Pelgrave and Comcare

Case [2005] AATA 214

Administrative

Appeals

Tribunal
 

DECISION AND REASONS FOR DECISION [2005] AATA 214

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/300

GENERAL ADMINISTRATIVE DIVISION )
Re ANTHONY MARK PELGRAVE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date11 March 2005

PlaceAdelaide

Decision

The Tribunal sets aside the decision under review, and:

(a)      the Tribunal remits the decision to the review officer who made that decision:

·      to determine, in relation to the period from the date when the applicant was last employed in about May 1998 until 30 June 2000, the amount of compensation (if any) which Comcare is liable to pay to the applicant by reference to these reasons for decision, including in particular the finding that the applicant was able to achieve earnings in suitable employment with the Commonwealth during that period, and the finding as to the kinds of employment that constituted suitable employment for the applicant; and

·      to determine, in relation to the period from 1 July 2000 to the date of this decision, the amount of compensation which Comcare is liable to pay to the applicant by reference to these reasons for decision, having regard in particular to the finding that the applicant has been unable to earn any amount in suitable employment during that period;

(b)      the Tribunal determines that Comcare is liable to pay to the applicant the amount of compensation (if any) determined by the review officer in accordance with paragraph (a) of this decision in relation to each of the periods referred to in that paragraph;

(c)       the Tribunal reserves liberty to apply within 14 days in relation to the costs of the proceedings, and orders that in the absence of such an application, the respondent pay the costs of the proceedings; and

(d)      the Tribunal reserves liberty to apply within 14 days in relation to the implementation of this decision.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

COMPENSATION – Australian Airlines employee – incapacity for work – ability of injured employee to earn in suitable employment – determination of what constituted suitable employment – applicant’s former employer ceasing to carry on business – business carried on by new owner of former employer – applicant failed to seek suitable employment for part of relevant period – whether failure to seek suitable employment was reasonable – consideration of other relevant matters – failure by Comcare and Qantas to consider request to assess applicant’s capability of undertaking a rehabilitation program – request for employment or assessment of capability of undertaking a rehabilitation program did not lapse – incorrect assertion by Comcare that suitable employment had previously been offered to applicant – decision under review set aside and remitted to the review officer to determine compensation payable.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 19 and 69(da)

Qantas Sale Act 1992 (Cth), s 27

Re Pelgrave and Comcare,(AAT 8578, 5 March 1993)

Re Pelgrave and Comcare [2002] AATA 301

Pelgrave v Comcare (2002) 36 AAR 1

Re Willis and Australian…

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AGLC
Pelgrave and Comcare [2005] AATA 214
Case
[2005] AATA 214
Decision Date

CaseChat Overview and Summary

Pelgrave, a former employee of Australian Airlines, contested the amount of compensation owed to him by Comcare under the Safety, Rehabilitation and Compensation Act 1988, following a workplace injury. The case, heard by the Administrative Appeals Tribunal, involved determining the extent of Pelgrave's incapacity for work and his capacity to earn in suitable employment. The dispute arose from disagreements about what constituted suitable employment and whether Pelgrave's failure to seek such employment was reasonable. The Tribunal was tasked with interpreting the relevant legislative provisions and applying them to the specific circumstances of Pelgrave's case.

The primary legal issues revolved around the interpretation of the relevant legislation, particularly in relation to the definition of suitable employment and the assessment of the applicant's capacity to earn income in such employment. The court had to consider whether the former employer's cessation of business and subsequent change of ownership affected the definition of suitable employment. Additionally, the court needed to address whether Pelgrave's failure to seek suitable employment for a period was reasonable, taking into account his physical and psychological conditions. The court also examined the failure by Comcare and Qantas to consider Pelgrave's request to assess his capability for a rehabilitation program, and the incorrect assertion by Comcare that suitable employment had previously been offered to Pelgrave.

The Tribunal found that the decision under review was flawed and set it aside. It concluded that Pelgrave was able to achieve earnings in suitable employment with the Commonwealth during a specific period, but was unable to do so in the subsequent period. The Tribunal emphasised the need for a nuanced approach to determining suitable employment, taking into account the applicant's physical and psychological conditions. The court held that Pelgrave's failure to seek employment was not entirely unreasonable given his circumstances. It also noted the procedural errors in the handling of the rehabilitation program request and the incorrect assertion about previous offers of employment. Consequently, the Tribunal remitted the matter back to the review officer for a redetermination of the compensation payable, in accordance with the findings and reasons provided.

The final orders included setting aside the original decision, directing the review officer to redetermine the compensation payable for specified periods, and reserving liberty to apply for costs and implementation of the decision. The Tribunal mandated that Comcare was liable to pay the amount of compensation determined by the review officer, subject to potential cost and implementation applications within 14 days.

Orders

Orders of the court

The Tribunal sets aside the decision under review, and:

(a) the Tribunal remits the decision to the review officer who made that decision:

· to determine, in relation to the period from the date when the applicant was last employed in about May 1998 until 30 June 2000, the amount of compensation (if any) which Comcare is liable to pay to the applicant by reference to these reasons for decision, including in particular the finding that the applicant was able to achieve earnings in suitable employment with the Commonwealth during that period, and the finding as to the kinds of employment that constituted suitable employment for the applicant; and

· to determine, in relation to the period from 1 July 2000 to the date of this decision, the amount of compensation which Comcare is liable to pay to the applicant by reference to these reasons for decision, having regard in particular to the finding that the applicant has been unable to earn any amount in suitable employment during that period;

(b) the Tribunal determines that Comcare is liable to pay to the applicant the amount of compensation (if any) determined by the review officer in accordance with paragraph (a) of this decision in relation to each of the periods referred to in that paragraph;

(c) the Tribunal reserves liberty to apply within 14 days in relation to the costs of the proceedings, and orders that in the absence of such an application, the respondent pay the costs of the proceedings; and

(d) the Tribunal reserves liberty to apply within 14 days in relation to the implementation of this decision.

Background

Background to the litigation

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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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