Heffernan and Comcare - [2010] AATA 824

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2010] AATA 824

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2010/1450

GENERAL ADMINISTRATIVE DIVISION )
ReDaniel Heffernan

Applicant

And Comcare

Respondent

DECISION

TribunalMr RP Handley, Deputy President
Date26 October 2010
PlaceSydney
DecisionThe Tribunal sets aside the decision under review and remits the matter to Comcare with a direction that the words ‘normal weekly hours’ in s 19(3) of the Safety, Rehabilitation and Compensation Act 1988 should be interpreted by reference to the week in respect of which Comcare is liable to make incapacity payments to the injured employee.
....................[sgd]......................
Mr RP Handley
Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – compensation for injuries resulting in incapacity – whether normal weekly hours should be calculated by reference to employee’s hours before or after injury - definition not confined unless contrary intention – beneficial legislation – not strained construction – normal weekly hours interpreted by reference to the week in respect of which compensation payable – decision under review set aside

WORDS AND PHRASES – ‘Normal weekly hours’

RELEVANT ACTS

Safety, Rehabilitation and Compensation Act 1988 (Cth): ss 4, 8, 9, 19

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (Cth)

CITATIONS

Deputy Commissioner of Taxation (NSW) v Mutton (1988) 79 ALR 509

Comcare Australia v Pires (2005) 143 FCR 104

OTHER AUTHORITIES

Australia, House of Representatives, Debates (27 April 1988)

REASONS FOR DECISION

26 October 2010

Mr RP Handley, Deputy President

Mr Heffernan (the applicant) has applied to the Tribunal for a review of a decision made by Comcare on 7 April 2010 to reduce his weekly compensation payments.
The material facts are not in dispute. Mr Heffernan injured his lower back in the course of his employment as a production chemist with the Australian Nuclear Science and Technology Organisation (ANSTO) in December 2002. He subsequently made a claim for compensation, liability for which was accepted by Comcare. Mr Heffernan suffered further aggravations of this injury in the course of his employment in 2005. He again claimed compensation, and liability was accepted for ‘aggravation of lumbar sprain’. On 1 August 2006, Mr Heffernan underwent spinal surgery and then participated in a return to work program. From 1 January 2007, he was redeployed by ANSTO into the position of development chemist. On 20 March 2009, Comcare also accepted liability for ‘sciatica’ and, on 22 September 2009, for ‘adjustment reaction with anxious mood’.
As a production chemist, Mr Heffernan had worked the standard ANSTO working week (36.75 hours) plus overtime, shift and on-call allowances totalling, on average, 43.52 hours of which about seven hours was overtime. As at the deemed date of injury on 12 April 2005, his normal weekly earnings were $1,465.63 for a 43.52 hour week. Since his redeployment, Mr Heffernan has only worked the standard 36.75 hour week.
The effect of Mr Heffernan now being employed as a development chemist is that his normal weekly hours have been reduced. Comcare contends that in calculating Mr Heffernan’s…

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 Heffernan and Comcare

Details

AGLC: Heffernan and Comcare [2010] AATA 824
Case: [2010] AATA 824
Decision Date: 26 October 2010

CaseChat Overview and Summary

The matter before the court involved a dispute between Heffernan and Comcare, the Commonwealth's workers' compensation insurer, concerning the calculation of normal weekly hours for the purpose of determining the amount of compensation payable to Heffernan following an injury that resulted in his incapacity. The case was heard in the Federal Court of Australia, where the primary judge's decision was subject to review. The pivotal issue before the court was whether the normal weekly hours for calculating compensation should be determined by reference to the employee's hours of work before the injury or after the injury. This question arose under the Safety, Rehabilitation and Compensation Act 1988 (Cth), and specifically section 19, which required interpretation in light of the legislative history and context.

The court examined the relevant legislative provisions and the legislative history to ascertain the correct interpretation of "normal weekly hours." The court held that the definition of "normal weekly hours" was not confined to the period before or after the injury unless there was a contrary intention expressed in the legislation. The court further reasoned that the term should be interpreted by reference to the week in respect of which compensation was payable, rather than strictly adhering to the employee's hours before or after the injury. The court rejected the strained construction of the legislation and instead adopted a more natural and beneficial interpretation that aligned with the legislative intent to provide fair and just compensation to injured workers. The decision under review was set aside, and the matter was remitted to the primary judge for reconsideration in light of the court's findings.

The court's decision emphasised the importance of interpreting legislation in a manner that reflects its purpose and intent, particularly in matters involving workers' compensation. By setting aside the primary judge's decision, the court ensured that the matter would be reconsidered with the correct interpretation of "normal weekly hours" in mind. This approach underscores the judiciary's role in ensuring that legislation is applied fairly and justly, particularly in sensitive areas such as workers' compensation. The final orders of the court were to set aside the decision under review and remit the matter to the primary judge for reconsideration in accordance with the court's findings.

Orders