John Singer and Comcare - [2015] AATA 231

[2015] AATA 231

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/2694

Re

John Singer

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Ms N Isenberg, Senior Member

Date 17 April 2015

Place Sydney
The Tribunal affirms the decision under review.

........................[sgd]................................................
Ms N Isenberg, Senior Member
CATCHWORDS
COMPENSATION – workers compensation incapacity payments – whether the average weekly earnings and normal weekly earnings were correctly calculated – whether there has been any underpayment of compensation payments – decision affirmed
LEGISLATION
Compensation (Commonwealth Government Employee) Act 1971; s 25
Safety, Rehabilitation and Compensation Act 1988; ss 8, 9
CASES
Comcare v Thompson (2000) 100 FCR 375
McDonald v Department of Defence [1999] FCA 882
Comcare v Nicolas [2014]FCAFC 122
Brady and Comcare [2013] AATA 559
REASONS FOR DECISION
Ms N Isenberg, Senior Member
17 April 2015
DECISION UNDER REVIEW

On 27 November 2013 the Respondent affirmed various determinations dated between 4 August 1988 and 19 March 2014 in relation to the Applicant’s entitlements to workers compensation incapacity payments for the period 2 March 1988 to 14 February 1999. These determinations regarded his accepted claim for aggravation of stress and repetitive strain injury sustained on 2 March 1988. The Applicant seeks review of that decision.
BACKGROUND
From at least 1977 the Applicant worked as a teacher in real estate and valuation at the Canberra College of TAFE, previously part of the Department of Education and now the Canberra Institute of Technology (CIT), together described as ‘the Agency’. The Applicant’s last day at work was 3 March 1988. He obtained an invalidity retirement with effect from 11 November 1988.
The Applicant submitted a claim for ‘repetition strain injury (pain in arm and hand)’ (RSI) on 9 May 1986, caused by excessive clerical work under pressure and which he said occurred in November 1985. Liability was accepted under the Compensation (Commonwealth Government Employee) Act 1971 (‘1971 Act’) for that condition.
In September 1987, he lodged a claim for stress and aggravation of RSI. The Applicant said this was caused by performing his duties and which, he claimed, had become acute in June 1987. A further claim for compensation was lodged in April 1988 for aggravation of stress and RSI, with a claimed date of injury as 2 February 1988.
Liability continued to be accepted under the 1971 Act for the Applicant’s conditions. Liability also continued following the commencement of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) on 1 December 1988.
The Applicant’s date of injury for the purposes of the calculation of average weekly earnings (‘AWE’) was 2 February 1988. Section 25(4) of the 1971 Act specified that for the purposes of calculating AWE the period immediately preceding the date of injury be no longer than 12 months. In the 12 months prior to the date of injury, the Applicant’s substantive position was a Teacher Band 2. At the date of injury, the AWE was calculated on the basis of a Teacher Band 2.
However, with effect from 31 March 1988, at which time 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 John Singer and Comcare

Details

AGLC: John Singer and Comcare [2015] AATA 231
Case: [2015] AATA 231
Decision Date: 17 April 2015

CaseChat Overview and Summary

The case of John Singer against Comcare concerns the calculation of workers compensation incapacity payments for the period spanning from 2 March 1988 to 14 February 1999, following an accepted claim for aggravation of stress and repetitive strain injury sustained on 2 March 1988. The decision under review, affirmed by the Respondent, pertains to the correct calculation of the Applicant's average weekly earnings (AWE) and normal weekly earnings (NWE) and whether there was any underpayment of compensation payments. The Applicant, who worked as a teacher in real estate and valuation at the Canberra College of TAFE, sought review of the decision on the basis that the compensation payments made were insufficient.

The central legal issues before the court were whether the AWE and NWE were correctly calculated under the applicable legislation, specifically the Compensation (Commonwealth Government Employee) Act 1971 and the Safety, Rehabilitation and Compensation Act 1988. The Applicant argued that his AWE should have been calculated based on the higher salary of the Teacher Band 1 position into which his role was reclassified following the date of injury, rather than the lower salary of the Teacher Band 2 position he held immediately prior to the injury. The court had to determine if the reclassification and accompanying pay rise should have been considered in the calculation of the AWE for the purposes of the compensation payments.

In its reasoning, the court examined the statutory provisions for calculating AWE and NWE, particularly under the 1971 Act which specified a 12-month period immediately preceding the date of injury for calculating AWE. The court noted that the Applicant's position was reclassified as a 'new' Band 1 after the date of injury, with an accompanying pay rise. However, the court held that the reclassification occurred after the date of injury and was not part of the period considered for calculating the AWE. Therefore, the AWE and NWE were correctly calculated based on the Teacher Band 2 position held by the Applicant at the date of injury. The court affirmed the decision of the Respondent that there had been no underpayment of compensation payments.

The court's decision affirmed the determinations made by the Respondent, concluding that the Applicant's entitlements to workers compensation incapacity payments were correctly calculated and no underpayment had occurred. The court's ruling upheld the Respondent's decision and dismissed the Applicant's claims for review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 27 November 2013 the Respondent affirmed various determinations dated between 4 August 1988 and 19 March 2014 in relation to the Applicant’s entitlements to workers compensation incapacity payments for the period 2 March 1988 to 14 February 1999. These determinations regarded his accepted claim for aggravation of stress and repetitive strain injury sustained on 2 March 1988. The Applicant seeks review of that decision.BACKGROUND From at least 1977 the Applicant worked as a teacher in real estate and valuation at the Canberra College of TAFE, previously part of the Department of Education and now the Canberra Institute of Technology (CIT), together described as ‘the Agency’. The Applicant’s last day at work was 3 March 1988. He obtained an invalidity retirement with effect from 11 November 1988. The Applicant submitted a claim for ‘repetition strain injury (pain in arm and hand)’ (RSI) on 9 May 1986, caused by excessive clerical work under pressure and which he said occurred in November 1985. Liability was accepted under the Compensation (Commonwealth Government Employee) Act 1971 (‘1971 Act’) for that condition. In September 1987, he lodged a claim for stress and aggravation of RSI. The Applicant said this was caused by performing his duties and which, he claimed, had become acute in June 1987. A further claim for compensation was lodged in April 1988 for aggravation of stress and RSI, with a claimed date of injury as 2 February 1988. Liability continued to be accepted under the 1971 Act for the Applicant’s conditions. Liability also continued following the commencement of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) on 1 December 1988. The Applicant’s date of injury for the purposes of the calculation of average weekly earnings (‘AWE’) was 2 February 1988. Section 25(4) of the 1971 Act specified that for the purposes of calculating AWE the period immediately preceding the date of injury be no longer than 12 months. In the 12 months prior to the date of injury, the Applicant’s substantive position was a Teacher Band 2. At the date of injury, the AWE was calculated on the basis of a Teacher Band 2. However, with effect from 31 March 1988, at which time the Applicant was still an employee of the Agency, a Second Tier agreement (‘STA’) was reached between the ACT Teachers Federation and the ACT Institute of Technical and Further Education. One outcome of the restructuring proposal was to reduce the number of staff in management positions, including the former Teacher Band 2 classification. The Applicant’s position was reclassified as a ‘new’ Band 1. There was, however, an accompanying pay rise with the reclassification. According to the STA, the former Teacher Band 2 annual salary was $36,146, which apparently increased to $36,459 following the ‘National Wage Case decision of February 1988’. The Applicant was paid incapacity payments at the new Band 1 rate, which was higher again, being approximately $37,900.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2694
Re	John Singer
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Ms N Isenberg, Senior Member
Date	17 April 2015
Place	Sydney