Mikajlo and Comcare (Compensation) [2016] AATA 157 (18 March 2016)
Division
GENERAL DIVISION
File Numbers
2012/5843
2013/4611
Re
George Mikajlo
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 18 March 2016 Place Adelaide 1. In application 2012/5843, the decision under review is affirmed.
2. In application 2013/4611, the decision under review is affirmed.
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Deputy President K Bean
CATCHWORDS
COMPENSATION – Commonwealth employees – Applicant injured in full-time employment – Whether applicant's part-time Army Reserve earnings should be included in the calculation of his normal weekly earnings – Whether applicant's compensation entitlements should be offset against award of damages at common law – Whether Tribunal has jurisdiction to consider entitlement to compensation for medical expenses – No claim for medical treatment made by applicant – Decisions under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 8, 48, 124
Compensation (Commonwealth Employees) Act 1971, ss 25(3), 99
CASES
Re Breust and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 267; (1990) 12 AAR 563
FVNH and Comcare [2013] AATA 832Re Peake and Commonwealth (Defence) [1984] AATA 42
REASONS FOR DECISION
Deputy President K Bean
18 March 2016
The applicant, Mr Mikajlo, was a full-time employee of the Department of Social Security when he was involved in a motor vehicle accident on 29 July 1981. At that time, he was also employed by the Army Reserve on a part-time basis. On 10 December 1981, compensation liability was accepted in respect of a soft tissue injury to Mr Mikajlo’s right shoulder and neck which he sustained in the accident (the 1981 injury).[1]
[1] Exhibit 3, T3/73.
On 16 July 2007, Mr Mikajlo suffered another injury in the course of his then full-time employment with the Department of Defence. As with the earlier injury, he was at that time also employed on a part-time basis, this time by the Australian Army Cadets. Compensation liability was subsequently accepted by Comcare for the injury, described as “aggravation of disorders of bursae and tendons shoulder region (left) and aggravation of sprain of shoulder and upper arm (right)” (the 2007 injury).
In calculating Mr Mikajlo’s normal weekly earnings (NWE) in the context of each injury for the purpose of determining his compensation entitlements, Comcare did not take into account Mr Mikajlo’s part-time earnings from either the Army Reserve or the Australian Army Cadets. At the time of lodging his applications for review, Mr Mikajlo contended that those earnings should have been taken into account, and it is primarily that issue which has given rise to the two applications.
Before addressing the issues arising from the applications more directly, I will first set out the background to each application in more detail.
Application 2012/5843
On 3 December 2008, a Comcare delegate determined, in the context of the 2007 injury, that Mr Mikajlo’s NWE were to be calculated on the…
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- AGLC
- Mikajlo and Comcare (Compensation) [2016] AATA 157
- Case
- [2016] AATA 157
- Decision Date
CaseChat Overview and Summary
The Tribunal reviewed the Full Court's decision in Breust, which is binding on it, and found that it is not retrospective and should be applied consistently with the currently applicable authorities. The Tribunal also noted that the amendments to section 8 since Breust was decided do not affect the analysis of the effect of the relevant subsections. The Tribunal concluded that Mikajlo's part-time earnings from the Army Reserve should not be taken into account in calculating his normal weekly earnings in respect of his 1981 injury, and that these were correctly excluded by the reconsideration delegate. Furthermore, the Tribunal found that there was insufficient evidence to determine whether Mikajlo's compensation entitlements should be offset against his award of damages at common law.
The Tribunal ultimately affirmed the decisions under review in both applications, finding that Mikajlo's part-time earnings from the Army Reserve should not be included in the calculation of his normal weekly earnings and that there was insufficient evidence to determine whether his compensation entitlements should be offset against his award of damages at common law. The Tribunal also found that it did not have the jurisdiction to consider Mikajlo's entitlement to compensation for medical expenses as no claim for medical treatment had been made. The final orders were that the decisions under review were affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Mr Mikajlo contended that Breust was decided after the original determination accepting liability for his 1981 injury, and therefore should not be applied ‘retrospectively’ in his case. He said:When the determination in my favour was made, it was my understanding that I was being paid for lost [Army Reserve] pay ......It is conceded that subsequent to that determination there have been cases where it was determined that Reserve pay should not be paid over and above APS pay. However my case preceded those determinations ...[10]Mr Mikajlo also referred to an earlier decision of the Tribunal in Re Peake and Commonwealth (Defence) [1984] AATA 42, in which the applicant’s part-time earnings as a member of the (then) Citizen Military Forces (CMF) were included in his NWE. However, it is significant that in that case, the applicant was injured whilst engaged in a training exercise in the CMF, and the Tribunal in fact applied subs 25(3) of the 1971 Act consistently with the later decision of the Full Federal Court (albeit in the context of the equivalent provision, subs 8(3)) in Breust.[10] Exhibit 4. Consideration The Full Court’s decision in Breust, which has not been overruled or distinguished, is binding on this Tribunal. It is also relevant to note that the amendments to s 8 since that case was decided do not affect the Court’s analysis of the effect of the relevant subsections.[11] As I explained to Mr Mikajlo at the hearing, it is immaterial in this context that the decision in Breust was handed down after the original determination accepting liability for his claim in 1981. The law can be clarified at any time, and the Tribunal is obliged to apply the relevant statutory provisions consistently with the currently applicable authorities, including the Full Court’s decision in Breust. [11] See also FVNH and Comcare [2013] AATA 832. Accordingly, I am satisfied that Mr Mikajlo’s part-time earnings from the Army Reserve should not be taken into account in calculating his NWE in respect of the 1981 injury, and these were correctly excluded by the reconsideration delegate.SHOULD MR MIKAJLO’S COMPENSATION ENTITLEMENTS BE OFFSET AGAINST HIS AWARD OF DAMAGES AT COMMON LAW?Evidence and Contentions As I understand it, Mr Mikajlo contends that the damages he was awarded at common law were, at least in part, for his Army Reserve pay, and that it is inappropriate for the Commonwealth to ‘claim that money back’ by offsetting his workers’ compensation entitlements against his common law damages.[12] [12] See also Exhibit 7. In the course of my consideration of this issue, it became apparent that the materials before me relating to the relevant common law damages payment and what it related to did not paint a clear picture. That material includes:·a document in the nature of a Statement of Claim in matter F2820/1984 filed in the Local Court of Adelaide relating to a motor vehicle accident on 2 March 1983,[13] ·an “Interlocutory Summons” indicating that that matter, together with another action (F916 of 1984) were listed to be heard together on 24 July 1985,[14]·a letter from Mr Mikajlo’s then solicitors, Mollison Litchfield, to the Australian Government Solicitor (AGS), dated 17 September 1985,[15] in which Mollison Litchfield advised the AGS that on 24 July 1985, Mr Mikajlo’s “claim for damages” had “settled” for the amount of $40,000, inclusive of interest but exclusive of costs; and·a letter dated 3 January 2003 written at Mr Mikajlo’s request by Mr Gaezner, solicitor, who apparently acted for him in relation to what Mr Gaezner describes as the “1981 MVA Claim Settlement”.[16] In this letter, Mr Gaezner confirms acting for Mr Mikajlo in his claim arising from a motor vehicle accident on 29 July 1981, which he says settled before trial. He also confirms that the settlement related at least in part to loss of Army Reserve earnings. [13] Exhibit 2, ST5/9.[14] Exhibit 2, ST5/7.[15] Exhibit 2, ST6/12.[16] Exhibit 2, ST10/19.