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 lump sum, being totally incapacitated for work” and also that the incapacity was likely to continue indefinitely.

8.      I, however, consider that the provisions in the Compensation (Commonwealth Government Employees) Act 1971 may not be used as an aid in the construction of the Act.

9.      In Ebser v Commonwealth of Australia (1992) 174 CLR 430; (1992) 106 ALR 577 at 592-593 Brennan J remarked: “The legislative intention manifested by the 1988 Act is that the regime of rights and liabilities under the 1971 Act – relating to eligibility, quantum, party liable, redemption and review – should be swept away and a new regime – relating to the same matters should take its place”. The fact that the 1988 Act was based upon “the whole person concept” and introduced new concepts such as “impairment” and “compensation for non-economic loss” was also recognised by Presidential Member Olney J in Re Bozicevic and Comcare (1996) 44 ALD 68 at 74.

10.     Accordingly I consider that the Act should not be construed with any preconceptions arising from the Compensation (Commonwealth Government Employees) Act 1971.

11.     I certainly accept the submission of the respondent that in construing the Act I should have regard to the Explanatory Memorandum.  That document contains an explanation that clause 31 “provides for the reinstatement of weekly payments of compensation after a lump sum payment has been made if the injury subsequently prevents an employee from engaging in suitable employment”. The term “suitable employment” is defined in s 4 of the Act and this definition is certainly relevant for the purposes of interpreting s 31: see Re Wagener and Comcare (2003) ALD 596 at 607 per Deputy President D G Jarvis.

12.     In determining whether the applicant is capable of engaging in suitable employment it is necessary to have regard to the criteria in the definition such as “the employee’s age, experience, training, language and other skills”. It would not be appropriate at this stage in the proceedings to make a finding of whether or not the applicant is capable of “engaging in suitable employment”.

13.     The respondent submitted that for the purposes of construing s 31 (1)(a) it is not necessary for me to have a statement of agreed facts.  In this matter I have yet to make findings on material questions of fact.  In fact I could not make any such findings until I have received submissions from the parties in respect of the evidence before the Tribunal.

14.     The only evidence that was admitted before me at a preliminary hearing was the s 37 documents (or the T Documents).  Included in those documents is a report from Dr Hilton Francis who on the 7^th October 1996 was asked to provide Comcare with a treatment plan for the applicant.  Dr Hilton considered that the applicant “will not be able to perform at orchestra level without major recurrences in the future”. Dr Francis stated that the applicant could not in 1988 continue to work as a musician.

15. The respondent in a supplementary written submission invited me to have regard to the reports of Drs Cameron and Craven. It would be unfair for me to take that course as the applicant has not consented to the admission of these reports. The respondent did not seek the admission of those reports at the preliminary hearing where the applicant was represented. Secondly, the admission of the reports would not assist in the issue of the construction of s 31(1) (a).

16.     Those reports would be relevant to the issue of whether or not the applicant is capable of engaging in suitable employment, and this can only be determined after all the evidence on this issue has been heard.

17. There is, in my opinion, no warrant for reading into s 31(1)(a) any requirement that the employee must be “totally incapacitated for work”. If that was the intention of Parliament then Parliament could have used the language of s 50 of the Compensation (Commonwealth Government Employees) Act 1971 which refers to the employee “being totally incapacitated for work”.

18. The Act in referring in s 31(1)(a) to “suitable employment” is using a quite different test which requires the consideration of those matters in the definition of “suitable employment” in s 4.

19.     I also make the observation that s 31 (1)(a) in referring to “the employee being incapacitated for work to the extent that the employee is not able to engage in suitable employment;” is not apt to refer to a situation where the employee is not capable of being employed at all.  Rather the use of the phrase “to the extent” is not appropriate to refer to a case of total incapacity for work.

20. The applicant also points to the fact that s 31(1) enables a payment to be made “during the period of the incapacity”. The applicant has submitted that this does not contemplate total incapacity and/or permanent incapacity.

21. In construing this section of the Act I think that it is also important to look at the definition of “incapacity for work” in s 4(9) of the Act. I consider that this definition is relevant because s 31(1)(a) of the Act contains the requirement of an employee being “incapacitated for work”.

22.     A reference in the Act to an incapacity for work is, under s 4(9), a reference to an incapacity suffered by an employee as a result of an injury, being:

(a)an incapacity to engage in any work; or

(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

23.     The reference in this definition in s 4 (9)(a) to “an incapacity to engage in any work” is certainly appropriate where an employee is in a situation of total incapacity for work.  This was recognised in Comcare Australia v Rowe [2002] FCA 1034 by Merkel J where His Honour observed, at [7], that the applicant’s claim in that case “was not for total incapacity under s 4 (9)(a)”.

24.     The reference in this definition in s 4 (9)(b) to “an incapacity to engage in work at the same level” is, in my opinion, not referring to a situation where an employee is in a situation of total incapacity for work.  In Comcare Australia v Rowe [2002] FCA 1034 Merkel J held, at [7], that to satisfy this definition requires a consideration of the various matters listed in s 4 (9)(b). This definition was applied in Re Smith and Comcare [2002] AATA 249 where the Tribunal made a finding, at [87], that an applicant who could undertake administrative, clerical and other similar activities but not heavier duties was incapacitated for work in terms of s 4(9) of the Act

25. Because of the definition in s 4 (9)(b) I am of the opinion that the reference in this definition to “an incapacity to engage in work at the same level” is applicable to the reference to in s 31(1)(a) to “the employee being incapacitated for work”.

26. I accordingly consider 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 Act.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott

Signed:         Camille Banks
  Associate

Date/s of Hearing  25 February 2005
Date of Decision  27 April 2005
Counsel for the Applicant         Mr R Clutterbuck
Solicitor for the Applicant          Gilshenan and Luton
Counsel for the Respondent     Mr B Dube
Solicitor for the Respondent     Australian Government Solicitor