Fleming and Comcare - [2011] AATA 936

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…

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 Fleming and Comcare

Details

AGLC: Fleming and Comcare [2011] AATA 936
Case: [2011] AATA 936
Decision Date: 23 December 2011

CaseChat Overview and Summary

The matter of Fleming and Comcare involved the applicant, Ms Fleming, challenging certain decisions made by Comcare regarding her entitlement to weekly compensation following an injury sustained in 2002. The case was heard by the Administrative Appeals Tribunal (AAT). Ms Fleming argued that she was entitled to weekly compensation from specific dates, and that the decisions by Comcare in relation to her Normal Weekly Earnings (NWE) amount, the adjustment percentage, and the Appropriate Earnings (AE) amount, were incorrect.

The legal issues that the AAT was required to determine included whether Ms Fleming was entitled to weekly compensation from certain dates, and if so, what the correct amounts of her NWE, adjustment percentage, and AE were. A key issue was how to evaluate her earnings in her self-employment in a private design and construction business, considering the intermittent nature of her commercial work and various market variables. Another issue was the meaning of 'employed' in the context of her Commonwealth employment contract, particularly given that her hours were reduced as a result of her injury and her Commonwealth employment ceased.

The AAT found that Ms Fleming was indeed entitled to weekly compensation from the dates specified in the order. The Tribunal set aside the decisions of Comcare and determined that Ms Fleming suffered an incapacity for work as of 6 January 2010. The AAT also ruled that the adjustment percentage should be based on her average weekly hours rather than her normal weekly hours. The Tribunal found that the appropriate method for evaluating her self-employment earnings involved considering the market variables and the nature of her work. The AAT concluded that the term 'employed' in her Commonwealth employment contract should be interpreted in light of the reduction in her hours due to her injury.

The AAT's decision resulted in the setting aside of the Comcare decisions under review. Ms Fleming was found to be entitled to weekly compensation from 1 September 2009 to 31 January 2010 and from 6 April 2010 to 24 January 2011. The matter was remitted to Comcare to determine the exact amounts of weekly compensation payable to Ms Fleming. Additionally, the parties were given 28 days to file submissions regarding costs, with a direction that if no submissions were filed, Comcare would be ordered to pay Ms Fleming’s reasonable costs in these proceedings as agreed or taxed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		DEBORAH FLEMING