Shanley and Comcare

[2011] AATA 259

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 259

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2009/2771

GENERAL ADMINISTRATIVE DIVISION		)
Re		WENDY SHANLEY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date19 April 2011

PlaceCanberra

Decision The decisions under review are set aside and are remitted to Comcare for calculation.  

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

Professor RM Creyke, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – accepted physical and psychological injuries – whether the applicant failed to seek suitable employment – whether the applicant had the capacity to work 20 hours per week - whether the applicant had an ability earn – where only suitable employment is self employment, ability to earn is to be based on amount actually earned – decision set aside and remitted to Comcare for calculation.

Safety, Compensation and Rehabilitation Act 1988 (Cth) ss 4, 19

Comcare and Davies [2008] FCA 393

Comcare and Woodbridge, Federal Court, 13 February 1996, 84/1996

J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625

Re Warnock and Comcare [2008] AATA 567

REASONS FOR DECISION

19 April 2011

Professor RM Creyke, Senior Member

1.         Ms Wendy Shanley was born on 6 August 1953. She has accepted claims for a ‘lumbar sprain’ sustained on 25 March 1999; a ‘sprain of unspecified site of shoulder and upper arm’ sustained on 7 June 2002; an ‘unspecified acute reaction to stress (unspecified)’ sustained on 9 May 2003, and an ‘adjustment reaction with mixed emotional features (unspecified)’, sustained on 29 September 2003.

2.        The first three conditions occurred during her employment with the Health Insurance Commission (HIC) where she worked between 1998 and July 2003. The fourth claim arose during her employment with the Department of Health and Ageing (Department) where she worked between August 2003 and December 2003. In July 2004, Comcare accepted liability to compensate for the adjustment disorder.

3.        On 7 March 2006 Comcare decided that from 1 November 2005, Ms Shanley was no longer incapacitated for work as a result of the adjustment disorder. That decision was set aside by the Tribunal on 7 August 2008. The Tribunal’s decision was that during that period Ms Shanley had not fully recovered from her work-related injury. The Tribunal did not make findings on whether Ms Shanley had taken steps to find suitable employment, nor what hours she was capable of working.

4.        On 12 September 2008, Ms Shanley’s solicitors requested a reconsideration of all Comcare’s decisions concerning Ms Shanley’s ability to earn in suitable employment. By reviewable decision dated 25 May 2009, Comcare affirmed the decisions made between 8 December 2003 and 12 September 2008 in relation to Ms Shanley’s ability to earn. The decision was made solely on the basis of her adjustment disorder. Ms Shanley received compensation for her physical injuries prior to 12 September 2008 based on a capacity to earn for 20 hours per week and this entitlement was not affected by the reviewable decision. On 19 June 2009,…