Lower and Comcare - [2008] AATA 352

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 352
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600263

GENERAL ADMINISTRATIVE DIVISION )

Re KEVIN BERTRAM LOWER

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member L Hastwell
Date2 May 2008
PlaceAdelaide

Decision
The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s normal weekly earnings at 24 July 1990 should include a shift allowance of $103.26 per week. From 7 September 1998, his normal weekly earnings would no longer include shift allowances.

..............................................
L HASTWELL
(Senior Member)

CATCHWORDS
COMPENSATION – Commonwealth employees – liability accepted – assessment of normal weekly earnings – no shift allowances or penalties included in normal weekly earnings – structural changes in the workplace and applicant placed on new roster – likelihood that applicant would continue to have received some, albeit reduced, allowances – further restructuring during period of incapacity – thereafter unlikely to receive any allowances – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 ss 8(1), 8(5), 8(10), 9(1), 14, 19
Bortolazzo and Another v Comcare (1997) 75 FCR 385
REASONS FOR DECISION

2 May 2008   Senior Member L Hastwell

1.      Kevin Lower (the applicant) worked as an Observer at the Bureau of Meteorology (the Bureau) from the time that he commenced his employment in 1971 until he resigned his employment in 2005 when he resolved his workers’ compensation settlement with his employer.
2.      His substantive position throughout his period of employment was as an Observer Grade 1. On occasions he acted in the position of Observer Grade 2. He was paid higher duty allowances when acting in the Grade 2 position. He would also receive shift allowances when on roster.
3.      In 1990 he sustained a generalised anxiety disorder in the course of his employment with the Bureau. He ceased work in July 1990. Thereafter he did not return to the workplace and he remained incapacitated for work. He claimed workers’ compensation with respect to this injury.
4. His claim for incapacity took many years to resolve and it was not until 2005 that a consent order was made in this Tribunal whereby the respondent (Comcare) accepted liability to pay compensation to the applicant for the condition of generalised anxiety disorder, pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
5.      On 23 December 2005 the Tribunal made an order (inter alia) in the following terms:
“The respondent is liable to pay to the applicant compensation in accordance with section 19 of the Act from 24 July 1990 to 27 October 2005 …”

6. Section 19 of the Act provides for compensation for lost earnings.
7. On 1 February 2006 Comcare made an assessment as to the quantum of the applicant’s normal weekly earnings (NWE) for the purposes of his entitlement to compensation pursuant to s 19 of the Act (T20). The period for which compensation was to be assessed was 24 July 1990 to 27 October…

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 Lower and Comcare

Details

AGLC: Lower and Comcare [2008] AATA 352
Case: [2008] AATA 352
Decision Date: 2 May 2008

CaseChat Overview and Summary

In the case of Lower and Comcare, the applicant, Mr Lower, sought compensation for an injury sustained during his employment with the Commonwealth. The dispute centred on the appropriate assessment of Mr Lower's normal weekly earnings for the purposes of calculating his compensation, specifically whether shift allowances should be included. The matter was heard in the Administrative Appeals Tribunal. The Tribunal had to determine the appropriate inclusion of shift allowances in Mr Lower’s normal weekly earnings at two distinct periods: first, at the time of his injury, and second, during his period of incapacity. The primary issue was whether Mr Lower would likely have continued to receive some, albeit reduced, allowances if not for his injury and subsequent restructuring in the workplace.

The court examined the statutory provisions under the Safety, Rehabilitation and Compensation Act 1988 and relevant case law. It considered the nature of Mr Lower’s employment, the changes in his work conditions, and the impact of these changes on his earnings. The court also reviewed the decision made by Comcare, which had excluded shift allowances from Mr Lower’s normal weekly earnings. The Tribunal found that at the time of his injury, Mr Lower was likely to have received shift allowances and thus these should be included in his normal weekly earnings. However, following a restructuring of his workplace and his period of incapacity, the Tribunal concluded that it was unlikely he would have continued to receive these allowances.

The Tribunal set aside the decision of Comcare and determined that Mr Lower’s normal weekly earnings should include a shift allowance of $103.26 per week up until 24 July 1990, the date of his injury. From 7 September 1998, the Tribunal ruled that his normal weekly earnings would no longer include shift allowances due to the significant changes in his employment conditions and his prolonged period of incapacity. This decision ensures that Mr Lower’s compensation reflects a realistic assessment of his earnings at the relevant times.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s normal weekly earnings at 24 July 1990 should include a shift allowance of $103.26 per week. From 7 September 1998, his normal weekly earnings would no longer include shift allowances.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		KEVIN BERTRAM LOWER