Iselin and Comcare (Compensation) - [2022] AATA 3178

Iselin and Comcare (Compensation) [2022] AATA 3178 (29 September 2022)
Division:GENERAL DIVISION
File Numbers: 2020/3407 and 2020/3544
Re:Karen Iselin
APPLICANT

AndComcare
RESPONDENT

DecisionS
Tribunal:Senior Member B Cullen
Date:29 September 2022
Place:Brisbane

The Decision dated 11 May 2020 under review in AAT Application No. 2020/3407, in which the Determination dated 26 February 2020 was affirmed, is:
·varied to state that the Applicant is entitled to compensation for partial incapacity during the period commencing 9 April 2019 through to the week commencing
28 May 2019 and ending 3 June 2019; and
·remitted to the Respondent to quantify the Applicant’s entitlements to weekly payments in the period from 9 April 2019 to 3 June 2019, under the formula in s.19(3) of the SRC Act and in accordance with these reasons for decision.

The Decision dated 11 May 2020 under review in AAT Application No. 2020/3544, in which the Determination dated 14 April 2020 was affirmed, is affirmed.
................................[SGD]........................................
Senior Member B Cullen
Catchwords
COMPENSATION — entitlement to compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) — meaning of full time employment where the applicant engaged in work on a transient basis — calculation of net weekly earnings
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Lonergan v Comcare (2005) 143 FCR 307
Renouf and Comcare (Compensation) [2019] AATA 1055
Waldron and Comcare (Compensation) [2019] AATA 5455
REASONS FOR DECISION
Senior Member B Cullen
29 September 2022
Overview

Mrs Karen Iselin (‘the Applicant’) was employed as a permanent part-time interviewer with the Australian    Bureau of Statistics (‘ABS’).[1] During the course of her work, the Applicant suffered two injuries that have been accepted by Comcare, the Respondent:
·13 January 2015 - the Applicant sustained the “shoulder injury” - adhesive capsulitis of the right shoulder; and
·22 June 2016 – the Applicant was deemed to have sustained the “psychiatric injury” - a mild adjustment disorder secondary to the shoulder injury.[2]
[1]     Exhibit 1, Tribunal Book (‘Tribunal Book’), R9, ‘Respondent’s Amended Statement of Fact, Issues and Contentions’ (‘SFIC’) dated 21 January 2022, page 2, at [5] and A4 ‘Applicant’s SFIC in reply’ dated 7 February 2022, page 1, at [1]-[2].
[2]     Tribunal Book, R9, ‘Respondent’s Amended SFIC dated 21 January 2022’, page 2, at [7] – [8], Exhibit 3, ‘Respondent’s Further Amended Addendum SFIC dated 4 March 2022’, page 3, at [13.1].
The Applicant seeks review of two decisions by the Respondent which determined that she was not entitled to compensation for incapacity to work under s.19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’). The Applicant’s “First Claim” was made on 23 July 2019 (‘AAT Application No. 2020/3407’); and the “Second Claim” was made on 11 March 2020 (‘AAT Application No. 2020/3544’).
Although it seems straightforward to the Tribunal that the dates of injury listed by 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 Iselin and Comcare (Compensation)

Details

AGLC: Iselin and Comcare (Compensation) [2022] AATA 3178
Case: [2022] AATA 3178
Decision Date: 29 September 2022

CaseChat Overview and Summary

This matter concerned an application by the Applicant for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) against Comcare. The dispute centred on the Applicant's entitlement to compensation for periods of alleged incapacity for work, arising from both a shoulder injury and a psychiatric injury. The decision was made by B Cullen SM in the Tribunal.

The legal issues before the Tribunal were whether the Applicant had suffered an incapacity for work due to her shoulder injury from 4 June 2019 onwards, and whether she had any incapacity for her usual work arising from her psychiatric injury during the period between 9 April 2019 and 25 September 2020. Additionally, the Tribunal was required to consider the calculation of incapacity payments under section 19 of the *SRC Act*, particularly in light of the Applicant's usual hours of work and the duration of her incapacity.

The Tribunal reasoned that the Applicant had returned to her usual hours of work from "Week 9" of her graduated return to work program, commencing on 4 June 2019, and therefore had no incapacity to work on the basis of her shoulder injury from that date. Regarding the psychiatric injury, the Tribunal accepted the conclusion of Dr Gray that while the Applicant experienced reactive psychological symptoms associated with her shoulder injury, these did not constitute a psychiatric condition and did not cause impairment for phone-based work as an interviewer. The Tribunal found that the Applicant was able to work her usual hours in her role as an interviewer, and thus had no incapacity for her usual work arising from the psychiatric injury during the relevant period. The Tribunal also noted that the Applicant had been partially incapacitated for work due to her shoulder injury from 9 April 2019 to 3 June 2019, and that the total number of hours she was prevented from working exceeded 45 times her normal weekly hours, which would affect the calculation of future compensation payments under section 19(3) of the *SRC Act*.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having earlier in this decision determined that the Applicant’s usual hours of work prior to her injuries were no more than 15-hours per week, for two weeks per month, it becomes apparent viewing the chart at paragraph [81] above that the Applicant had returned to her usual hours of work from “Week 9” onward, in accordance with Dr Douglas’ Graduated Return to Work Program[62], commencing on 4 June 2019. Therefore, the Applicant had no incapacity to work on the basis of her shoulder injury, from 4 June 2019 onward. Conclusion in relation to Psychiatric Injury:[62] Tribunal Book, R1, T33, ‘Report of Dr Gray, Consultant Psychiatrist’, at 544. Dr Gray has concluded that the Applicant “reported reactive psychological/emotional symptomatology” that it was not “indicative of any psychiatric condition”.[63] Dr Gray continued, saying that while the Applicant “did have ongoing psychological emotional symptoms that remained indicative of a chronic adjustment disorder with mixed anxiety and depressed mood associated with her right shoulder injury” that it “did not seem to be causing any impairment for phone-based work as an interviewer” (Tribunal’s emphasis).[64][63] Ibid.[64] Tribunal Book, R1, T33 at 544. Dr Gray further records the following in his report:“[The Applicant] reported that she is desirous or returning to her previous position as an interviewer with the ABS, and I am of the opinion that she could manage this, from a psychiatric perspective, virtually immediately, albeit with initial restriction of having no face-to-face contact with members of the general public.” (Tribunal’s emphasis)[65][65] Ibid, T20.4, ‘Attachment 3: Applicant’s Notice of Resignation from ABS’, at 195. On this basis, the Tribunal concludes that the Applicant was able to work her usual hours in her role as an Interviewer with the ABS. The Tribunal does not need to consider all facets of the nature of the work that she might perform during her usual hours in the role. Consequentially, the Tribunal finds that the Applicant did not have any incapacity for her usual work arising from her psychiatric injury during the relevant period between 9 April 2019 to 25 September 2020.Calculation of incapacity payments The Applicant has been found by this Tribunal to have been partially incapacitated for work as a result of her shoulder injury, from 9 April 2019 through to the week commencing 28 May 2019 and ending 3 June 2019. Section 19 of the SRC Act provides for the amount of compensation that is payable to employees during the period in which they are found to be incapacitated. Subsection 19(2) provides that compensation is to be calculated under the formula ‘NWE – AE’. Once an employee has been paid compensation in accordance with s 19(2) for a period of 45 times the employee’s normal weekly hours, Comcare ’s liability to pay compensation in future weeks is assessed under s 19(3) of the SRC Act. The total number of hours the Applicant has been prevented from working due to her compensable injuries under the SRC Act exceeds 45 times the applicant’s normal weekly hours.[66] [66] Tribunal Book, R1, ST3, ‘Further Supplementary Documents’.

Ratio Decidendi

Legal Principle Established

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