Simcock and Comcare - [2000] AATA 381

DECISION AND REASONS FOR DECISION [2000] AATA 381

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S99/216

GENERAL ADMINISTRATIVE DIVISION       )
           Re      KIM DEAN SIMCOCK
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

Date18 May 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant is to be deemed to be able earn at one half of the level equivalent to that of a full-time Administrative Service Officer Class 1, being $12,451.50 per annum (or $238.69 per week) for the purposes of his incapacity entitlements pursuant to section 19 of the Act. The Tribunal remits the matter to the respondent for calculation of such entitlements in accordance with this decision and recalculation of the redemption payment as appropriate. The Tribunal, pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
COMPENSATION – capacity to work – 'suitable employment' considered – medical evidence – relevant factors in relation to 'suitable employment' considered
Safety Rehabilitation and Compensation Act 1988 ss.4, 19, 30
Woodbridge v Comcare (1994) 20 AAR 196
Re O'Shea and Comcare (1993) 18 AAR 430
Re Montgomery and Comcare AAT 10978, 31 May 1996
Telstra Corporation Ltd v Warner (1994) 20 AAR 259

REASONS FOR DECISION

18 May 2000 Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn, Member

This is an application by Mr Kim Simcock (the applicant) for review of a decision of a delegate of the Department of Defence dated 14 April 1999 (T109) affirming, on reconsideration, decisions of delegates of the Department of Defence dated 19 November 1998 (T99) and 30 November 1998 (T101). The aspect of the decision under review is that which deemed the applicant able to earn at a level equivalent to that of an Administrative Service Officer Class 1 salary which is $24,903 per annum.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T109), together with eight exhibits, five lodged by the applicant (Exhibits A1-A5) and three lodged by the respondent (Exhibits R1-R3). In addition, the Tribunal heard evidence from the applicant who was represented by Mr M. Kernot and the respondent was represented by Mr S. Cole, both of counsel.
The issues before the Tribunal are whether base clerical work equivalent to the Administrative Services Officer Class 1 (ASO1 type work) is "suitable employment"; and if so, whether the applicant should be deemed able to engage in such employment in a full-time capacity.
history of the application
The applicant enlisted in the Australian Army in October 1990 and was medically discharged on 12 July 1992. He has "hammer toes…

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 Simcock and Comcare

Details

AGLC: Simcock and Comcare [2000] AATA 381
Case: [2000] AATA 381
Decision Date: 18 May 2000

CaseChat Overview and Summary

In the case of Simcock v Comcare, the applicant, who was born on 11 March 1970 and had previously worked as a deckhand, was involved in a dispute with Comcare concerning his entitlement to compensation for his incapacity to work due to foot problems. The matter was heard and determined by the Administrative Appeals Tribunal. The central issue before the Tribunal was whether the applicant was capable of undertaking suitable employment, specifically, whether he could work at a rate of one half of the full-time equivalent of an Administrative Service Officer Class 1 (ASO1).

The legal issue for the Tribunal to decide was the interpretation of "suitable employment" under the Safety Rehabilitation and Compensation Act 1988, taking into account the medical evidence and other relevant factors. The Tribunal had to determine whether the applicant's physical limitations and pain, as evidenced, precluded him from performing work at the deemed rate. The applicant argued that he could not work full-time due to severe pain and that he would only be able to work part-time, while Comcare maintained that he could work at the deemed rate.

The Tribunal found that the applicant could earn at a deemed rate of one half of the full-time ASO1 type work, which equates to approximately two and a half days per week. The Tribunal considered the applicant's medical evidence, his work placements, and his testimony about the restrictions and pain he experiences. The Tribunal concluded that, despite the limitations, the applicant could undertake suitable employment at the deemed rate, provided his employer understood that he might need to take time off if his feet were hurting. The Tribunal set aside the original decision and ordered that the applicant be deemed to earn at one half of the full-time ASO1 level for the purposes of his incapacity entitlements. Additionally, the Tribunal ordered Comcare to pay the applicant's costs and remitted the matter back to Comcare for recalculation of the entitlements and redemption payment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

These decisions were affirmed upon review dated 14 April 1999 (T109).applicant's evidence The applicant was born on 11 March 1970, lived in Victoria for most of his childhood, left school in year eight and worked predominantly as a deckhand from 1985 up until his enlistment in October 1990. He has been in a defacto relationship for eight years and has two children aged seven and four years. He has lived at Middleton, 87 kilometres from Adelaide, for the past six years. He described to the Tribunal the problems he has with his feet. He has had various operations which he considers have had little effect. He stated that his feet have got progressively worse. He further stated that the pain from his feet was constant with some days being better than others. He described the restrictions in movement of his toes and the difficulties and pain associated with walking, playing with his children, driving, bending, squatting, kneeling and climbing steps and stairs. He stated that he is cautious about carrying things as a result of various mishaps he has had with items falling on his feet. He told the Tribunal that he cannot walk for any great distance and needs to rest after about 150 metres. He further stated that he tried running a week ago but had to stop after six steps and lie down. He also stated that once he is sitting down he tries to avoid getting up again. He stated that he cannot tolerate any footwear apart from thongs. He has tried the special Army boots, the Veterans' Affairs boots, Ugg boots and socks, but to no effect. He further stated that whilst in a shop he tried on sandals, but these "hurt" him. He conceded, under cross-examination, that he cannot afford to pursue the other footwear suggested by various specialists. He has not tried wearing loose, large socks. He told the Tribunal about the study he has done towards an accounting certificate at Onkaparinga TAFE and the possibility of getting a Diploma in Accounting in the future by some further study. He stated that he has had two work placements during this course and described them in some detail to the Tribunal. Both were part-time and involved basic clerical duties. He also stated that he completed the requisite duties somewhat more slowly than he thought others would, and with some considerable pain by the time he got home at night. The duties involved both sitting at a desk and moving about at various times of the day. He considered that driving from Middleton to Adelaide was a major cause of the pain he felt in his feet. He further stated that he has unsuccessfully applied for over fifty jobs in recent times. He stated that he does not consider that he would be able to work full-time as the pain would be too severe and he would then not be able to assist at home and find it difficult to cope with his wife and family. Under cross-examination he conceded that if he were offered a five day a week job similar to the job placements he undertook, he would jump at the opportunity so long as the employer understood that if he hurt his feet then he could not go to work. In such a scenario, he considered that although it would place a great strain on his home life, it would be an opportunity he could not refuse.

Decision

Reasons for decision

Taking all relevant considerations into account, as detailed in paragraphs 22 to 28 herein, the Tribunal considers and so finds that the applicant is able to earn at a deemed rate of one half of the full-time ASO1 type work, (that being "suitable employment"). In other words, the applicant appears at this stage to be able to work in ASO1 type work for about two and a half days per week on the balance of the evidence. decision For the above reasons and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant is to be deemed to be able earn at one half of the level equivalent to that of a full-time Administrative Service Officer Class 1, being $12,451.50 per annum (or $238.69 per week) for the purposes of his incapacity entitlements pursuant to section 19 of the Act. The Tribunal remits the matter to the respondent for calculation of such entitlements in accordance with this decision and recalculation of the redemption payment as appropriate. The Tribunal, pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties. I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr J.T.B. Linn (Member)Signed: ..................................................................................... Personal AssistantDate/s of Hearing 8 May 2000 Date of Decision 18 May 2000Counsel for the Applicant Mr M. Kernot Solicitor for the Applicant Jeremy Moore & Associates Counsel for the Respondent Mr S. Cole Solicitor for the Respondent AGS

Ratio Decidendi

Legal Principle Established

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