POLLARD and Comcare

[2011] AATA 626

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 626

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/5098

GENERAL ADMINISTRATIVE DIVISION		)
Re		LISA POLLARD

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date6 September 2011

PlaceSydney

Decision The Tribunal affirms the decision under review.

.......................[sgd].......................

Ms G Ettinger     
  Senior Member

CATCHWORDS

Compensation – Commonwealth employees – whether calculation of Normal Weekly Earnings is a fair assessment – calculation of normal hours – decision under review affirmed.

Safety Rehabilitation and Compensation Act 1988 ss 8,  9, 19

Gray v Comcare (2004) 139 FCR 41

REASONS FOR DECISION

6 September 2011 Ms G Ettinger, Senior Member     

1.Ms Lisa Pollard, who was a casual employee of the Australian Taxation Officer (ATO) and worked part-time, has an accepted claim by Comcare, for lateral epicondylitis (right), due to an injury sustained at work on 20 April 2010.  She is the Applicant in these proceedings, and comes to the Tribunal disputing the calculations of her Normal Weekly Earnings (NWE) by Comcare, the Respondent.

2.I have decided that the correct or preferable decision is to affirm the decision under review made by Comcare. My reasons follow.

ISSUES BEFORE THE TRIBUNAL

3.The issue I have to decide is whether the calculation of the Applicant’s Normal Weekly Earnings (NWE), based on an average assessment of the total hours worked by her since the commencement of her employment with the ATO from 14 July 2009 up to the date of injury on 20 April 2010, is a fair assessment of her NWE pursuant to sections 8 and 9 of the Safety Rehabilitation and Compensation Act 1988 (the Act). 

4.A further question is whether the Applicant’s Normal Hours (NH) under section 8 of the Act are 13 hours and 27 minutes per week as held by Comcare, or whether they are 17 hours as claimed by Ms Pollard. Further, on what calculation of  NWE Ms Pollard’s entitlement to incapacity payments pursuant to 19 of the Act should be calculated.

BACKGROUND

5.As already stated in the summary above, Ms Pollard is a temporary employee of the ATO, who worked part-time, and whose duties as an Irregular/Intermittent APS1, entailed data entry. Ms Pollard has an accepted claim for compensation for lateral epicondylitis (right) which she sustained on 20 April 2010. Payments are made to the Applicant pursuant to section 19 of the Act.

6.Comcare made various determinations during 2010 based on what it calculated to be the Normal Hours of 12 hours and 17 minutes per week. Ms Pollard appealed the decisions, in particular pointing out in her correspondence that a person in her position as an Irregular/intermittent employee with the ATO, was dependent on the work received during the year. Ms Pollard pointed out to the Respondent and to the Tribunal, that there is a peak, and an off-peak period. She submits that the minimum work day for her was three hours per day or 15 hours per week, whereas in the peak period,…