Palmer and Comcare (Compensation) - [2021] AATA 1435

Palmer and Comcare (Compensation) [2021] AATA 1435 (11 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/5308
Re:Steven Palmer

APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:11 May 2021
Date of written reasons: 24 May 2021
Place:Sydney

I affirm the decision under review.
....................................[sgd]....................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
COMPENSATION – Dispute concerning calculation of Normal Weekly Earnings (NWE) –whether Applicant’s NWE is to be calculated based on pre-injury earnings or whether subsequent increase in earnings and hours should be taken into account – whether Applicant’s transfer to another work location with higher pay was a “promotion” for the purposes of s 8(7) of the SRC Act – Reviewable decision affirmed
LEGISLATION
Safety, Rehabiliation and Compensation Act 1988 (Cth) ss 5A, 8, 9, 19
CASES
Bortolazzo v Comcare [1997] FCA 515; (1997) 75 FCR 385
Brady and Comcare [2013] AATA 559
McDonald and Department of Defence [1999] FCA 882
West and Comcare [1999] AATA 159
Willis and Comcare [2014] AATA 603
SECONDARY MATERIALS
Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2013 – 2017
WRITTEN REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
24 May 2021
BACKGROUND

The Applicant was employed by Airservices Australia as a Lead Aviation Firefighter until 1 November 2018. He was employed under the terms of Air Services Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2013-2017 (the Agreement). He has an accepted claim for ‘major depressive disorder’, the injury being sustained on 19 October 2016 while working at Coffs Harbour Airport.
Comcare was required to determine the Applicant’s normal weekly earnings (NWE) for the purpose of calculating compensation under section 90 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). A determination was made on 28 April 2020 and affirmed by an independent review officer (IRO) on 3 August 2020 (the reviewable decision).
The Applicant has asked the Tribunal to review the decision of the IRO.
The hearing was conducted by Microsoft Teams videoconference and the Applicant was the only witness before the Tribunal. The Applicant was self-represented.
The reviewable decision of 3 August 2020 was based on the footing that the Applicant’s NWE was not to be adjusted by reference to an increase in earnings resulting from his transfer from Coffs Harbour to Brisbane Airport, which occurred on 31 January 2017.
In his role at Brisbane Airport he worked longer hours (42 hours) and four hours overtime. He also received a 4% loading because Brisbane was a category 10 airport. He argued that he should receive an adjusted NWE for the period 1 August 2017 to 14 February 2018.
Air Services Australia stated that he held the same position as lead Aviation Fire Fighter at both stations. The Applicant did not dispute that this was so.
He said that he was under duress to put in for a transfer as a result of a breakdown in his relationship with his supervisor.
The Applicant put two arguments the…

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 Palmer and Comcare (Compensation)

Details

AGLC: Palmer and Comcare (Compensation) [2021] AATA 1435
Case: [2021] AATA 1435
Decision Date: 11 May 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between Mr Palmer and Comcare concerning the calculation of Mr Palmer's Normal Weekly Earnings (NWE) for the purposes of workers' compensation. The core of the disagreement lay in whether Mr Palmer's NWE should be determined by his pre-injury earnings or if a subsequent increase in his earnings and working hours should be taken into account. A further question arose as to whether Mr Palmer's transfer to a different work location, which resulted in higher pay, constituted a "promotion" under section 8(7) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

The Tribunal was required to determine the correct method for calculating Mr Palmer's NWE. Specifically, it had to decide whether the statutory provisions mandated the use of pre-injury earnings exclusively, or if subsequent changes in employment circumstances, such as increased hours and pay, were to be incorporated. The Tribunal also had to interpret the meaning of "promotion" within the context of section 8(7) of the *SRC Act* and assess whether Mr Palmer's relocation and pay increase met this definition.

In its reasoning, the Tribunal affirmed the reviewable decision. It applied the principles of the *SRC Act* regarding the calculation of NWE, which generally focuses on earnings at the time of injury. The Tribunal found that the subsequent increase in Mr Palmer's earnings and hours, and his transfer to a new work location with higher pay, did not qualify as a "promotion" for the purposes of section 8(7) of the *SRC Act*. Consequently, the Tribunal concluded that Mr Palmer's NWE should be calculated based on his pre-injury earnings.

Orders