KCZH and Comcare - [2009] AATA 861

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 861
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0473

GENERAL ADMINISTRATIVE DIVISION )

Re KCZH

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Date10 November 2009
PlaceMelbourne

Decision
The decision under review is set aside and in substitution IT IS DECIDED:

(i) The weekly compensation entitlement of the applicant for the period 27 February 2007 to 7 December 2007 shall be calculated, pursuant to s 19(2)(b) of the Safety, Rehabilitation and Compensation Act 1988; and

(ii)       The AE component shall be the amount per week earned by the applicant in self employment in the above period; and

(iii)      The application is remitted to the respondent for calculation of the AE component; and

(iv)      The respondent shall pay the applicant's costs pursuant to paragraph 6.8 of the Guide to the Workers' Compensation Jurisdiction published by the Tribunal in March 2007.

(Sgd) John Handley
Senior Member

COMPENSATION – Applicant earns income from part time self employment – decision reviewed found amount earned (AE) exceeded normal weekly earnings (NWE) and found nil entitlement – respondent relied on gross earnings and made no allowance for expenses – evidence of actual gross and nett weekly earnings deficient – decision set aside and remitted to respondent for calculation of weekly entitlement
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14, s 19(2), s (19(2)(a), s 19(2)(b) and s 33(2)(c)
J & H Timbers Pty Ltd v Nelson (1971) 126 CLR 652
Secretary, Department of Social Security v Read (1987) 15 FCR 456
Re Secretary, Department of Social Security v McLaughlin (1977) 26 AAR 390
REASONS FOR DECISION

10 November 2009 Mr John Handley, Senior Member

1. The applicant is 60 years of age and is employed by a Commonwealth agency. An Order has been made by the Tribunal pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) which prohibits publication of his identity or any materials which might identify him.
2. In application 2008/2247 the Tribunal made a decision, pursuant to s 42C of the AAT Act reflecting an agreement between the parties that the applicant was entitled to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for the condition of aggravation of allergic rhinitis and allergy not elsewhere classified.
3.      In this application, which was heard on 19 August 2009, the applicant said that the diagnosis described in the previous proceedings was inaccurate and said that more precisely his illness or condition should be described as multiple chemical sensitivity. He said that condition was previously known as toxic building syndrome and he had been advised that the diagnosis currently amongst doctors for his condition is idiopathic environmental intolerance (Trans. p12). Nothing turns on the diagnosis of the applicant's illness save that the Commonwealth continues to agree that the applicant remains entitled to compensation.
4.      The issue between 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 KCZH and Comcare

Details

AGLC: KCZH and Comcare [2009] AATA 861
Case: [2009] AATA 861
Decision Date: 10 November 2009

CaseChat Overview and Summary

In the case of KCZH and Comcare, the applicant sought to have their weekly compensation entitlement reassessed for a specific period, following an injury sustained in the course of their employment. The matter was heard and determined in the Federal Circuit Court of Australia. The applicant argued that the weekly compensation amount awarded for the specified period was incorrect and sought to have it recalculated in accordance with the relevant statutory provisions.

The primary legal issue before the court was whether the weekly compensation entitlement for the period in question should be recalculated in line with the statutory provisions cited by the applicant. Specifically, the court had to determine if the amount of weekly compensation was to be based on the applicant's earnings from self-employment during that period, as opposed to the amount awarded by the respondent. Additionally, the court considered whether the application should be remitted to the respondent for recalculation of the amount in question.

The court found that the statutory provisions indeed required that the weekly compensation be calculated based on the applicant's self-employment earnings for the period in question. The court further held that the respondent had not appropriately applied the relevant statutory provisions in making the original determination. Consequently, the court set aside the decision under review and directed that the weekly compensation entitlement be recalculated in accordance with the applicable statutory provisions. The court also ordered the respondent to pay the applicant's costs associated with the proceedings.

Orders

Orders of the court

The decision under review is set aside and in substitution IT IS DECIDED:

(i) The weekly compensation entitlement of the applicant for the period 27 February 2007 to 7 December 2007 shall be calculated, pursuant to s 19(2)(b) of the Safety, Rehabilitation and Compensation Act 1988; and

(ii) The AE component shall be the amount per week earned by the applicant in self employment in the above period; and

(iii) The application is remitted to the respondent for calculation of the AE component; and

(iv) The respondent shall pay the applicant's costs pursuant to paragraph 6.8 of the Guide to the Workers' Compensation Jurisdiction published by the Tribunal in March 2007.

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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