MARK THOMPSON and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS
[2010] AATA 203
•24 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 203
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5174
GENERAL ADMINISTRATIVE DIVISION ) Re MARK THOMPSON Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Regina Perton Date24 March 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review. Sgd Regina Perton
Member
SOCIAL SECURITY ‑ lump sum compensation ‑ preclusion period ‑ whether special circumstances exist
Social Security Act 1991 ss 17, 1184K
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
REASONS FOR DECISION
24 March 2010 Regina Perton 1. Mark Thompson suffered a workplace injury on 9 March 1999. He was working in South Australia and was subject to that state’s workers compensation scheme as it then was. He initially received weekly workers compensation payments. In November 2000 he settled for a lump sum in lieu of weekly payments. On 8 December 2000 Centrelink wrote to Mr Thompson advising him that he was subject to a compensation preclusion period from 7 December 2000 to 12 September 2001. Centrelink delivers services for the Department of Education, Employment & Workplace Relations (the respondent).
2. Mr Thompson lodged a claim for Newstart allowance (NSA) on 16 October 2001. NSA was granted and backdated to 26 September 2001. He was living in regional Victoria at that time, as he still is.
3. In March 2005 Mr Thompson settled the compensation claim for his injuries and lost earnings. Prior to the settlement, Centrelink informed Mr Thompson’s solicitors that it might seek to recover social security benefits paid during the period covered by the compensation settlement and it also calculated a possible further preclusion period. Following the receipt of details of the settlement from the solicitors in late March 2005, Centrelink recalculated the preclusion period taking into account both settlements. The recalculated preclusion period was from 7 December 2000 to 20 August 2003.
4. Centrelink also sought repayment of $23,071.58, which was the amount of social security payment which Mr Thompson had received during the recalculated preclusion period, namely between September 2001 and August 2003. Mr Thompson was granted disability support pension (DSP) in October 2005 and remains on that payment.
5. Mr Thompson sought an internal review of Centrelink’s decision to seek recovery of the NSA payments made between September 2001 and August 2003. He also expressed concern as to whether the recalculated compensation preclusion period was correct. On 1 February 2007 an authorised review officer (ARO) affirmed the decision to seek repayment of the benefits. He also did not consider that Mr Thompson’s circumstances were such that the compensation preclusion period should be shortened. On 23 April 2007 the Social Security Appeals Tribunal (SSAT) affirmed the original decision.
6. Mr Thompson lodged an application for review of the SSAT decision with the Tribunal on 3 November 2008. The Tribunal granted him an extension of time in which to lodge the belated application.
7. The issue before the Tribunal is whether there are grounds to waive part or all of the preclusion period due to special circumstances.
Mr Thompson’s evidence
8. In his application to the Tribunal, Mr Thompson indicated that he had been trying to obtain copies of relevant documents from Workcover, Centrelink and his lawyer and it had taken a long time to do so. He expressed the view that the information provided to Centrelink was incorrect as one of the compensation payments was for loss of use of his neck and arm, which he believed was not redeemable or recoverable.
9. Mr Thompson said that his workplace injuries, which will affect him for the rest of his life, arose because Centrelink required him to take a position he was offered where the owners did not comply with occupational health and safety requirements. A report undertaken by Worksafe indicated that the work was hazardous. Mr Thompson said that the Port Lincoln Job Centre should not have sent him for interview for a job with such an employer. Mr Thompson said he was on NSA payments at that time and bound by requirements to take on an offered position. He said that he was selected for the position out of 60 applicants. Amongst other things, the job required him to lift drums weighing more than 50 kilograms containing toxic cleaning chemicals used for cleaning fishing boats and hospital bloodstains.
10. Mr Thompson said that he had been working since leaving school before his 16th birthday. He has worked as a sales person, delivery driver and in management. He was made redundant when there was a takeover of the company for which he worked. He did courses to improve his skills. His injuries now restrict him severely. He said that although he would like to work, there are many barriers to him doing so. He has approached a job network specialising in disabilities to see if they can help him obtain work. He said that he cannot lift anything over two and a half kilograms, he cannot bend over and cannot sit for long periods of time. He is unable to write or type because of his injury. He can’t even make scrambled eggs.
11. Mr Thompson described his financial circumstances. He is renting a unit. He no longer owns a car and had to borrow one to attend the hearing. He described the medical expenses that had been deducted from his settlement and how he had spent the moneys from the compensation award. He said that he has no savings and he and his partner live from fortnight to fortnight. He said that he had only received $61,000 lump sum out of the total of $221,000.
12. Mr Thompson asked the Tribunal to defer its decision as he was awaiting further documents sought under freedom of information legislation. The Tribunal agreed. Mr Thompson subsequently provided a copy of a wage subsidy agreement between his employer and the Commonwealth Employment Service (CES) dated 18 June 1998. Under the agreement, the CES agreed to subsidise part of Mr Thompson’s wages for 20 weeks from 30 April 1998. The employer’s obligations set out in the agreement include:
The Employer must
….
Provide the Employee with a safe workplace…
…
Acquire and maintain…in respect of the Employee, a workers’ compensation insurance policy and superannuation policy, and indemnify and hold harmless and at all times keep the Commonwealth indemnified and held harmless in relation to all losses, damages, costs (including legal costs on a solicitor/own client basis), expenses, claims, demands, actions or suits suffered or incurred by or made or instituted against the Commonwealth as a result, directly or indirectly, of a breach by the Employer of its obligations under this Agreement….
13. Mr Thompson also provided a copy of a letter dated 9 January 2001 from Employers Mutual Limited which set out the moneys paid out by Workcover in relation to his claims.
Further to our telephone conversations I can now advise as follows:
1. Workcover paid either by way of benefits either to you or on your behalf to your solicitors:
(a) Medical: $ 8,011.84
(b) Income Maintenance: $31,602.62
(c) Hospital $ 1,328.00
(d) Travelling $ 4,849.15
(e) Lump Sum $44,817.50
Total $90,609.11
2. Workcover also paid $10,928.23 by way of disbursements for medical reports and other costs necessarily incurred on your behalf for claim and recovery investigations.
The total paid by Workcover was therefore $101,537.34.
Should part or all of the Preclusion period be waived?
14. Section 17(1) of the Social Security Act 1991 (the Act) provides that compensation affected payment includes NSA and DSP. Section 17(2) of the Act provides:
Subject to subsection (2B), for the purposes of this Act, compensation means:
(a) a payment of damages; or
(b) a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c) a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or
(d) any other compensation or damages payment;
(whether the payment is in the form of a lump sum or in the form of a series of periodic payments and whether it is made within or outside Australia) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.
15. Under s 17(3) of the Act, 50 per cent of a lump sum settlement payment is held to be the compensation part of the payment. Section 17(4) sets out the methods of calculation where there is a second compensation payment that incorporates repayment of periodic compensation payments already received. There have been several calculations of the appropriate compensation preclusion period since Mr Thompson became concerned about the amount. The Tribunal is satisfied that the calculations are correct and have taken into account the relevant legislative provisions.
16. Section 1184K(1) of the Act gives the decision‑maker discretion to treat the whole or part of a compensation payment as not having been made or not liable to be made, if the decision‑maker thinks it is appropriate to do so in the special circumstances of the case.
17. For the Tribunal to use the discretion provided in s 1184K it must be satisfied that there is something to make the case stand out from the usual or the ordinary. The term special circumstances is not defined in the legislation. However, many court cases have discussed the term. In those cases, it has generally been defined as requiring a departure from the norm. In Ryde v Secretary, Department of Family and Community Services [2005] FCA 866 Branson J stated (at paragraph 26) that the circumstances of a particular case must give rise to hardship or unfairness sufficient to justify departure from the general rule.
18. The existence of special circumstances needs to be considered on a case-by- case basis. In considering this concept, the Tribunal must maintain a balance between the circumstances and difficulties of the individual involved and the purpose of the legislation, which is to prevent people being paid by two sources for the same period.
19. The Tribunal accepts that Mr Thompson has multiple medical problems which he will continue to face for the foreseeable future. The circumstances in which the injury occurred have added to Mr Thompson’s frustration at his predicament. He firmly believes that the CES should not have referred him to a position where the employer failed to provide a safe working environment. He believes that Centrelink’s requirement that he accept that particular position imposes some culpability on the organisation and that factor should be taken into account in relation to the compensation preclusion period.
20. Centrelink submitted that if the workplace was unsafe, Mr Thompson was entitled to leave the position. The legislation provides for a NSA recipient to resign in such circumstances and resume their social security payments. Centrelink also noted that the CES, which referred him to the wage subsidized position, was not liable for compensation for injury. Rather, it was the employer’s responsibility to provide appropriate insurance. The employer did carry workers compensation insurance, which resulted in Mr Thompson receiving compensation for his injuries. Notwithstanding its sympathy at Mr Thompson’s plight, the Tribunal accepts Centrelink’s submissions. The Tribunal does not believe that it is appropriate to shorten the compensation preclusion period because of the CES referral to the position.
21. The Tribunal accepts that Mr Thompson has multiple medical problems, many of which are the result of his workplace injury. Mr Thompson is receiving DSP, as his medical condition is serious enough to meet the onerous criteria for that payment. All recipients of DSP have significant medical issues.
22. The preclusion period ended more than six years ago. Since then, Mr Thompson has received income support through Centrelink. While his financial position is difficult, it is a situation shared by many others reliant on income support.
23. After considering all relevant matters and viewing Mr Thompson’s case in its entirety, the Tribunal is not satisfied that his circumstances should be considered as special circumstances, which would warrant a shortening of the now expired preclusion period. Therefore, it is not appropriate for the Tribunal to exercise the discretion under s 1184K(1) of the Act to disregard the compensation received in whole or in part.
DECISION
24. The Tribunal affirms the decision under review.
I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd)
Grace Carney, Clerk
Date of hearing: 10 September 2009
Date of final submission: 15 February 2010
Date of decision: 24 March 2010
Advocate for applicant: Self represented
Advocate for respondent: Mr I Golshtein
Solicitor for respondent: DLA Phillips Fox
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