Gill and Comcare

[2009] AATA 381

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 381

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4525 & 4579

GENERAL ADMINISTRATIVE  DIVISION		)
Re		STEVEN GILL

Applicant

And COMCARE

Respondent

DECISION

Tribunal J. W. Constance, Senior Member

Date26 May 2009

PlaceCanberra

Decision The reviewable decision dated 17 September 2008 is affirmed.

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

J. W. Constance, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – interpretation of legislation – liability for compensation accepted by Comcare – calculation of compensation – meaning of the word “employed” in legislation – ordinary meaning of word – Explanatory Memorandum supports interpretation put forward by Comcare – not appropriate to depart from interpretation as a result of beneficial nature of the Act – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 – Section 19

Acts Interpretation Act 1901 – Section 15AB

Wilson v Wilson’s Tile Works Proprietary Limited (1960) 104 CLR 328

REASONS FOR DECISION

26 May 2009 J. W. Constance, Senior Member            

INTRODUCTION

1.      Mr Gill has made two separate claims to Comcare in respect of injuries he suffered in 1986 and 2005.  Comcare has accepted liability to compensate him in respect of both of these injuries, but the parties disagree as to the manner in which weekly compensation for loss of earnings should be calculated.  Mr Gill has sought a review of the decision of Comcare as to the calculation of his entitlement.

2.      For the reasons which follow the decision under review will be affirmed.

FACTS

3.      The facts set out have been agreed between the parties.  On the material before me I am satisfied that the agreement is appropriate and I am satisfied of these facts on the balance of probabilities.

4.      Between 1985 and 1992 Mr Gill was employed as a bus driver by ACTION.  In 1986 he was injured at work.  On 17 May 2005 this Tribunal decided that from 21 June 2001 Comcare was liable to pay compensation to Mr Gill in respect of his partial incapacity for work which arose from the 1986 injury.

5.      In 2000 Mr Gill commenced employment with the Department of Education and Training, a full time position which he continues to hold.  Unfortunately he was injured whilst working in this position in July 2005.  Comcare has accepted liability to pay compensation to Mr Gill in respect of this injury.

6.      Between 17 May 2007 and 1 August 2008 Mr Gill was unable to return to his previous employment with ACTION by reason of the injury suffered in 1986, and he was unable to perform his work with the Department by reason of the injury suffered in 2005.  During all of this period he did not engage in active work for the Department, but he continued to be employed by it.

RELEVANT LEGISLATION

7.      Section 19 of the Safety, Rehabilitation and CompensationAct1988 provides for the payment of compensation for injuries resulting in incapacity, both partial and total.

8.      Subsection 19(2) provides that during the first 45 weeks of incapacity compensation…