FVNH and Comcare - [2013] AATA 832

[2013] AATA 832

Division GENERAL ADMINISTRATIVE DIVISION
File Number(s) 2013/2731
ReFVNH
APPLICANT

And Comcare
RESPONDENT

DECISION
Tribunal  Deputy President S A Forgie
Date  22 November 2013
Place  Melbourne
The Tribunal:
(1)decides to affirm the reviewable decision of the respondent dated 30 May 2013; and
(2)notes that the respondent’s decision affirmed a determination dated 11 April 2013 refusing the applicant’s claim for loss of earnings as a result of his part-time employment as a Reserves Officer with the Royal Australian Air Force.

…[sgd]…………………
Deputy President

CATCHWORDS
COMPENSATION – reservist work – injury sustained during full time employment – relevant weekly earnings that of the latest 2 weeks of continuous full time employment – earnings or potential earnings of reservist work not included in compensation

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 35
Australian Federal Police Act 1979, s 24
Defence Act 1903, s 4
Defence Reserve Service (Protection) Act 2001, ss 7, 10, 26, 27, 28, 29, 30, 31, 33
Military Rehabilitation and Compensation Act 2004
Parliamentary Services Act 1999, s 22
Public Service Act 1999, ss 7, 22, 25
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5, 5A, 5B, 6, 8, 9, 14, 19, 97A, 108D
CASES
Breust v Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] FCA 241; (1991) 30 FCR 40; 101 ALR 1; 13 AAR 399
Chambers 21^st Century Dictionary, 1999, reprinted 2004, Chambers
REASONS FOR DECISION

FVNH[1] works full-time for a Commonwealth agency and has done for some five years. At the relevant time, he was also a member of the High Readiness Active Reserve (HRAR) posted within the Royal Australian Air Force (RAAF). His High Readiness Reserve Service Agreement (HRRSA) with the RAAF required him to perform a minimum of 50 Reserve Salary Days (RSD) or the equivalent days on Continuous Full Time Service (CFTS) each year in order to maintain his proficiency and competency. The agreement was a renewal of an earlier agreement between him and the RAAF. When he was injured in the course of his employment with the agency, he was unable to complete the HRRSA as he was on a Return to Work plan and prohibited by the agency from undertaking any work as a reservist. That meant that he could not complete the remaining 30.5 days of the 50 days he was contracted to perform under the HRRSA and unable to qualify for payment of $5,000.00 for completing the contract.[2] In all, he has lost over $10,000.00 in tax free earnings by being unable to work in the Defence Reserve. FVNH has said that he understands that Comcare cannot take his lost earnings into account in the calculation of the weekly payments of compensation payable under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) but asks that it be paid to him in the form of a lump sum. I have decided that my only power in the matter comes from the SRC Act but that does not authorise me…

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 FVNH and Comcare

Details

AGLC: FVNH and Comcare [2013] AATA 832
Case: [2013] AATA 832
Decision Date: 22 November 2013

CaseChat Overview and Summary

In the case of FVNH and Comcare, the applicant, a reservist in the Australian Defence Force, sought compensation from Comcare for an injury sustained while on full-time employment. The Federal Court was tasked with determining the relevant weekly earnings for the purpose of calculating compensation. The applicant argued that her reservist earnings or potential earnings should be included in the calculation, but Comcare contended that only her earnings from the latest two weeks of continuous full-time employment should be considered.

The court had to resolve whether reservist earnings or potential earnings should be included in the relevant weekly earnings for compensation purposes. This involved interpreting the relevant legislative provisions, specifically the definition of "relevant weekly earnings" under the Safety, Rehabilitation and Compensation Act 1988. The court also needed to consider the legislative intent and policy behind the compensation scheme.

The court found that the legislative provisions clearly excluded reservist earnings from the calculation of relevant weekly earnings. The court emphasised that the purpose of the compensation scheme was to provide adequate compensation for injuries sustained in the course of employment, and that including reservist earnings would distort the scheme's intent. The court held that the relevant weekly earnings should be based solely on the applicant's earnings from the latest two weeks of continuous full-time employment. Consequently, the court dismissed the applicant's claim for compensation based on reservist earnings.

The court's decision highlights the importance of strictly adhering to the legislative provisions when determining compensation under the Safety, Rehabilitation and Compensation Act 1988. It confirms that reservist earnings or potential earnings are not to be included in the calculation of relevant weekly earnings for compensation purposes.

Orders