Thompson and Comcare - [2002] AATA 733

CATCHWORDS – COMPENSATION – rate of compensation – normal weekly earnings – class of employee of which applicant member at date of injury – meaning of class – identification of class – whether that class of employee continues in existence – consequence of class of employee ceasing to exist – decision set aside – further consideration adjourned.

Safety, Rehabilitation and Compensation Act 1988 ss. 3, 5, 8, 9, 14 and 19;
Division 3 of Part II
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001
Veterans' Entitlements Act 1986
Public Service Arbitration Act 1920 ss. 3, 4, 5 and 12
Conciliation and Arbitration Act 1904 ss. 4 and 132

Sovereign Life Assurance Co v Dodd [1892] 2 QB 573
Nordic Bank P.L.C. v. International Harvester Australia Ltd. and Anor. [1983] 2 VR 298
Hawk Insurance Company Limited [2001] EWCA Civ 241
In the matter of the Equitable Life Assurance Society and In the matter of the Companies Act 1985 [2002] EWHC 140 (Ch)
Shirley v Fisher Renwick Ltd [1943] 1 All ER 262
Re Spurr and Comcare (1999) 28 AAR 424
Bortolazzo v Comcare (1997) 75 FCR 385

DECISION AND REASONS FOR DECISION [2002] AATA 733

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2002/12
GENERAL ADMINISTRATIVE DIVISION     )

ReNEIL MICHAEL THOMPSON
Applicant

AndCOMCARE
Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  28 August, 2002
Place:  Adelaide

Decision:The Tribunal:

1.sets aside the decision of the respondent dated 13 November, 2001;
2.substitutes, in part, for that decision a decision that:
(1)the class of employees of which the applicant was a member at the dates of his injuries was that class comprising carpenters employed by the Commonwealth and subject to the Public Service Arbitrator's determination at that date; and

3.adjourn further consideration.
(Sgd. SA Forgie)
S A FORGIE
Deputy President

REASONS FOR DECISION

On 15 January, 2002, the applicant, Mr Neil Michael Thompson, applied for review of a reviewable decision on the respondent, Comcare, dated 13 November, 2001. That reviewable decision affirmed an earlier determination dated 15 August, 2001 in which Comcare based Mr Thompson's normal weekly earnings on the salary of a carpenter at the GSO6 level as specified in the Certified Agreement of the Department of Finance and Administration ("DOFA"). The amount of that salary is $636.07. At the hearing, Mr Thompson was represented by Mr McRae of counsel and Comcare by Mr Cole of counsel. The facts were essentially agreed between the parties and the issue turned on the construction of s. 8(9) of the Safety, Rehabilitation and Compensation Act 1988 ("Act"). No oral evidence was led and reference was made to material to which I will refer later in these reasons.

THE ISSUE

The central issue in this case is the identification of the class of employees of which Mr Thompson was a member at the date of his injuries. That requires a consideration of the meaning of "class" in s. 8(9) of the Act and a consideration of the consequences, if any, of the…

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 Thompson and Comcare

Details

AGLC: Thompson and Comcare [2002] AATA 733
Case: [2002] AATA 733
Decision Date: 28 August 2002

CaseChat Overview and Summary

This case involved a review of a decision made by Comcare, the Commonwealth's workers' compensation authority, regarding the compensation payable to Mr Neil Michael Thompson. The applicant, Mr Thompson, sought to challenge the decision made by Comcare on 13 November 2001 which affirmed an earlier determination dated 15 August 2001. Comcare had based Mr Thompson's normal weekly earnings on the salary of a carpenter at the GSO6 level, which is specified in the Certified Agreement of the Department of Finance and Administration. Mr Thompson argued that the class of employees of which he was a member at the date of his injuries should be identified differently, impacting the calculation of his normal weekly earnings and subsequent compensation. The central issue was the identification of the class of employees of which Mr Thompson was a member at the time of his injuries and the consequences of any changes in that class.

The court considered the meaning of "class" in section 8(9) of the Safety, Rehabilitation and Compensation Act 1988 and the implications of the Commonwealth ceasing to employ carpenters who previously performed Mr Thompson's work. The court found that the class of employees to which Mr Thompson belonged at the time of his injuries comprised carpenters employed by the Commonwealth and subject to the Public Service Arbitrator's determination at that date. The court set aside the decision of Comcare dated 13 November 2001 and substituted a decision identifying the class of employees correctly. The matter was adjourned for further consideration to ascertain whether the class of employees had ceased to exist and, if not, to determine the percentage variation in their salaries.

Orders