Frank Spaul and Comcare - [2013] AATA 107

[2013] AATA 107

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2010/4952
Re	Frank Spaul
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	28 February 2013
Place	Melbourne

The Tribunal sets aside the reviewable decision of 3 November 2010 and substitutes the following decision:

1.Mr Spaul sustained an injury described as adjustment disorder with mixed anxiety and depressed mood on 7 September 2004 which resulted in total incapacity for work commencing on 8 September 2004;

2.Mr Spaul is entitled to compensation for incapacity under s 19 of the Safety, Compensation and Rehabilitation Act 1988 (the SRC Act) from 8 September 2004 as follows:

(a)100 per cent of his normal weekly earnings (NWE) ($1635.66) for a period of 45 weeks; and

(b)75 per cent of the appropriate figure for normal weekly earnings from the expiry of that period of 45 weeks to 2 December 2007.

3.Mr Spaul’s NWE for the purposes of s 8 of the SRC Act are to be calculated on the basis of his annual salary as follows:

With effect from Annual salary

8 September 2004 $85,327.00

1 July 2005 $88,313.45

1 July 2006 $92,022.61

1 July 2007 $95,703.51

...........................[sgd].............................................

G. D. Friedman, Senior Member

COMPENSATION – Adjustment disorder - Termination of employment – Increase in salary - Normal weekly earnings – Whether increase is an increment

Safety, Rehabilitation and Compensation Act 1988 ss 8(6), 8(9A) 8(9B), 8(9C), 8(10), 19

Comcare v Thompson [2000] FCA 790

Military Rehabilitation and Compensation Commission v Perry [2007] FCA 1586

Re Spaul and Comcare [2006] AATA 915

Re Spaul and Comcare [2011] AATA 435

Spaul v Comcare [2012] FCA 741

REASONS FOR DECISION

G. D. Friedman, Senior Member

28 February 2013

Frank Spaul was employed by Medicare Australia (formerly the Health Insurance Commission) from 1988 until Medicare Australia terminated his employment on
7 September 2004. In 2003 he had suffered from an adjustment disorder which resulted in total incapacity for work. He lodged a claim for compensation, which was heard by the Tribunal in 2006 (Re Spaul and Comcare [2006] AATA 915). In its decision the Tribunal held that the action to terminate Mr Spaul’s employment did not constitute reasonable administrative action that would have disentitled him from receiving compensation.
Following the decision the parties reached agreement that Mr Spaul would receive compensation for incapacity for the period 8 September 2004 to 2 December 2007 (the day before his 65th birthday) in respect of a new injury, being aggravation of the adjustment disorder on 7 September 2004. On 3 November 2010 the respondent made a reviewable decision affirming a determination dated 13 August 2010 (which specified Mr Spaul’s normal weekly earnings (NWE) for the purposes of determining incapacity payments) and affirmed a determination dated 25 August 2010 (which referred to compensation leave and incapacity payments but did not include the injury sustained on
7 September 2004).
Mr Spaul maintained that he was still an employee of Medicare Australia for the purposes of his entitlement to compensation, and disputed…

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 Frank Spaul and Comcare

Details

AGLC: Frank Spaul and Comcare [2013] AATA 107
Case: [2013] AATA 107
Decision Date

CaseChat Overview and Summary

Frank Spaul was employed by Medicare Australia until his employment was terminated on 7 September 2004. He subsequently lodged a claim for compensation for a psychiatric injury which he sustained on the day of his termination. The primary issue before the Tribunal was whether a 4.25% increase in salary on 1 October 2004 constituted an increment for the purposes of determining Spaul's normal weekly earnings (NWE) under s 8(6) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Spaul submitted that the increase was an increment and should be included in the calculation of his NWE, while Comcare submitted that the increase was not an increment. The Tribunal examined the meaning of the term 'increment' as used in s 8(6) of the SRC Act and considered the evidence of the terms of the Health Insurance Commission Managing Change Certified Agreement 2003-2005. The Tribunal concluded that the 4.25% increase was an across-the-board pay rise for a class of employee that fell within s 8(9) and 8(9A) and not an increment in a range of salary for the purposes of s 8(6)(c). The Tribunal set aside the reviewable decision of 3 November 2010 and substituted the following decision: Spaul sustained an injury on 7 September 2004 which resulted in total incapacity for work commencing on 8 September 2004; Spaul is entitled to compensation for incapacity from 8 September 2004 as follows: 100 per cent of his NWE ($1635.66) for a period of 45 weeks; and 75 per cent of the appropriate figure for NWE from the expiry of that period of 45 weeks to 2 December 2007. Spaul’s NWE for the purposes of s 8 of the SRC Act are to be calculated on the basis of his annual salary as follows: $85,327.00 on 8 September 2004; $88,313.45 on 1 July 2005; $92,022.61 on 1 July 2006; and $95,703.51 on 1 July 2007. As Spaul had been unsuccessful in the matters decided by the Tribunal, no award of costs to him was appropriate.

Orders