Taylor and Comcare - [2005] AATA 366

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 366
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/98

GENERAL ADMINISTRATIVE DIVISION
)

Re PHILLIP ALLEN TAYLOR

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member P McDermott
Date27 April 2005
PlaceBrisbane

Decision
The Tribunal considers that an applicant does not have to be totally incapacitated for suitable employment in order to satisfy the requirements of s 31(1) (a) of the Safety, Rehabilitation and Compensation Act 1988.

[Sgd]
P McDermott
Senior Member

CATCHWORDS
JURISDICTION – Compensation – Where lump sum redemption has been paid – Injury subsequently results in employee being incapacitated for suitable employment – Interpretation of section 31 Safety Rehabilitation and Compensation Act 1998 – Whether applicant must be totally incapacitated for suitable employment – Applicant does not have to be totally incapacitated.
Safety Rehabilitation and Compensation Act 1998 ss 4, 30, 31
Compensation (Commonwealth Government Employees) Act 1971 s 50
Re Wagener and Comcare (2003) 78 ALD 569
Ebser v Commonwealth of Australia (1992) 174 CLR 430; (1992) 106 ALR 577
Re Bozicevic and Comcare (1996) 44 ALD 68
Comcare Australia v Rowe [2002] FCA 1034
Re Smith and Comcare [2002] AATA 249
REASONS FOR DECISION

27 April 2005 Senior Member P McDermott

1.      The preliminary issue in this application was originally raised as a jurisdictional issue but I consider that it is really an issue of construction of s 31 of the Safety, Rehabilitation and Compensation Act 1998 (“the Act”).
2.      The issue before the Tribunal was said by the respondent to be:-
“Does the applicant have to be totally incapacitated for suitable employment in order to satisfy the requirements of s 31(1) (a) of the Act”

3. Section 31 (1) of the Act provides:
“(1) Where:
(a)at any time after a lump sum is paid to an employee under section 30 in respect of an injury, the injury results in the employee being incapacitated for work to the extent that the employee is not able to engage in suitable employment; and

(b) the incapacity is likely to continue indefinitely;
Comcare is liable to pay compensation to the employee under this section during the period of the incapacity.

4. Under the scheme of the Act once a lump sum redemption payment has been made under s 30 of the Act, s 31 provides for further payments to be made once the conditions in s 31(1) of the Act have been satisfied.
5. The respondent submits that s 31(1)(a) requires a person to be totally incapacitated for suitable employment.
6. I appreciate that the usual context where s 31 is encountered is a case concerning permanent total incapacity to undertake suitable employment: see, eg, Re Wagener and Comcare (2003) 78 ALD 569
7. The respondent refers in support of their submission to s 50 of the Compensation (Commonwealth Government Employees) Act 1971 which enabled recurrent payments after redemption if the employee’s injury “results in the employee, at any time after the payment of that…

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 Taylor and Comcare

Details

AGLC: Taylor and Comcare [2005] AATA 366
Case: [2005] AATA 366
Decision Date: 27 April 2005

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was a dispute between Taylor and Comcare concerning the interpretation of section 31 of the Safety, Rehabilitation and Compensation Act 1998. Taylor, a former employee, had previously received a lump sum redemption from Comcare following an injury. However, Taylor subsequently became incapacitated for suitable employment, prompting the question of whether they could still claim under section 31 of the Act.

The legal issue at the heart of this case was whether Taylor, having been previously compensated via a lump sum redemption, could still be eligible for further compensation under section 31 of the Act. Specifically, the court had to determine if Taylor had to be totally incapacitated for suitable employment to claim under the Act. This interpretation hinged on the language of the statute and relevant case law, particularly Re Wagener and Comcare and Ebser v Commonwealth of Australia.

In its reasoning, the Tribunal found that the statutory language of section 31 did not necessitate total incapacity for suitable employment. The Tribunal referred to prior cases, noting that the focus was on the ability to return to suitable employment, rather than a total incapacity. By interpreting the statute in line with these precedents, the Tribunal concluded that Taylor did not need to be entirely incapacitated for suitable employment to be eligible for compensation under section 31.

The Tribunal's decision was that Taylor did not have to be totally incapacitated for suitable employment to satisfy the requirements of section 31(1) (a) of the Safety, Rehabilitation and Compensation Act 1988. This conclusion aligns with the Tribunal's interpretation of the statutory language and relevant case law, ensuring that the provisions of the Act are applied consistently and fairly.

Orders

Orders of the court

The Tribunal considers that an applicant does not have to be totally incapacitated for suitable employment in order to satisfy the requirements of s 31(1) (a) of the Safety, Rehabilitation and Compensation Act 1988.

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		PHILLIP ALLEN TAYLOR