Sinclair-Jones and Comcare

[2004] AATA 546

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 546

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No W2000/243

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL SINCLAIR-JONES

Applicant

And COMCARE

Respondent

DECISION

Tribunal

Associate Professor S D Hotop, Deputy President

Dr D Weerasooriya, Member

Date27 May 2004

PlacePerth

Decision The Tribunal sets aside the reviewable decision of 22 May 2000 and, in substitution therefor, decides that:

(a)the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to pay compensation to the applicant in accordance with s 19 of that Act in respect of an injury to his back suffered by him on 2 February 1996 which resulted in his incapacity for work, and such liability was continuing on and from 16 August 1999, and is presently continuing;

(b)the amount of compensation payable to the applicant as from 16 August 1999, in accordance with s 19 of the SRC Act, is as specified in paragraph 144 of the Tribunal’s reasons herein.

The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the respondent pay the costs of the applicant of these proceedings, such costs, in the absence of agreement between the parties as to the amount thereof, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal in accordance with clause 6 of the Tribunal’s General Practice Direction dated 18 May 1998.

............(sgd S D Hotop).....................

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – applicant employed by National Native Title Tribunal (NNTT) as Community Liaison Officer – applicant suffered back injury in February 1996 – applicant claimed compensation – respondent accepted liability to pay compensation in April 1996 – applicant subsequently commenced graduated return to work programme – applicant resigned from NNTT before completion of programme, with effect from 16 August 1999 – respondent made determination that liability to pay incapacity payments to applicant ceased from 16 August 1999 – respondent made a reviewable decision affirming determination – scope of Tribunal’s review of reviewable decision – Tribunal may consider and determine whether applicant suffered a compensable back injury in February 1996 and whether applicant was ever incapacitated for work thereby – applicant did suffer compensable back injury in February 1996 – applicant’s back injury resulted in ongoing incapacity for work – quantum of compensation payable to applicant by way of incapacity payments – suitable employment – amount per week applicant able to earn in suitable employment – reviewable decision set aside.

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 14(1) and s 19

Lees v Comcare (1999) 29 AAR 350

Martin v Australian Postal Corporation (2000) 32 AAR 199

Power v Comcare (1998) 89 FCR 514

Telstra Corporation Ltd v Warner (1994) 20 AAR 259

REASONS FOR DECISION

27 May 2004 Associate Professor S D Hotop, Deputy President
Dr D Weerasooriya, Member

Introduction

1.       Michael Sinclair-Jones (“the applicant”) has applied to the Tribunal for a review of a “reviewable…