Hunt and Comcare (Compensation) - [2022] AATA 786

Hunt and Comcare (Compensation) [2022] AATA 786 (14 April 2022)
Division:GENERAL DIVISION
File Number: 2019/2100
Re:Jo-Ann Hunt
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:14 April 2022

Place: Hobart
The reviewable decision is set aside and remitted to the Respondent for determination on the basis that the Applicant’s AE is calculated on the actual earnings of the Applicant from 1 July 2013 until 3 April 2019.
...................[sgd]....................................................
A G Melick AO SC, Deputy President
Catchwords
COMPENSATION – work-related injury – whether applicant engaged in suitable employment – offer of temporary employment – effect of voluntary redundancy on entitlement – number of hours the Applicant can work – decision set aside and remitted.
Legislation
Safety, Rehabilitation and Compensation Act 1998 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Cases
Alan Esam and ASP Ship Management [1998] AATA 44
Apostolidis and Comcare [1995] AATA 284
Cobern and Comcare [1998] AATA 221
Ganley and Comcare [2003] AATA 14
Goodricke and Comcare [2011] FCA 694
Huckel and Comcare (1995) AATA 260
Jones and Telstra Corporation Limited [1999] AATA 679
O’Shea and Comcare (1993) 18 AAR 430
West and Comcare [1994] AATA 33
Re Woolf and Comcare [1995] AATA 230
REASONS FOR DECISION
A G Melick AO SC, Deputy President
14 April 2022

INTRODUCTION

This application for review has been brought under s 64 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) by Ms Jo-Ann Hunt (Applicant), a former employee of the Australian Taxation Office (ATO) in respect of a decision made by Comcare (Respondent) under s 62 of the Act on 15 February 2019.
The Applicant suffered a workplace injury in 2004 which eventually prevented her performing her usual duties and working more than three days a week.
The reviewable decision varied a determination dated 9 October 2013. A Delegate of the Respondent (the Delegate) determined that for the purposes of s 19(2) of the Act the Applicant was able to earn $1,028.25 per week, being fit to work 22 hours and three minutes per week; which was equal to three full-time days per week.
The Applicant did not dispute that she was fit to work 22 hours and three minutes per week, but the Delegate’s calculations were based upon the Applicant’s potential earnings should she have continued to work with the ATO, which were greater than her actual earnings post-employment with the ATO. The Respondent contended that the Applicant had failed to continue to engage in her employment with the ATO and hence the Delegate was correct to calculate her potential earnings in accordance with her ability to earn at the ATO rather than with reference to the lower wages she received post ATO employment. The Applicant contended that her failure to continue to engage in employment with the ATO was reasonable in all the circumstances and hence the Delegate’s calculations should have been based on her lower actual wages rather than…

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 Hunt and Comcare (Compensation)

Details

AGLC: Hunt and Comcare (Compensation) [2022] AATA 786
Case: [2022] AATA 786
Decision Date: 14 April 2022

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against a decision by the Respondent, Comcare, regarding compensation for a work-related injury. The Applicant, who had been employed by the Australian Taxation Office (ATO) as an Assurance Officer, suffered a neck and arm injury in February 2004. The core of the dispute revolved around the calculation of the Applicant's Average Weekly Earnings (AWE) for compensation purposes, specifically whether this calculation should be based on her potential earnings at the ATO or her actual, lower earnings from subsequent employment.

The legal issues before the court were whether the Applicant had failed to engage in suitable employment with the ATO and, consequently, whether her compensation should be assessed based on her potential earnings at the ATO or her actual post-injury earnings. The Applicant contended that her failure to continue in her ATO employment was reasonable in the circumstances, arguing that her compensation should reflect her actual reduced earnings. Comcare, conversely, argued that the Applicant had not engaged in suitable employment and that her potential ATO earnings were the correct basis for calculation.

The Deputy President found that the Applicant was capable of working approximately 22 hours per week. The court reasoned that the Delegate's calculations had been based on the Applicant's potential earnings at the ATO, which were higher than her actual earnings from subsequent employment. However, the court determined that the Applicant's failure to continue with the ATO was reasonable in the circumstances. Therefore, the reviewable decision was set aside and the matter remitted to Comcare for redetermination, with the Applicant's Average Weekly Earnings to be calculated based on her actual earnings from 1 July 2013 to 3 April 2019.

Orders

Orders of the court

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Background

Background to the litigation

Dr Muthu, neurosurgeon, examined the Applicant on 11 May 2018 and produced a report dated 12 June 2018.[51] He opined that the Applicant’s injury was not sustained through her work duties, but that at the time of the assessment, the Applicant was unable to do any prolonged activity in front of a computer. [51] T-documents, 110-31.FACTS Based upon the evidence referred to above and the T-documents, I find the following facts. The Applicant commenced work at the ATO in 1996, as a permanent full-time employee.[52][52] T-documents, 85. Prior to her injury, the Applicant was employed as an Assurance Officer at an APS6 level. On a claim for worker’s compensation form, an ATO supervisor recorded her normal weekly earnings as $1,168.37 per week.[53] The majority of her duties were computer-based. [53] T-documents, 11 (2016/7036) At the time of her injury and for the previous two months before the injury, the Applicant had been involved in interstate and state-based travel in the course of her employment. She would take her work laptop when travelling and a trolley suitcase. This travel involved a lot of lifting, carrying, stowing, unstowing, and handling her laptop and luggage into and out of taxis. The Applicant maintained that she was earning approximately $1,900 gross per week. However, I found this evidence imprecise and confusing bearing in mind the Respondent’s submission to the effect that the Applicant’s salary at the time of her injury was $1,168.37 which appeared to be an APS6 level salary and not the salary she was earning at the time of injury. I note the following evidence regarding the Applicant’s salary:(a) On the Applicant’s original claim for worker’s compensation, referred to by the Respondent, the Applicant’s weekly salary is recorded as $1168.37 gross at the APS6 level while working as an Assurance Officer.[54](b) In the Applicant’s statement dated 1 April 2019, she claims she earned $1600 as a base level APS6 salary, and when working as an EL1 at the time of her injury, she earned “around $1900 gross”.[55](c) The Applicant’s Normal Weekly Earnings (NWE) in the reviewable decision have been calculated as $1713.74, which appears to be consistent with the salary the Applicant was earning at the date her employment with the ATO ceased, also at the APS6 level.[56](d) The Applicant recorded in her statement dated 1 April 2019, that at the time she was earning $696.00 per week at Rosary Gardens. It is unclear whether the Applicant was working 29 hours or less at the time.(e)In view of my final orders, the precise amounts will have to be determined by agreement or remittal on this narrow point.[54] T-documents, 15 (2016/7036). [55] Supplementary T-documents, 103.[56] T-documents, 84. The injury On or about 1 February 2004, the Applicant, while at work, experienced sharp pain radiating through her right arm that left her unable to work. She underwent surgery on 4 February 2004 and on 30 March 2004, made a claim for compensation for ‘pain and parasthesion ? secondary to disc lesion at C6/7’ affecting her ‘neck, (R) shoulder, arm + hand.’

Evidence

Evidence Before The Court

The Applicant did not dispute that she was fit to work 22 hours and three minutes per week, but the Delegate’s calculations were based upon the Applicant’s potential earnings should she have continued to work with the ATO, which were greater than her actual earnings post-employment with the ATO. The Respondent contended that the Applicant had failed to continue to engage in her employment with the ATO and hence the Delegate was correct to calculate her potential earnings in accordance with her ability to earn at the ATO rather than with reference to the lower wages she received post ATO employment. The Applicant contended that her failure to continue to engage in employment with the ATO was reasonable in all the circumstances and hence the Delegate’s calculations should have been based on her lower actual wages rather than the potential ATO wages.EVIDENCE The hearing in this matter was conducted over four days. The Applicant gave oral evidence and the Respondent called the Applicant’s former manager, Ms Kathryn Crawford, on the final day of hearing. Applicant The Applicant’s statement dated 3 July 2020 was tendered in evidence at the hearing. That statement begins by noting the Applicant adopts a previous statement produced in the supplementary T-documents in this matter dated 1 April 2019.[1] There was another statement by the Applicant dated 12 October 2017 that was also tendered as part of the supplementary T-documents.[2][1] Supplementary T-documents, 102-21. [2] Supplementary T-documents, 70-83. In her statement dated 1 April 2019, the Applicant explained that after commencing work at the ATO in 1995, she obtained a position in working in a national team. This was approximately two years prior to her injury. She explained that “a few months” prior to her injury, she was acting in a position as EL1, which involved “being the manager of the team nationally”.[3] In this role, the Applicant stated that she was earning around $1900 per week gross. By contrast, she stated that her base level salary at the APS6 level was about $1600 gross. Her work in both the EL1 role and APS6 role was predominantly computer-based. [3] Supplementary T-documents, 71. On or about 27 Janury 2004, the Applicant stated that she began to experience intense pain in her neck, shoulder and down her right arm to her fingertips. The pain suddenly became very severe and caused the Applicant to cease work. She reported her injury to her manager and went home. She attended her general practitioner, Dr McCarthy, a short time later. After being admitted to hospital, she was diagnosed with a broken disc and crushed nerve that radiated down the Applicant’s right arm. On 5 February 2004, the Applicant underwent a microdiscectomy at the C6/7 level, and on 30 March 2004, the Applicant made a claim for compensation for ‘pain and parasthesion ? secondary to disc lesion at C6/7’ affecting her ‘neck, (R) shoulder, arm + hand’.[4][4] T-documents, 13. On 30 April 2004, the Respondent accepted liability for ‘intervertebral disc disorder – cervical region’. The date of injury was determined to be 1 February 2004 being the date on which the Applicant first sought medical treatment.

Decision

Reasons for decision

Accordingly I am satisfied on the evidence referred to above that the Applicant is capable of working 22 hours and 3 minutes per week.DECISION Accordingly I set aside the reviewable decision and remit the matter back to the Respondent for determination on the basis that the Applicant’s AE is calculated on the actual earnings of the Applicant from 1 July 2013 until 3 April 2019.

Ratio Decidendi

Legal Principle Established

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