Mayer and Comcare (Compensation) - [2015] AATA 925

Mayer and Comcare (Compensation) [2015] AATA 925 (1 December 2015)

Division

GENERAL DIVISION

File Number(s)

2014/4432

Re

Dennis Mayer

APPLICANT

And

Comcare

RESPONDENT

File Number(s)

2014/4433

Re

Terence Lowes

APPLICANT

And

Comcare

RESPONDENT

Decision

Tribunal
Mr S. Webb, Member

Date 1 December 2015

Place Canberra
The decision under review in application 2014/4432 is varied to the extent that Mr Mayer is entitled to weekly compensation for incapacity in the amounts set out in Schedule 2.
The decision under review in application 2014/4433 is varied to the extent that Mr Lowes is entitled to weekly compensation for incapacity in the amounts set out in Schedule 3.
As these decisions are favourable to each applicant, subject to submissions from either party received by the Tribunal within 14 days from this date, Comcare will be ordered to pay each party’s reasonable costs of the proceedings as agreed or taxed.

.............................[sgd]...........................................
Mr S. Webb, Member
Catchwords
COMPENSATION – accepted injuries – calculation of weekly compensation for incapacity - average weekly earnings pre injury – overtime - higher duties allowance – previous Tribunal decision - effect of industrial agreements on deemed employment level and normal weekly earnings amounts – adjustment of rate of weekly compensation – decisions varied.
Legislation
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 25
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 8, 9, 19, 124
Cases
Re Mayer & Lowes and Comcare [2014] AATA 55
Secondary materials
Australian Federal Police Change Agreement 1995
Australian Federal Police Certified Agreement 1999-2002
Australian Federal Police Certified Agreement 2003-2006
REASONS FOR DECISION
Mr S. Webb, Member
1 December 2015

1. Many years ago, the applicants in these proceedings, Dennis Mayer and Terence Lowes, were injured, separately, in employment by the Australian Federal Police (AFP). They each claimed and were paid compensation. Both men were retired on invalidity grounds. After a long period, each of them disputed determinations made by Comcare officers in respect of weekly compensation for incapacity. The disputes came before the Tribunal, on review. The Tribunal, differently constituted, determined matters relating to the pre-injury earnings of each man (which forms the basis of the calculation of weekly compensation for incapacity to work) and remitted the applications to Comcare: Re Mayer & Lowes and Comcare (the 2014 decision).
2. Subsequently, Comcare determined the weekly compensation entitlements of Mr Mayer and Mr Lowes. Each sought reconsideration and, being unhappy with the reviewable decisions made, again applied for review.
3. Each application raises slightly different issues, albeit on a common theme under the applicable legislation. I acceded to requests by the parties for the applications to be heard concurrently. Nevertheless, it is necessary to deal separately with the specific issues raised by each application.
Facts
4. The background facts in each case were set out by the Tribunal in the 2014 decision. For present purposes, it is not necessary to recite all the facts again.
5. The relevant facts in Mr Mayer’s case are:
a.(a) he was injured in the course of employment on…

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 Mayer and Comcare (Compensation)

Details

AGLC: Mayer and Comcare (Compensation) [2015] AATA 925
Case: [2015] AATA 925
Decision Date: 1 December 2015

CaseChat Overview and Summary

The case of Mayer and Comcare (Compensation) involves Mr Mayer, who was injured in the course of his employment in 1981 and subsequently medically retired in 1983. The dispute revolves around the calculation of his weekly compensation for incapacity, focusing on the inclusion of overtime and higher duties allowance in his average weekly earnings (AWE) prior to his injury. This case was heard by the Australian Administrative Appeals Tribunal (AAT), which was required to review and vary decisions made by Comcare regarding Mr Mayer's compensation entitlements.

The primary legal issues the court had to decide included the proper inclusion of overtime and higher duties allowance in the calculation of Mr Mayer's AWE. Specifically, the court needed to determine if the Tribunal's 2014 decision, which included certain hours of overtime in Mr Mayer's AWE, was correct. Additionally, the court had to consider the impact of industrial agreements on the deemed employment level and normal weekly earnings amounts, and how these should affect the calculation of weekly compensation.

In its reasoning, the court examined the Tribunal's 2014 decision and Comcare's subsequent primary and reconsideration determinations. The court found that the Tribunal had correctly included certain overtime hours in Mr Mayer's AWE, but it also identified errors in the calculation of his weekly compensation based on these earnings. The court adjusted the rate of weekly compensation to reflect the correct AWE and varied the decisions accordingly. The court emphasised the importance of accurately calculating AWE, taking into account all relevant factors such as overtime and higher duties allowance, and ensuring that these calculations align with industrial agreements.

The court varied the decisions of the Tribunal and Comcare, ensuring that Mr Mayer's weekly compensation was calculated correctly based on his adjusted AWE. The final orders reflect these adjustments, providing a more accurate basis for Mr Mayer's ongoing compensation entitlements.

Orders

Orders of the court

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Background

Background to the litigation

3. Each application raises slightly different issues, albeit on a common theme under the applicable legislation. I acceded to requests by the parties for the applications to be heard concurrently. Nevertheless, it is necessary to deal separately with the specific issues raised by each application.Facts 4. The background facts in each case were set out by the Tribunal in the 2014 decision. For present purposes, it is not necessary to recite all the facts again. 5. The relevant facts in Mr Mayer’s case are:a.(a) he was injured in the course of employment on 22 December 1981;b.(b) at that time –i.(i) his employment was based on 40 hours each week,ii.(ii) he was performing higher duties as a Senior Sergeant, iii.(iii) his substantive position was that of Sergeant, andiv.(iv) he was at the top salary increment for a Sergeant;c.(c) he was medically retired on 3 June 1983;d.(d) in the 2014 decision, the Tribunal determined that 9.22 hours of overtime (3.72 hours at time and a half and 5.5 hours at double time rates) should be included in his average weekly earnings (AWE), pre-injury;e.(e) on 20 June 2014, in a primary determination, Comcare calculated Mr Mayer’s weekly compensation entitlements;f.(f) at Mr Mayer’s request the matter was reconsidered and a reconsideration decision was issued on 22 August 2014, varying the primary determination;g.(g) Mr Mayer applied for review.

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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Division	GENERAL DIVISION
File Number(s)	2014/4432
Re	Dennis Mayer
APPLICANT
And	Comcare
RESPONDENT

File Number(s)	2014/4433
Re	Terence Lowes
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Mr S. Webb, Member
Date	1 December 2015
Place	Canberra