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 5455REASONS 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…
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- Iselin and Comcare (Compensation) [2022] AATA 3178
- Case
- [2022] AATA 3178
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CaseChat Overview and Summary
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
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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
Ratio Decidendi
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