dr Andrews, a consultant neurologist, reported that Ms Fleming was seeing a psychologist for pain management, but on physical examination “there is nothing abnormal to find”[18]. On 9 November 2009 Dr Macauley, a consultant rheumatologist, reported that Ms Fleming suffered from chronic neck and shoulder girdle pain as a result of constitutional postural factors[19]. On 17 November 2009 Dr Bertucen described these symptoms as a chronic pain disorder[20]. On 8 September 2010 Dr Knox reported that Ms Fleming “continues to have chronic pain in her upper body”[21]. On 27 September 2010 Dr Le Leu, a consultant occupational physician, described Ms Fleming’s upper body pain as a cervical brachial syndrome[22]. It appears that Ms Fleming’s pain symptomatology may not presently have an organic explanation. I note that Dr Le Leu’s evidence is that the pain is neurological, but the basis on which this assessment is based is not clear. Comcare accepted liability for a psychologically-based chronic pain syndrome as a separate injury, secondary to Ms Fleming’s neck and shoulder injury[23].
[18] ST12e folio 888.
[19] T120 folio 237.
[20] T121 folio 246.
[21] ST12h folio 906.
[22] ST12i folio 920.
[23] T153.
17.There is no evidence that Ms Fleming was untruthful in her complaints of pain.
18.On Dr Taylor’s evidence, since July 2009 Ms Fleming has not been fit for full time work. On 18 November 2009 and 26 March 2010 Dr Taylor gave evidence that Ms Fleming’s capability to work was reduced to 12 hours per week[24], and specifically her capacity to work on a computer was restricted to 6 hours per week, spread over three or more days. It appears that Dr Taylor is of the opinion that Ms Fleming may be able to work up to 20 hours per week in suitable, varied tasks. The evidence of Dr Bertucen[25] and Dr Knox[26] establishes that Ms Fleming was likely to have suffered from an incapacity for work on 6 January 2010 as a result of her psychological pain disorder. Dr Le Leu examined Ms Fleming on 20 September 2010 and reported that on 6 January 2010 she would have been fit for full hours, which “depended upon her level of symptoms at any point”, but not for full duties[27]. Dr Macauley examined Ms Fleming on 14 October 2009 and reported that she was fit for full hours and full duties. The evidence of Dr Le Leu[28] and Dr Macauley[29] establishes that Ms Fleming may experience elevated symptoms of pain with certain physical activities, such as sitting for long periods using a computer, or, especially, AutoCAD software.
[24] T156 folio 343; oral evidence that on 26 March 2010, on medical review, Ms Fleming was fit for reduced hours – 3 days per week at 4 hours per day.
[25] T121 folio 249.
[26] ST12h folio 910.
[27] ST12i folio 922.
[28] ST12i folio 922.
[29] T120 folios 237 and 239.
19.Considering this evidence, it is quite clear that Ms Fleming’s upper body pain symptoms may be aggravated by physical activities, particularly sitting for long periods of time using a computer. There is a divergence of medical opinion concerning the extent of her capability to undertake such activities as of 6 January 2010. This is rendered more complex by the interaction of the physical and psychological features of Ms Fleming’s injuries. On balance, considering Ms Fleming’s physical injury, alone, it appears probable that she was fit for full hours on the basis of the restrictions identified by Dr Macauley and Dr Le Leu – breaks from using her computer every 30 minutes; limiting fine motor actions, using a computer mouse, a telephone or AutoCAD software for example; and varied tasks, allowing for physical movement or stretching.
20.To my mind, restrictions of this kind, in effect light or restricted duties, may exist within the concept of incapacity for work for the purposes of section 4(9)(b) of the Act. The words ‘work at the same level’ are not confined in meaning to the salary, class or grade of the particular employment, but also refer to the characteristics of the work in terms of, for example, the nature, complexity and duration of tasks, as well as the quality of the work itself. While it may be accepted, as in Re Moon and Telstra Corporation Ltd[30], that minor changes in duties before and after an injury may not represent an incapacity for work, this is not such a case. To my mind, the restrictions on Ms Fleming’s capacity to undertake certain tasks, albeit relatively minor, are consistent with an incapacity to engage in work at the same level as prior to her injury in 2002.
[30] [2006] AATA 996 at [21].
21.On the evidence of Dr Knox and Dr Le Leu, I am reasonably satisfied that Ms Fleming’s pain and anxiety symptoms are inter-related – the greater the psychological symptoms, the greater the pain symptoms; and the greater the pain symptoms, the greater the psychological symptoms. But it does not follow that the incapacity she suffered on 6 January 2010 is solely attributable to her psychological injury. The evidence of Dr Le Leu and Dr Macauley in respect of the relationship between symptoms and physical activities, whereby activity is to be restricted, points to a contrary conclusion.
22.That being so, I am reasonably satisfied that as of 6 January 2010 Ms Fleming suffered an incapacity to engage in work at the same level as a result of pain, being the continuing effect of her 2002 injury. I note that Ms Fleming’s physical and psychological injuries are inter-related by mechanisms that are now transparent on the present medical evidence. For this reason I am not able to say with any certainty, as a matter of probability, that her incapacitating pain is not attributable – as a result of – her neck and shoulder injury. It follows that the decision under review in application 2010/1548 must be set aside.
23.I note Comcare’s submissions concerning the evidence relating to Ms Fleming’s horse-riding activities. It appears that Ms Fleming was not engaged in vigorous horse-riding of a kind that may exacerbate her neck and shoulder symptoms. Nor is it established that by undertaking those activities Ms Fleming was free from incapacity as a result of her neck and shoulder injury.
Is Ms Fleming entitled to weekly compensation as a result of her accepted injuries during the periods under claim?
24.Ms Fleming’s entitlement to weekly compensation in respect of her accepted injuries and resulting incapacity for work is to be calculated under Part II, Division 3 of the Act. The formulae under sections 19(2) and (3) are to be applied – ‘(NWE x adjustment percentage) – AE’.
Incapacity for work
25.The first issue is whether Ms Fleming suffered an incapacity for work during the periods under claim:
16 June 2008 to 22 March 2009;
30 July 2009 to 5 January 2010; and
7 January 2010 to 24 January 2011.
26.On 16 June 2008 Ms Fleming commenced working for the Department on a part-time basis, 22.05 hours per week. By her own account, there were three key reasons for this change – she did not consider that she was fit for full-time work and was experiencing difficulty coping; it was difficult for her to attend medical appointments out of formal work hours, while working full time hours; and she wanted to develop her private business[31].
[31] Exhibit A8 at [23] and T109 folio 182 refer.
27.On 27 August 2008 Dr Taylor certified that Ms Fleming was fit for full hours, but required ongoing treatment “To maintain current work levels”[32]. I note that this assessment followed a clinical examination on 21 August 2008, in which Dr Taylor noted that Ms Fleming reduced her hours of work in July of that year[33]. This assessment was consistent with previous medical reviews conducted from April 2006[34]. I note that a review appears to have been contemplated in January 2008, but Ms Fleming moved to Queensland in order to take up full time employment in that State for a time.
[32] T156 folio 338.
[33] Exhibit R6, clinical note 21 August 2008.
[34] T156 folios 325-336.
28.It appears that Ms Fleming consulted Dr Taylor on 20 January 2009, having collapsed at work the previous day. Dr Taylor’s clinical notes do not indicate whether or not Ms Fleming suffered any incapacity for work at this time, although Ms Fleming was noted to be “emotional angry at work”[35]. Subsequent notes on 4 February 2009 suggest that Ms Fleming complained of shoulder pain and was “trying to do less keyboarding”, but she was “not taking painkillers on a regular basis”[36]. On 4 March 2009 Dr Taylor noted that Ms Fleming was upset and “hates work”[37]. On 2 April 2009 Dr Taylor certified that Ms Fleming was unfit for work from 23 March 2009 as a result of “Recent episodes”[38].
[35] Exhibit R6, clinical note 20 January 2009.
[36] Exhibit R6, clinical note 4 February 2009.
[37] Exhibit R6, clinical note 4 March 2009.
[38] T156 folio 339.
29.Considering this evidence, and the evidence of Dr Le Leu, Dr Macauley, Dr Knox and Dr Bertucen (to which I have already referred), I am reasonably satisfied that Ms Fleming was fit for full hours with some restrictions applying to her duties in employment in the period from 16 June 2008 to 22 March 2009. As I have said (albeit in relation to a later date), those restrictions are consistent with an incapacity to engage in work at the same level.
30.The medical evidence concerning Ms Fleming’s incapacity during the periods under claim from 30 July 2009 to 24 January 2011 suggests that this partial incapacity for work was ongoing in variable degrees.
31.On 6 November 2009 Dr Bertucen examined Ms Fleming and reported that “Ms Fleming’s depression and anxiety were exacerbated and perpetuated by her perception that her work colleagues felt that she was feigning her symptoms and, as a result of the distress caused by these beliefs, her pain continued to be exacerbated” – “In my opinion, Ms Fleming should theoretically be able to perform 30 hours of work per week as long as her ergonomic/postural issues are addressed”[39]. Dr Bertucen reported that Ms Fleming was capable of undertaking duties similar to those in her pre-injury employment – those duties were at the Executive Level 1 grade. I note that on 14 September 2009 Ms Fleming was assessed by Ms Halpin, an intern-psychologist with Healthe Work Pty Ltd. Ms Halpin reported that from May 2008 Ms Fleming worked part-time for the Department and “During this time, she commenced experiencing severe anxiety and increased pain while at work due to her beliefs surrounding how other staff members were responding to her absences”[40]. On Ms Halpin’s evidence, Ms Fleming’s treating general practitioner had “cleared her to return to work on a graduated return to work program: 4 hours per day X 3 days per week”. This is consistent with Dr Taylor’s clinical note of 4 August 2009, although I note that the return to work program clearance was delayed – “leave until incident free for 3 months (1st Sept)”[41]. I prefer the evidence of Dr Bertucen to that of Dr Taylor on this point as the increased incapacity relates to psychological factors and Dr Bertucen has specialist psychiatric qualifications.
[39] T121 folio 249.
[40] ST12f folio 891.
[41] Exhibit R6, clinical note 4 August 2009.
32.On 24 September 2009 Dr Taylor reported that “the long break from work has reduced pain and her anxiety is coming under control”, although “She may have to continue to have some restrictions in the hours she can work due to pain management concerns…She initially should attempt a return to work at 3 days per week for a maximum of 4 hours, progressively increasing hours as tolerated”[42]. On 14 October 2009, Dr Macauley examined Ms Fleming and subsequently reported that she was fit for full time hours[43], although her “chronic neck pain… may be aggravated by sitting for long periods of time at a computer either at work or at home”[44]. On 6 November 2009 Dr Bertucen examined Ms Fleming and later reported, as I have said, that she was fit to work 30 hours per week[45].
[42] T114 folio 201.
[43] T120 folio 239.
[44] T120 folio 237.
[45] T121 folio 249.
33.On 18 November 2009 and 8 September 2010 Dr Taylor issued Medical Review Certificates indicating that Ms Fleming was fit to work 4 hours per day for 3 days per week[46]. It can be inferred that Dr Taylor assessed Ms Fleming’s level of fitness on the basis of a graduated return to work program, under which her hours may be expected to increase. On 18 October 2010 Dr Taylor reported that from 21 August 2008 Ms Fleming was not fit for full time work[47], but this report is not consistent with some of the contemporaneous assessments she made about Ms Fleming’s fitness. In her oral evidence she confirmed her opinion that Ms Fleming may be fit to work up to 20 hours per week performing suitable and varied tasks. Under cross examination Dr Taylor accepted that she was not aware of the number of hours per week Ms Fleming worked when employed by LJ Hooker Real Estate and agreed that if she worked 25 to 30 hours per week that may have been appropriate. I note that Dr Taylor issued 3 further Medical Review Certificates that are undated and she was not able to place these chronologically[48] - it is not possible to determine whether these certificates related to any period under claim.
[46] T156 folios 343-344 and ST8 folios 820-821.
[47] ST12k folio 926.
[48] T156 folios 345-350.
34.On 8 September 2010 Dr Knox reported that Ms Fleming suffered an ongoing incapacity for work, but he did not quantify the extent of the incapacity other than specifying some physical restrictions[49]. On 27 September 2010 Dr Le Leu reported similar conclusions in respect of Ms Fleming’s incapacity for work, noting that “Her work in the real estate industry is so varied that, in practice, she probably doesn’t need any specific restrictions”[50]. I am reasonably satisfied that Ms Fleming was fit to work 30 hours per week in suitable employment, with restrictions, during the period of her employment by LJ Hooker Real Estate in Tuggeranong. I make this finding despite evidence that Ms Fleming attempted to work longer hours, and simply note that her efforts were not ultimately successful.
[49] ST12h folios 910-911.
[50] ST12i folios 921-923.
35.It appears likely, having regard to Dr Taylor’s clinical notes on 16 December 2010[51], that Ms Fleming experienced elevated levels of anxiety following the cessation of her employment by LJ Hooker Real Estate, including “lots of anxiety attacks”. I note the preliminary report of Dr Fridgant, consultant psychiatrist, who examined Ms Fleming on 21 October 2010, but did not complete his assessment. The precise nature and cause of these symptoms is not clearly established – on Dr Fung’s evidence it appears possible that they may be neurological or epileptic. On the evidence of Dr Knox and Dr Taylor, it is likely they are symptoms that are attributable, at least in part, to Ms Fleming’s psychological injury. Even though this is far from certain, and there are other non-work related causes of Ms Fleming’s anxiety, including in respect of her ceasing smoking some years ago, her family circumstances and, apparently, in relation to horses, I will proceed on the basis that these symptoms form part of her compensable injury. On Dr Taylor’s evidence Ms Fleming was not fit to work full hours, being restricted to 20 hours per week.
[51] Exhibit R6.
36.On 27 July 2011 Ms Kovac conducted an Employment Services Assessment Report for Centrelink. Ms Kovac reported that Ms Fleming had a baseline work capacity of 8 to 14 hours per week that may be increased to 15 to 22 hours per week with vocational counselling and rehabilitation[52].
[52] Exhibit A7, pp3-4.
37.On balance, I am reasonably satisfied that Ms Fleming suffered an incapacity to engage in work at the same level as prior to her 2002 injury throughout the periods under claim. Furthermore, it is probable that she suffered an increase in psychological symptoms and related incapacity for work in the period from July 2009, although it appears likely that these symptoms remitted somewhat with treatment and the level of her related incapacity fluctuated.
38.I am not persuaded by the evidence concerning Ms Fleming’s prior causes of anxiety (and stress) outside the frame of employment, or by evidence concerning her horse-riding activities, that she did not suffer an incapacity for work during the periods under claim.
39.In sum on this point, for the reasons already given, I am reasonably satisfied and find that:
(a)from 16 June 2008 to 22 March 2009 Ms Fleming was fit to work full hours in suitable employment, with restricted duties;
(b)from 30 July 2009 to 5 April 2010 Ms Fleming was fit to work 30 hours per week in suitable employment, with restricted duties;
(c)from 6 April 2010 to 15 November 2010, Ms Fleming was fit to work 30 hours per week in suitable employment, with restricted duties;
(d)from 16 November 2010 to 24 January 2011, Ms Fleming was fit to work 20 hours per week in suitable employment, with restricted duties.
40.I note that Ms Fleming has not been provided with a rehabilitation program or related support. It would be desirable for this to occur as, on the evidence of Dr Taylor and Ms Kovac, this may reduce the extent of Ms Fleming’s incapacity for work.
The NWE amount
41.Having considered the relevant evidence, I accept that the following agreed NWE amounts are correct:
as of 16 June 2008 – the NWE is $1,988.63;
as of 20 September 2008 – the NWE is $2,069.22;
as of 29 July 2009 – the NWE is $2,069.22;
as of 1 July 2010 – the NWE is $2,129.22; and
as of 1 July 2011 – the NWE is $2,210.14.
The Adjustment Percentages
42.As the NWE amounts are no longer in dispute, it is necessary to determine the correct adjustment percentage on the basis of the hours Ms Fleming was employed in each week in relation to her normal weekly hours prior to injury (36.75 hours)[53]. Therein lies the difficulty in this case – the present evidence is not sufficient to accurately assess the actual weekly hours Ms Fleming was employed in her private business, Layout Homes Pty Ltd (Layout Homes) – a family company of which Ms Fleming is the sole shareholder and director, and in her real estate employment by LJ Hooker Real Estate Tuggeranong.
[53] Comcare v Heffernan (2011) 196 FCR 494.
43.The adjustment percentage that is to be applied to the NWE amount once the duration of incapacity exceeds 45 weeks (or the equivalent number of hours) is to be determined under section 19(3) of the Act. It is necessary to assess the number of weekly hours of employment as a proportion of the normal weekly hours prior to the injury.
44.Prior to injury, Ms Fleming’s normal weekly hours were 36.75 hours.
45.In the period from 16 June 2008 to 22 March 2009 she was employed by the Department for 22.05 hours per week. From 23 March 2009 to 29 July 2009, when her employment by the Department was terminated, Ms Fleming undertook no work for the Department.
46.By her own account, Ms Fleming was engaged in project-based employment in her private business at various relevant times[54] –
from August to October 2008 she worked on a design job for Layout Homes – 24 hours over 8 weeks;
from January to May 2009 Ms Fleming undertook design and project management work for Layout Homes in respect of a home extension project in Gordon, ACT – approximately 10 hours per week over 4 months;
from July to October 2009 Ms Fleming was engaged in 3 design jobs – each approximately 10 hours over 3-4 weeks;
from November 2009 to February 2010 Ms Fleming undertook a more complex design job – approximately 16 hours over 10 weeks; and
from September 2009 to January 2010 Ms Fleming undertook design and project management work for Layout Homes in respect of a home extension in Duffy, ACT – approximately 10 hours per week over 5 months.
[54] Exhibit A8, statement dated 16 September 2010, pp6-7.
47.It appears that from 6 April 2010 to an uncertain date in November 2010 Ms Fleming was employed by LJ Hooker Real Estate in Tuggeranong, ACT. Her evidence is that this was a sales position in which she worked variable hours, 6 days each week[55] - “the agency expected me to work long hours six days a week and that trying to comply with those work requirements aggravated both my physical and psychological conditions. I simply couldn’t do the hours that they expected of me”[56]. Ms Fleming submitted that she worked, on average, 25 to 35 hours per week from 6 April to 15 November 2010, being 32 weeks, in this employment. For present purposes, in the absence of detailed evidence of the hours Ms Fleming worked each week in her employment by LJ Hooker Real Estate in Tuggeranong, I will proceed on the basis that she worked an average of 30 hours each week in that period.
[55] Exhibit A8, statement dated 16 September 2010, p5.
[56] Exhibit A8, statement dated 15 September 2011, p1.
48.After ceasing this employment, Ms Fleming’s evidence is that she attempted to obtain suitable employment on the open market, but without success. Later in 2011, she hired a desk in an office at Weston Creek in Canberra, with the intention of resuming her private business and undertaking design and project management work. Her evidence is that she works 4 hours per day, 5 days per week in this self-employment[57]. I will proceed on that basis even though there is no evidence that Ms Fleming has generated any income by her efforts in this form of employment thus far.
[57] Exhibit A8, statement dated 15 September 2011, p3.
49.To my mind section 19(3) in respect of the meaning of ‘is employed’ and ‘is not employed’ was correctly construed in Re Gill and Comcare[58]. Clearly, the purpose of the section and the adjustment percentage so derived, is to calibrate an injured employee’s entitlement to weekly compensation in order to encourage him or her to return to work – it is, in effect, a calculus that measures and rewards effort on the part of an injured employee to return to work to the maximum extent possible[59]. There is an interesting and difficult question concerning self-employment – if a person engages in self-employment, is the person to be taken as ‘employed’ for the purposes of section 19(3) whether or not their labour is productive of monetary income in any particular week? To my mind the answer to that question is Yes. One can readily accept the proposition that a person in self-employment may engage in contractual arrangements, as in Ms Fleming’s case, project by project, to generate income, and the resulting income may only be payable periodically once certain results or progress has been achieved. To ignore the injured employee’s labour and effort in order to obtain such work, or his or her labour and effort, week by week, to achieve the required result or progress, would be to construe section 19(3) in a manner that is unduly narrow and not consistent with its purposes under the Act. I see no reason to adopt a construction that would render a person in self-employment post-injury worse off than a person in salaried employment if all other circumstances were equal.
[58] [2009] AATA 381 at [17].
[59] Comcare v Heffernan [2011] 196 FCR 494, per Marshall and Bromberg JJ at [15] and Downes J at [35].
50.Perhaps the critical point, presently, is the state of the evidence concerning Ms Fleming’s serious efforts in self-employment – there is very scant evidence in respect of the weekly hours in which she was employed on her own account from June 2008 to April 2010, developing her private business, otherwise than working on specific projects. Her evidence concerning her efforts to resurrect her private business more recently in 2011 is to this point. Thus from the date on which she resumed her private business efforts and hired a desk in an office in Weston Creek, which is not presently established with any specificity, her adjustment percentage is to be assessed on the basis that she was employed for 20 hours per week.
51.Thus, for the purposes of section 19(3) of the Act, Ms Fleming’s weekly hours of employment, the percentage of her normal weekly hours prior to injury and the applicable adjustment percentages are:
16 June 2008 to 31 July 2008 – 22.05 hours, being 60% of normal weekly hours: adjustment percentage – 90%;
1 August to 30 September 2008 – 25.05 hours, being 68.1% of normal weekly hours: adjustment percentage – 90%;
1 October 2008 to 31 December 2008 – 22.05 hours, being 60% of normal weekly hours: adjustment percentage – 90%;
1 January 2009 to 22 March 2009 - 32.05 hours, being 87.2% of normal weekly hours: adjustment percentage – 95%;
23 March 2009 to 30 April 2009 – 10 hours, being 27.2% of normal weekly hours: adjustment percentage – 85%;
1 May 2009 to 29 July 2009 – 0 hours: adjustment percentage – 75%;
30 July 2009 to 31 August 2009 – 2.5 hours, being 6.8% of normal weekly hours: adjustment percentage – 80%;
1 September 2009 to 23 October 2009 – 12.5 hours, being 34% of normal weekly hours: adjustment percentage – 85%;
24 October 2009 to 14 November 2010 – 10 hours, being 27.2% of normal weekly hours: adjustment percentage – 85%;
15 November 2009 to 31 January 2010 – 11.6 hours, being 31.6% of normal weekly hours: adjustment percentage – 85%;
1 February 2010 to 5 April 2010 – 0 hours: adjustment percentage – 75%;
6 April 2010 to 15 November 2010 – 30 hours, being 81.6% of normal weekly hours: adjustment percentage – 95%; and
16 November 2010 to 24 January 2011 – 0 hours: adjustment percentage 75%.
52.Thereafter, there are two periods in respect of Ms Fleming’s employment for the purposes of section 19(3) – the period prior to her resumption of self-employment in her private business, and her self-employment thereafter, albeit without apparent income. During the former period, it appears that Ms Fleming was not employed and an adjustment percentage of 75% would apply. Whereas during the latter period, it appears that Ms Fleming was self-employed for 20 hours each week, being 54.4% of her normal weekly hours, in consequence of which an adjustment percentage of 90% is applicable. Further evidence is required in respect of the date on which Ms Fleming resumed self-employment.
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.
Actual Weekly Earnings
54.In order to properly decide this point, it is, first, necessary to assess Ms Fleming’s actual earned income in respect of periods in which she was self-employed undertaking work for Layout Homes. There are three contentious issues. Firstly, is it appropriate to assess Ms Fleming’s earned income in any relevant week on the basis of the net income of the business, or some other figure? Secondly, when is the income actually earned? And thirdly, what is the weekly amount of Ms Fleming’s actual earnings?
Is it appropriate to assess Ms Fleming’s earned income in any relevant week on the basis of the net income of the business, or some other figure?
55.During the hearing, Comcare conceded that, in the particular circumstances, it would not be appropriate to use the gross annual income of Ms Fleming’s private business, Layout Homes, when calculating the amount of her actual weekly earnings. As the gross annual income of Layout Homes in 2008-2009 and 2009-2010 included amounts paid in respect of direct project costs, that concession is well made and I have no difficulty accepting that it is correct. Ms Fleming conceded that the net annual profit or loss of the business also may not properly reflect her actual weekly earned income. That, too, I have no difficulty accepting as it is clear that Layout Homes had other sources of income than those directly derived from Ms Fleming’s labour, in respect of interest and dividends for example[60].
[60] ST12b folio 858.
56.As a matter of applicable principle, if the business is a personal services business, or it is conducted by an injured and partially incapacitated former employee solely on his or her own account, without significant investment of capital, the actual net earnings of the business may properly represent the actual earnings – the reward for labour – of the former employee: ‘In such a case, if the former worker is carrying on business solely on his own account, the net earnings of the business might properly be seen as representing the “amount he is earning” in a business; if he is carrying on the business in partnership or as an employee of a family company, the net earnings (of the business) might properly be seen as representing the “amount he… is able to earn” either in employment or in a business’[61]. Alternatively, the value of Ms Fleming’s labour or work in the business may be assessed by reference to the cost of employing someone else to do the work or the value of Ms Fleming’s work if she was employed by another to carry it out.
[61] Cage Developments Pty Ltd v Schubert (1983) 151 CLR 584 at 588.
57.Having regard to the financial records of Layout Homes, it appears that the actual net earnings (the operating profit) of the business in 2008-2009 was $33,337.79[62] and in 2009-2010 it was $5,120.31[63]. To my mind, however, from 1 June 2008, Layout Homes cannot properly be characterised as a business Ms Fleming conducted solely on her own account. This is for the simple reason that Ms Fleming engaged in 2 construction projects for Layout Homes with another person, Mr Hunter, on the basis that any resulting profit from those projects would be divided equally between them. The formal arrangements between Layout Homes, Ms Fleming and Mr Hunter are not entirely clear. On Ms Fleming’s evidence, she and Mr Hunter agreed to leave all or part of the profit from the project in 2008-2009 in the business to fund further projects, although the arrangement soured and came to an end prior to completion of the second project in 2009-2010. Furthermore, the projects in which Ms Fleming and Mr Hunter engaged involved the design and construction of home extensions. While the contractual arrangements governing these projects are not in evidence, it is apparent from Ms Fleming’s evidence and from the financial records of the business that the contract price, and the gross income of the business, covered all related costs, including sub-contractors, materials, labour and other expenses[64]. Ms Fleming’s evidence is that Mr Hunter organised sub-contractors and he was involved in demolition works and rubbish removal. She assessed his contribution as equal to hers, with the exception of the design work, which Ms Fleming undertook.
[62] ST12b folio 858.
[63] ST12d folio 885 and Exhibit A10.
[64] See ST12d folio 885 and Exhibit A10 for example.
58.Thus, it is necessary to assess the value of Ms Fleming’s labour on the open market. By her own account, in respect of design projects, Ms Fleming was paid $1,900 for 24 hours work in 1 project ($79.17 per hour), $880 for 10 hours work in 3 projects ($88.00 per hour) and $1,300 for 16 hours work in 1 project ($81.25 per hour). The average hourly charge rate for Ms Fleming’s design work is $82.81 per hour. This is well within the mid-range of the hourly rates for design work as reported by Ms Dupont[65].
[65] Exhibit R5.
59.With regard to the value of Ms Fleming’s labour in the home extension projects undertaken on Layout Homes’ account, Layout Homes’ annual operating profit in 2008-2009 was $33,337.79. Once the $1,900 design project fee in that year is deducted and 50% allowance made in respect of Mr Hunter’s interest, it can be seen that the amount that is attributable to Ms Fleming is $15,718.90. By her account the project took 4 months to complete – from 1 January 2009 to 30 April 2009, a period of approximately 17 weeks, during which she says that she worked 10 hours per week on this project. The resulting hourly rate for her labour is $92.46 per hour. Undertaking a similar calculation in respect of 2009-2010, Layout Homes’ operating profit was $5,120.31. Once the $3,940 in design project fees is deducted, the remaining amount is solely attributable to Ms Fleming as Mr Hunter’s involvement came to an end prior to completion of the construction project – an amount of $1,180.03. By her account the project took 5 months to complete, from 1 September 2009 to 31 January 2010, a period of approximately 24 weeks, during which she says that she worked 10 hours per week on the project. The resulting hourly rate for her labour is $4.92. It can be seen that over the two projects presently in issue, the average hourly rate for Ms Fleming’s work in the home extension projects is $48.69 per hour.
60.On Ms Dupont’s evidence, Ms Fleming’s labour as a project manager would have a replacement value on the open market of between $75,000 and $100,000 per annum (approximately $40 to $52 per hour)[66]. As can be seen, the hourly rate resulting from both assessments is broadly consistent.
[66] Exhibit R4, pp1-2.
When is the income actually earned?
61.On the present evidence I am not able to determine with precision when payments were made to Layout Homes in respect of the design and construction projects to which reference has been made. The issue arising concerns when income is actually earned – is the income earned on receipt of payment or, progressively, when work is done? A similar issue arises in respect of Ms Fleming’s actual earnings in her employment by LJ Hooker Real Estate in Tuggeranong. It appears that in this employment Ms Fleming was paid a weekly retainer and commission on sales.
62.Clearly, income is earned not at the point of receipt, but when a recoverable debt arises[67]. Nevertheless, for present purposes concerning entitlements to weekly compensation with reference to the AE amounts and the formulae in sections 19(2) and (3), it may be appropriate to apportion the income earned to each of the particular weeks during which the labour or work was undertaken to which the income relates. The purpose of the AE amount in the section 19 formulae is to quantify the weekly amount an injured employee has earned or the weekly amount he or she is able to earn by his or her labour. In a case such as this, where earnings include real estate commissions and professional service fees, if the income is applied as actual earnings only in the week in which it is paid, this may not properly represent that value of the labour or work the person undertook in order to earn the income. The assessment of an injured employee’s actual weekly earnings or the amount that he or she is able to earn may properly be approached in this manner, and it is on this basis that I will proceed.
[67] Henderson v Federal Commissioner of Taxation [1970] 119 CLR 612, per Barwick CJ at 650 - 651.
63.Considering the evidence in respect of Ms Fleming’s earnings in employment by LJ Hooker Real Estate in Tuggeranong, it is not possible to accurately determine the amount she earned each week in that employment. Her tax records reveal gross income of $10,904 in 2010-2011[68] that is attributable to that employment and, in Ms Fleming’s submission, an amount of $5,900 that may be attributable to that employment in 2009-2010[69]. I will proceed on that basis, noting that no detailed evidence concerning her weekly income or the precise period of that employment has been adduced.
[68] Exhibit A9.
[69] ST12c folio 862.
What is the weekly amount of Ms Fleming’s actual earnings?
64.The amount of Ms Fleming’s actual weekly earnings from 16 June 2008 are as follows:
16 June 2008 to 31 July 2008 – $1,193.13 per week, being 22.05 hours per week at the rate of $54.11 per hour;
1 August to 19 September 2008 – $1,430.64 per week, being 22.05 hours per week at the rate of $54.11 per hour plus 3 hours at $79.17 per hour;
20 September to 30 September 2008 – $1,479.15 per week, being 22.05 hours per week at the rate of $56.31 per hour plus 3 hours at $79.17 per hour;
1 October 2008 to 31 December 2008 – $1,241.64 per week, being 22.05 hours per week at the rate of $56.31 per hour;
1 January 2009 to 22 March 2009 - $2,166.24 per week, being 22.05 hours per week at the rate of $56.31 per hour plus 10 hours at $92.46 per hour;
23 March 2009 to 30 April 2009 – $924.60 per week, being 10 hours per week at $92.46 per hour;
1 May 2009 to 29 July 2009 – $0;
30 July 2009 to 31 August 2009 – $220.00 per week, being 2.5 hours per week at $88.00 per hour;
1 September 2009 to 23 October 2009 – $269.20 per week, being 2.5 hours per week at $88.00 per hour and 10 hours per week at $4.92 per hour;
24 October 2009 to 14 November 2010 – $49.20, being 10 hours per week at $4.92 per hour;
15 November 2009 to 31 January 2010 – $179.20 per week, being 10 hours per week at $4.92 per hour and 1.6 hours per week at $81.25 per hour;
1 February 2010 to 5 April 2010 – $0;
6 April 2010 to 15 November 2010 – $525 per week, being 30 hours per week at $17.50 per hour; and
16 November 2010 to 24 January 2011 – $0.
Able to Earn in Suitable Employment
65.In order to determine the weekly amounts Ms Fleming was able to earn in suitable employment, it is first necessary to determine what is ‘suitable employment’ for Ms Fleming, having regard to the meaning of that term under section 4(1).
Suitable employment
66.At the outset, I was informed that there is no issue about the kinds of employment that are ‘suitable employment’ for Ms Fleming, rather the dispute concerns the extent of her capacity to undertake suitable employment. Matters to be taken into account when deciding ‘suitable employment’ for an injured employee are set out in section 4(1).
67.On the unchallenged evidence of Ms Halpin[70] and Ms Dupont[71], who were not called to give evidence, ‘suitable employment’ for Ms Fleming includes employment such as:
(a)a policy officer, program administrator or project manager within relevant areas of the Australian Public Service at the Executive Level 1 or Executive Level 2;
(b)a project manager in the building industry – as a consultant, an employee or in self-employment;
(c)a real estate sales agent.
[70] ST12f folio 897.
[71] ST13 folios 933 to 941.
68.There are four things to say about these assessments of ‘suitable employment’ for Ms Fleming. Firstly, issues concerning Ms Fleming’s capacity to undertake restricted or light duties and reduced hours are likely to affect the amount she is able to earn in such employment.
69.Secondly, Ms Fleming has not been provided with a rehabilitation program even though, on the present evidence, she is well suited for rehabilitation or vocational retraining.
70.Thirdly, Ms Fleming was previously employed under fixed-term rolling contracts at the Executive Level 2 grade by the Department. Ms Dupont’s evidence is that the range of duties Ms Fleming undertook in her previous role were unusual at this level in the Australian Public Service – the issue being that Ms Fleming was not responsible for supervising staff in a section, rather, her supervision was in respect of contractors. On that basis, Ms Dupont reported that this would adversely affect Ms Fleming’s ability to compete for appointment to a position at this level[72]. I accept this evidence and note that, on the evidence of Dr Knox, Dr Bertucen and Dr Taylor, Ms Fleming suffers from significant anxiety within the frame of her psychological injury, and the anxiety is susceptible to increase with stress. Dr Bertucen reported that Ms Fleming has the capacity to engage in “duties similar to the pre-injury duties in which she was engaged by the Commonwealth”[73]. Those duties were duties at the Executive Level 1 grade.
[72] ST13 folios 940-941.
[73] T121 folio 249.
71.Fourthly, Ms Fleming has been engaged in design work, preparing sketch plans and detailed drawings. Her evidence is that using an AutoCAD software system in the course of such activities exacerbates her symptoms. That evidence is consistent with the evidence of Dr Macauley. On this basis, I am reasonably satisfied that if employment as a consultant designer in the building industry is suitable employment for Ms Fleming, if such employment requires the use of AutoCAD design software, Ms Fleming’s capacity to undertake it is likely to be reduced. On Dr Taylor’s evidence concerning the restrictions on Ms Fleming’s use of a computer (no more than 6 hours per week), it is appropriate to assess her ability to earn in such employment on no more than 12 hours per week.
Able to earn – weekly amounts
72.When assessing the weekly amount an injured employee is able to earn in suitable employment, one must have regard to the matters set out in section 19(4) of the Act. Ms Fleming has not declined an offer of suitable employment, although she elected to reduce her hours of work in her previous employment from 16 June 2008 until that employment was terminated on 29 July 2009. Thereafter, I am reasonably satisfied that Ms Fleming has made serious efforts to seek suitable employment, including in the context of self-employment.
73.Ms Fleming has not been provided with a rehabilitation program, even though such a program may well improve her ability to earn in suitable employment.
74.As I have said, Ms Fleming was previously employed, after the injury in 2002, at the Executive Level 2 grade by the Department. Her duties in this employment were unusual at this level, as she was not required to supervise staff. On Ms Dupont’s evidence, supervising staff would commonly feature in the duties of an officer at this level. I accept that Ms Fleming has no public sector experience supervising staff and this may reduce the availability to her of employment at this level, and in consequence her ability to earn in public service employment at this level. Ms Dupont reported that Executive Level 2 grade positions without supervisory responsibilities are not common. Furthermore, Dr Bertucen reported that Ms Fleming was capable of performing her pre-injury duties – as I have said, those duties were at the Executive Level 1 grade. For these reasons, there are significant doubts attaching to Ms Fleming’s ability to earn in suitable public sector employment at the Executive Level 2 grade.
75.Having regard to the extent of Ms Fleming’s incapacity for work from time to time, the weekly amounts that Ms Fleming was able to earn during the periods under claim are to be assessed in relation to the rates of pay attaching to positions or roles that are suitable employment for her.
76.The rates of pay in respect of Australian Public Service employment are based on the hourly rate Ms Fleming was paid prior to the cessation of her previous employment with the Department, at the Executive Level 2 grade: $54.11 per hour, with an incremental increase on 20 September 2008 to $56.31 per hour. The rates of pay in respect of employment as a project manager in the building industry are based on the evidence of Ms Dupont and the replacement value of Ms Fleming’s labour in respect of the work she undertook for Layout Homes. The applicable rate used in respect of a project manager is $48.69 per hour. The applicable rate in respect of a design consultant is $82.81 per hour. On Ms Dupont’s evidence[74], based on an annual salary or income of $40,000, the rates of pay in respect of a real estate sales agent are $20.93 per hour.
[74] ST13 folio 939.
77.The weekly amounts Ms Fleming was able to earn are set out in the following table:
Able to earn - weekly
Period
Weekly Hours
APS Policy Officer, Program Administrator or Project Manager - Executive Level 2 grade
Building industry project manager
Design consultant
(12 hours per week)
Real estate sales agent
16 June 2008 to 19 September 2008
36.75
$1,988.54
$1,789.36
$993.72
$769.18
20 September 2008 to 22 March 2009
36.75
$2,069.39
$1,789.36
$993.72
$769.18
30 July 2009 to 5 April 2010
30
$1,689.30
$1,460.70
$993.72
$627.90
6 April 2010 to 15 November 2010
30
$1,689.30
$1,460.70
$993.72
$627.90
16 November 2010 to 24 January 2011
20
$1,126.20
$973.80
$993.72
$418.60
Weekly AE amounts
78.Ms Fleming’s applicable weekly AE amounts are the greater of her actual weekly earnings and the weekly amount she is able to earn in suitable employment.
79.As can be seen, the only period in which her actual weekly earnings exceeded the weekly amount she is able to earn in suitable employment is the period from 1 January 2009 to 22 March 2009, being $2,166.24 per week. In all other weeks during the periods under claim the amount she was able to earn in suitable employment applies.
Entitlement to weekly compensation
80.As I have said, Ms Fleming’s entitlement to weekly compensation in respect of her injuries is to be calculated using the formula ‘(adjustment percentage x NWE) – AE’. Applying the relevant figures, as found, the following results are obtained.
Period
Adjustment %
NWE
Adjusted NWE
AE
Weekly compensation
16 June 2008 to 19 September 2008
90%
$1,988.63
$1,789.77
$1,988.54
$0
20 September 2008 to 31 December 2008
90%
$2,069.22
$1,862.30
$2,069.39
$0
1 January 2009 to 22 March 2009
95%
$2,069.22
$1,965.76
$2,166.24
$0
30 July 2009 to 31 August 2009
80%
$2,069.22
$1,655.38
$1,689.30
$0
1 September 2009 to 31 January 2010
85%
$2,069.22
$1,758.84
$1,689.30
$69.54
1 February 2010 to 5 April 2010
75%
$2,069.22
$1,551.92
$1,689.30
$0
6 April 2010 to 30 June 2010
95%
$2,069.22
$1,965.76
$1,689.30
$276.46
1 July 2010 to 15 November 2010
95%
$2,129.22
$2,022.76
$1,689.30
$333.46
16 November 2010 to 24 January 2011
75%
$2,129.22
$1,596.92
$1,126.20
$470.72
81.As can be seen, Ms Fleming’s adjusted NWE amount exceeded her AE amount from 1 September 2009 to 31 January 2010 and from 6 April 2010 to 24 January 2011. In these periods, Ms Fleming will be entitled to weekly compensation in the amounts specified.
82.It follows that the reviewable decision in application 2011/1345 must be set aside. The matter will be remitted to Comcare to calculate the amount of Ms Fleming’s weekly compensation in accordance with these reasons.
Conclusion
83.The decisions under review must be set aside. On 6 January 2010, Ms Fleming suffered an incapacity for work as a result of her 2002 neck and shoulder injury. In the periods from 1 September 2009 to 31 January 2010 and from 6 April 2010 to 24 January 2011 Ms Fleming is entitled to payment of weekly compensation under section 19 of the Act.
84.The matter is remitted to Comcare to determine the amounts of weekly compensation that are payable to Ms Fleming under the terms of this decision.
85.The parties have not been heard as to orders for costs under section 67 of the Act. There will be a period of 28 days in which submissions on this point may be filed. If no submissions are filed, Comcare will be ordered to pay Ms Fleming’s reasonable costs in these proceedings as agreed or taxed.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
Signed: ...........................[sgd].....................................................
H. Choi, AssociateDates of Hearing 28, 29, 30 November and 1 December 2011
Date of Decision 23 December 2011
Counsel for the Applicant Mr L. Grey
Solicitor for the Applicant Mr N. Gabbedy, Pappas, J.- Attorney
Counsel for the Respondent Mr B. Dube
Solicitor for the Respondent Ms A. Danti, Dibbs Barker
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