Gould and Comcare - [2011] AATA 166

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 166
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4998

GENERAL ADMINISTRATIVE DIVISION )

Re JOY GOULD

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date14 March 2011
PlaceBrisbane

Decision The decision under review is affirmed.
...................[Sgd].......................
Deputy President

CATCHWORDS
WORKERS’ COMPENSATION – Accepted liability for incapacitation arising out of primary employment – Liability to compensate for casual part-time employment where loss of wages due to incapacitation – Employment unrelated to primary employer – Decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8, 19(2)
Breust v Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1991) 30 FCR 40
REASONS FOR DECISION

14 March 2011 Deputy President P E Hack SC

The applicant, Mrs Joy Gould, is a full time employee of the Insolvency and Trustee Service, Australia (ITSA). Additionally, and with the consent of the ITSA, Mrs Gould has for many years undertaken regular casual part-time employment.
In April 2010, in the course of her employment, Mrs Gould sustained serious injuries. The respondent, Comcare, accepts that it is liable to pay compensation to Mrs Gould in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of that injury.
The issue in these proceedings is Comcare’s liability to pay compensation for the wages that Mrs Gould has lost from her inability to continue with her part-time employment following the injury. She made a claim for compensation under that head which was rejected by Comcare on 30 July 2010. That decision was affirmed on re-consideration on 23 September 2010.
Mrs Gould seeks a review of the decision in the Tribunal. The parties have consented to the matter being determined on the documents and without a hearing. I am satisfied that it is appropriate to proceed in that way.
It is common ground that Mrs Gould was incapacitated by her accepted injury from undertaking her casual employment in the period from the date of injury onwards. The only issue is whether Mrs Gould is entitled to compensation for the loss of the wages she would otherwise have earned from that employment.
The starting point is s 19(2) of the Act. It makes Comcare liable to pay compensation for injuries resulting in incapacity on the basis of a calculation of “normal weekly earnings” or NWE. Attention then turns to s 8 of the Act which deals with the manner of calculating normal weekly earnings. It provides, so far as is presently relevant:
“Normal weekly earnings
(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
where:
‘NH’ is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
‘RP’ is the employee's average hourly ordinary time rate of pay during that period; and
‘A’ is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment
….
(3) Where an employee was, at the date of the injury, employed by the Commonwealth or a licensed corporation in part‑time employment or unpaid employment, any earnings of the employee from any other employment shall, for the purposes of this section, be treated as earnings of the employee from his or her employment by the Commonwealth or the licensed corporation.”
Mrs Gould says that, in undertaking the calculation required by s 8(1) of the Act the “employment” referred to is not limited to her employment with ITSA, it includes her casual employment. Comcare says that “employment” in s 8 is limited to the employment with ITSA. It points to the decision of the Full Court in Breust v Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees[1] as supporting its argument and being on all fours with the present case.
[1] (1991) 30 FCR 40
I have considerable sympathy for Mrs Gould. There is no doubt that she has suffered a loss yet it appears that she cannot be compensated. But that conclusion is driven by the terms of the Act; it does not provide for Mrs Gould to be compensated for any loss she may suffer in connection with the injury, rather it entitles her to receive compensation “in accordance with this Act” in respect of the injury. In my view the Act does not allow for compensation of the type claimed by Mrs Gould and Comcare’s decision was correct.
Breust is indistinguishable from Mrs Gould’s circumstances. Mr Breust was a full time employee of the Australian Taxation Office and a member of the Defence Force Reserve. He claimed that his pre-injury earnings as a member of the Reserve ought be taken into account in the calculation of normal weekly earnings. Despite the argument being supported by the respondent Commissioner his appeal from a decision of the Tribunal holding to the contrary was dismissed.
Justice Davies said this[2]:
“However, s 8 is drafted so as to leave no doubt that the references in s 8(1) to ‘his or her employment’ and ‘that employment’ are references to the employment out of which, or in the course of which, the injury or disease arose or was incurred. This is because the section does not refer to earnings generally but to the number of hours worked each week in an employment, to the employee’s average hourly ordinary time rate, to the average amount of allowances payable ‘in respect of his or her employment’ and to ‘the relevant period’, a term defined in s 9. All these provisions show that s 8 is not concerned with earnings generally. From this, I deduce that the term ‘employment’ has the limited meaning of ‘the relevant employment’, the meaning which the Tribunal gave to it.
This interpretation is confirmed by s 8(3). This provision distinguishes between part-time employment with the Commonwealth, and ‘any other employment’. The subsection provides that, where the liability to pay compensation arose out of part-time employment with the Commonwealth, then any other earnings of the employee shall be treated as earnings of the employee from his or her employment. Mr Johnson and Mr Driver submitted that the term ‘part-time employment’ does not reflect the employment giving rise to the liability. However, it does so, for it adds to the earnings from that employment the employee’s earnings from any other employment. It does not have the effect, for which counsel seemed to contend, of adding to the earnings from full-time employment by the Commonwealth earnings from any part-time employment with the Commonwealth which the employee also had. The provision distinguishes between the part-time employment and ‘any other employment’, and it is the earnings from the latter that are to be included.
…
It follows that, in the case of an officer holding a full-time position with the Commonwealth, who suffers injury or disease arising out of or in the course of that employment, his normal weekly earnings are to be calculated by reference to the incidents of that employment alone. It is only in the case of an employee who suffers injury or disease arising out of or in the course of part-time employment that normal weekly earnings will take account of earnings from other employment. And in that case, the other employment will take account of earnings from any other employment, whether it be employment with the Commonwealth or outside Commonwealth employment. I reject counsels’ submissions that the Act intends to compensate an injured employee for all earnings or all earnings from the Commonwealth which may be lost. It seems to me that s 8 provides to the contrary, save in the case where the injury or disease was related to part-time employment.”
To similar effect Beaumont and O’Connor JJ[3]:
“In our opinion, s 8(3) has no application to the present case. Here, the applicant had full-time employment with the Commonwealth and, pursuant to leave of absence, served in the Defence Forces. Section 8(3), in our view, is directed to the different situation where an employee is injured in the course of part-time, temporary or unpaid employment with the Commonwealth and has earnings from other employment. The subject of s 8(3) is a part-time, temporary or unpaid employee of the Commonwealth who is injured in the course of that employment. The applicant did not qualify under this provision. It may have been different, and it is not necessary now to decide the point, if the applicant had been injured in the course of his Defence Forces employment: see Re Byard and Commonwealth (1983) 5 ALN N173.”
[2] At 43-44.
[3] At 47-48.
Mrs Gould sought to distinguish Breust on the basis that the applicant there had resigned from the Defence Force Reserve. I cannot accept that that is a valid basis of distinction; Breust did not turn on any question of continuation of employment it was determined by reference to the scope of the “employment” in s 8(1) of the Act. Additionally, Mrs Gould asked that the Tribunal “revisit” the decision in Breust. It is not within the power of the Tribunal to do so; members of the Tribunal are bound to follow the decisions of the Federal Court. It is for that Court, or the High Court of Australia, to revisit the decision.
It follows that the decision under review must be affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .............................[Sgd]..............................................
  Alex Seagar, Associate
Heard on the papers
Date of Decision  14 March 2011