Solomon Cooper and Comcare - [2013] AATA 305

[2013] AATA 305

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/2770

Re

Solomon Cooper

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
The Hon R J Groom AO, Deputy President

Date 15 May 2013

Place Hobart
Decision Summary
The decision under review is set aside and the matter remitted to the respondent for re-determination in accordance with the following directions :
(a)The earnings the applicant would have received since 30 June 2008 if he had not been incapacitated for work would, during the period 5 November 2008 to 29 May 2009 and perhaps at other times, have included some payment of Higher Duties Allowance.

(b)The amount the applicant would have received in each financial year after 30 June 2008 by way of Higher Duties Allowance is to be calculated for the purpose of section 8 (10) (a) of the Safety Rehabilitation and Compensation Act 1988 in accordance with the methodology set out in paragraph 111 of the Tribunal’s reasons for decision.

........................................................................
Deputy President
CATCHWORDS
Compensation - weekly payments for incapacity - employee continuing in Commonwealth employment - calculation of normal weekly earnings - employee initially receiving higher duties allowance - higher duties allowance deducted from normal weekly earnings – employee, if not incapacitated, would remain at APS3 level and would receive some higher duties allowance - employee to receive average of higher duties allowance paid to other APS3 employees - decision set aside and remitted
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 8(1)(7)(10), 9(1), 14, 19
CASES
Ragg and Military Rehabilitation and Compensation Commission [2012] AATA 18

Comcare v Hart [2004] FCA 1067
John Holland Group Pty Ltd v David Robertson [2010] FCAFC 88
Ladic and the Capital Territory Health Commission [1982] FCA 173
Colebrook and Australian Postal Corporation [1983] AATA 40
Field and Australian Postal Corporation [2003] AATA 1036
Roe and Comcare [2003] AATA 126
Jefferts and Comcare [1996] 24 AAR 10

Blade and Comcare [2001] AAT 291
REASONS FOR DECISION
The Hon R J Groom AO, Deputy President
INTRODUCTION

This is a review of a decision made by Comcare on 3 June 2011. That decision reduced the amount of weekly compensation Mr Cooper had been receiving by removing the Higher Duties Allowance from his compensation payment.
Mr Cooper suffered an injury on the 12 January 2006 in the course of his employment at the Australian Tax Office (“ATO”) in Hobart. Mr Cooper was then a permanent employee of the ATO at APS 3 level. At the time of his injury he had been undertaking work at APS 4 level. As a result he was being paid higher duties at that level. Comcare determined that his normal weekly earnings (“NWE”) and therefore his weekly compensation should include the Higher Duties Allowance.
The Higher Duties Allowance had formed part of Mr Cooper’s assessed NWE until the 30 June 2008. Comcare decided that after that date the allowance should no longer form part of his weekly compensation. Comcare’s reason for that determination was that from that date higher duties had ceased to…

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 Solomon Cooper and Comcare

Details

AGLC: Solomon Cooper and Comcare [2013] AATA 305
Case: [2013] AATA 305
Decision Date

CaseChat Overview and Summary

Solomon Cooper brought an appeal against Comcare before the Administrative Appeals Tribunal (AAT), challenging a decision to cease paying him Higher Duties Allowance as part of his weekly compensation. The central dispute revolves around the cessation of Higher Duties Allowance payments to Mr Cooper from 30 June 2008, and the appropriate methodology for determining the amount of such allowance he should receive in the future. The AAT was tasked with determining the correct approach for calculating Mr Cooper's Higher Duties Allowance post-June 2008, and whether the decision to halt these payments was justified.

The primary legal issues before the AAT were whether Mr Cooper was entitled to continue receiving Higher Duties Allowance, and if so, the appropriate method for calculating such allowance. The Tribunal had to consider the ATO's policy on Higher Duties Allowance, the specific circumstances of Mr Cooper's employment and injury, and the relevant legislative provisions under the Safety, Rehabilitation and Compensation Act 1988. The AAT also needed to address the issue of whether Mr Cooper's work performance justified the cessation of these payments.

The Tribunal concluded that a reasonable approach to determining the amount of Higher Duties Allowance to be paid to Mr Cooper would be to calculate the average amount of such allowance at APS4 level, paid to the end of each financial year to all other APS3 level employees in the ME & I Teams (or their successors) at the ATO in Hobart. This approach mirrors methodologies previously adopted in similar cases. The AAT found that the decision to cease paying Higher Duties Allowance to Mr Cooper was not justified, and the matter was remitted to the respondent for re-determination in accordance with the Tribunal's directions. The AAT also addressed the issue of costs, noting that if no application was made within fourteen days, the respondent would be ordered to pay the applicant's costs of the proceedings as agreed or taxed.

Orders

Orders of the court

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Background

Background to the litigation

It is submitted on behalf of the respondent that Mr Cooper would not have been promoted to APS4 level under the ATO’s merit based system of promotion. The respondent contends that this was not as a result of his injury or incapacity but because of his work performance prior to and since the date of his injury. It is further argued that he could not continue to receive Higher Duties Allowance as that allowance had generally ceased to be paid to employees in Mr Cooper’s section of the ATO in Hobart from the 30 June 2008. The respondent therefore contends that the decision to cease paying the Higher Duties Allowance’s component of Mr Cooper’s weekly compensation was correct and should be affirmed.BACKGROUND FACTS Mr Cooper was initially employed by the ATO on 27 March 2000 as a Call Centre Customer Service Operator at APS3 level. The Hobart Call Centre was closed in late 2000. Mr Cooper was then transferred to the Superannuation Section of the ATO where he performed project work. At that stage he commenced to receive Higher Duties Allowance at the APS4 level. In late 2001 Mr Cooper was transferred to the Personal Tax area. He was then dealing with objections to tax assessments and also some project work. He was then still at APS3 level and was not receiving any Higher Duties Allowance. He was not paid any Higher Duties Allowance during the calendar year 2002. Early in 2003 he started undertaking private rulings and classifying duties and was once again paid a Higher Duties Allowance at APS4 level. Mr Cooper was paid a Higher Duties Allowance for considerable periods from early 2003 until the middle of 2008. Full details of Mr Cooper’s Higher Duties Allowance payments are set out in Mr Cooper’s “Record of Higher Duties” (Exhibit A4). That record shows significant payments of Higher Duties Allowance in the course of 2003, 2004, 2005, 2006 and 2007 calendar years and continuing up until 30 June 2008. In January 2004 Mr Cooper experienced pins and needles in his right hand. He was off work for a period of time and received weekly compensation for “neck strain and thoracic strain”. Mr Cooper returned to work but with significant discomfort because of his work related medical condition. He remained at APS3 level but was receiving Higher Duties Allowance from time to time for the work he was undertaking. Then in early 2006 he again suffered an episode of pain at work. As a result he made a new compensation claim for an injury suffered on the 11 January 2006. In early January 2006 Mr Cooper was off work for some weeks following his injury. After that period he was given a certificate by Dr Salter certifying him fit to work for half a day only but also stating that he was not to do any computer work. When he returned to work Mr Cooper worked a reduced number of hours each working day. Initially it was for four hours each day but when his symptoms became worse this was then reduced to three hours. After 30 June 2008, following the removal of the Higher Duties Allowance from his weekly compensation, he increased his hours to four hours a day. Mr Cooper continued to work for four hours until “early 2011” when he ceased to do any work at all at the ATO in Hobart. He said he then became totally incapacitated because “….they needed to find work (for him) that was not computer work, and there was none there …” (transcript page 35).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

How is the Tribunal to determine the amount of Higher Duties Allowance to be paid to Mr Cooper since the 30 June 2008 and into the future? The Tribunal concludes that a reasonable approach is to calculate the average amount of Higher Duties Allowance at APS4 level, paid to the end of each financial year to all other APS3 level employees in the ME & I Teams (or their successors) at the ATO in Hobart. This approach is similar to the methodology adopted in re Jefferts and Comcare (cited above) and also recognised as appropriate in Blade and Comcare [2001] AATA 291. The Tribunal is not asked to determine a precise quantum (Transcript p.7) and, in any event, it does not have sufficient information to do so.DECISION The decision under review is set aside and the matter remitted to the respondent for re-determination in accordance with the following directions :(h)The earnings the applicant would have received since 30 June 2008 if he had not been incapacitated for work would, during the period 5 November 2008 to 29 May 2009 and perhaps at other times, have included some payment of Higher Duties Allowance.(i)The amount the applicant would have received in each financial year after 30 June 2008 by way of Higher Duties Allowance is to be calculated for the purpose of section 8 (10) (a) of the Safety Rehabilitation and Compensation Act 1988 in accordance with the methodology set out in paragraph 111 of the Tribunal’s reasons for decision.COSTS This decision is one to which section 67 (9) of the Act appears to apply. If that is the case then the applicant is entitled to costs. I will however hear counsel further as to costs if an application is made within fourteen days. If no application is made within that time I will order that the respondent pay the applicant’s costs of these proceedings as agreed or taxed. That order will then be incorporated in this decision.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2770
Re	Solomon Cooper
APPLICANT
And	Comcare
RESPONDENT

Tribunal	The Hon R J Groom AO, Deputy President
Date	15 May 2013
Place	Hobart