Matthew Jensen and Military Rehabilitation and Compensation Commission
[2014] AATA 807
•30 October 2014
[2014] AATA 807
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2063
Re
Matthew Jensen
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 30 October 2014 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – Liability for shoulder condition accepted – Entitlement to incapacity benefits – Calculation of applicant’s actual and normal earnings – No substitution of minimum wage for calculated civilian components – Reviewable decision affirmed.
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth) ss 23(1); 86; 98(4); 99; 101; 181
REASONS FOR DECISION
Senior Member Bernard J McCabe
30 October 2014
Matthew Jensen injured his left shoulder in the course of discharging his duties as a member of the Australian Army Reserve in 2011. He lodged a claim for compensation under the Military Rehabilitation and Compensation Act 2004 (Cth) (“the Act”).
The Military Rehabilitation and Compensation Commission (“the Commission”) accepted liability under s 23(1) of the Act for “supraspinatus tendinitis and subcapularis of the left shoulder” on 5 January 2012 (exhibit one at p 217ff). It subsequently determined on 31 July 2012 that Mr Jensen had no entitlement to incapacity benefits under s 86 of the Act for the period as from 2 August 2011 (exhibit one at p430ff).[1] These proceedings relate to the applicant’s entitlement to ongoing incapacity benefits.
[1] The applicant’s incapacity claim form identified the start date for his claim as 2 August 2011. There was some confusion in the documents as the respondent appears to have assumed the start date was 22 August 2011. I accept the correct commencement date was 2 August 2011.
The Commission says Mr Jensen did not lose any military pay that was owing to him in the period under review because he was still available to attend parades, and was paid for doing so. The Commission adds it cannot calculate an amount of incapacity payments with reference to the applicant’s civilian earnings because he has not earned any money from civilian work since around 2007.
MR JENSEN’S WORK HISTORY
Mr Jensen was casually employed in a pool construction business owned and operated by his father up until late 2007. He had earlier joined the Army Reserve but he decided in 2007 or early 2008 to cease remunerative civilian work so he could focus on his lifelong ambition to join the Special Forces.
Individuals who wish to join the Special Forces must participate in a demanding selection process. Candidates must be in excellent condition and be able to satisfy a gruelling program designed to test their physical and mental stamina. Mr Jensen began a special training regimen after he ceased remunerative civilian work in 2007.
He explained he wanted an edge in the selection process. He also sought postings as a Reservist that would provide relevant experience. Mr Jensen explained his age was an issue: he was older than other candidates for the Special Forces, so he wanted to maximise his chances by undergoing intensive, focused training.Mr Jensen was ultimately unsuccessful in his quest to join the Special Forces. When he learned that news in May 2011, Mr Jensen said he was disappointed and started to focus on what he was going to do with his life. He could not return to his father’s pool-building business: it had ceased. Mr Jensen said he began to make enquiries to see what work would be available. Shortly thereafter, before any of his enquiries bore fruit, he became aware of an opportunity to participate in a major exercise in his role as Reservist.
He explained at the hearing there was no point actively pursuing civilian work opportunities until he returned from that exercise. The exercise was conducted during June-July 2011 – and that is when he injured his shoulder (exhibit 1 at pp 46-47).
Mr Jensen says his shoulder condition has incapacitated him for work since that time, and during the period under review.THE CLAIM FOR INCAPACITY PAYMENTS
The claim relates to the period 2 August 2011 to 13 March 2012. Mr Clark, counsel for the Commission, said the Commission conceded for the purposes of the hearing that
Mr Jensen was incapacitated for work in the period under review. But the Commission says that concession does not assist the applicant.Part III, Division 3 of the Act sets out the provisions dictating how the decision-maker must calculate a part-time Reservist’s entitlement to incapacity payments. Section 95 of the Act explains the reservist’s normal earnings for a week are determined by identifying and adding the individual’s “ADF component” to his or her “civilian component”. Section 101 then explains the actual earnings for a week from ADF and civilian work are calculated by adding the individual’s actual ADF pay to his or her actual civilian earnings (plus any actual pay-related allowances). Where there is a difference between normal and actual earnings, an entitlement to compensation may arise.
The Commission says Mr Jensen continued to attend parades during the period under review, and was paid accordingly. It denies Mr Jensen was prevented from undertaking Reserve duties as a consequence of his shoulder condition. In those circumstances, the Commission says Mr Jensen’s normal and actual ADF earnings are the same. It also argues he was not undertaking civilian work for years before he was injured, and he did not earn anything from civilian work in the period that followed – which means there is no difference between the two figures which could give rise to an entitlement to compensation.
Mr Jensen suggested at the hearing and in his statement of facts, issues and contentions that he did not attend parades because of his shoulder, and that he may have missed out on ADF earnings as a consequence. He referred to supporting evidence in the form of a letter to the Commission (exhibit one at p 349) but that letter confirms Mr Jensen did not miss “any significant Army Reserve Training Days due to [his] injury.” He did not press the point at the hearing.
I am satisfied the evidence before me establishes the applicant did not lose any ADF earnings as a consequence of his condition.
The hearing focused on the civilian component of Mr Jensen’s earnings.
He acknowledged s 98(4) of the Act provides:The civilian daily earnings for an incapacitated Reservist who was not engaged in civilian work before the onset date for the incapacity is nil.
He accepted s 98(4) says plainly that the absence of a civilian work history means his normal civilian earnings in the period under review was zero – but he developed an argument that s 99 of the Act requires the Commission to adopt the national minimum wage as a default figure to be used in the absence of other evidence of his earnings.
He gets to that position by reference to the table in s 89, which refers to s 101.
Section 101 notes that s 181 sets out some matters the Commission must have regard to in determining a Reservist’s actual civilian earnings. Mr Jensen says s 101 therefore permits the Commission to consider a range of matters – including the national minimum wage, although that is not referred to explicitly in s 101 – when determining normal civilian earnings.
But therein lies the problem: whatever authority the Commission might have to consult widely for the purpose of determining actual civilian earnings, that is not the question in issue here. I am focused on the first step, which is ascertaining Mr Jensen’s normal civilian earnings. That figure is calculated with reference to an example period: s 99.
The example period will usually be the last two weeks before the applicant was incapacitated: s 99(1). Section 99(2) permits the Commission to use a different
(or longer) example period if it were reasonable to do so because the example period under s 99(1) did not fairly represent the applicant’s normal civilian earnings. Section 99 does not refer to any other method for estimating earnings.
Mr Jensen was not earning anything from civilian work in the two week period before he was incapacitated. It would not be reasonable to look at a different two week period, or a longer period, because he had not been earning anything from civilian work since late 2007. It follows that using the example period in s 99(1) does not misrepresent the true position. There is no statutory basis for looking at extraneous information about the minimum wage when calculating Mr Jensen’s normal civilian earnings: indeed, to do so would misrepresent Mr Jensen’s position and put him in a better position after being injured than he was in beforehand.
CONCLUSION
The Commission correctly calculated the applicant’s normal civilian earnings and his actual civilian earnings. Given my findings in relation to the applicant’s ADF earnings,
I am satisfied the decision under review must be affirmed.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 30 October 2014
Date of hearing 5 September 2014 Applicant In person Counsel for the Respondent Mr C Clark
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