Hogno and Comcare

[2004] AATA 255

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 255

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/710

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARK HOGNO

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date12 March 2004 

PlaceBrisbane

Decision The Tribunal affirms the decision under review 

.....................(Sgd)....................

J Cowdroy
  Member 

CATCHWORDS

WORKERS’ COMPENSATION - meaning of “normal weekly earnings” - allowances - accrual - leave accrued under specific circumstances - meaning of “average amount of any allowance”

Safety Rehabilitation and Compensation Act 1986 ss 8, 19

Re Davies and Comcare (AAT 9637, 1 August 1994)
Re Sutton and Comcare (AAT 10935 16 May 1996)
Bortolazo v Comcare (1997) 75 FCR 385
Steggles Pty Ltd v Vandenberg (1987) 163 CLR 321
Re Zarb v Comcare (1997 25 AAR 344)
Re Maley v Comcare (AAT 12616A 21 July 1998
Re Whitton v Department of Defence (AAT 12902 21 April 1998)

REASONS FOR DECISION

12 March 2004 Ms J Cowdroy, Member    

1.      This matter was heard on 12 May 2003. It is an application for a review of the decision of Comcare, dated 1 June 2000, in respect of the Applicant’s entitlements arising from an injury compensable under section 19 of the Safety Rehabilitation and Compensation Act 1986 (“the Act”).

2.      Mr RWG Hume of counsel appeared for the Applicant and Mr C Clark of counsel appeared for the Respondent. The Tribunal had before it the T-documents lodged, pursuant to section 37 of the Administrative AppealsTribunal Act 1975, and marked as Exhibit 1, as well as the following documentary evidence:

§  Exhibit 2              Statement of Agreed Facts

§  Exhibit 3              Conditions of Service – ADF Operations in East   Timor

3.      The matter was decided on the basis of the submissions of the parties, the written material, and the relevant case law and legislation.

Issue

4.      The issue for the Tribunal to determine is whether certain leave and allowances are to be taken into account in calculating the Applicant’s “normal weekly earnings” for the purposes of section 8 of the Act.

Background

5.      The parties have agreed to the following facts, which provide a background to this matter. The Applicant is a 37-year-old soldier, who served in the Australian Regular Army from 14 January 1992 to 24 November 2001. On 20 September 1999, the Applicant was deployed to East Timor on Operation Stabilise, as part of the Special Air Service Regiment (SASR).

6.      Whilst in East Timor, on 6 October 1999, the Applicant received a gunshot wound to his neck and he was medically evacuated to Australia on 7 October 1999 for further medical treatment. On 8 November 1999 the Respondent accepted liability for the injury received in East Timor. Had it not been for the injury, the Applicant would have returned to Australia with his unit on 17 December 1999.

7.      On 17 November 1999 the Applicant requested compensation for all allowances he would have been entitled to if he had completed his tour of duty in East…