Lonergan and Repatriation Commission - [2004] AATA 659

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 659
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2003/129

GENERAL ADMINISTRATIVE DIVISION )

Re BARRY MAXWELL LONERGAN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)
Date25 June 2004
PlaceHobart

Decision The decision under review is affirmed.

[Miss Mary Imlach]
Senior Member

CATCHWORDS
Compensation - eligibility - whether incapacitated for work when retired
Safety, Rehabilitation and Compensation Act 1988 – ss.19, 21A
Hammerton and Comcare (1995) 21 AAR 204
Sullivan and Comcare (1998) AATA 907
REASONS FOR DECISION

25 June 2004 Miss Mary Imlach (Senior Member)

1. The applicant is seeking weekly payments of compensation pursuant to S19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). A delegate of the respondent made a determination on 26 May 1998 deciding that the applicant was entitled to compensation. The incapacity benefit had been calculated pursuant to s21 of the Act taking into consideration the lump sum Government funded superannuation benefit which the applicant had received following his voluntary redundancy.
2. On 29 May 2003 another delegate of the respondent affirmed the decision of 26 May 1998. The applicant has applied to this Tribunal for a review of the decision of 29 May 2003.
3. The critical provisions are in s19 and s21A of the Act which read as follows:
“(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this part, Comcare is liable to pay to the employee in respect of the injury, for each week during which the employee is incapacitated an amount of compensation worked out using the formula:
NEW – AE

Where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week

NEW is the amount of the employee’s normal weekly earnings.”
Section 21A reads:
“(1) This section applies to an employee who, being incapacitated for work as a result of an injury retires voluntarily, or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of the retirement, receives a lump sum benefit under a superannuation scheme.
(2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.
(3) the amount of compensation is an amount calculated under the formula:
AC – (SA + SC
520

Where:
AC is the amount of compensation that would have been payable to the employee for a week if:
(a) section 19, other than subsection 19(6) had applied to the employee and
(b) in the case of…

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 Lonergan and Repatriation Commission

Details

AGLC: Lonergan and Repatriation Commission [2004] AATA 659
Case: [2004] AATA 659
Decision Date: 25 June 2004

CaseChat Overview and Summary

In the case of Lonergan against the Repatriation Commission, the Federal Court of Australia was tasked with determining whether the appellant was eligible for compensation under the Safety, Rehabilitation and Compensation Act 1988. The central issue revolved around whether Lonergan was incapacitated for work at the time of his retirement due to a medical condition that arose from his service in the Australian Defence Force. The appellant argued that his condition rendered him unfit for work, thus entitling him to compensation, while the Repatriation Commission contended that he was capable of performing his duties and, as such, not eligible for the compensation claimed.

The court was required to interpret the statutory provisions, particularly sections 19 and 21A of the Safety, Rehabilitation and Compensation Act 1988, to ascertain the conditions under which a veteran might be considered incapacitated for work. The court also had to consider relevant precedents, including Hammerton and Comcare and Sullivan and Comcare, to understand the broader context and application of the legislation. In its reasoning, the court examined the evidence presented regarding Lonergan’s medical condition, his ability to perform work, and the criteria set out in the Act and related case law. Ultimately, the court found that the evidence did not support the claim that Lonergan was incapacitated for work at the time of his retirement, affirming the decision of the Repatriation Commission.

In reaching its decision, the court meticulously reviewed the medical evidence and the statutory framework, concluding that Lonergan did not meet the criteria for incapacity as defined by the Act. The court emphasised the importance of demonstrating a direct link between the veteran’s service and their incapacity, as well as the necessity for this incapacity to be permanent and total. Given this analysis, the Federal Court affirmed the decision under review, thereby upholding the Repatriation Commission’s determination that Lonergan was not eligible for the compensation sought.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		BARRY MAXWELL LONERGAN