Saunders and Comcare (Compensation)

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.