Saunders and Comcare (Compensation) - [2017] AATA 2411

Saunders and Comcare (Compensation) [2017] AATA 2411 (30 November 2017)
Division:GENERAL DIVISION
File Number(s): 2015/0686-7
Re:Damon Saunders
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:M J McGrowdie, Senior Member

Date:30 November 2017
Place:Sydney

The decision under review is set aside and the matter is remitted to Comcare for the determination of the compensation payable to the applicant as from 24 February 2014.......
.......................[sgd]...................................................
M J McGrowdie, Senior Member
CATCHWORDS
Workers Compensation — Reduction by Comcare of normal weekly earnings - calculation of normal weekly earnings - where worker partially incapacitated for work - where change in work role and loss of shift allowance - whether compensation payable for the loss - employer's mobility process – decision set aside and remitted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 8
CASES
Bortolazzo and Another v Comcare (1997) 75 FCA 385
Comcare v Simmons [2014] FCAFC 4
Hobday v Comcare [2016] AATA 504
REASONS FOR DECISION
M J McGrowdie, Senior Member
30 November 2017
INTRODUCTION

The applicant, Damon Saunders, born in 1975 brings these proceedings against the respondent, Comcare, in respect of decisions made in relation to the effects of accepted injuries following events on 15 April 2009, whilst in the employ of the Australian Customs and Border Protection Service (the Service).
BACKGROUND
On 15 April 2009 the applicant injured his back whilst playing sport at work. Earlier, and in 2007, he slipped at work and injured his back. Against the background of earlier injury, Comcare accepted liability for injury sustained on 15 April 2009 as an aggravation of lumbar sprain and aggravation of pelvic sprain. Further, and secondary to this accepted condition, Comcare accepted injury by way of an adjustment reaction with anxious mood sustained on 6 January 2014.
On 16 January 2015 two reviewable decisions were issued by Comcare in respect of the accepted conditions. They were in identical terms, one issued for each of the accepted conditions. Each confirmed the determination made on 1 October 2014, that the applicant's normal weekly earnings (NWE) as at 24 February 2014 and calculated under section 8 of the Safety Rehabilitation and Compensation Act 1988 (the Act), were $1,431.52. Previously they were $1,733.71, the difference representing the loss of a shift allowance. This was because the applicant had been transferred to a non-shift position.
The applicant commenced employment with the Service in early 2000 in a Level 1 position. In 2005 he commenced to do blocks of higher duties in a team leader position at Level 2. Subsequently, the applicant was confirmed at Level 2. In 2006, the applicant was transferred from working at Sydney Airport to a position at Custom's House in a Customer Service Call Centre as a Level 2.
The call centre was known as the Customer Information and Support Centre (the CI and SC) which dealt largely with inquiries from Customs Agents with respect to cargo. The applicant's work involved the applicant in dealing with telephone and email inquiries.
Following his 'back' injuries, the applicant…

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 Saunders and Comcare (Compensation)

Details

AGLC: Saunders and Comcare (Compensation) [2017] AATA 2411
Case: [2017] AATA 2411
Decision Date: 30 November 2017

CaseChat Overview and Summary

The applicant, Damon Saunders, brought proceedings against the respondent, Comcare, concerning decisions made regarding the effects of accepted work injuries sustained in 2009 and 2014. Comcare had reduced Mr. Saunders' normal weekly earnings (NWE) from $1,733.71 to $1,431.52, representing a loss of a shift allowance due to his transfer to a non-shift position. This transfer occurred as part of the employer's mobility program, which aimed to rotate employees between positions.

The primary legal issue before the Senior Member was whether Comcare's calculation of Mr. Saunders' NWE, which excluded the shift allowance, was correct. This required the court to determine if the applicant's workplace injury played a significant role in his transfer to a non-shift position, thereby causing the reduction in his earnings. The court also considered whether the mobility process, which facilitated the transfer, was influenced by the applicant's injury and whether this resulted in him being in a worse financial position due to his accepted conditions.

The Senior Member reasoned that while the mobility program was not explicitly an injury management tool, the applicant's injury had to be taken into account. Evidence suggested that the applicant's physical condition had deteriorated in his previous role, and his mobility restrictions impacted his ability to perform certain aspects of that job. The court found it significantly more likely that if Mr. Saunders had not been injured, he would have had a better chance of securing a transfer to a shift position. The transfer to a non-shift role, which accommodated his injury, resulted in a financial loss. Applying the principle that an injured worker should not be worse off as a result of their injury, the Senior Member concluded that the applicant's NWE should reflect the earnings he would have received had he not been incapacitated.

Consequently, the Senior Member set aside Comcare's decision and remitted the matter for redetermination. The court ordered that the applicant's normal weekly earnings be assessed at $1,733.71 per week, reflecting the inclusion of the shift allowance, from 24 February 2014 onwards.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant, Damon Saunders, born in 1975 brings these proceedings against the respondent, Comcare, in respect of decisions made in relation to the effects of accepted injuries following events on 15 April 2009, whilst in the employ of the Australian Customs and Border Protection Service (the Service).BACKGROUND On 15 April 2009 the applicant injured his back whilst playing sport at work. Earlier, and in 2007, he slipped at work and injured his back. Against the background of earlier injury, Comcare accepted liability for injury sustained on 15 April 2009 as an aggravation of lumbar sprain and aggravation of pelvic sprain. Further, and secondary to this accepted condition, Comcare accepted injury by way of an adjustment reaction with anxious mood sustained on 6 January 2014. On 16 January 2015 two reviewable decisions were issued by Comcare in respect of the accepted conditions. They were in identical terms, one issued for each of the accepted conditions. Each confirmed the determination made on 1 October 2014, that the applicant's normal weekly earnings (NWE) as at 24 February 2014 and calculated under section 8 of the Safety Rehabilitation and Compensation Act 1988 (the Act), were $1,431.52. Previously they were $1,733.71, the difference representing the loss of a shift allowance. This was because the applicant had been transferred to a non-shift position. The applicant commenced employment with the Service in early 2000 in a Level 1 position. In 2005 he commenced to do blocks of higher duties in a team leader position at Level 2. Subsequently, the applicant was confirmed at Level 2. In 2006, the applicant was transferred from working at Sydney Airport to a position at Custom's House in a Customer Service Call Centre as a Level 2. The call centre was known as the Customer Information and Support Centre (the CI and SC) which dealt largely with inquiries from Customs Agents with respect to cargo. The applicant's work involved the applicant in dealing with telephone and email inquiries. Following his 'back' injuries, the applicant found some aspects of the job challenging as his mobility was reduced particularly with regard to prolonged sitting and standing. Although he could move around, a lot of the work had to be done at a computer screen. The applicant was on a graduated return to work program and he was working reduced hours. Nonetheless, the applicant was being paid a shift allowance which was attached to the position. Also, he had some difficulty with parking for work at Customs House as the parking provided was quite some distance away and so the applicant would pay for parking closer to his workplace due to his mobility problems. This is another matter with regard to difficulties experienced by the applicant with the work at Customs House consequent upon the injuries sustained by the applicant. In 2011 the applicant applied to the respondent for a transfer to Sydney Airport as part of the employer's Mobility Program. The employer had in place a mobility program consistent with the policy for Level 1 to Level 5 employees to rotate between positions generally based on tenure. Under the policy there is no minimum or maximum period of tenure that is applied. However, in general, tenure of three years would be regarded as a trigger for mobility. An employee with a period of tenure in a current role of five years is given priority consideration for mobility. The policy was to refresh the workforce as well as to mitigate against the risk of potential corruption or misconduct. An application for mobility transfer could be submitted by an employee or could be agency generated with consultation with the employee as to preferences and the like. An employee application for mobility transfer might not be successful depending on the availability of an alternate position and movements out of any requested position. The position sought by the applicant was in the Operations/Enforcement area which was a shift position.

Evidence

Evidence Before The Court

The respondent argued that the accepted injuries did not influence whether the applicant was placed into a shift or non-shift position as most officers who had the airport as their preference sought shift positions, however, not every position available was a shift position.THE RESPONDENT'S EVIDENCE A number of persons employed by the respondent made statements and gave oral evidence.Celia Medley Celia Medley made a statement dated 8 December 2015. She stated that she was currently the Superintendent of the NSW Compliance Field. From late 2011 to mid-2015 she was the Director of the Customs Information and Support Centre and involved in the administration of the mobility process. In her statement, Ms Medley described the general operation of that process and refers to there being a Committee established to run the process. Ms Medley was on the Committee. Ms Medley indicated that in the February 2014 mobility round the applicant was tagged as a priority for a mobility transfer and noted that the applicant's preference for the airport in Enforcement and Investigation and there was competition for those roles. Ms Medley indicated that a move for the applicant to the airport would provide him greater experience. Ms Medley acknowledges that the applicant, because of his injury, could not perform all of the roles within Customs and that the role would suit the applicant in terms of his restrictions as it was an administrative role. In oral evidence Ms Medley indicated that as the applicant had had a shift position for some time it could have been time to give someone else a go who wanted shifts. She also explained that the process would also have required a person available to go into the applicant's former position. Ms Medley accepted that the applicant would have had a better chance with mobility in terms of greater opportunities if he had not had a disability, and that injury was one factor that had to be considered in assessing eligibility.Dennis Murphy Mr Murphy made a statement dated 8 December 2015 indicating that he was currently an Inspector in Airport Operations at Sydney Airport and the applicant's current manager. He described the job that the applicant is currently doing which appears to me to be quite light. Mr Murphy was also on the mobility committee and noted it was the applicant's preference to be transferred to the airport. Mr Murphy gave oral evidence and also indicated that there was no guarantee that the position the applicant would be transferred to would be a shift position. He was aware that the applicant was on a return-to-work program because of his injury. He wasn't aware that the applicant was having difficulties with his previous job in terms of the applicant's injury and accepted that, so far as an airport job was concerned, it was not ideal that the applicant was on restricted hours. He confirmed that there were 51 people in the mobility list for the relevant round.Timothy Fitzgerald Mr Fitzgerald made a statement dated 24 August 2016, and gave oral evidence.

Decision

Reasons for decision

In these circumstances the applicant should not be worse off because of his injury. CONCLUSION & DECISION In my view the amount per week that the employee would receive if he were not incapacitated for work is $1,733.71, and not $1,431.52. The difference is the shift allowance. Accordingly, the decision under review is set aside and the matter is remitted to Comcare for the determination of the compensation payable to the applicant as from 24 February 2014.

Ratio Decidendi

Legal Principle Established

Attached to the statement of Ms Medley was a spread-sheet of all workers in that round of mobility transfer. That schedule lists all of the persons up for consideration for mobility transfer. Highlighted in red is that the applicant had a current workplace injury. He was the only person with an injury who was being considered.CONSIDERATION It was submitted by the applicant that of all persons transferred to Sydney Airport, the only person transferred from a shift position to a non-shift position was the applicant. This appears to be the case. It is clear from a report dated 4 August 2013 of the applicant's general practitioner that the applicant's physical condition was deteriorating in the position he had prior to the transfer. This was also the applicant's evidence and I accept it. I am also aware that whilst the mobility process was not used as an injury management tool, it is clear that the applicant's injury had to be taken into account. I consider that it is likely to a significant degree that if the applicant was not suffering from an injury then he stood a better chance of getting a job with shifts. The applicant's transfer had to be to a position which accommodated his restrictions. In an email to the applicant from Ms Medley following the 2011 mobility round when the applicant was not successful in obtaining a transfer out of the position he was finding difficult because of his injury, Ms Medley informed the applicant that he had not been successful in the round adding that "... for future moves your workplace injury may have an impact on where you can move to ..." (Applicant's Consolidated Statement dated 20 June 2016). To my mind, it follows that the applicant was prejudiced in transferring to a position which he could physically do and which had shifts. The mobility process was achieved in respect of the applicant and he was found a position which he could physically do but was a non-shift position. As a result the applicant has suffered a financial loss. The scheme of the compensation legislation generally is not to place a worker in a better position or a worse position as a result of injury. It is in my view much more likely to a significant degree that the applicant was transferred to a position without shifts because it was an available transfer to a position which accommodated his injury. It was much more likely that the applicant could and would have secured a transfer to a shift position had he not been injured. Transferring the applicant to a job which he could physically do at the airport was the core factor in the transfer process. Whilst the mobility process allowed for the transfer from a shift position to a non-shift position, it was in the applicant's case, significantly more likely because of his injury because there were far more constraints on the jobs which the applicant could physically do. A number of cases were referred to in submissions. In Hobday v Comcare [2016] AATA 504 DP Constance was dealing with a claim by a worker who was reclassified into a lower paid position as a result of disciplinary action and not related to his psychological injury where the injury played no part in the positions he was given.