KTKY and Comcare (Compensation) [2015] AATA 309 (8 May 2015)
Division General Administrative Division File Numbers
2013/0186
2013/4143
2013/6692
Re
KTKY
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 8 May 2015 Place Perth The Tribunal decides as follows:
Application 2013/0186
The decision under review is affirmed.
Application 2013/6692
The decision under review is affirmed.
Application 2013/4143
The decision under review is set aside and, in substitution therefor, it is decided that, for the purpose of determining the amount of weekly compensation for incapacity for work payable to the applicant, pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), in respect of the compensable injuries relating to her neck and shoulders, for the period from 4 September 2000, the amount of her “normal weekly earnings” is to be calculated under s 8 of the SRC Act on the basis that her normal work hours in the following specified periods were as follows:
·from 4 September 2000 to 30 January 2005 – 25 hours per week;
·from 31 January 2005 to 28 October 2010 – 20 hours per week;
·from 29 October 2010 – 36.75 hours per week.
Application may be made to the Tribunal in relation to the costs of the proceeding in Application 2013/4143 within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of that proceeding incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
.......................[sgd].................................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant suffered compensable physical and mental injuries – applicant claimed compensation for incapacity for work resulting from physical injuries – applicant claimed compensation for permanent impairment resulting from physical injuries – applicant claimed compensation for permanent impairment resulting from major depressive disorder – amount of incapacity compensation payable to applicant – applicant’s “normal weekly earnings” – applicant’s post-injury work hours – applicant elected to reduce work hours in certain periods – applicant ceased to be employed by Commonwealth – reviewable decision regarding incapacity payments set aside – applicant suffered permanent impairment as result of compensable injury to neck and each shoulder – degree of permanent impairment resulting from each injury less than 10% – respondent not liable to pay compensation for permanent impairment in respect of applicant’s injury to neck and each shoulder – reviewable decision affirmed – applicant suffered permanent impairment as result of major depressive disorder and chronic pain disorder – applicant’s impairment resulting from chronic pain disorder indistinguishable from impairment resulting from major depressive disorder - degree of permanent impairment resulting from major depressive disorder 10% - respondent liable to pay compensation for permanent impairment and non-economic loss in respect of major depressive disorder – reviewable decision affirmed
LEGISLATION
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- AGLC
- KTKY and Comcare (Compensation) [2015] AATA 309
- Case
- [2015] AATA 309
- Decision Date
CaseChat Overview and Summary
The court found that the applicant suffered permanent impairment as a result of her compensable injuries to the neck and shoulders, but the degree of impairment was less than 10%. Consequently, the respondent was not liable to pay compensation for permanent impairment in respect of these injuries. Regarding the major depressive disorder, the court determined that the degree of permanent impairment was 10%, and the respondent was liable to pay compensation for both permanent impairment and non-economic loss in relation to this condition. The court also concluded that the respondent's calculation of the applicant's "normal weekly earnings" for incapacity compensation purposes was incorrect. The decision concerning the amount of incapacity compensation was set aside, and it was decided that the applicant's normal work hours should be used to recalculate her "normal weekly earnings".
The court affirmed the respondent's decision not to pay compensation for permanent impairment related to the physical injuries, affirmed the respondent's decision to pay compensation for permanent impairment and non-economic loss related to the major depressive disorder, and set aside the decision on the amount of incapacity compensation payable to the applicant. The court substituted a new decision that specified the applicant's normal work hours for calculating her "normal weekly earnings" in different periods.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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