Graham and Comcare (Compensation) - [2016] AATA 932

Graham and Comcare (Compensation) [2016] AATA 932 (5 September 2016)

Division

GENERAL DIVISION

File Number

2014/5179

Re

Phillip Graham

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member N A Manetta

Date 5 September 2016

Date of written reasons 23 November 2016

Place Adelaide
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

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Senior Member N A Manetta
CATCHWORDS
COMPENSATION - Rehabilitation and Compensation - “normal weekly earnings” – Section 8 of Safety, Rehabilitation and Compensation Act, 1988 - whether increases in salary for employees judged “fully effective” are to be included in calculation of compensation paid to injured employees by s 8(6) – such increases are not included as they must be earned – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s8
CASES
Comcare v Simmons [2014] FCAFC 4, 138 ALD 58

Re Frew and Comcare [2011] AATA 597, 126 ALD 375
SECONDARY MATERIALS
The Department of Human Services Agreement 2011-2014
REASONS FOR DECISION
Senior Member N A Manetta
23 November 2016

After delivery of my decision and oral reasons, I received a request for written reasons, which I now publish.
This is an application by Mr Phillip Graham seeking a review of the decision of the respondent, Comcare. By its decision, Comcare refused to assess compensation to Mr Graham under the Safety, Rehabilitation and Compensation Act, 1988 (the Act) by adjusting his normal weekly earnings to reflect the highest level of “APS5” salary that employees judged “fully effective” in the discharge of their duties may earn at that level. Mr Graham maintains that his compensation payments should be calculated by reference to this level; Comcare disputes this.
At the hearing before me, Mr Graham represented himself; Ms Walker, of counsel, appeared for Comcare. As Mr Graham was self-represented, I shall endeavour to state my decision and reasons in as straightforward a manner as possible.
PRINCIPAL ISSUE
As I have said, the issue before me, hearing the matter afresh on the evidence adduced by the parties, concerns Mr Graham’s entitlement to compensation payments, and, in particular, whether he should receive the benefit[1] of all possible increases to the “APS5” level that an active employee might receive.
[1] In terms of the increase flowing through to a recalculation of his normal weekly earnings.
BACKGROUND FACTS
Before considering the question, I set out the salient background facts. Mr Graham gave oral evidence, which I accept in the main. He was born in July 1956, and his work history as described to me in his evidence is as follows. He commenced his working life as a bricklayer in Murray Bridge in 1973. In 1975 he joined Australian National Railways (ANR)[2] and participated in civil and rail construction activities. These involved, he said, bricklaying and building roads and bridges to support rail infrastructure. Mr Graham said that in 1979 he suffered an injury to a vertebra in his back whilst using a sledgehammer. He…

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 Graham and Comcare (Compensation)

Details

AGLC: Graham and Comcare (Compensation) [2016] AATA 932
Case: [2016] AATA 932
Decision Date: 5 September 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mr Graham against a decision by Comcare regarding the calculation of his compensation payments. The dispute centred on whether increases in salary, specifically those awarded to employees deemed "fully effective," should be included when recalculating the normal weekly earnings of an injured employee for the purposes of compensation under section 8 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The decision was heard by N A Manetta SM.

The primary legal issue before the court was to determine the proper interpretation of section 8 of the *Safety, Rehabilitation and Compensation Act 1988*, specifically subsection 8(6), in relation to the calculation of "normal weekly earnings" for an injured employee. The court was required to ascertain whether salary increases that an employee might have received had they remained fully effective and in their pre-injury employment, but which were not actually earned, should be factored into the compensation assessment.

The court reasoned that compensation payments are intended to reflect earnings that have been, or would have been, actually received. It applied the principle that increases in salary, such as those awarded to employees judged "fully effective," are contingent on continued employment and performance. Therefore, such notional increases, which were not actually earned by Mr Graham due to his injury and subsequent cessation of employment with his original employer, should not be included in the calculation of his normal weekly earnings. The court affirmed the decision under review, finding that Mr Graham was not entitled to have his compensation calculated by reference to these potential future increases.

Orders

Orders of the court

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Background

Background to the litigation

As I have said, the issue before me, hearing the matter afresh on the evidence adduced by the parties, concerns Mr Graham’s entitlement to compensation payments, and, in particular, whether he should receive the benefit[1] of all possible increases to the “APS5” level that an active employee might receive. [1] In terms of the increase flowing through to a recalculation of his normal weekly earnings.BACKGROUND FACTS Before considering the question, I set out the salient background facts. Mr Graham gave oral evidence, which I accept in the main. He was born in July 1956, and his work history as described to me in his evidence is as follows. He commenced his working life as a bricklayer in Murray Bridge in 1973. In 1975 he joined Australian National Railways (ANR)[2] and participated in civil and rail construction activities. These involved, he said, bricklaying and building roads and bridges to support rail infrastructure. Mr Graham said that in 1979 he suffered an injury to a vertebra in his back whilst using a sledgehammer. He was off work for a short time only and returned to work too soon, he said, which resulted, unfortunately, in an exacerbation of his medical problems.[2] Which became AN (Australian National) at some point. I shall refer to ANR alone, however, in the course of these reasons. He underwent surgery in about 1982 and returned to similar duties, but in 1984 he changed position at ANR and started a new clerical role on less pay. Unfortunately, in 1989 he suffered a further aggravation of his injury, and, later on, he suffered yet further injury while undertaking exercises intended to strengthen his back. In 1992 he received, he said, a permanent-impairment lump-sum payment reflecting a 25% reduction in his work capacity. Mr Graham gave evidence that eventually ANR began to wind down its operations, and Mr Graham resigned from the organisation in 1994 to work with what was then known as the Commonwealth Employment Service (or CES). Whilst at ANR, Mr Graham had received promotions, and in 1994 his final salary was $34,400 approximately. At the CES, his salary went down to $26,000. Mr Graham said that not long after 1994, he filed an application for compensation payments, and this dispute was finally resolved in 1998 or 1999 when he was back paid to 1994. One critical feature of Mr Graham’s case is that from 1999 onwards, Comcare decided to assess Mr Graham’s compensation by reference to an ASO5/ASP5 level in the Australian Public Service. Mr Graham’s ANR position and its classification had disappeared as ANR wound up operations. This had left Comcare in something of a quandary as to how it was to continue to assess Mr Graham’s earnings as a former employee of a now defunct organisation. The decision was taken that Mr Graham’s former position at ANR could fairly be treated as equivalent to an ASO5/APS5 level position in Centrelink (the successor to the CES). In a written submission from Comcare provided at my request after the conclusion of the hearing, the history of the matter is set out. I shall not set out the submission but I have considered it.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows, in my opinion, that Mr Graham is not entitled to have the level of his normal weekly earnings calculated by reference to the increases referred to in clause B5 of the Agreement. I shall make an order reflecting this ruling and affirm the decision under review.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number	2014/5179
Re	Phillip Graham
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member N A Manetta
Date	5 September 2016
Date of written reasons	23 November 2016
Place	Adelaide