Griffiths and Comcare - [2003] AATA 825

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 825
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos W2001/447 and W2002/340

GENERAL ADMINISTRATIVE DIVISION )

Re DAVID ROY GRIFFITHS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)
Date22 August 2003
PlacePerth

Decision
1. The reviewable decisions of the respondent dated 29 November 2001 and 30 August 2002 be set aside, and in lieu thereof a decision is made that the applicant who continues to be employed by the Commonwealth if not incapacitated for work would receive or be eligible to receive earnings including an amount of 60% of the Submarine Service Disability Payment from and after 15 May 1996 to be calculated in accordance with paragraphs 50 and 51 of the Tribunal’s Reasons for Decision.

2. The matter is remitted to the respondent to recalculate the applicant’s entitlement in accordance with the order made in paragraph 1.

3. The applicant is entitled to payment of his costs pursuant to s67(8) of the Safety, Rehabilitation and Compensation Act 1988 and accordingly the respondent is ordered to pay the applicant’s costs to be agreed or taxed in accordance with the Tribunal’s General Practice Direction.

[Sgd Hon C R Wright QC]
Deputy President

CATCHWORDS
Compensation - Chief Petty Officer in Royal Australian Navy - psychiatric disorder - unfit for sea going duties - subsequent discharge - entitlement for seagoing ("disability") allowance in assessing normal weekly earnings - factors affecting reduction in compensation entitlement pursuant to Safety, Rehabilitation and Compensation Act 1988 - s8(10).
Re Perry and Department of Defence AAT No 11718/97 (21 March 1997) Re O’Mullane and Comcare [2002] AATA 1251, 6 December 2002,

Spurr and Comcare (1999) AATA 43
Carson and Telstra Corporation (2001) AATA 648
Plumb v Comcare (1992) 39 FCR 236
REASONS FOR DECISION

22 August 2003 The Hon C R Wright QC.,

(Deputy President)
The Applications to Review
(A) No W2001/447
1.      This is an application to review a decision of the Director of Military Compensation and Rehabilitation Services on behalf of the respondent, made on 19 November 2001, whereby an earlier determination by a departmental officer on 23 May 2000 was upheld.
2.      The determination of 28 May 2000 was to the effect that the applicant was eligible for a seagoing allowance for the period 24 July 1995 to 6 March 1996 and also for the period 7 March 1996 to 10 May 1996.
3.      This determination was relevant to the assessment of compensation payable to the applicant for incapacity occasioned as a consequence of his suffering a psychiatric disorder during his service as a Chief Petty Officer in the submarine service of the Royal Australian Navy.
4.      The quantum of such compensation requires consideration of the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) and, in particular s8 which deals (inter alia) with the calculation of the “normal weekly earnings”, (“NWE”) of a compensation claimant and circumstances which may require the modification of the…

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 Griffiths and Comcare

Details

AGLC: Griffiths and Comcare [2003] AATA 825
Case: [2003] AATA 825
Decision Date: 22 August 2003

CaseChat Overview and Summary

The case of Griffiths and Comcare involved a Chief Petty Officer in the Royal Australian Navy, who suffered a psychiatric disorder that rendered him unfit for seagoing duties. After his discharge, the dispute centred around his entitlement to a seagoing disability allowance as part of his normal weekly earnings, and the factors that should be considered in reducing his compensation under the Safety, Rehabilitation and Compensation Act 1988. The administrative decisions being reviewed were those of the respondent dated 29 November 2001 and 30 August 2002, which had already been subject to some consideration in the Administrative Appeals Tribunal (AAT). The Tribunal was required to determine whether the applicant's seagoing disability allowance should be included in his normal weekly earnings and to recalculate his entitlement, taking into account the relevant legislative provisions and precedent cases such as Re Perry and Department of Defence, Re O’Mullane and Comcare, Spurr and Comcare, Carson and Telstra Corporation, and Plumb v Comcare.

The Tribunal considered the statutory framework for calculating compensation entitlements, including the provisions of section 8(10) of the Safety, Rehabilitation and Compensation Act 1988. It examined the precedent cases to understand how similar situations had been addressed, particularly focusing on the inclusion of disability payments in normal weekly earnings and the factors to be considered in reducing compensation. The Tribunal also evaluated the specific circumstances of the applicant's employment and discharge, and how these related to the statutory provisions and case law. It concluded that the applicant should be eligible to receive a percentage of the Submarine Service Disability Payment as part of his normal weekly earnings from a specific date, and that this should be calculated in accordance with detailed paragraphs in the Tribunal's reasons for decision.

Following its analysis, the Tribunal set aside the reviewable decisions of the respondent and ordered that the applicant, who remains employed by the Commonwealth, would receive earnings including an amount of 60% of the Submarine Service Disability Payment from 15 May 1996. The Tribunal also directed that the matter be remitted to the respondent for recalculation of the applicant's entitlement in accordance with its order. Additionally, the Tribunal ruled that the applicant is entitled to payment of his costs, which the respondent is to pay and which will be agreed or taxed in accordance with the Tribunal's General Practice Direction.

Orders

Orders of the court

1. The reviewable decisions of the respondent dated 29 November 2001 and 30 August 2002 be set aside, and in lieu thereof a decision is made that the applicant who continues to be employed by the Commonwealth if not incapacitated for work would receive or be eligible to receive earnings including an amount of 60% of the Submarine Service Disability Payment from and after 15 May 1996 to be calculated in accordance with paragraphs 50 and 51 of the Tribunal’s Reasons for Decision.

2. The matter is remitted to the respondent to recalculate the applicant’s entitlement in accordance with the order made in paragraph 1.

3. The applicant is entitled to payment of his costs pursuant to s67(8) of the Safety, Rehabilitation and Compensation Act 1988 and accordingly the respondent is ordered to pay the applicant’s costs to be agreed or taxed in accordance with the Tribunal’s General Practice Direction.

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		DAVID ROY GRIFFITHS