Hill and Comcare (Compensation) - [2016] AATA 257

Hill and Comcare (Compensation) [2016] AATA 257 (22 April 2016)

Division

GENERAL DIVISION

File Number(s)

2014/6043

Re

Douglas Hill

APPLICANT

And

Comcare

RESPONDENT

Decision

Tribunal
Deputy President S E Frost

Date 22 April 2016

Place Sydney
The Tribunal directs Comcare to provide, within 14 days of the publication of these reasons, a proposed form of decision capable of disposing of the application in a way that is consistent with these reasons.
............................[sgd]............................................
Deputy President S E Frost
Catchwords
COMPENSATION - incapacity payments - calculation of incapacity payments - additional death and invalidity cover - productivity contribution – Comcare directed to provide proposed decision consistent with reasons
Legislation
Safety, Rehabilitation and Compensation 1988 ss 4, 20
Secondary Materials
Public Sector Superannuation Scheme Trust Deed
REASONS FOR DECISION
Deputy President S E Frost
22 April 2016
Introduction

Douglas Hill is a former Commonwealth public servant. His employment with the Commonwealth was terminated on medical invalidity grounds in April 2012.
Since the termination of his employment, Mr Hill has received a pension under the Commonwealth superannuation scheme of which he was a member, and he has also received incapacity payments under the Commonwealth workers’ compensation scheme.
In October 2012 Mr Hill received notice of a determination by Comcare which explained the way his incapacity payments would be calculated. He thought the methodology was wrong, and so he asked Comcare to reconsider its determination. On reconsideration Comcare affirmed its earlier decision. Still dissatisfied, Mr Hill has applied to the Tribunal for review of the determination.
The issue
The issue to be resolved is whether Comcare is correctly calculating Mr Hill’s incapacity payments.
Mr Hill’s entitlement to incapacity payments arises under s 20 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). It is not disputed that Mr Hill is ‘incapacitated for work as a result of an injury’, that he is ‘retired from his or her employment’, and that he ‘receives a pension under a superannuation scheme as a result of [his] retirement’ within subsection (1) of s 20. The question is whether the formula in subsection (3) has been applied correctly. The formula says that he should be paid:
where:
amount of compensation means the amount of compensation that would have been payable to the employee for a week if:
(a)section 19, other than subsection 19(6), had applied to the employee; and
(b)in the case of an employee who was not a member of the Defence Force immediately before retirement—the week were a week referred to in subsection 19(3).
There is no dispute between the parties as to the quantum of two of the components in the formula – the ‘amount of compensation’, in accordance with the definition, and ‘5% of the employee’s normal weekly earnings’. Where the parties diverge is on the quantum of the ‘superannuation amount’.
The expression ‘superannuation amount’ is defined in s 4 of the SRC Act as follows:
superannuation amount, in relation to a pension received by an employee in respect of a week, or a…

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.

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Details

Case: [2016] AATA 257
Decision Date: 22 April 2016

CaseChat Overview and Summary

This matter concerned an application by Mr Hill regarding the calculation of his incapacity payments, specifically relating to additional death and invalidity cover and a productivity contribution. The decision was made by Deputy S E Frost P of the Tribunal.

The primary legal issues before the Tribunal were whether certain clauses of the Trust Deed created rules that should not apply outside the Deed itself, and how the provisions of the Trust Deed regarding the Additional Death and Invalidity Cover and the Productivity Contribution should be interpreted in the context of Mr Hill's superannuation amount and employer contributions.

The Tribunal considered the relevant clauses of the Trust Deed. Regarding the Additional Death and Invalidity Cover, the Tribunal found a clear connection between the definition of 'superannuation amount' and the Trust Deed's clauses 10.3.11 and 10.3.12, which identified parts of a lump sum as attributable to Commonwealth or Commonwealth authority contributions. The Tribunal concluded that Mr Hill's circumstances were captured by this definition and that CSC had not failed in its responsibilities. The Tribunal also found that clauses 10.3.11 and 10.3.12 were consistent with clause 10.4.2, which stipulated the member's contribution to the premium, and that the fact a portion was paid by the member did not negate it being an employer contribution. Similarly, the Tribunal found that clause 4.3.1 of the Trust Deed clearly established the Productivity Contribution as an employer contribution.

Due to the manner in which the case was presented and argued, the Tribunal directed Comcare to provide a proposed form of decision consistent with the reasons within 14 days of the publication of the reasons.

Orders

Orders of the court

The Tribunal directs Comcare to provide, within 14 days of the publication of these reasons, a proposed form of decision capable of disposing of the application in a way that is consistent with these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Similarly, with respect to the Productivity Contribution, it seems to me that clause 4.3.1 of the Trust Deed makes it plain that the contribution is made by the employer. Conclusion Unfortunately, the way the case was presented and argued makes it difficult for me to formulate an appropriate order to finalise the matter. I will therefore direct Comcare to provide to the Tribunal, within 14 days of the publication of these reasons, a proposed form of decision capable of disposing of the application in a way that is consistent with these reasons.

Ratio Decidendi

Legal Principle Established

With respect to the Productivity Contribution, the Trust Deed provides in Part 4, Division 3:4.3.1A designated employer is required to pay to CSC a fortnightly productivity contribution in relation to a member on each contribution due day the member is employed by that designated employer.ConsiderationThe Additional Death and Invalidity Cover I cannot accept Mr Hill’s contention that clauses 10.3.11 and 10.3.12 of the Trust Deed create a rule that should not apply outside the Trust Deed itself. There is a clear connection between paragraph (a) of the definition of ‘superannuation amount’ and its reference to the circumstance where a superannuation scheme identifies a part of a lump sum as attributable to the contributions made under the scheme by the Commonwealth or a Commonwealth authority, and clauses 10.3.11 and 10.3.12 of the Trust Deed, which do precisely that. There is no doubt that paragraph (a) of the definition of ‘superannuation amount’ captures Mr Hill’s circumstance, and was intended to do so. Mr Hill’s contention that CSC has somehow failed in its responsibilities to him is entirely misguided. Clauses 10.3.11 and 10.3.12 stand comfortably alongside clause 10.4.2 of the Trust Deed, which provides that the member will pay half the fortnightly premium in Mr Hill’s circumstances. The fact that this occurred does not mean that half the lump sum paid by the life assurance company is not an employer contribution – because clauses 10.3.11 and 10.3.12 say otherwise. It follows that, as far as the ADIC component is concerned, Comcare’s approach is entirely correct. Similarly, with respect to the Productivity Contribution, it seems to me that clause 4.3.1 of the Trust Deed makes it plain that the contribution is made by the employer. Conclusion Unfortunately, the way the case was presented and argued makes it difficult for me to formulate an appropriate order to finalise the matter. I will therefore direct Comcare to provide to the Tribunal, within 14 days of the publication of these reasons, a proposed form of decision capable of disposing of the application in a way that is consistent with these reasons.

Division	GENERAL DIVISION
File Number(s)	2014/6043
Re	Douglas Hill
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President S E Frost
Date	22 April 2016
Place	Sydney