Joseph Johansson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 660
[2013] AATA 660
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0843
Re
Joseph Johansson
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
Decision
Tribunal Mr S. Webb, Member
Date 16 September 2013 Place Forbes, NSW The decision under review is varied to the extent that Mr Johansson’s lump sum preclusion period commences on 12 March 2012 and finishes on 9 October 2016.
.....................[sgd]...................................................
Mr S. Webb, Member
SOCIAL SECURITY –Disability Support Pension – compensation for work injury – three lump sum payments over seven years – combination of lump sum payments when calculating preclusion period – erroneous information - no special circumstances – periodic payments period – start of lump sum preclusion period not correct - decision varied
Social Security Act 1991 ss 17, 1169, 1170, 1171, 1184K
REASONS FOR DECISION
Mr S. Webb, Member
16 September 2013
Joseph Johansson was injured in a work accident in 2002. He has not been able to work since. He claimed and was paid periodic compensation and two lump sum compensation payments for impairment and suffering. Subsequently, he settled his claim and he was paid a further lump sum. The Secretary decided to impose a lump sum preclusion period in which Mr Johansson is not eligible to be paid income support in the form of compensation affected payments under the Social Security Act 1991 (the Social Security Act).
Mr Johansson bought a house and spent his compensation. He applied for a Disability Support Pension. His claim was rejected as the preclusion period was still in force. He pursued his rights of review to the Social Security Appeals Tribunal, without success. By this application, he seeks further review.
At the hearing, I directed the Secretary to undertake further investigations in respect of communications between Mr Johansson or his legal representatives and Centrelink in relation to the lump sum payments of compensation. Additional materials were filed on 26 August 2013. I have taken these into evidence in Exhibit 3.
The brief facts follow.
On 21 May 2002 Mr Johansson suffered a crush injury to his left hand in the course of employment. He was paid periodic compensation payments. There were some delays in the regular payment of periodic compensation. On 4 July 2002 Mr Johansson was paid a lump sum comprising periodic compensation arrears.
On 13 May 2005 Mr Johansson was paid $27,000 in lump sum compensation for impairment and suffering under s 66 and 67 of the Workers Compensation Act 1987 (NSW) (the NSW Act). He was advised that no preclusion period would apply. His weekly compensation payments continued.
On 5 July 2011, Mr Johansson was paid $43,000 in lump sum compensation for impairment and suffering under s 66 and 67 of the NSW Act. He was advised that no preclusion period would apply. His weekly compensation payments continued.
On 31 January 2012, Mr Johansson agreed to settle his compensation claim by consent in the amount of $325,000. The settlement included compensation for loss of earnings and loss of earning capacity[1]. Mr Johansson was advised by his compensation lawyer that a preclusion period of up to 300 weeks may apply[2].
[1] T13.
[2] Exhibit 1.
On 21 February 2012, Mr Johansson engaged a solicitor in respect of the purchase of a house at Ooma Street in Forbes, NSW[3]. The purchase was completed in April 2012.
[3] T30.
On 12 March 2012, $292,500 was paid into his solicitor’s trust account, being the balance of his compensation lump sum settlement, less $32,500 that was forwarded to Medicare (this was ultimately returned to Mr Johansson)[4].
[4] Exhibit 2.
There is evidence that the final settlement payment in respect of Mr Johansson’s compensation claim was paid into his lawyer’s trust account on 12 March 2012[5]. From this it may be inferred that the final day of Mr Johansson’s periodic payments period, being the last day for which he was paid periodic compensation, was 11 March 2012. I am satisfied that this is consistent with the release of the settlement funds on 12 March 2012, and it is correct.
[5] Exhibit 3, Annexure E.
On 21 March and 5 April 2012[6] he was notified by Centrelink that a preclusion period of 239 weeks would apply from 14 March 2012 to 11 October 2016.
[6] T16 and T1 folio 4
On 4 October 2012, Mr Johansson lodged a claim for disability support pension[7]. The claim was rejected. This decision was affirmed by an Authorised Review Officer[8] and, subsequently, on 22 January 2013, by the Social Security Appeals Tribunal[9].
[7] T27.
[8] T34 and T35.
[9] T2.
Mr Johansson applied for review on 26 February 2013.
There are two issues for determination –
(a)is Mr Johansson subject to a lump sum preclusion period from 14 March 2012 to 11 October 2016; and if so
(b)are there special circumstances that make it appropriate to treat all or part of Mr Johansson’s compensation payment as not having been made (thereby reducing the period of the preclusion period)?
Is Mr Johansson subject to a lump sum preclusion period from 14 March 2012 to 11 October 2016?
Mr Johansson says that he obtained three separate and distinct lump sum payments of compensation in respect of the crush injury to his left hand. The first of these was an amount of $27,000 paid on 13 May 2005. Mr Johansson informed me that this was paid to him following a medical examination, prior to him obtaining legal representation. He thought that the payment was for impairment as he continued to receive weekly compensation payments for loss of earnings. In his submission this payment should not be included in the calculation of the lump sum preclusion period. Mr Johansson says that the payment was made more than eight years ago and it is grossly unfair to use it to calculate a preclusion period that commenced seven years later in 2012. Furthermore, he says that, at the time, he was not given any notice that the payment would result in a preclusion period being imposed. The payment was solely for impairment and it did not compensate him for any loss of earnings. This, he maintains, places the payment outside the policy and the specific provisions of the Social Security Act relating to preclusion periods.
The second lump sum of $43,000 was settled on 16 June 2011[10]. It comprised $28,000 for impairment under s 66 of the NSW Act and $15,000 for pain and suffering under s 67 of that Act[11]. Mr Johansson says that this payment, also, should not be included when calculating the preclusion period. It was not compensation for loss of earnings or loss of capacity to earn and he was informed that it would not require the imposition of a preclusion period. In Mr Johansson’s submission, it is unfair and unjust for this payment to be applied when calculating the duration of the preclusion period.
[10] T1 folio 3.
[11] T1 folio 3 and T13 folio 49.
Mr Johansson accepts that he was advised by his lawyer on 31 January 2012 that final settlement of his compensation claim in the amount of $325,000 may result in the imposition of a preclusion period of up to 300 weeks[12]. Even though he seeks a reduction in the period of the preclusion period on the basis of special circumstances (to which I will return), Mr Johansson does not cavil with the proposition that the $325,000 settlement included compensation for loss of earnings and this results in the imposition of a preclusion period commencing when his weekly compensation ceased. His concern is that the earlier lump sum payments for impairment and pain and suffering should not be included.
[12] Exhibit 1 refers.
It is unfortunate for Mr Johansson that his interpretation of the legislation is not correct.
Under s 1169 of the Social Security Act, a ‘compensation affected payment’ is not payable to a person who receives a ‘lump sum compensation payment’ during a ‘lump sum preclusion period’. Under s 17(1), a compensation affected payment includes a disability support pension. For the purposes of s 1169(1), the phrase ‘lump sum compensation payment’ is defined to exclude a lump sum payment of periodic compensation. Section 1170 sets out the method for determining a lump sum preclusion period -
1170 Lump sum preclusion period
(1) Subject to subsection (2), if a person receives both periodic compensation payments and a lump sum compensation payment, the lump sum preclusion period is the period that:
(a) begins on the day following the last day of the periodic payments period or, where there is more than one periodic payments period, the day following the last day of the last periodic payments period; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(2) If a person chooses to receive part of an entitlement to periodic compensation payments in the form of a lump sum, the lump sum preclusion period is the period that:
(a) begins on the first day on which the person’s periodic compensation payment is a reduced payment because of that choice; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(3) If neither of subsections (1) and (2) applies, the lump sum preclusion period is the period that:
(a) begins on the day on which the loss of earnings or loss of capacity to earn began; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(4) The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula:
Compensation part of lump sum
Income cut-out amount
(5) If the number worked out under subsection (4) is not a whole number, the number is to be rounded down to the nearest whole number.
As can be seen, the number of weeks in a lump sum preclusion period is calculated by dividing the ‘compensation part of lump sum’ by the ‘income cut-out amount’. Under s 17(3)(a), if a lump sum payment is made in settlement of a claim relating to an injury and the claim is settled by consent, as here[13], the compensation part of a lump sum is 50 percent of the payment. The income cut-out amount is calculated under s 17(8) at the time when the compensation was received. A schedule of these amounts is set out in T8.
[13] T13.
In circumstances where a person receives two or more lump sum payments in respect of a compensation claim relating to an injury, and at least one of those payments is wholly or partly in respect of loss of earnings or earning capacity, s 1171 applies –
1171 Deemed lump sum payment arising from separate payments
(1) If:
(a) a person receives 2 or more lump sum payments in relation to the same event that gave rise to an entitlement of the person to compensation (the multiple payments); and
(b) at least one of the multiple payments is made wholly or partly in respect of lost earnings or lost capacity to earn;
the following paragraphs have effect for the purposes of this Act and the Administration Act:
(c) the person is taken to have received one lump sum compensation payment (the single payment) of an amount equal to the sum of the multiple payments;
(d) the single payment is taken to have been received by the person:
(i) on the day on which he or she received the last of the multiple payments; or
(ii) if the multiple payments were all received on the same day, on that day.
(2) A payment is not a lump sum payment for the purposes of paragraph (1)(a) if it relates exclusively to arrears of periodic compensation.
As can be seen, this section refers to ‘lump sum payments in relation to the same event that gave rise to an entitlement of the person to compensation’. The word ‘compensation’ is given meaning by s 17(1) and (2). The event that gives rise to a person’s entitlement to compensation is explained at s 17(5A) – it is, relevantly, the accident that caused the injury.
There is no dispute that the three lump sum payments Mr Johansson received were each in respect of the same event - the injury to his left hand that was caused by an accident in the course of his employment. It is quite clear that the first two lump sum payments were not made in respect of loss of earnings or earning capacity. It is also quite clear that the third lump sum payment was made in respect of loss of earnings and earning capacity. That being so, the preconditioning criteria of s 1171 are satisfied and Mr Johansson is taken to have received one lump sum payment, being the sum of the three lump sum payments he in fact received.
The preclusion period is to be calculated on that basis, dividing 50 percent of the total amount of the combined lump sum payments by the applicable income cut-out amount.
The calculation of the number of weeks in the preclusion period proceeds as follows –
Total amount of lump sum payments: $27,000 + $43,000 + $325,000 = $395,000.
50 percent of total amount: $197,500
Income cut-out amount as of 12 March 2012: $823.80
Number of weeks (rounded down to nearest whole number): 239 weeks.
The preclusion period commences on the day following the end of the ‘periodic payments period’, being the period in which Mr Johansson was paid weekly compensation. That period ended on 11 March 2012. The preclusion period runs for 239 weeks from 12 March 2012, ending on 9 October 2016. I so find.
It follows that the decision under review must be varied.
Are there special circumstances that make it appropriate to treat all or part of Mr Johansson’s compensation payment as not having been made?
Mr Johansson says that he expended the first two lump sum payments without any knowledge that these payments would subsequently be taken into account when calculating a preclusion period. He says that he was not informed of this by his lawyer or by Centrelink when he agreed to finally settle his compensation claim on 31 January 2012. He told me that he understood that the preclusion period would be calculated on the basis of the $325,000 settlement amount and that this understanding was confirmed by advice he was given by Centrelink, soon after the settlement was finalised. He proceeded on the basis that the information he was provided was correct and, in his submission, if it was not correct, that should be treated as a special circumstance sufficient to reduce the preclusion period.
Mr Johansson complains that a large amount in legal fees and costs was deducted from the compensation settlement, and the preclusion period should be calculated on the basis of the compensation he actually received.
With regard to his present circumstances, Mr Johansson told me that he and his family are struggling to make ends meet each week. He says that his health has deteriorated and his wife is due to give birth to their fourth child in a few weeks. He noted that his wife has health issues and there are worrying medical issues with her pregnancy. He told me that he invested the majority of the compensation settlement in a house in order to provide secure accommodation for his family, rather than simply frittering the money away. In his submission, the present difficulties facing his family are such that the preclusion period should be reduced so that he can be paid a disability support pension.
The discretion conferred by s 1184K of the Social Security Act is in the following terms –
1184K Secretary may disregard some payments
(1) For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a) not having been made; or
(b) not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case.
(2) If:
(a) a person or a person’s partner receives or claims a compensation affected payment; and
(b) the person receives compensation; and
(c) the set of circumstances that gave rise to the claim for compensation is not related to the set of circumstances that gave rise to the person’s or the person’s partner’s receipt of, or claim for, the compensation affected payment;
the fact that those 2 sets of circumstances are unrelated does not alone constitute special circumstances for the purposes of subsection (1).
As can be seen, the discretion may only be exercised if there are ‘special circumstances’ that make it appropriate to do so. The phrase ‘special circumstances’ is not given particular meaning. It refers to circumstances that are out of the ordinary or distinguished from the usual run of cases. Determining whether or not it is appropriate in the special circumstances of a case to exercise the discretion requires consideration of all of the relevant circumstances. It also requires consideration of relativity in respect of other cases of like kind, where, in the usual course, people who have obtained lump sum compensation in respect of an injury are precluded from being paid a compensation affected payment.
In respect of issues of notice, Mr Johansson is correct insofar as the information he was provided about the preclusion period by Centrelink, in letters dated 19 March 2012 and 5 April 2012, referred to the settlement amount of $325,000.[14] Nonetheless, the duration of the preclusion period was correct – 239 weeks. This was said to commence on 14 March 2012 and end on 11 October 2016. While those dates are 239 weeks apart, the start day is not correct – the period commences on 12 March 2012 and ends on 9 October 2016. I note that the 239 week period of preclusion notified by Centrelink is substantially less than the 300 weeks advised by Mr Johansson’s lawyer on 31 January and 20 March 2012.
[14] T1 folio 4 and T16
Centrelink’s failure to fully disclose the three lump sum payments used to calculate the preclusion period was an administrative error, but the error is not one that had any material effect on the calculation of the preclusion period’s duration or the dates of the preclusion period that were communicated to Mr Johansson. While the error denied Mr Johansson the opportunity of checking the calculation of the preclusion period and it denied him knowledge that the three lump sum payments were applied as one, it is probable that this was discussed in communications between Mr Johansson and Centrelink on 5 April 2012[15]. These matters were addressed in further communications between Mr Johansson and Centrelink in September 2012, at which point it appears that Mr Johansson was finally given the correct information about the calculation of the preclusion period.
[15] T19 refers.
Mr Johansson’s primary complaint about these matters is that he proceeded to expend the bulk of his compensation settlement purchasing a house and related items, relying on the information he was provided by his lawyer and by Centrelink. I am satisfied that Mr Johansson commenced the purchase of a house at Ooma Street in Forbes on 21 February 2012, when he engaged a solicitor for this purpose. On 31 January 2012, Mr Johansson was informed by his compensation lawyer that a preclusion period of up to 300 weeks may apply. This was confirmed in a letter on 20 March 2012[16]. On 21 March and 5 April 2012[17] he was notified of the 239 week preclusion period by Centrelink. As I have said, the information he was provided by Centrelink contained the correct duration for the preclusion period, even though the notices referred only to the $325,000 lump sum compensation payment and, on 21 March 2012, to an incorrect income cut out amount.
[16] Exhibit 2.
[17] T16, T1 folio 4 and T18.
Thus, I am satisfied that Mr Johansson proceeded to purchase the house and related items in the full knowledge that a substantial preclusion period would apply. Even if he calculated that a shorter preclusion period should apply on the basis of the information he was provided on 21 March and 5 April 2012 (195 weeks and 197 weeks respectively, on the basis of the $325,000 lump sum payment, alone), the resulting preclusion period would still be in force, albeit due to expire 42 or 44 weeks before the correctly calculated period. Mr Johansson applied for disability support pension on 4 October 2012, only a short period after the commencement of the preclusion period. The difficult financial circumstances of which Mr Johansson presently complains are not the result of Centrelink’s errors, they are the result of decisions Mr Johansson took in full knowledge that a substantial preclusion period would apply. That being so, I do not consider that Centrelink’s errors are a special circumstance that would justify exercise of the s 1184K discretion.
That said, Centrelink’s errors, in failing to provide Mr Johansson with correct information about the calculation of the preclusion period, are matters of concern. A person in such circumstances is entitled to be provided with accurate information.
Insofar as Mr Johansson asserts that he expended the two initial lump sum payments having been informed that each payment would not result in a preclusion period[18], I note that on 30 May 2002 Mr Johansson was notified that –
“…
Any compensation you receive may also stop you from receiving Centrelink payments in the future.
Before you agree to settle your compensation claim, you or your solicitor should contact us to find out if you will have to pay any money back and if your future entitlements will be affected.
…”[19]
[18] See T1 folio 3.
[19] T11 folio 46.
There is evidence that Mr Johansson contacted Centrelink on 20 May 2005 to enquire about clearance for the insurer, GIO, to disburse the compensation payment[20]. It appears that this was granted as no recovery was required[21]. This evidence is not sufficient to establish that Mr Johansson was provided with advice that the lump sum payment may preclude him from obtaining compensation affected payments in the future. I accept his account that he expended the lump sum payment having been told that no preclusion period would apply at that time.
[20] T9 folio 42; Exhibit 3, page 1 and Annexure B.
[21] Exhibit 3, Annexure C.
The present evidence does not establish that Mr Johansson or his legal representatives contacted Centrelink about the lump sum payment he received in July 2011, or that Centrelink provided any advice about any preclusion period. I understand that information of this kind may have been obtained by using an online ‘Compensation Estimator’[22].
[22] Exhibit 3, page 2.
It follows that, on the present evidence, it is not established that Centrelink provided incorrect information to Mr Johansson about the effects of the lump sum payments he received in 2005 and 2011 on future payment of compensation affected payments. Nor does the present evidence establish that Centrelink provided him with information about the aggregation of lump sum payments when calculating a preclusion period if he obtained a lump sum payment in respect of loss of earnings or earning capacity.
On balance, it is probable that Mr Johansson was not provided with information in 2005, and before agreeing to settle his compensation claim on 31 January 2012, about the aggregation of the lump sum payments he received when calculating the period in which he would be precluded from payment of compensation affected payments.
To my mind, he should have been provided with information about this in May 2005 when he contacted Centrelink. This error was not repeated in 2011, as it appears that Mr Johansson did not contact Centrelink in respect of the $43,000 payment he received in July of that year.
I accept that Mr Johansson relied on the information he was given by Centrelink in May 2005 that no preclusion period would apply in respect of the $27,000 lump sum payment, and that he relied on the advice of his lawyer in 2011 that no preclusion period would apply in respect of the $43,000 payment. I also accept his evidence that he considered that the 2005 and 2011 compensation payments had no bearing on the settlement he agreed to on 31 January 2012. But the fact remains that he agreed to settle his compensation claim on the advice of his lawyer that a preclusion period of up to 300 weeks would apply[23]. It follows that this is not a case in which a compensation settlement was reached on the basis of incorrect information, where a different result would have obtained if correct information had been provided. At the highest, Mr Johansson was provided with incomplete information in 2005, but the advice he obtained when agreeing to settle his compensation claim corrected that deficiency in material effect at least.
[23] Exhibits 1 and 2.
In those circumstances, while Centrelink’s deficiency in 2005 is troubling, I am not persuaded that this is a special circumstance that renders it appropriate to exercise the s 1184K discretion.
I am not persuaded that Mr Johansson’s submission in respect of legal costs is made out. The settlement was made in the amount of $325,000. The legal costs were $60,000[24], leaving a balance of $265,000. It is not for me to adjudge the appropriateness or otherwise of the amount claimed in legal fees and costs. The legal fees and costs represent approximately 23 percent of the overall settlement amount. This is not a very substantial or extremely large proportion of the settlement, and to my mind it is not a special circumstance that renders it appropriate to discount the compensation paid.
[24] Exhibit 2.
That said, I accept that Mr Johansson and his family are in straitened or difficult financial circumstances. I accept that they experience difficulty making ends meet, week by week. The family owes $700 in pre-school fees and approximately $7,000 in electricity arrears (presently being recovered from them at the rate of $160 per fortnight). Mr Johansson told me that he is struggling to pay the monthly cost of $103 to keep the house insured. He has discontinued insurance cover for his motor vehicles. He estimated that general rates are approximately $1,000 per year and water rates cost $100 per month. Other general living costs, including food, he estimated to be in excess of $220 per week.
The household relies on family tax benefit and family payments to Mrs Johansson of between $250 and $450 each week. I note that the eldest daughter receives a disability support pension and lives at home with her parents. The extent to which she contributes to the costs of running the household is not clear.
Mr Johansson told me that, despite incapacitating health problems, he engages in occasional activities such as cutting and selling firewood, or manufacturing bird cages and wishing wells for sale, but these activities do not generate any significant or on-going income. He said that he is unable to earn an income from employment. He left school at the age of 12 and engaged in labouring work until he was injured in 2002. He has no qualifications or trade skills.
Mr Johansson informed me that he owns a number of vehicles, including: an unregistered 1964 Dodge Phoenix that he estimated would be worth $20,000; a Dodge truck that he is presently trying to sell for $6,000; a Honda motorcycle of uncertain value, that is not presently running; a 1982 Toyota Landcruiser that he uses for towing a car trailer with an estimated value of $1,500; and a 2004 Ford Falcon car that is used for family transport. Mr Johansson was adamant that he would not sell the Dodge Phoenix as it was something he wanted to pass on to his children – he expected that in five years it would be worth $80,000. He accepted, however, that if his circumstances were sufficiently dire, he would be forced to consider selling the Dodge Phoenix, although he expected that it may prove difficult to sell in any event.
Mr Johansson owns the house at Ooma Street Forbes without encumbrance. The house sits on 2.5 acres. In Mr Johansson’s estimation the house may be worth $250,000, although he noted that it is located on land in a flood zone. Insofar as selling the house is concerned, Mr Johansson did not consider that this would be sensible as the capital sum would then be eroded, leaving the family without any significant asset or security, and the family would be forced into rental accommodation which is in very short supply in Forbes. Mr Johansson did not consider this to be a viable option.
Insofar as his compensation settlement is concerned, he told me that he has nothing left. He purchased the house using his compensation settlement money in 2012 for $220,000 and proceeded to spend additional amounts (approximately $6,000) undertaking repairs and improvements, such as installing a fireplace, installing a new hot water service, fencing the paddock and building a shed. He told me that he spent approximately $6,000 purchasing new furniture, including a television. Mr Johansson told me that he repaid a $4,000 loan to his uncle and $2,000 in rent arrears. On his evidence, the remaining balance of his compensation settlement was spent on clothes and general living costs.
Mr Johansson told me that he did not have any money left from the earlier lump sum compensation payments. The $27,000 lump sum payment in 2005 was spent several years ago, taking the family on a holiday to Kiama, purchasing the Dodge Phoenix for $2,000 and paying bills. He struggled to explain what happened to the $43,000 payment in July 2011 – other than purchasing the Ford Falcon for $5,000 there is nothing to show for it, “it didn’t last long”.
Difficult as these circumstances may be, it appears to me that these circumstances are matters of Mr Johansson’s choice. He chose to spend his compensation settlement in the knowledge that he faced a preclusion period of up to 300 weeks. He made no allowance to cover his expenses during that period. He told me that he expected to be able to earn some money in employment, or by undertaking work of some kind; but this did not eventuate. He also told me that he thought that the family would be able to survive on the payments to Mrs Johansson; but this has proved to be more difficult than he expected. He has some non-essential assets that he purchased with his compensation monies that could be sold. Ultimately, he could sell the house he acquired in 2012. These are matters for him and his wife.
To my mind, the manner in which Mr Johansson expended his compensation lump sum payments and the significant assets he acquired as a result, in the form of the house at Ooma Street in Forbes and the Dodge Phoenix (if his estimation of value is correct) render it not appropriate to exercise the discretion. To my mind, the straitened financial circumstances of which Mr Johansson complains are mitigated to a large extent by the assets he owns. If anything, this aspect of his case sets it apart from others and it would be inequitable to exercise the discretion in such circumstances, alone.
Mr Johansson told me that aside from his left hand injury, he suffers from a neck injury and back problems that cause him difficulty. He suffers from a lot of pain for which he takes potent medications, including Endep, Somac and Naprosyn. He told me that further treatment has been recommended for his neck, but this involves a needle being inserted into his spine and the risk of causing further damage is too great.
I understand that Mrs Johansson suffers from high blood pressure and that there are some complications in her pregnancy for which she is obtaining treatment. Other members of the family are well, although, as I have said, the eldest daughter is on a disability support pension.
Considering these matters, I am not persuaded that Mr and Mrs Johansson’s health issues constitute special circumstances that render it appropriate to exercise the s 1184K discretion. Mr Johansson has been paid compensation for impairment, pain and suffering and loss of earnings in respect of his hand injury. It is unfortunately common for men with a labouring background to experience back pain. In Mr Johansson’s case it appears that he may have suffered a neck injury, but there is further treatment available to him that may alleviate related symptoms. I understand that he has concerns about the risks involved with this treatment, but those are matters for him to take up with his treating doctor. I accept that Mrs Johansson is facing complications with her pregnancy, but on the present evidence I am unable to determine how serious these may be. Nonetheless, it appears that she is obtaining medical treatment.
In sum, considering all of Mr Johansson’s circumstances, separately and as a whole, I am not satisfied that they are within the scope of the discretion under s 1184K. On balance, I am satisfied that these are not special circumstances, out of the ordinary case, or in which something unfair, unjust or unintended has occurred. Mr Johansson’s circumstances are not such that it would be appropriate to take all or part of the compensation payment as not having been made.
Decision
The decision under review is varied to the extent that the lump sum preclusion period commences on 12 March 2012 and finishes on 9 October 2016.
I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member. ........................[ sgd]................................................
Associate
Dated 16 September 2013
Date of hearing 21 August 2013 Date final submissions received 27 August 2013 Applicant In person Solicitors for the Respondent Hannelore Schuster, Department of Human Services Program Litigation and Review Branch
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Administrative Law
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Statutory Interpretation
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Discretionary Power
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Social Security Benefits
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