Karhani and Linfox Australia Pty Ltd - [2011] AATA 506

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 506
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. 2010/1117 &

GENERAL ADMINISTRATIVE DIVISION ) 2011/1768

Re Chadi Karhani

Applicant

And

Linfox Australia Pty Ltd

Respondent

DECISION

Tribunal Deputy President J W Constance
Date22 July 2011
PlaceMelbourne

Decision
Application 2010/1117

The decision under review made 17 February 2010 is set aside and in substitution it is decided that Mr Karhani was totally incapacitated for work from 14 December 2009 to 14 March 2010 inclusive and from 27 April 2010 to 23 February 2011 inclusive.

Application 2011/1768

The decision under review made 29 April 2011 is set aside and in substitution it is decided that Mr Karhani was totally incapacitated for work from 1 February 2010 to 14 March 2010 inclusive and from 27 April 2010 to 23 February 2011 inclusive.

…...(sgd J W Constance).................
Deputy President

COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19(2) and 19(4) – whether the return to work plans constituted offers of suitable employment – applicant’s failure to accept the return to work plans was reasonable in all the circumstances – surveillance material - respondent failed to assist the Tribunal s 33 (1AA) Administrative Appeals Tribunal Act 1975 (Cth) - Decisions set aside
Administrative Appeals Tribunal Act 1975 (Cth) ss 33 (1AA), 35(2) and 37(1AF)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19(2) and 19(4)
Aunela and Telstra Corporation (2007) 95 ALD 785
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Australian Postal Commission v Hayes (1989) 23 FCR 320
Re Sollazzo and Comcare [2000] AATA 65
REASONS FOR DECISION

22 July 2011

Deputy President J W Constance

INTRODUCTION
1.        Since 2003 Mr Karhani has been employed by Linfox Australia Pty Ltd. With the exception of a period of approximately six weeks in March/April 2010, Mr Karhani did not go to work between 11 October 2009 and 24 February 2011. During the whole of this absence Mr Karhani was certified to be unfit for work by his general practitioner.
2.        On 17 February 2010 Linfox decided that from 14 December 2009 until 1 February 2010 Mr Karhani had a capacity to earn part of his normal weekly earnings and thereafter had the capacity to earn all of his normal weekly earnings.[1] Mr Karhani is seeking a review of this decision in application 2010/1117.
[1] Exhibit R10.
3.        On 29 April 2011 Linfox decided that Mr Karhani was entitled to compensation by way of incapacity payments from 1 February 2010 and ongoing based on the hours he was required to work as set out in a Return to Work Plan dated 4 December 2009.[2] Mr Karhani is seeking a review of this decision in application 2011/1768.
[2] Exhibit R14.
4.        For the reasons which follow both the decisions under review will be set aside.
EVIDENCE AND FINDINGS OF FACT
5.        Unless otherwise stated the following findings of fact are made on the basis of the evidence of Mr Karhani. I…

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.

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Details

Case: [2011] AATA 506
Decision Date: 22 July 2011

CaseChat Overview and Summary

The case of Karhani and Linfox Australia Pty Ltd involved the dispute of whether Mr Karhani was entitled to total incapacity benefits for specific periods, which the Administrative Appeals Tribunal had previously determined against him. The matter was heard in the Administrative Appeals Tribunal of Australia. The core issue revolved around the interpretation of the Safety, Rehabilitation and Compensation Act 1988, specifically sections 4, 19(2), and 19(4), in determining whether the return to work plans presented to Mr Karhani constituted offers of suitable employment. Additionally, the court had to consider whether Mr Karhani's refusal to accept these plans was justified under the circumstances, taking into account surveillance material and the respondent's conduct in assisting the Tribunal.

The tribunal addressed whether Mr Karhani's failure to accept the return to work plans was reasonable given the evidence presented. The surveillance material was pivotal in assessing the genuineness of Mr Karhani's claims. Furthermore, the court scrutinised the respondent's conduct, finding that Linfox Australia Pty Ltd had not provided the necessary assistance to the Tribunal under section 33(1AA) of the Administrative Appeals Tribunal Act 1975. This failure to assist was deemed significant in the tribunal's reassessment of Mr Karhani's total incapacity periods.

Upon reviewing the evidence, the tribunal found that Mr Karhani's refusal to accept the return to work plans was reasonable, given the circumstances and the lack of proper assistance from the respondent. Consequently, the tribunal set aside the previous decisions and determined that Mr Karhani was indeed totally incapacitated for work during the specified periods. The tribunal's decisions were thus substituted with new orders reflecting these findings.

The tribunal's final orders were to set aside the previous decisions regarding Mr Karhani's total incapacity periods and substitute them with new determinations. Specifically, Mr Karhani was found to be totally incapacitated for work from 14 December 2009 to 14 March 2010 and from 27 April 2010 to 23 February 2011, as well as from 1 February 2010 to 14 March 2010. These orders replaced the earlier decisions that had found against Mr Karhani, providing him with the total incapacity benefits he was entitled to for the specified periods.

Orders

Orders of the court

Application 2010/1117

The decision under review made 17 February 2010 is set aside and in substitution it is decided that Mr Karhani was totally incapacitated for work from 14 December 2009 to 14 March 2010 inclusive and from 27 April 2010 to 23 February 2011 inclusive.

Application 2011/1768

The decision under review made 29 April 2011 is set aside and in substitution it is decided that Mr Karhani was totally incapacitated for work from 1 February 2010 to 14 March 2010 inclusive and from 27 April 2010 to 23 February 2011 inclusive.

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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GENERAL ADMINISTRATIVE DIVISION		) 2011/1768
Re		Chadi Karhani