Michael Simmons and Comcare
[2012] AATA 687
•5 October 2012
[2012] AATA 687
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3034
Re
Michael Simmons
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb
Date 5 October 2012 Place Canberra The decision under review is affirmed.
........................[sgd]........................................
Mr S. Webb
WORKER’S COMPENSATION – accepted shoulder injury – Canberra-based employment in International Deployment Group – normal weekly earnings included Operational Response Group deployment allowance – rehabilitation program – offer of suitable modified duties in the Operational Response Group – offer rejected for personal reasons – transfer to employment in Sydney outside the International Deployment Group – notional earnings would not include deployment allowance – NWE reduced – decision affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 8, 19, 37
John Holland Group Pty Ltd v Robertson [2010] FCAFC 88
REASONS FOR DECISION
Mr S. Webb
5 October 2012
Michael Simmons moved from Sydney to take up his previous employment in the Operational Response Group (ORG) of the Australian Federal Police, based in Canberra. He sustained an injury to his right shoulder in the course of that employment. At the time, he was employed and he was paid an ORG deployment allowance at the operational level. His “normal weekly earnings” (NWE) was calculated on this basis. Mr Simmons obtained medical treatment for his injury in Sydney and he was required to undertake a rehabilitation program. Under the program, Mr Simmons was required to return to work in Canberra, performing restricted duties. He declined to do so and transferred his employment to Sydney. His NWE amount was reduced on the basis that he was no longer entitled to the deployment allowance. Mr Simmons challenged this decision and Comcare’s affirmation on reconsideration.
Two preliminary matters arose at the hearing. Firstly, Mr Simmons asserted that his compensation had been suspended under s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) and that the Tribunal is seized of jurisdiction to review this. His assertion is incorrect. I have seen no evidence that his compensation was suspended under s 37(7). Absent a determination to that effect and a reconsideration decision, the Tribunal does not have jurisdiction to review the purported suspension of Mr Simmons compensation.
Secondly, Comcare asserts that the Tribunal has jurisdiction to review Mr Simmons’ compensation for incapacity under s 19, and the amount he is able to earn in suitable employment, in particular, having regard to the matters set out in s 19(4). Review of the documentary evidence reveals that the s 62 reconsideration decision in this matter squarely addresses Mr Simmons’ assertion that he is entitled to be paid the ORG deployment allowance as part of his NWE and that the decision to reduce the NWE amount on 8 February 2010 was incorrect. Mr Simmons request was specific in terms that were directed to the reduction of his NWE amount under s 8[1].
[1] T130, T137, T140 and T142.
Clearly, the effect of reducing Mr Simmons’ NWE amount under s 8(10) would have a consequential effect on reducing any entitlement to payment of weekly compensation for incapacity calculated by applying the formulae under s 19(2) and (3), or an equivalent amount under s 37(5) during periods in which he was undertaking rehabilitation programs. Furthermore, the person who made the (absent) primary determination to reduce Mr Simmons’ NWE amount, and consequentially the amount of his weekly compensation under s 19 or s 37(5), certainly had the power to address any issue under either of those sections. That power was available to the person who made the reconsideration decision, even though the only issue agitated concerned the reduction in NWE. And it is presently available to the Tribunal, on review.
The specific determination giving effect to the NWE reduction has not been provided by Comcare – determinations of Mr Simmons’ weekly compensation in the period from 14 January 2010 to 13 April 2010 are not in evidence. Even though these were called for at hearing, they were not produced.
I note that Mr Simmons’ NWE amount on 13 January 2010 was $1,909.19[2], whereas his NWE on 19 April 2010 was $1,589.41[3]. It appears that this change occurred on 8 February 2010 when Mr Simmons’ NWE was reduced by the amount of the ORG deployment allowance ($383.39 per week) and the on-call allowance ($12.08 per week), but it was increased by an amount of deployment assistance ($75.69 per week)[4]. No detailed explanation has been given for changes in respect of the on-call allowance and the deployment assistance amount. I am unable to determine whether these changes are correct in the circumstances.
[2] T77 folio 152.
[3] T101 folio 207.
[4] T100 folio 206.
The sharp focus of the proceedings is on the ORG deployment allowance and whether Mr Simmons’ NWE amount is to be reduced by the weekly amount of the ORG deployment allowance as of 8 February 2010.
Comcare says that Mr Simmons NWE should be reduced because he voluntarily transferred his employment to Sydney, effectively removing himself from suitable employment in Canberra which attracted the ORG deployment allowance. In Comcare’s submission, Mr Simmons decided not to return to his duties in Canberra for personal reasons that were not related to his injury. Thus, as the ORG deployment allowance is not payable in respect of Mr Simmons’ employment (outside the ORG) in Sydney, Comcare asserts that his NWE (including the ORG deployment allowance) would exceed the amount of his weekly earnings, absent incapacity, in Sydney-based Commonwealth employment and, subsequently, in his employment by the State of NSW.
Mr Simmons says that there is no sound basis in fact or in law to reduce his NWE by removing the ORG deployment allowance as of 8 February 2010. In his submission, the duties he was offered in Canberra were not suitable duties for him as they exceeded his skills and experience. He says that he needed to remain in Sydney for reasons directly relating to his injury: he needed support and assistance with activities of daily living and it was desirable for him to continue the therapeutic relationship he had developed with his treating surgeon and physiotherapist in Sydney. He says that he wanted to return to his previous employment in the ORG in Canberra, but he was not fit to do so. It was for this reason, as a result of his shoulder injury, that Mr Simmons asserts he sought alternative employment in Sydney. Furthermore, Mr Simmons says that at no time following his injury has he been able to satisfy the national fitness standard attaching to operational ORG employment under the Commonwealth of Australia Australian Federal Police (International Deployment Group) Operational Response Group Domestic Determination No 7 of 2007 (the Determination). For these reasons, Mr Simmons says that it was incorrect to reduce his NWE on 8 February 2010 and the decision under review should be set aside.
I do not agree.
The issue is to be determined under s 8(10) of the Act. The section operates to reduce an injured employee’s NWE (and his or her weekly compensation, therefore) in certain circumstances. The assessment is to be made in relative terms: the employee’s NWE is to be calculated under ss 8(1) to 8(9G) and the amount is to be compared with a notional amount of weekly earnings calculated under s 8(10)(a) or (b). Whether s 8(10)(a) or (b) applies is to be determined in the particular employment circumstances, week by week: s 8(10)(a) applies in circumstances where the employee continues to be employed by the Commonwealth, whereas s 8(10)(b) applies where such employment has ceased.
Under s 8(10)(a), the notional weekly earnings amount is to be assessed on the basis that the employee was not incapacitated by injury. The starting place is the employee’s actual Commonwealth employment –
The enquiry is as to his or her earnings in that employment had he or she not been injured. Such enquiry would involve consideration of how, in those circumstances, the employee would have been employed, including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident.[5].
[5] John Holland Group Pty Ltd v Robertson [2010] FCAFC 88, per Dowsett J at [74].
Under s 8(10)(b), the notional weekly earnings amount is to be assessed on the basis of the greater amount the person would receive if he or she had continued to be employed in the employment being undertaken at the time of the injury, or when the employment ceased. For this purpose it is not necessary to assume that the employee was not incapacitated by injury. The assessment proceeds on the notional continuation of the employment in each week under claim, adjusting actual earnings to reflect changes in circumstances between the employee’s employment at the date of injury, or at the date the employment ceased, and at the date on which the assessment is made – “The purpose of the notional extension is to identify likely earnings in the event that such employment had been so extended”[6].
[6] Ibid. at [75] and [76].
I note Mr Simmons’ oral evidence and his written statement in Exhibit A1.
Weighing the present evidence, the relevant facts are as follows:
(a)On 15 May 2009 Mr Simmons injured his right shoulder while he was undertaking Advanced Warrant Training[7] in the course of his ORG employment as a Federal Agent at the AFP Band 4.2 level[8]. At the time his base salary was $1,148.09 per week and he was paid $648.05 in allowances: Composite Allowance ($252.58); ORG Allowance ($383.39); and On-call Allowance ($12.08)[9].
[7] T4, T5 and T6.
[8] T6 folio 16.
[9] T3 folio 4; T6 folio 21.
(b)In this employment, Mr Simmons was required to be available for immediate deployment overseas on operation duties. Mr Simmons’ shoulder injury rendered him unfit for work for a time. He obtained medical and physiotherapy treatment.
(c)Following the injury, but prior to 25 May 2009, Mr Simmons was reported to be “Fit for Operational Duties” by Jeffery Pross, treating physiotherapist, having apparently undertaken a number of exercise tasks, including 30 push-ups[10]. Mr Simmons denies that he completed 30 push-ups at this time. Mr Simmons’ fitness, or otherwise, for his usual ORG duties at this time is not clear – four contemporaneous medical certificates shed no light on this point[11]. But little turns on this. Dr Masters, a treating general practitioner in Canberra reported that Mr Simmons’ shoulder condition was “Improving, but still aches at night. If swims or rows in gym gets pain”[12]. On 9 July 2009, Dr Burrow, treating surgeon, reported a torn ligament and recommended arthroscopic investigation[13]. This diagnosis was confirmed by Dr Pitsis, a sports physician[14]. On 30 July 2009, Mr Simmons went to surgery with Dr Burrow[15].
[10] T7 folio 23.
[11] T8, T9, T10 and T12.
[12] T14.
[13] T15.
[14] T17.
[15] T19.
(d)On 13 August 2009, Beth Hogan, AFP case manager, determined under s 36 to refer Mr Simmons for rehabilitation assessment[16]. The assessment was carried out on 19 August 2009[17]. On 25 August 2009, Monica Ahluwalia, a rehabilitation consultant, reported that a return to work plan had been devised under which, from 31 August 2009, Mr Simmons was to resume suitable duties in the AFP’s Sydney premises, working 3 days per week for 4 hours per day[18]. It appears that Mr Simmons was subject to medical restrictions, including no lifting with his right arm.
[16] T23.
[17] T25.
[18] T26
(e)On 27 October 2009 Dr Burrows reported that Mr Simmons was “fit for office or light duties with a 5kg lifting restriction, no use of the [right] arm at chest height or above” and observed that Mr Simmons:
should attend physiotherapy once weekly, he has an established relationship with a Sydney physiotherapist and if possible this should be maintained because he trusts the physiotherapist. If on the other hand his work requires him to go to Canberra, then perhaps four days in Canberra and one day in Sydney would meet both your and his requirements.
The Doctor stated that:
In regards to driving to Canberra, I would be happy for him to drive for 50 minutes then have a 10-minute break, massaging and stretching the arm so that he can continue driving. In three months he may be able to return to near normal policing duties but I would recommend he seriously consider permanently modified duties avoiding contact or violent situations as these could disrupt the surgical repair we have managed to achieve[19].
[19] T36 folio 73.
(f)On 4 November 2009 Mr Simmons attended a return to work meeting with Ms Ahluwalia, Ms Hogan and Rod Kruger (Superintendent, International Deployment Group, AFP). At the time he was working in the AFP’s Sydney office performing desk-based administrative duties[20] and the level of his medical restrictions continued, unchanged[21]. It appears that Mr Simmons was informed that he should return to Canberra from Sydney to undertake suitable duties in an ORG Tactical Intelligence work team from 16 November 2009, but he expressed some reservations about doing so[22]. Ms Ahluwalia’s circulated notes of the meeting suggest that Mr Simmons “advised that he was keen to stay in Sydney due to moving to Newport in September 2009 and also due to his daughter being in Sydney” and “advised that he was thinking of terminating his employment”. Mr Simmons did not resile from this in his oral evidence, but suggested that the underlying reason related to his injury.
[20] T43 folio 81.
[21] T45 folio 85, for example.
[22] T42 folio 79.
(g)On 6 and 13 November 2009 return to work plans were prepared for Mr Simmons, setting out duties he would perform in Canberra[23]. On 17 November 2009, Ms Hogan determined to amend the “original” return to work plan that was purportedly dated 20 August 2009[24]. There is no such return to work plan in the documents before me. The initial return to work plan appears to be that recommended by Ms Ahluwalia on 25 August 2009, but there is no present evidence this was properly determined as a rehabilitation plan under s 37.
[23] T45 and T48.
[24] T49.
(h)Nevertheless, the rehabilitation program Ms Hogan determined on 17 November 2009 apparently “Extended services due to RTW goal requiring more time for completion”[25]; the end date of the plan was 12 February 2010. By implication, at least, this determination extended the arrangement for Mr Simmons to undertake rehabilitation, including performing suitable duties, in the AFP’s Sydney premises.
[25] Ibid. folio 99.
(i)I note that on 9 November 2009, Mr Kruger appears to have offered Mr Simmons “a more active position” in the Canberra-based Tactical Intelligence Unit of ORG[26]. On 10 November 2009 Mr Simmons responded and asked for further consideration of matters concerning his rehabilitation in Sydney, the difficulties of travelling between Sydney and Canberra, and his level of fitness[27]. In this communication, Mr Simmons made no reference to any issues relating to his family or his residence in Newport. Even so, it is quite clear to me that Mr Simmons did not want to return to take up duties in Canberra at this time. On 11 November 2009 Mr Kruger authorised Mr Simmons to continue with his duties in Sydney pending an independent assessment[28].
[26] T47 folio 94.
[27] T47 folio 93.
[28] T47 folios 92 and 93.
(j)On 1 December 2009, Dr English, a consultant orthopaedic surgeon, provided a report to Ms Hogan[29], in which he said –
[29] T52
… I regard Mr Simmons as fit for the current alternative duties and also fit for general policing duties. I would regard him as unfit in the long term to return to the ORG.
…
Completion of physiotherapy and ongoing review by Dr Greg Burrow is likely to be required for approximately nine months post operatively. Physiotherapy approximately once or twice per week is currently appropriate.[30]
[30] Ibid. folio 109.
(k)On 8 December 2009 a further return to work plan was made, extending Mr Simmons’ Sydney-based duties to 23 December 2009[31]. There is no evidence before me that this plan was determined as a rehabilitation plan under s 37. I note that the earlier rehabilitation plan determined by Ms Hogan remained current until 12 February 2010.
[31] T57.
(l)On 17 December 2009 Mr Simmons was informed that –
… the Operational Response Group (ORG) have a suitable position to offer you which is in line with your current skills and medical restrictions.
As you are fit to return to full time modified duties, we are able to accommodate you in the position of ORG Project Officer, based at Hangar 47 Canberra. This position will commence on 11 January 2009, and the hours will be up to 40 hours per week, depending on your medical clearance.
Your Team Leader will be Federal Agent Rod Kruger. When you commence the position, discussions will be had around your career direction, and ORG will support any learning and development needs.[32]
[32] T63 folio 126.
(m)It appears that on 17 December 2009 Ms Hogan made a determination under s 37(1) in respect of a rehabilitation program for Mr Simmons. While the reasons for her determination appear at T64, the determination itself is not presently in evidence. For this reason, I am unable to assess how this purported determination interacts with Ms Hogan’s earlier determination under s 37 on 17 November 2009. Nonetheless, the thrust of Ms Hogan’s 17 December determination is clear enough – “ORG are unable to continue to provide duties for Mr Simmons on the Sydney office, and would like for him to return to the Canberra office”[33].
[33] T64 folio 129.
(n)On 24 December 2009, Mr Simmons was provided with additional information about the duties of the Project Officer position previously offered to him[34]. The duties are described in general terms. Mr Simmons says that the duties are outside his skills and experience and he was not able to access detailed information concerning the specific duties that would be involved. There is no evidence that he pursued his inquiry or that he raised any concerns about the duties with Ms Hogan or Mr Kruger, however.
[34] T67.
(o)On 29 December 2009, a further return to work plan was prepared for Mr Simmons in which it is stated that the goal is “For Mr Simmons to return to work in a permanently modified role within the AFP. Such a role is yet to be identified”[35]. Why this would be so, when Mr Kruger had offered Mr Simmons employment in an identified position is not clear. Nonetheless, the plan proceeded in two stages. The first stage covered the period from 4 to 10 January 2010, with Mr Simmons continuing duties in Sydney. The second stage covered the period from 11 to 29 January 2010, with Mr Simmons performing Project Officer duties in Canberra.
[35] T69 folio 139.
(p)On 5 January 2010, Mr Simmons notified Ms de Smet that he had an appointment with Dr Burrow on 12 January 2010, on completion of the post-operative rehabilitation program[36]. Mr Simmons stated that –
[36] T70.
My intention is to apply for a release from the ORG and transfer to Sydney in a more suitable and career beneficial role. I feel that by returning to such a ‘niche’ unit, such as the ORG with a permanent impairment will greatly limit my opportunity for advancement, diversifying and education.
(q)On 12 January 2010, Dr Burrow reported that Mr Simmons “will be permanently unfit for work with the ORG, but is fit to return to general duties policing, and is fit to trial the Use Of Force Course”[37].
[37] T71; T74 refers.
(r)On 13 January 2010 Ms Hogan informed Mr Simmons that he must immediately commence his rehabilitation plan or provide reasons for not doing so[38].
[38] T73 folio 145.
(s)Mr Simmons took leave from 14 to 22 January 2010. It is not clear whether or not this leave was formally approved[39].
[39] See T75 and T76.
(t)On 27 January 2010 Mr Simmons’ NWE was assessed to be $1,909.19 for the period 26 November 2009 to 13 January 2010[40].
[40] T77.
(u)It appears that Mr Simmons passed the Use of Force training on 28 January 2010, and approval was sought for him to be released “from ORG to a position in CT [Counter Terrorism] Sydney as an operational member (PMSC of 21.12.10 identified vacant position in CT…)”[41]. Ms Hogan maintained that the transfer was not for medical reasons, as a suitable position had been offered to Mr Simmons in ORG, but this had been declined.
[41] T79 folio 156.
(v)On 2 February 2010, Mr Simmons requested continuing payment of the ORG Allowance and an incremental increase in remuneration to the Band 5.2 level[42].
[42] T84 folio 175.
(w)On 4 February 2010 Ms Hogan determined to amend and extend Mr Simmons’ rehabilitation plan, in order for “a workplace assessment of Mr Simmons [sic] new permanently modified duties role on 16 February 2010”[43].
[43] T80 folio 158.
(x)On 8 February 2010, Mr Simmons was granted a transfer to take up permanently modified duties in the Counter Terrorism Unit, based in Sydney[44]. On this day, Ms Hogan informed Mr Simmons that “the ORG domestic allowance will cease effective from 8 February 2010” as “Your decision to transfer to the Sydney Office was based on your career goals and personal circumstances, not you [sic] injury and your ability to undertake the role you were offered”[45]. It appears that Mr Simmons’ NWE reduced from $1,909.19 to $1,589.41 as a result[46].
[44] T81 refers.
[45] T84 folio 175.
[46] T100 folio 206.
(y)On 10 March 2010, Ms Hogan completed a Return to Work Plan – Closure report, commenting that “Injured member chose to seek alternate duties in another area due to personal circumstances”[47].
[47] T89; T88 refers.
(z)It appears that on 18 April 2010, Mr Simmons re-injured his right shoulder and was rendered unfit for work, requiring further surgery[48].
[48] See T94, T95, T96, T97 and T98.
(aa)In August 2011 Mr Simmons transferred to employment in the NSW Police Service.
Having heard evidence from Mr Simmons and Ms Hogan, and weighing the contemporaneous materials, I am reasonably satisfied that Mr Simmons chose to transfer his employment from Canberra to Sydney for personal reasons relating to changes in his personal circumstances, his (then) new residence in Newport and closer proximity to his daughter. The contemporaneous evidence does not support Mr Simmons’ present assertions concerning the injury-related reasons for seeking transfer to Sydney, although these cannot be ruled out entirely. The contemporaneous documents provide some support for Mr Simmons’ assertion that he repeatedly raised issues relating to his rehabilitation and treatment in Sydney at the time.
It can be accepted that Mr Simmons derived benefit from maintaining the therapeutic relationship with his treating surgeons and physiotherapist in Sydney. But this did not prevent him from resuming suitable duties in Canberra. The post-operative rehabilitation program was completed in January 2010 and Mr Simmons’ requirement for ongoing contact with Dr Burrows and Mr Pross reduced at that time. Furthermore, the evidence establishes that Ms Hogan and Mr Kruger were willing to entertain suitable arrangements to assist Mr Simmons obtain treatment that he required in the context of his resumption of suitable duties in employment. In October 2009, Dr Burrows confirmed that Mr Simmons would be able to drive between Sydney and Canberra, taking appropriate breaks, in order to obtain any further medical treatment.
It may also be accepted that at various times Mr Simmons required assistance and support from his partner, family members and others in respect of self-care and domestic duties. But the evidence does not establish that he had any significant requirement in this regard in January or February 2010. Mr Simmons’ assertion that he required support of this kind does not sit easily or well with his ability to pass the Use of Force training on 27 and 28 January 2010, albeit somewhat modified. I struggle to accept the proposition that a person who could satisfactorily meet the physical performance requirements of that testing would require assistance with self-care or domestic duties to any significant or substantial degree.
I am reasonably satisfied that the Project Officer position Mr Simmons was offered in ORG in Canberra was suitable employment in the context of a rehabilitation program in which his employer expressly offered to provide him with development support. The proposition that the Project Officer position may have been outside his (then) skills and experience does not render it unsuitable in this context. The evidence clearly establishes that the position was one within a team operating in the ORG of the International Deployment Group, where Mr Simmons was employed prior to and at the time of his injury. It appears to me that Mr Simmons’ previous experience and training in ORG operational activities would have been of some relevance to the Project Officer role he was offered in the Tactical Intelligence Unit, even though he may have required further training in the context of a rehabilitation program.
The assertion that the ORG was a “niche” unit that would not suit Mr Simmons’ career objectives in light of his injury is not consistent with his later efforts to join the Canine Handling Unit. Even though Mr Simmons failed in those efforts for injury-related reasons, his motivation to join another “niche” unit can clearly be seen.
The fact that Mr Simmons was rendered permanently unfit to return to his pre-injury operational duties in the ORG stands beside the point concerning his NWE and his notional earnings. The balance of the evidence establishes that the ORG deployment allowance was available to him in the Project Officer role he was offered by Mr Kruger. Mr Simmons’ assertion that he could not meet the fitness requirements attaching to his previous duties can be accepted, but it does not follow that he would not have been sufficiently fit to be available for immediate deployment on completion of the rehabilitation program. The program was scheduled to be completed on 12 February 2010, but I note that ORG had previously offered to “support any learning and development needs” in respect of the Project Officer position[49] and this may have necessitated an extension of the program, as had occurred previously. Mr Simmons satisfactorily completed the Use of Force training on 27 and 28 January 2010, albeit with some minor modifications, suggesting that at this time he had achieved a satisfactory level of fitness. Ms Hogan’s evidence clearly establishes that ORG members who had been injured were deployed overseas in various roles. Even though she did not have the specific details of the level of fitness and medical treatment requirements of other ORG members carrying injuries while deployed overseas, and it is not possible to determine how the examples she cited compared with Mr Simmons’ case, the proposition that Mr Simmons would not have been available for immediate deployment overseas on completion of his rehabilitation plan is not established.
[49] T63 folio 126.
Ms Hogan’s evidence establishes that the ORG deployment allowance was paid to ORG members who had been injured. On her evidence the position of Project Officer in the Tactical Intelligence Unit that was offered to Mr Simmons was an operational position and, subject to Mr Simmons availability for deployment, I can see no reason on the present evidence why he would be denied payment of the allowance had he taken up that employment. Clause 7.4c of the Determination provides discretion to vary the fitness standard at any time without adversely affecting the payment of the deployment allowance to an ORG operational employee. Mr Simmons assertion concerning guidelines governing exercise of the discretion is not supported by evidence, and no guidelines were adduced.
As I have said, the dispute concerning the cessation of the ORG deployment allowance as part of Mr Simmons’ NWE must be determined under s 8(10).
Starting with Mr Simmons’ present actual employment in the NSW Police Service, it is clear that s 8(10)(b) applies as he ceased Commonwealth employment in or about August 2011. Thus, it is necessary to consider the notional amount Mr Simmons would have earned each week if his pre-injury employment had continued, or if his Commonwealth employment had continued. In both cases it is necessary to have regard to the terms of Mr Simmons previous ORG employment[50]. This requires consideration of the Determination. Under this instrument, the ORG deployment allowance is not payable if the terms of clause 9.5 are met. When Mr Simmons removed himself from the ORG, the terms of clause 9.5 were satisfied and the ORG deployment allowance was not payable. It appears that Mr Simmons transferred to Sydney employment with the AFP at level, and when he transferred into the NSW Police Service, this was also at level.
[50] John Holland Group Pty Ltd v Robertson [2010] FCAFC 88, per Dowsett J at [76].
I am reasonably satisfied that the NWE amount prior to 8 February 2010 was correctly calculated to include the ORG deployment allowance component, being a total amount of $1,909.19 per week.
The ORG deployment allowance is only payable to ORG members who are available for immediate deployment overseas[51]. The allowance is not payable to members of the Counter Terrorism Unit in Sydney.
[51] Exhibit R1, Attachment A, clauses 7.4 and 9.5.
It follows that when Mr Simmons transferred to the Counter Terrorism Unit in Sydney on 8 February 2010, the notional amount that he would earn each week thereafter would not include the ORG deployment allowance by application of clause 9.5 of the Determination. For this reason, his NWE amount is correctly reduced to exclude the ORG deployment allowance component on and from that date.
Subsequent events, week by week, in the period from 8 February 2010 to the present, including Mr Simmons’ subsequent experiences of re-injury and his transfer into employment in the NSW Police Service, do not compel a different conclusion. Once Mr Simmons transferred out of his previous ORG employment for personal reasons, he was no longer entitled to payment of the ORG deployment allowance.
Thus, the amount that Mr Simmons would have earned if his pre-injury employment had continued, or if his Commonwealth employment had continued is the same – the notional amount of Mr Simmons’ earnings under s 8(10)(b)(i) or (ii), would be the weekly amount he would have earned at the level of his employment as a sworn Federal Agent in the Australian Federal Police. Under s 8(10)(b)(i), if Mr Simmons’ pre-injury employment as a Federal Agent in the ORG had continued, his weekly earnings would have reduced by the amount of the ORG deployment allowance when he left ORG on 8 February 2010 to take up Australian Federal Police duties in Sydney at the same substantive level, subject to incremental and other salary changes from time to time. It is the continuation of that employment, as a Federal Agent in Sydney, that must be considered under s 8(10)(b)(ii), and no different result would be obtained.
If one was to apply s 8(10)(a) to the weeks when Mr Simmons was in Commonwealth employment following his injury, no different result is obtained. Absent incapacity, Mr Simmons would not have earned the ORG deployment allowance on or after 8 February 2010, when he transferred to the Counter Terrorism Unit in Sydney. Thereafter, in each of those weeks, he would not have earned that allowance.
It follows that Mr Simmons’ NWE amount is properly reduced by the amount of the ORG deployment allowance on and from 8 February 2010, and the decision under review must be affirmed.
It is not necessary to proceed further to address other issues agitated by the parties in respect of s 19 of the Act.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member. ..........................[sgd]......................................
Associate
Dated 5 October 2012
Date(s) of hearing 27 September 2012 Counsel for the Applicant Mr Halligan Solicitors for the Applicant Pappas J Attorney Counsel for the Respondent Mr Woulfe Solicitors for the Respondent Australian Government Solicitor