JAL and Comcare - [2007] AATA 1810

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1810
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos T2006/29, T2006/76 &
) T2006/167

GENERAL ADMINISTRATIVE DIVISION
)

Re JAL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal The Hon C R Wright QC (Deputy President)
Date25 September 2007
PlaceHobart

Decision
1. T2006/29. The application to review, having been withdrawn by the applicant, is dismissed without proceeding to review pursuant to Section 42A(1A) and 42A(1B) of the Administrative Appeals Tribunal Act 1975.

2. T2006/76. The reviewable decision is set aside and in lieu thereof it is declared that on and from 21 March 2006 the applicant continues to be entitled to compensation for medical treatment under Section 16 of the Safety, Rehabilitation and Compensation Ac 1988. The matter is remitted to Comcare to proceed in accordance with this declaration.

It is ordered that the applicant's costs of these proceedings be paid by the respondent. If such costs are not agreed between the parties, they are to be taxed or settled in accordance with Section 67(13) of the Safety, Rehabilitation and Compensation Act 1988.

3. T2006/167. The reviewable decision is set aside and in lieu it is ordered that in assessing the applicant's normal weekly earnings for the purpose of calculating her weekly compensation entitlements under the SRC Act, the training allowance of $45 per week payable in respect of her training at "Business as Usual" is to be taken into account as factor "A" under section 8(1). The matter is remitted to the respondent for this purpose.

It is ordered that the applicant's costs of these proceedings be paid by the respondent. If such costs are not agreed between the parties, they are to be taxed or settled in accordance with Section 67(13) of the Safety, Rehabilitation and Compensation Act 1988.

[Sgd: The Hon C R Wright]
Deputy President

CATCHWORDS
Compensation - Disabled benefit recipient accepted for work training/experience - Injury following repetitive tasks preparing letters for distribution to business clients' of training business - Accepted as work-related and compensable under SRC Act - Subsequent medical reports expressed opinions that claimant's then existing disabilities not related to work injury - Entitlements terminated - Termination upheld on internal review - 3 applications for review to AAT - Central issue - were applicant's upper body disabilities the result of her work injury - Competing medical opinions considered - Tribunal found that those disabilities were caused by the work injury - Application to review upheld - Compensation - SRC Act 1988 - Applicant claimed NWE should be assessed taking account of $45 pw training allowance payable during period of applicant's work training pursuant to Disability Services Act 1986 Section 24 - Claim rejected by Comcare - Application to review upheld by Tribunal
Safety, Rehabilitation and Compensation Act 1988, s5(6), s8(1)
Disability Services Act 1986, s 24, ss 1, 2, 3, 4
Almond and Australian Postal Corporation 2007 [AATA] 1365
Sutton v Comcare (AATA 10935 16 May 1996),
Zarb v Comcare (1997) 48 ALD 718

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 JAL and Comcare

Details

AGLC: JAL and Comcare [2007] AATA 1810
Case: [2007] AATA 1810
Decision Date: 25 September 2007

CaseChat Overview and Summary

JAL brought claims against Comcare concerning her entitlement to compensation following a work-related injury and her right to have a training allowance taken into account when calculating her compensation. The dispute was heard and determined by the Administrative Appeals Tribunal. The primary legal issue before the Tribunal was whether JAL's upper body disabilities were caused by her work injury. The Tribunal had to weigh competing medical opinions before finding that JAL's disabilities were indeed work-related. Another issue considered by the Tribunal was whether a training allowance JAL received should be taken into account when calculating her compensation under the Safety, Rehabilitation and Compensation Act 1988. The Tribunal found that the allowance should be included in this calculation.

The Tribunal noted that it had previously decided the issue of whether JAL's upper body disabilities were work-related in an earlier decision. It found that its earlier determination should stand, as it had not been successfully challenged in subsequent review applications. The Tribunal also found that the training allowance should be taken into account in calculating JAL's compensation. The Tribunal found that the allowance was a relevant factor in determining her normal weekly earnings, and should be included in its calculation. The Tribunal set aside the decision of Comcare to the contrary and ordered that the training allowance be taken into account. It also ordered Comcare to pay JAL's costs.

Orders

Orders of the court

1. T2006/29. The application to review, having been withdrawn by the applicant, is dismissed without proceeding to review pursuant to Section 42A(1A) and 42A(1B) of the Administrative Appeals Tribunal Act 1975.

2. T2006/76. The reviewable decision is set aside and in lieu thereof it is declared that on and from 21 March 2006 the applicant continues to be entitled to compensation for medical treatment under Section 16 of the Safety, Rehabilitation and Compensation Ac 1988. The matter is remitted to Comcare to proceed in accordance with this declaration.

It is ordered that the applicant's costs of these proceedings be paid by the respondent. If such costs are not agreed between the parties, they are to be taxed or settled in accordance with Section 67(13) of the Safety, Rehabilitation and Compensation Act 1988.

3. T2006/167. The reviewable decision is set aside and in lieu it is ordered that in assessing the applicant's normal weekly earnings for the purpose of calculating her weekly compensation entitlements under the SRC Act, the training allowance of $45 per week payable in respect of her training at "Business as Usual" is to be taken into account as factor "A" under section 8(1). The matter is remitted to the respondent for this purpose.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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