Law and Australian Postal Corporation - [2002] AATA 272

DECISION AND REASONS FOR DECISION [2002] AATA 272

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1392

GENERAL ADMINISTRATIVE DIVISION          )
           Re      KELLY MAURICE LAW
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Ms S M Bullock, Senior Member

Date22 April 2002
PlaceSydney

Decision      The decision under review is affirmed, albeit for reasons that differ from those in the reviewable decision. The tribunal decides that the applicant has not been incapacitated for work in the relevant period. The applicant is not entitled to any of the costs associated with this application.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS COMPENSATION - Knee injury - compensation paid for several years - employee deemed to have resigned - compensation payments ceased - whether incapacity payments are payable to employee - whether employee qualifies for reimbursement for medical expenses

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) "ailment", "disease", "injury", "suitable employment", (9), 14(1), 19(4)(b), (e), 24(1), 27(1), 124(1), (1A), 128
Compensation (Commonwealth Government Employees) Act 1971 ss 5(1) "disease", "injury", (6), (7), 27(1), (2), 29, 30, 31, 37(1), 45(1), 46

Casarotto v Australian Postal Corporation (1989) 86 ALR 399
Power v Comcare (1998) 56 ALD 141
Re Sumner and Comcare (AAT no 13548, 17 December 1998)
Re Wheeler and Reserve Bank of Australia (1989) 17 ALD 574
Comcare v Rawling (1993) 31 ALD 501
Woodbridge v Comcare (1994) 20 AAR 196

REASONS FOR DECISION

22 April 2002 Mr M J Sassella, Senior Member Ms S M Bullock, Senior Member

HISTORY OF APPLICATION

On 17 August 1982 Mr Kelly Maurice Law ("the applicant") lodged with the Australian Postal Corporation ("the respondent", "Australia Post") an accident report (T8/20) in which he stated that on that day at 3.30 pm the motor cycle on which he was riding fell over on travelling on wet paper. He said that he grazed his right elbow, that his knee was grazed and sore to move (which knee was involved was unclear). On 30 August 1982 he lodged with the respondent a compensation claim citing a bruised right knee as the injury (T8/22). On 30 November 1982 the respondent accepted liability for this injury (T7) describing it as "bruised right knee". Incapacity payments were approved for 28 August to 10 September 1982 (T7/17), and for 13 September to 26 November 1982 (T7/18). It seems that there were subsequent determinations approving incapacity payments which are not in the T documents. The applicant was off work, as far as Australia Post was concerned, virtually from then on. A short return to work period is discussed below.
Mr Law's compensation payments ceased on 15 April 1987 when he was deemed to have resigned because he did nor return to work when required to do so (T27). The notice sent to him required Mr Law to resume duty by 14 April 1987 or to explain his absence. Mr Law did not respond.
On 21 August 1997 Mr Law contacted the respondent and sought incapacity payments from January…

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: [2002] AATA 272
Decision Date: 22 April 2002

CaseChat Overview and Summary

Law applied to the Administrative Appeals Tribunal for a review of a decision by Australia Post to deny liability for payment of compensation in respect of partial incapacity. The original decision-maker had affirmed a primary decision that Mr Law was deemed to have resigned from Australia Post, and as a result, his entitlement to compensation for incapacity was nullified. The primary issues to be determined by the tribunal were whether Mr Law was entitled to compensation for his incapacity and reimbursement of medical expenses. The tribunal considered the relevant legislative provisions, primarily from the Compensation (Commonwealth Government Employees) Act 1971 and the Safety, Rehabilitation and Compensation Act 1988. The tribunal found that although the 1988 Act applied to the injury, the compensation payable was to be determined under the 1971 Act. It was also noted that the definitions of "disease" and "injury" in the 1971 Act were effectively equivalent to those in the 1988 Act. After considering the evidence and submissions, the tribunal concluded that Mr Law was not entitled to compensation for incapacity as he was deemed to have resigned from Australia Post. The tribunal also found that Mr Law was not entitled to reimbursement of medical expenses as he had not provided sufficient evidence to support his claim. The tribunal dismissed the application for review and affirmed the original decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

This matter was almost completed in the first two days. However, Mr Elliott for the respondent was left with insufficient time to provide a final statement to the tribunal. The tribunal proposed a resumption for that matter alone, and for any comment by Mr Grey on any issue arising. It was anticipated that such a resumption could be arranged with minimum delay. However, Mr Grey observed that Mr Elliott would have the benefit of access to a transcript in preparing his final submission. He asked that arrangements be made to give him (and the applicant) an equal opportunity. He made it clear that the applicant was not able to afford to order his own transcript. The tribunal offered Mr Grey access to its copy of the transcript, through Mr Law's solicitors, Messrs Carroll and O'Dea. The tribunal is not permitted to make its own copies of transcripts for reasons of copyright. In the long run Mr Grey did not avail himself of this offer. Once it became clear that this was to be the position the hearing was resumed for finalisation of submissions.FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIALS IN SUPPORT OF THOSE FINDINGSapplicable laws Because the injury from which any of Mr Law's claims emerge occurred in 1982 the legal position requires consideration of both the 1971 Act and the Act. Sections 124(1) and 128 of the Act have the effect that it is the Act that applies to an injury even if it occurred before the commencing day of the Act, ie 1 December 1988. However, s 124(1A) results in the compensation payable in respect of a pre-1 December 1988 injury being limited to that payable, in this case, under the 1971 Act. The primary issues, therefore, involve consideration of Mr Law's entitlements under the 1971 Act. Under the 1971 Act it is noted that ss 27 and 29 in combination are equivalent to s 14(1) of the Act in that the Commonwealth is liable to pay compensation under the 1971 Act where an employee suffers a personal injury or disease with a necessary connection to his or her employment by the Commonwealth. Further, it is noted that the definitions of "disease" and "injury" in the 1971 Act are effectively equivalent to those in the Act, albeit presented very differently. Thus, although the provisions of the 1971 Act apply to Mr Law, the outcomes should be similar to those eventuating had the injury occurred after 1 December 1988. There is a difference of substance between the definitions in the two Acts. In the Act there is a requirement that an ailment or aggravation be "contributed to in a material degree by the employee's employment …" for a "disease" to exist (s 4(1)). In the 1971 Act Commonwealth employment had only to be "a contributing factor to the contraction of the disease …" (s 29(1)(b)). The tribunal notes the onus of proof situation in this matter. On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Corporation (1989) 86 ALR 399, 412-413:"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression 'onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted. "It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said: 'Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53: "There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate." "Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."

Decision

Reasons for decision

On 14 September 1999 the applicant filed with the Administrative Appeals Tribunal ("the tribunal") an application for review of the reviewable decision (T1).REVIEWABLE DECISION [T83] The decision-maker affirmed the unfavourable primary decision for the following reasons. First, Mr Law was said to be fit for sedentary duties on and from 2 March 1987 and suitable duties were said to be available to him. However, he did not report for duty. Second, a letter was forwarded to Mr Law's known address at the time, 30 March 1987, advising him that he had been absent without permission since 2 March 1987. He was advised that, unless he resumed duty by 14 April 1987, or explained his absence, he would be deemed to have resigned from Australia Post. Third, a further letter was forwarded to Mr Law on 16 April 1987 advising him that he was deemed to have resigned. The review officer finished with, "Based on the available evidence, I am satisfied that he was fit for suitable duties, a suitable position was available however he failed to take up the opportunity to work. This ability reduced the amount of compensation otherwise payable to a nil entitlement. Accordingly I affirm the decision of 19th July 1999 to deny liability for payment of compensation in respect to partial incapacity."RELEVANT LEGISLATION Primarily, the relevant provisions are as follows from the Safety, Rehabilitation and Compensation Act 1988 ("the Act"): ss 4(1) "ailment", "disease", "injury", "suitable employment", (9), 14(1), 19(4)(b), (e), 24(1), 27(1), 124(1), (1A), 128. However, because the accident occurred in 1982, the following provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") are also relevant: ss 5(1) "disease", "injury", (6), (7), 27(1), (2), 29, 30, 31, 37(1), 45(1), 46.SAFETY, REHABILITATION AND COMPENSATION ACT 1988Interpretation4. In this Act, unless the contrary intention appears: …ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).…disease means: (a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.…injury means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.…(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being: (a) an incapacity to engage in any work; or (b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.…Compensation for injuries14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.…Compensation for injuries resulting in incapacity…(4) In determining, for the purposes of subsections (2) and (3),the amount per week that an employee is able to earn in suitableemployment, Comcare shall have regard to:…(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;…(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment-the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;…Compensation for injuries resulting in permanent impairment24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.…Compensation for non-economic loss27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that in injury or impairment.…Application of Act to pre-existing injuries124. (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.…Liability under previous Acts128. Any liability of the Commonwealth, or of a Commonwealth authority, to pay compensation or make any other payment to a person under any provision of … the 1971 Act shall, to the extent that it had not been discharged before the commencing day, be taken to have been incurred by the relevant authority on that day under the corresponding provision of this Act.COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT 19715. (1) In this Act, unless the contrary intention appears- …"disease" includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;…"injury" means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease;…(6) A reference in this Act to an injury to an employee shall, unless the contrary intention appears, be read as a reference to an injury to the employee in respect of which the Commonwealth is liable to pay compensation under this Act. (7) A reference to an employee in a provision of this Act that is applicable to an employee at a time after the Commonwealth has incurred a liability in relation to the employee under this Act shall, unless the contrary intention appears, be read as including a reference to a person who has ceased to be an employee. …Compensation for personal injuries 27. (1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.(2) If an injury to an employee is intentionally self-inflicted, the Commonwealth is not liable under the last preceding sub-section to pay compensation in respect of that injury.…Compensation in respect of death, loss, disfigurement or incapacity through disease. 29. (1) Where-(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,the succeeding provisions of this section have effect.(2) If-(a) the death of the employee;(b) a loss to the employee of a kind referred to in section 39 or 40;(c) facial disfigurement to the employee;(d) a loss to the employee of the sense of taste or smell; or(e) the total or partial incapacity for work of the employee,results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears-(f) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and (g) the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.(3) The last preceding sub-section does not apply in relation to a disease, or an aggravation, acceleration or recurrence of a disease, if the employee has at any time, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease.Certain diseases to be deemed to be contributed to by employment. 30. Without limiting by implication the operation of the last preceding section, where-(a) an employee has suffered or is suffering from a disease or the death of an employee results from a disease;(b) the disease is a disease of a kind specified in the regulations as a disease that is related to employment of a kind so specified; and(c) the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth in employment of that kind,then, for the purposes of this Act, unless the contrary is established, theemployment in which the employee was so engaged by the Commonwealth shall be deemed to have been a contributing factor to his contraction of the disease.Provisions relating to diseases. 31. (1) Any employment in which an employee who has contracted a disease was engaged by the Commonwealth at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken for the purposes of this Act to have been a contributing factor to his contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of that disease among persons who have engaged in employment generally in the place where the employee was ordinarily employed.(2) Any employment in which an employee who has suffered an aggravation, acceleration or recurrence of the disease was engaged by the Commonwealth at any time before symptoms of the aggravation, acceleration or recurrence first became apparent shall, unless the contrary is established, be taken for the purposes of this Act to have been a contributing factor to the aggravation, acceleration or recurrence if the incidence of the aggravation, acceleration or recurrence of that disease among persons suffering from that disease who have engaged in such employment is significantly greater than the incidence of the aggravation, acceleration or recurrence of that disease among persons suffering from that disease who have engaged in employment generally in the place where the employee was ordinarily employed.(3) The death of an employee shall be taken for the purposes of this Act to have been contributed to by a disease or by an aggravation, acceleration or recurrence of a disease, if, but for that disease, or that aggravation, acceleration or recurrence, as the case may be, the death of the employee would have occurred at a significantly later time.(4) An incapacity for work or facial disfigurement of, or a loss suffered by, an employee shall be taken for the purposes of this Act to have been contributed to by a disease, or by an aggravation, acceleration or recurrence of a disease, if, but for that disease, or that aggravation, acceleration or recurrence, as the case may be-(a) the incapacity, disfigurement or loss would not have occurred;(b) the incapacity would have commenced, or the disfigurement or loss would have occurred, at a significantly later time; or(c) the extent of the incapacity, disfigurement or loss would have been significantly less.(5) This section shall not be construed as limiting by implication the generality of the provisions of section 29.Compensation payable in respect of medical expenses, etc.37. (1) Where an injury is caused to an employee, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that it is reasonable in the circumstances for the employee to obtain, compensation of such amount as is appropriate to that medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment is obtained.…Compensation payable in respect of injuries resulting in total incapacity. 45. (1) Where an injury to an employee results in the employee being totally incapacitated for work, the succeeding provisions of this section have effect.(2) Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to-(a) $90, or such higher amount as is prescribed, plus any amount or amounts required to be added to that amount in accordance with the succeeding provisions of this section; or(b) the average weekly earnings of the employee before the injury,whichever is the less.(2A) Notwithstanding the last preceding sub-section, but subject to the succeeding provisions of this section, if the prescribed amount applicable to the employee under the next succeeding sub-section in respect of a week, being one of the first twenty-six weeks of the period, or of the aggregate of the periods, of the incapacity, is greater than the amount of compensation that would, but for this sub-section, be payable to him in respect of that week under the last preceding sub-section (including sub-sections (3) and (4), if applicable), the amount of compensation payable to him in respect of that week is that prescribed amount.(2B) For the purposes of the last preceding sub-section, the prescribed amount applicable to an employee in respect of a week is-(a) in the case of an employee who is, during that week, employed by the Commonwealth under conditions of employment providing for sick leave payments-an amount equal to the sum of-(i) the sick leave payment that he would receive in respect of that week if, during that week, he were entitled to, and were granted, sick leave on full pay by reason of an illness that is not attributable to an injury in relation to which this Act applies; and(ii) the amount, if any, that was payable to the employee under the next succeeding section in respect of the week that ended immediately before the commencement of the period of the incapacity or, where there are two or more periods of incapacity, the last of those periods;(b) in the case of an employee who is not employed by the Commonwealth during that week, but was, immediately before he ceased to be employed by the Commonwealth, employed under conditions of employment providing for sick leave payments-an amount equal to the amount that would be applicable to him under the last preceding paragraph if he had continued in that employment; or(c) in any other case-an amount determined by the Commissioner, having regard to the following:(i) if the employee is, during that week, employed by the Commonwealth-the amount of the earnings, if any, payable to him in respect of that week in respect of that employment;(ii) if the employee is not, during that week, employed by the Commonwealth-the amount of the earnings, if any, that, if he had continued in the employment in which he was engaged immediately before he ceased to be employed by the Commonwealth, would have been payable to him in respect of that week in respect of that employment; and(iii) any other matter that the Commissioner considers to be relevant.(2C) For the purposes of the last preceding sub-section-(a) an employee who would be, or would have been, employed but for his incapacity shall be taken to be employed, or to have been employed, as the case may be;(b) a reference to a sick leave payment is a reference to a payment by way of salary, wages or pay in respect of a period during which the employee concerned is absent from his employment by reason of illness; and(c) a reference to earnings, in relation to an employee-(i) includes a reference to the earnings that would be or would have been, payable to the employee but for his incapacity; and(ii) does not include a reference to a payment in respect of overtime or a reference to an allowance that is intermittent or is payable in respect of special expenses incurred or likely to be incurred by the employee in respect of his employment.(3) If there is a prescribed person who is, or there are prescribed persons who are, wholly or mainly dependent upon the employee, there shall be added to the amount specified in paragraph (a) of sub-section (2) the amount of $23.60 or such higher amount as is prescribed.(4) If there is a child in relation to whom this Act applies (whether born before, on or after the date of the injury) who is wholly or mainly dependent upon the employee or there are children in relation to whom this Act applies (whether born before, on or after the date of the injury) who are wholly or mainly dependent upon the employee, there shall be added to the amount specified in paragraph (a) of sub-section (2) the amount of $11.25, or such higher amount as is prescribed, for that child or each of those children, but an amount shall not be so added for a child in relation to any time before the date of the birth of that child.(5) If a child in relation to whom this Act applies is the only person who is a prescribed person in relation to the employee, the last preceding sub-section does not apply in relation to that child.(6) If there are two or more persons who are prescribed persons in relation to the employee and are wholly or mainly dependent upon the employee and each of those persons is a child in relation to whom this Act applies, sub-section (4) does not apply in relation to one of those persons.(7) If the employee-(a) is retired from his employment as a result of the incapacity for work;and(b) as a result of the retirement is in receipt of a pension under a superannuation or provident scheme established or maintained by the Commonwealth or by a prescribed authority of the Commonwealth,the compensation payable to the employee in respect of each week during the period of the incapacity shall not exceed the amount, if any, by which the average weekly earnings of the employee before the injury exceed-(c) if a part of the pension is, under the scheme, attributable to contributions for the pension paid by the employee-the part of the pension paid or payable to the employee in respect of that week that is not attributable to those contributions;(d) if the employee has paid contributions under the scheme, the scheme does not identify a part of the pension as being attributable to those contributions and the Commissioner has determined that if it is reasonable that a part of the pension should be treated as if it were attributable to those contributions-the part of the pension paid or payable to the employee in respect of that week that is determined by the Commissioner to be the part that is to be treated as not attributable to contributions for the pension paid by the employee; or(e) in any other case-the pension paid or payable to the employee in respect of that week.(8) Where-(a) as a result of the injury, the employee is being maintained as a patient in a hospital, nursing home or similar place and has been so maintained for a continuous period of not less than one year; and(b) there are no prescribed persons, and no children in relation to whom this Act applies, who are dependent upon the employee,the compensation payable to the employee is such amount per week as is determined by the Commissioner, having regard to the present and probable future needs and expenses of the employee and the duration of the period during which the employee is likely to be a patient in a hospital, nursing home or similar place, but the amount so determined shall not be less than one-half of, and shall not be greater than, the amount per week of the compensation that, but for this sub-section, would be payable to the employee.(9) Subject to sections 47 and 50, where a determination is made that an amount of compensation is payable to the employee under section 39 in respect of an injury that resulted in a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under section 46 in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination.(10) For the purposes of this section, "prescribed person ", in relation to an employee, means-(a) the spouse of the employee;(b) any of the following persons, being a person over the age of sixteen years:(i) the father, mother, step-father, step-mother, mother-in-law, grandfather, grandmother, son, daughter, step-son, step-daughter, grandson, granddaughter, brother, sister, half-brother or half-sister of the employee;(ii) a person who stands in loco parentis to the employee; or(iii) a person, not being the spouse of the employee or a personreferred to in either of the last two preceding sub-paragraphs, who is wholly or mainly maintained by the employee and has the care of a child in relation to whom this Act applies being a child who is wholly or mainly dependent on the employee; or (c) in the case of a male employee, a woman who, throughout a period of three years ending on or after the date of commencement of the incapacity of the employee, although not legally married to him, lived with him as his wife on a permanent and bona fide domestic basis.(11) For the purposes of sub-paragraph (i) of paragraph (b) of the last preceding sub-section, relationships referred to in that sub-paragraph shall be taken to include illegitimate relationships and relationships by adoption and relationships that are traced through illegitimate relationships or relationships by adoption.(12) For the purposes of sub-paragraph (iii) of paragraph (b) of sub-section (10), a person who has the care of a child referred to in that sub-paragraph shall not be taken not to be wholly or mainly maintained by an employee by reason only that the employee pays any remuneration to the person for caring for that child.Compensation payable in respect of injuries resulting in partial incapacity. 46. (1) Where an injury to an employee results in the employee being partially incapacitated for work, the succeeding provisions of this section have effect.(2) Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to-(a) the lesser of the following amounts, namely-(i) $90 or such higher amount as is prescribed; or(ii) the amount (if any) by which the average weekly earnings of the employee before the injury exceeds from time to time the amount per week that he is able to earn in some suitable employment or business; or(b) the amount (if any) by which the amount per week that would be payable to him under the last preceding section, disregarding sub-sections (2A) and (7) of that section, if he were totally incapacitated for work exceeds from time to time the amount per week that he is able to earn in some suitable employment or business,whichever is the greater.(3) If, as a result of the partial incapacity for work-(a) the employee is retired from his employment, or the minimum amount per week payable to the employee in respect of his employment by the Commonwealth is reduced; and(b) as a result of the retirement or reduction, as the case may be, the employee is in receipt of a pension under a superannuation or provident scheme established or maintained by the Commonwealth or by a prescribed authority of the Commonwealth,the compensation payable to the employee in respect of each week during the period of the incapacity shall not exceed the amount, if any, by which the average weekly earnings of the employee before the injury exceed from time to time the sum of-(c) the amount per week that he is able to earn in some suitable employmentor business; and(d) the amount of-(i) if a part of the pension is, under the scheme, attributable to contributions for the pension paid by the employee-the part of the pension paid or payable to the employee in respect of that week that is not attributable to those contributions;(ii) if the employee has paid contributions under the scheme, the scheme does not identify a part of the pension as being attributable to those contributions and the Commissioner has determined that it is reasonable that a part of the pension should be treated as if it were attributable to those contributions-the part of the pension paid or payable to the employee in respect of that week that is determined by the Commissioner to be the part that is to be treated as not attributable to contributions for the pension paid by the employee; or(iii) in any other case-the pension paid or payable to the employee in respect of that week.(4) In ascertaining for the purposes of the last two preceding sub-sections the amount per week that an employee is able to earn, any amount that he is able to earn in respect of overtime shall be taken into account.(4A) In determining, for the purposes of sub-sections (2) and (3), the amount per week that an employee is able to earn in some suitable employment or business, the Commissioner shall have regard to –…(b) in a case where, after becoming partially incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if the employee had accepted that offer and were engaged in that employment;(c) in a case where, after becoming partially incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if the employee were engaged in that employment;…(f) any other matter that the Commissioner considers relevant.(5) Subject to the next succeeding section, where a determination is made that an amount of compensation is payable to the employee under section 39 in respect of an injury that caused a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under this section in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.