JAL (No. 2) and Comcare - [2009] AATA 86

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 86
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3851

GENERAL ADMINISTRATIVE DIVISION )

Re JAL (No. 2)

Applicant

And

COMCARE

Respondent

DECISION

Tribunal The Hon C R Wright QC (Deputy President)
Date11 February 2009
PlaceHobart

Decision
The decision under review is affirmed.

.[Sgd The Hon C R Wright QC]
Deputy President

CATCHWORDS
COMPENSATION - Entitlement to weekly compensation of disabled benefit recipient injured during work-training experience - Ruling in previous proceeding that "A" factor provided for in s8(1) of SRC Act in assessing NWE should be assessed at $45 pw - Remitted to Comcare - Application to review Comcare's assessment - Assessment confirmed, s8(8) applied
Safety Rehabilitation and Compensation Act 1988, s5(6), s8(1) and s8(8)
Disability Services Act 1986, s24
JAL v Comcare, 25 September [2007] AATA 1810
REASONS FOR DECISION

11 February 2009 The Hon C R Wright QC (Deputy President)

1.      The applicant lodged a claim for compensation in October 2001, in respect of injuries and disabilities allegedly arising from duties which she had performed during her work placement (arranged by CRS Australia) with a Hobart business, "Business as Usual" on 6 September 2001. A declaration had been made by the Minister under s5(6) of the SRC Act (the Act) whereby participants in such work placement programs were, for the purposes of the Act, to be taken to be employed by the Commonwealth.
2.      Comcare disputed liability for the applicant's claims whereupon the applicant applied for review to the AAT. Three separate but related claims came before me for hearing in September 2007.   On 25 September 2007, in a published decision I ruled that the applicant was entitled, in principle, to compensation for medical treatment and also to incapacity payments. (JAL v Comcare AATA 1810). In the course of considering the nature, purpose and consequences of the payment of an allowance to the applicant by CRS during her work placement I said this:
"As to the third application - T2006/167, it is necessary to consider whether or not the $45 pw training allowance being paid to the applicant while she was working at "Business as Usual" should be taken into account as part of the NWE process provided for in section 8 of the Act. The legislative formulation for the approval of a training allowance is to be found in section 24 of the Disability Services Act 1986. Section 24, subsections 1, 2 and 3 are as follows:
"(1)     Where a person is undertaking a rehabilitation program that consists of, or includes, employment or vocational training, the Secretary may approve payment of a training allowance to the person.
(2)       The rate of a training allowance is such amount per week as is, subject to paragraph (3)(a), determined, by legislative instrument, by the Minister.
(3)       The Minister:
(a)       shall determine different rates of training allowance for the purposes         of subsection (2) in respect of persons undertaking full‑time employment or vocational training and persons undertaking part‑time employment or         vocational…

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 (No. 2) and Comcare

Details

AGLC: JAL (No. 2) and Comcare [2009] AATA 86
Case: [2009] AATA 86
Decision Date: 11 February 2009

CaseChat Overview and Summary

In the case of JAL (No. 2) and Comcare, the dispute arose from a decision regarding the entitlement of weekly compensation for a disabled benefit recipient who was injured during a work-training experience. The applicant, JAL, sought a review of Comcare's assessment of the weekly compensation amount, which was remitted to Comcare after a previous ruling that the "A" factor, as provided for in section 8(1) of the Safety Rehabilitation and Compensation Act 1988 (SRC Act), should be assessed at $45 per week in determining the Net Weekly Earnings (NWE). Comcare confirmed the assessment, applying section 8(8) of the SRC Act.

The primary legal issues the Administrative Appeals Tribunal (AAT) had to decide were whether the "A" factor was correctly assessed at $45 per week and whether section 8(8) of the SRC Act was properly applied in Comcare's assessment. The AAT also considered whether the assessment complied with the Disability Services Act 1986, specifically section 24, which requires that the assessment of NWE must be reasonable.

The AAT found that Comcare's assessment was in accordance with the legislative provisions and that the "A" factor was correctly applied. The Tribunal determined that section 8(8) of the SRC Act was appropriately applied in the assessment, and that the amount of $45 per week was reasonable in the context of the disability benefits provided to the applicant. The AAT held that Comcare's decision was not in error and affirmed the decision under review.

Therefore, the Tribunal upheld Comcare's assessment and confirmed that the weekly compensation amount should be determined based on the "A" factor of $45 per week, as previously ruled. The AAT's decision was in line with the statutory requirements, and the applicant's application for review was dismissed.

Orders

Orders of the court

The decision under review is affirmed.

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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