Keys and Comcare - [2011] AATA 277

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 277
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3856

GENERAL ADMINISTRATIVE DIVISION )

Re STEPHEN KEYS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member
Date27 April 2011
PlaceCanberra, ACT

Decision The decision under review is varied, and remitted to Comcare for further calculation.
....................[sgd]..........................
Professor RM Creyke, Senior Member

CATCHWORDS
WORKERS’ COMPENSATION – Incapacity payments – calculation of normal weekly earnings – whether relevant injury is original injury or aggravation injury − whether employment at the same level − whether ‘relevant period’ for calculation is two weeks prior to injury − decision under review varied
PRACTICE AND PROCEDURE – estoppel – where applicant paid higher amounts of NWE – where respondent induced reliance on higher amounts – Tribunal not estopped from redressing error in NWE calculation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 8, 9, 19
Formosa v Secretary, Department of Social Security (1998) 15 ALD 657
McDonald v Department of Defence [1999] FCA 882
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Re De La Cruz and Australian Postal Corporation (AAT 12496, 18 December 1997)
Re Moon and Telstra Corporation Ltd (2006) 93 ALD 740
Re Prica and Comcare (1996) 44 ALD 46
Re Smith and Comcare [2002] AATA 249
Riddell v Secretary, Department of Social Security (1993) 42 FCR 443
REASONS FOR DECISION
27 April 2011
Professor RM Creyke, Senior Member
1.       Mr Stephen Keys has an accepted condition, 'aggravation of adjustment reaction with mixed emotional features' with a date of injury of 17 July 2008. Mr Keys was a disability services officer (DSO1) employed by the ACT Department of Disability, Housing and Community Services (Department). In the relevant period, Mr Keys was employed in residential housing for people with disabilities. His employment was terminated on 22 April 2009.
2. Comcare initially denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for the injury. On 11 December 2009 the Tribunal decided, by consent, to set aside the decision and to accept liability.
3.       Mr Keys claimed for time off work on 29 July 2008. For the period 17 July 2008 to 15 August 2008, Mr Keys claimed payments based on ‘normal weekly earnings’ (NWE) of $1218.52. This figure was based on Mr Keys’s NWE for his original injury, as adjusted for salary increases.
4. On 16 December 2009 Mr Keys applied for compensation under section 19 for the period 16 August 2008 to 2 May 2009, and on 18 December 2009, for the period 3 May 2009 to 15 January 2010. Mr Keys claimed that his NWE at this time was $1120.01, a figure based on the two weeks prior to the aggravation injury.
5.       On 30 December 2009, Comcare assessed levels of compensation based on figures supplied by the employer at $1218.52 for NWE for the period 17 July 2008 to 15 August 2008. On 31 August 2010,…

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 Keys and Comcare

Details

AGLC: Keys and Comcare [2011] AATA 277
Case: [2011] AATA 277
Decision Date: 27 April 2011

CaseChat Overview and Summary

The applicant, Keys, sought review of a decision by Comcare concerning the calculation of incapacity payments under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The dispute involved the determination of Keys' normal weekly earnings (NWE) for the purpose of calculating the payments, focusing on whether the relevant injury was the original injury or an aggravation injury, and whether Keys was employed at the same level at the time of the injury. Additionally, the dispute involved whether the 'relevant period' for calculating NWE was the two weeks prior to the injury.

The legal issues before the court were whether Comcare's decision to calculate NWE based on the two weeks prior to the aggravation injury was correct, and whether the Tribunal was estopped from correcting an error in NWE calculation because Keys had previously been paid higher amounts based on a different calculation. The court needed to determine whether the Tribunal could correct the error despite Keys having relied on the higher payments.

The court held that the Tribunal was not estopped from correcting the error in NWE calculation. The court found that Comcare had induced reliance on the higher payments but that estoppel did not apply because the reliance was not reasonable. The court concluded that the Tribunal was not prevented from correcting the error, even though Keys had been paid higher amounts previously. The decision under review was varied, and the matter was remitted to Comcare for further calculation of the incapacity payments based on the correct NWE.

The orders of the court varied the decision under review and remitted the matter to Comcare for recalculation of Keys' incapacity payments, taking into account the correct determination of NWE based on the two weeks prior to the aggravation injury. The court’s decision clarified the legal principles concerning estoppel and the correction of errors in NWE calculations within the context of workers' compensation.

Orders

Orders of the court

The decision under review is varied, and remitted to Comcare for further calculation.

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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