SPAUL and COMCARE - [2011] AATA 435

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 435
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4952

GENERAL ADMINISTRATIVE DIVISION )

Re FRANK ROBERT SPAUL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member
Date23 June 2011
PlaceMelbourne

Decision
The Tribunal sets aside the reviewable decision of 3 November 2010 and          substitutes the following decision:

(1)      Mr Spaul sustained an injury described as adjustment disorder with mixed anxiety and depressed mood on 7 September 2004 which resulted in total incapacity for work commencing on 8 September 2004;

(2)      Mr Spaul is entitled to compensation for incapacity under s 19 of the Safety, Compensation and Rehabilitation Act 1988 (the SRC Act) from 8 September 2004 as follows:

(a) 100 per cent of his normal weekly earnings ($1635.66) for a period of 45 weeks; and

(b) 75 per cent of the appropriate figure for normal weekly earnings from the expiry of that period of 45 weeks to 2 December 2007.

(3)      Mr Spaul’s normal weekly earnings for the purposes of s 8 of the SRC Act are to be calculated on the basis of Mr Spaul’s annual salary as follows:

With effect from                 Annual salary

8 September 2004              $85,327.00

1 July 2005  $88,313.45

1 July 2006  $92,022.61

1 July 2007  $95,703.51

(4)      The costs of the proceedings are to be as agreed between the parties. If there is no agreement either party may apply to the Tribunal within 14 days of the decision for costs to be determined.

.................[signed].............................
Senior Member

COMPENSATION – adjustment disorder - termination of employment - whether a continuing employee - annual salary - normal weekly earnings - method of calculation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988 ss 8(6), 8(9A) 8(9B), 8(9), 8(10), 19(2)
Military Rehabilitation and Compensation Commission v Perry [2007] FCA 1586
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Re Secretary, Department of Social Security and Bradley 1992 [AATA] 271
Re Spaul and Comcare [2006] AATA 915
Trajkovski v Telstra Corp Ltd [1998] FCA 169
REASONS FOR DECISION
23 June 2011 G. D. Friedman, Senior Member
1.
Frank Spaul was employed by Medicare Australia (formerly the Health Insurance Commission) from 1988 until Medicare terminated his employment on

7 September 2004 for serious misconduct and inability to perform the requirements of your position. In 2003 he had suffered from an adjustment disorder which resulted in total incapacity for work. He lodged a claim for compensation, which was heard by the Tribunal in 2006. In its decision the Tribunal held that the action to terminate

Mr Spaul’s employment did not constitute reasonable administrative action that would have disentitled him from receiving compensation.
2.
Following the decision the parties reached agreement that Mr Spaul would receive compensation for incapacity for the period 8 September 2004 to 3 December 2007 in respect of a new injury, being aggravation of the adjustment disorder on

7 September 2004. On 3 November 2010 the respondent made a…

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 SPAUL and COMCARE

Details

AGLC: SPAUL and COMCARE [2011] AATA 435
Case: [2011] AATA 435
Decision Date: 23 June 2011

CaseChat Overview and Summary

Spaul and Comcare presented a case before the Administrative Appeals Tribunal, involving the determination of compensation for incapacity following a work-related injury. The dispute centred on the calculation of the applicant's normal weekly earnings for the purpose of compensation under the Safety, Rehabilitation and Compensation Act 1988.

The primary legal issues revolved around the correct method of calculating the applicant's normal weekly earnings for the purposes of compensation, specifically whether the annual salary should be divided by 52 or 4.33 to arrive at the weekly figure. The applicant argued that the annual salary should be divided by 52 weeks, while Comcare contended that the division should be by 4.33 weeks, reflecting the average number of weeks worked per year.

The Tribunal held that the correct method of calculation was to divide the annual salary by 52 weeks, not by 4.33 weeks. The Tribunal found that the method proposed by Comcare was not supported by the relevant legislation and was, in fact, inconsistent with the statutory language. Consequently, the Tribunal set aside the decision of 3 November 2010 and substituted a new decision, specifying the method of calculating the applicant's normal weekly earnings and the corresponding compensation amounts.

The Tribunal further ordered that the costs of the proceedings be agreed upon by the parties. If no agreement was reached, either party could apply to the Tribunal for a determination of costs within 14 days of the decision.

Orders

Orders of the court

The Tribunal sets aside the reviewable decision of 3 November 2010 and substitutes the following decision:

(1) Mr Spaul sustained an injury described as adjustment disorder with mixed anxiety and depressed mood on 7 September 2004 which resulted in total incapacity for work commencing on 8 September 2004;

(2) Mr Spaul is entitled to compensation for incapacity under s 19 of the Safety, Compensation and Rehabilitation Act 1988 (the SRC Act) from 8 September 2004 as follows:

(a) 100 per cent of his normal weekly earnings ($1635.66) for a period of 45 weeks; and

(b) 75 per cent of the appropriate figure for normal weekly earnings from the expiry of that period of 45 weeks to 2 December 2007.

(3) Mr Spaul’s normal weekly earnings for the purposes of s 8 of the SRC Act are to be calculated on the basis of Mr Spaul’s annual salary as follows:

With effect from Annual salary

8 September 2004 $85,327.00

1 July 2005 $88,313.45

1 July 2006 $92,022.61

1 July 2007 $95,703.51

(4) The costs of the proceedings are to be as agreed between the parties. If there is no agreement either party may apply to the Tribunal within 14 days of the decision for costs to be determined.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANK ROBERT SPAUL