Michael Simmons and Comcare

[2012] AATA 687

[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

1. 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.

2. 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.

3. 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.

4. Clearly, the effect of reducing Mr Simmons’ NWE amount under s 8(10) would have a consequential effect on reducing any entitlement…