Goodricke and Comcare - [2011] AATA 941

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 941
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          2010/5504
  )          2011/4606

GENERAL ADMINISTRATIVE DIVISION )

Re PETER GOODRICKE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date23 December 2011
PlaceCanberra

Decision
The decision under review in application 2010/5504 will be varied to the extent that Mr Goodricke’s AE amounts are:

(a)       from 1 January 2006 to 23 May 2010, from 13 June 2010 to 30 June 2010 and from 7 July 2010 to 5 October 2010 - the average weekly earnings amounts derived from the age appropriate What Jobs Pay data at the relevant times;

(b)       from 24 May 2010 to 12 June 2010 – zero; and

(c)       from 1 July 2010 to 6 July 2010 - the amount Mr Goodricke earned in employment by Pacific Partners.

The decision under review in application 2011/4606 will be varied to the extent that Mr Goodricke’s AE amounts are:

(d)       from 28 April 2011 to 11 May 2011 and from 7 July 2011 to 10 August 2011 - zero; and

(e)       from 12 May 2011 to 6 July 2011 - the weekly amounts Mr Goodricke earned in self-employment and employment by Energy Base.

Within 28 days Comcare is to file and serve a request for orders setting out the amount of weekly compensation that is payable to Mr Goodricke in accordance with the terms of these reasons, applying the age-appropriate weekly earnings data set out in the What Jobs Pay publications from 1 January 2006. There will be liberty to apply within 14 days thereafter in the event of further disputation in respect of those calculations.

.....................[sgd].........................
Mr S. Webb, Member

CATCHWORDS
WORKERS COMPENSATION - chronic pain - incapacity for work - weekly compensation - normal weekly hours - adjustment percentage - meaning of 'employed' - able to earn in suitable employment - meaning of 'failed to seek suitable employment' - calculation of weekly compensation - minimum earnings – decisions varied
Safety, Rehabilitation and Compensation Act 1988 ss 4, 19
Comcare v Heffernan [2011] 196 FCR 494
John Holland Group Pty Ltd v Robertson [2010] 185 FCR 566
Martin v Australian Postal Corporation [2000] FCA 1646
Re Goodricke and Comcare [2010] AATA 410
Slater v Telstra Corporation Limited [2001] 115 FCR 34
Telstra Corporation Limited v Warner (1994) 20 AAR 259
Woodbridge v Comcare (1994) 20 AAR 196
REASONS FOR DECISION

23 December 2011 Mr S. Webb, Member

2.      Peter Goodricke was injured in 2000 when employed by Health Services Australia as a senior systems engineer. He claimed and was paid compensation. Presently, there is a dispute about the amount of weekly compensation that is payable in two periods, from 1 January 2006 to 5 October 2010 and from 28 April 2011 to 10 August 2011. Mr Goodricke does not agree with Comcare’s reconsideration decisions on this point and he has applied for review.
3.      There are a number of preliminary matters to address. Firstly, Mr Goodricke’s entitlement to weekly compensation…

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 Goodricke and Comcare

Details

AGLC: Goodricke and Comcare [2011] AATA 941
Case: [2011] AATA 941
Decision Date: 23 December 2011

CaseChat Overview and Summary

Goodricke v Comcare involved a dispute over the calculation of weekly compensation for chronic pain incapacity. The matter was heard in the Administrative Appeals Tribunal (AAT). The primary issue before the Tribunal was the correct method for determining Mr Goodricke's average weekly earnings (AWE) to calculate his weekly compensation for periods of incapacity due to chronic pain. This involved interpreting various statutory provisions related to employment status and income calculations under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Specifically, the Tribunal had to consider whether Mr Goodricke was 'employed' during certain periods, and if so, whether he had failed to seek suitable employment, which would affect the calculation of his weekly compensation.

The Tribunal examined the statutory definition of 'employed' and 'failed to seek suitable employment'. It found that Mr Goodricke's employment status and income varied over the periods in question. The Tribunal determined that for some periods, Mr Goodricke's AWE should be calculated based on the age-appropriate What Jobs Pay data, while for other periods, his actual earnings from employment or self-employment should be used. The Tribunal concluded that Mr Goodricke's AWE should be zero for periods where he was not employed or failed to seek suitable employment, and his actual earnings should be used for periods where he was employed or actively seeking suitable employment.

As a result of the Tribunal's reasoning, the decisions under review were varied to adjust Mr Goodricke's average weekly earnings to reflect the correct calculations for each period. The Tribunal ordered that Comcare was to file and serve a request for orders setting out the amount of weekly compensation payable to Mr Goodricke. This decision provided clarity on the application of statutory provisions concerning chronic pain compensation and the calculation of average weekly earnings.

Orders

Orders of the court

The decision under review in application 2010/5504 will be varied to the extent that Mr Goodricke’s AE amounts are:

(a) from 1 January 2006 to 23 May 2010, from 13 June 2010 to 30 June 2010 and from 7 July 2010 to 5 October 2010 - the average weekly earnings amounts derived from the age appropriate What Jobs Pay data at the relevant times;

(b) from 24 May 2010 to 12 June 2010 – zero; and

The decision under review in application 2011/4606 will be varied to the extent that Mr Goodricke’s AE amounts are:

(d) from 28 April 2011 to 11 May 2011 and from 7 July 2011 to 10 August 2011 - zero; and

(e) from 12 May 2011 to 6 July 2011 - the weekly amounts Mr Goodricke earned in self-employment and employment by Energy Base. Within 28 days Comcare is to file and serve a request for orders setting out the amount of weekly compensation that is payable to Mr Goodricke in accordance with the terms of these reasons, applying the age-appropriate weekly earnings data set out in the What Jobs Pay publications from 1 January 2006.

There will be liberty to apply within 14 days thereafter in the event of further disputation in respect of those calculations.

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		PETER GOODRICKE