Kumar and Linfox Australia Pty Ltd

[2010] AATA 938

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 938

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3718

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHAILENDRA KUMAR

Applicant

And LINFOX AUSTRALIA PTY LTD

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date24 November 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...................[Sgd].................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Acceptance of liability for right tennis elbow – Calculation of normal weekly earning (NWE) for the purposes of determining entitlement to incapacity benefits – Extension of relevant period during which the employee was continuously employed by the respondent – Decision to reduce NWE reconsidered in a redetermination of own motion - Hearing conducted in the absence of the parties - Decision affirmed.

Administrative Appeals Tribunal Act 1975 (Cth) s 34J.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 8, 9, 14, 19, 62

Re Zegura and Comcare (1997) AATA 11555

REASONS FOR DECISION

24 November 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1.      On 5 July 2007, Shailendra Kumar lodged a claim, under the Safety, Rehabilitation and Compensation Act 1988 (the Act), for rehabilitation and compensation in respect of “tennis elbow on right hand” which he alleged was related to workplace stress he experienced while he was employed by Linfox Australia Pty Ltd (the respondent).  On 17 July 2007, a claims manager with CGU Self Insurance Services (CGU), for and on behalf of the respondent, accepted liability[1] for “right tennis elbow” with the deemed date of injury being 2 June 2007.  As a result, Mr Kumar received various entitlements in accordance with s 16 and s 19 of the Act. 

[1] See s 14 of the Act.

2.      Initially, Mr Kumar’s normal weekly earnings[2] (NWE) were assessed at $1,182.03 per week based on normal weekly hours[3] (NWH) of 50.04 comprising 38 normal hours per week and 12.04 overtime hours.  On 26 November 2008, in accordance with s 8 of the Act, an increase of 4.2% in NWE was implemented from 3 July 2008.  This resulted in NWE of $1,231.68.  On 20 August 2009, Mr Kumar advised the respondent that his overtime had reduced to 6.51 hours per week.  Accordingly, on 1 September 2009, the respondent made a determination[4] to reduce Mr Kumar’s NWH from 50.04 to 44.51.  This resulted in a reduction of Mr Kumar’s NWE from $1,231.68 to $1,029.67. 

[2] This term is defined in s 4(1) of the Act.  See also ss 8 and 9 of the Act.

[3] This term is defined in s 4(1) of the Act.

[4] In accordance with s 8(10) of the Act. 

3.      On 8 October 2009, Mr Kumar’s NWH and NWE were reassessed at 50.04 hours and $1,238.68 per week, respectively.  On 15 March 2010 and 17 March 2010, his NWH and NWE were reduced to 44.51 and $1,029.67, respectively.  On 29 July 2010, through a reconsideration of own motion in accordance with s 62(1) of the Act, the respondent, in effect, revoked the determination of 1 September 2009 and reinstated Mr Kumar’s entitlements from 1 September 2009 so that his NWH and NWE were reassessed at 50.04 hours and $1,231.68, respectively.

APPLICANT’S AND RESPONDENT’S SUBMISSIONS

4.      In his application, dated 29 March 2010, Mr Kumar nominated the decision for review as that dated 17 March 2010.  This was one of the decisions which reduced his entitlements.  He disputed the reduction and repeated those concerns in a letter dated 28 June 2010.  That letter predated the reconsideration of own motion made on 29 July 2010.  It is not disputed that the decision of which review is now sought is that latest reconsideration of own motion of 29 July 2010.  The respondent’s submission is that the concerns expressed by Mr Kumar have been addressed in that redetermination.[5]

[5] The hearing was conducted in the absence of the parties: see s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).

CONSIDERATION

5.      In order for Mr Kumar’s compensation to be calculated under s 19 of the Act, reference must be made to his NWE.  This is determined in accordance with s 8 of the Act which reads:

8  Normal weekly earnings

(1)For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:

where:

NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;

RP is the employee’s average hourly ordinary time rate of pay during that period; and

A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.

(2)Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:

where:

NH is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and

OR is the employee’s average hourly overtime rate of pay during that period.

6.      The relevant period as required by that provision is defined in s 9(1) of the Act as the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the respondent.  However, that can be extended in accordance with s 8(5) of the Act which reads:

Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.

7.      The respondent submitted that, rather than a 2 week period, a fairer period on which to base the calculation of NWE was a period of 12 weeks prior to the date of Mr Kumar’s injury.  Such a longer period enables changing circumstances to be taken into consideration[6].  It is not disputed by Mr Kumar and I am satisfied that this is appropriate in this matter.  In that period, the figures reflective of Mr Kumar’s earnings were:

Average number of hours worked in each week (NH):  38

Average number of hours of overtime worked in each week (NHO):          12.04

Average hourly ordinary time rate of pay (RP):  $20.00

Average hourly overtime time rate of pay (OR):  $35.00

[6] See Re Zegura and Comcare (1997) AATA 11555.

8.      Those figures, when applied to the formula in s 8(1) of the Act, total $760.00.  When applied to the formula in s 8(2) of the Act, they total $421.40.  The resultant sum of $1,182.03 which, when taken with the 4.2% increase in NWE effective from 3 July 2008, amounts to $1,231.68.  I am satisfied that this is the NWE appropriate to the calculation of Mr Kumar’s entitlement to incapacity benefits under s 19 of the Act since 1 September 2009.

DECISION

9.      The Tribunal affirms the decision under review.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed:............[Sgd].........................................................
              Alexandra Seagar, Research Associate

Hearing on the papers
Date of Decision  24 November 2010