Thomson and Comcare (Compensation)
[2017] AATA 34
•18 January 2017
Thomson and Comcare (Compensation) [2017] AATA 34 (18 January 2017)
Division:GENERAL DIVISION
File Number(s): 2015/0095
Re:Brendan Thomson
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Ms N Isenberg, Senior Member
Date:18 January 2017
Place:Sydney
Following the Respondent’s own-motion reconsideration of 7 June 2016 under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the present proceedings are rendered abortive. The proceedings are dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).
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Ms N Isenberg, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – own motion reconsideration – compensation – normal weekly earnings – deployment payments and location-specific allowances - reconsideration issued during proceedings– whether reconsideration could be made to determine quantum of compensation– whether proceedings rendered abortive – whether the respondent can undertake a reconsideration in late stages of proceedings – model litigant principles – effect of the reconsideration – whether the tribunal can provide any further relief – method of calculating normal weekly earnings – application for review dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8, 14, 19(5), 60(1), 62
CASES
Bortolazzo v Comcare (1997) 75 FCR 385
Bray and Comcare [2012] AATA 522
Comcare v Simmons (2014) 220 FCR 102
John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; 185 FCR 566
Melis and Australian Postal Corporation [2014] AATA 58
Ragg and Military Rehabilitation Compensation Commissioner (2012) AATA 18
Re ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599
Re Coyne and Comcare (1995) 37 ALD 553
Re Fitzpatrick and Comcare (1991) 23 ALD 702
Re Frazzetto and Australian and Overseas Telecommunications Corporation (1994) 19 AAR 174
Re Hewett and Australian Postal Corporation [1993] AATA 696
Re Moggach and Comcare [1995] AATA 379
Re Lavery and Registrar, Supreme Court of Queensland (No.2)(1996) 23 AAR 52
Re Ribeiro and Comcare (1996) 44 ALD 632
Sutton and Comcare [1006] AATA 168
Telstra Corporation Ltd v Hannaford [2006] FCAFC 97
REASONS FOR DECISION
Ms N Isenberg, Senior Member
18 January 2017
Background
Since August 2007 the Applicant has been permanently employed by the Australian Federal Police (‘AFP’), starting in the Operational Response Group in the International Deployment Group (‘IDG’). In May 2010 he became a Team Leader. He has worked in a number of different roles.
For the period 7 November 2011 to 6 November 2013 the Applicant was assigned to the Regional Assistance Mission to Solomon Islands (‘RAMSI’), which role had the benefit of various deployment allowances. However, on 27 January 2012 he was repatriated to Australia for medical reasons. He lodged a compensation claim for an adjustment disorder with mixed depressed and anxious mood, deemed to have been sustained on 26 January 2012, which was accepted pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’). Subsequently, the Applicant claimed compensation for an aggravation of that condition. That claim was accepted and the aggravation was deemed to have been sustained on 23 April 2013.
Decision under review
The decision before the Tribunal was a reviewable decision dated 18 November 2014 pursuant to the SRC Act which affirmed a determination dated 20 August 2014. That decision determined the Applicant’s Normal Weekly Earnings (‘NWE’) as follows:
·13 August 2013 to 5 November 2013 - $2,963.10;
·6 November 2013 to 7 March 2014 - $1,795.82; and
·8 March 2014 onwards - $1,858.68
ISSUE
The issue to be decided is:
(a)Whether the present proceedings have been rendered abortive because of the reconsideration of 7 June 2016?
(b)If not, what is the NWE payable to the Applicant from 13 August 2013?
Progress of the matter
The matter was initially heard over 2 days in January 2016, in which the Applicant gave extensive evidence, as did Mr S Irving, who had been the Applicant’s immediate supervisor in 2010 and who was also deployed to RAMSI at about the same time as the Applicant, Mr F Prendergast, who was the Assistant Commissioner of the AFP at the relevant time, and Mr D Turner, from the AFP’s HR area.
The matter was listed for a resumed hearing on 2 June 2016. At the outset, counsel for the Respondent, who had previously appeared at the earlier hearing, informed me that the Respondent had, on 1 June 2016, undertaken an ‘own motion’ review under s 62(1) of the SRC Act. That review was subsequently amended – although strictly, a further own motion review – on 7 June 2016. The latter reconsideration decided that from 6 November 2013 onwards, the amount payable to the Applicant was to be the maximum weekly amount payable under s 19(5) of the SRC Act – an amount less than $3,681.43 which amount the Respondent wrote, the Applicant would have been earning while on deployment.
As to the period from 13 August 2013 to 5 November 2013, the review officer wrote:
Your NWE prior to 6 November 2013 had been determined to be $3,681.41 by reference to the amount you would have been earning while on the deployment.
The result of the reconsideration, the Respondent submitted at the resumed hearing, was that the application for review had been rendered an abuse of the Tribunal’s process in that there remained nothing more that the Applicant could achieve before the Tribunal because the delegate had determined that the amount payable to the Applicant was the maximum weekly amount available under the SRC Act. The Respondent succinctly described the effect of the reconsideration as, in effect:
No matter what the Tribunal might find about the Applicant’s NWE, the Applicant can never receive more than the statutory maximum, and this is the amount the Respondent says is payable to him.
The Applicant was invited to respond and he provided detailed written submissions, and a letter dated 6 July 2016. He contended, amongst other things, that he was entitled to know on what basis his NWE had been calculated.
Then, on 12 August 2016, shortly before I was about to publish my decision, the Respondent, ‘having sought further advice’ and contrary to the position it had strenuously argued before me on 2 June 2016, contended that the reconsideration(s) of (1 and) 7 June 2016 did not determine the actual amount of the Applicant’s NWE in the period from 13 August 2013 to 5 November 2013, and that the proceedings therefore had not been rendered abortive.
The Respondent provided very detailed written submissions, addressing not the issue of whether the proceedings had been rendered abortive, but in support of its new position, offering the basis for its calculations as to the Applicant’s entitlement. The Applicant, similarly, made detailed submissions, to which the Respondent replied. None of the submissions addressed the operation of s 19(5) of the SRC Act.
CONSIDERATION
Can the Respondent undertake a reconsideration at a late stage of the matter?
Section 62 of the SRC Act provides in relation to reconsideration of determinations that:
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
…
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
…
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit. (Tribunal’s emphasis)
The Applicant submitted that, in respect of the reconsideration decision made by the delegate pursuant to s 62(1) of the SRC Act dated 7 June 2016 is ultra vires. The Applicant referred to the decision of Deputy President Hotop in Melis and Australian Postal Corporation [2014] AATA 58 at [31]–[32]:
31The power conferred by s 62 of the SRC Act on a “determining authority” is the power to reconsider a “determination” made by it or to cause such a “determination” to be reconsidered by an appropriate delegate. Plainly, the power conferred by s 62 of the SRC Act relates only to the reconsideration of a “determination”.
32The term “determination” is defined exhaustively in s 60(1) of the SRC Act to mean:
“a determination, decision or requirement made under section 8, .., 19, …, under paragraph 114B(5)(a) or under Division 3 of Part X.”
The Applicant contended that the determination that falls within s 60(1) SRC Act is the determination made under s 8 of the SRC Act, that is, the determination of NWE. Therefore, he contended, the delegate only had authority to reconsider the determination relative to s 8. It would reasonably follow, he submitted, that the reconsideration must be limited to authority pursuant to s 62(5), namely, affirming, revoking or varying the determination. He submitted that s 62 does not confer upon the delegate the power to issue a determination granting ‘arbitrary compensation payments’ under s 19 of the SRC Act.
There is nothing in Melis, nor any of the other cases I reviewed (see: Re Coyne and Comcare (1995) 37 ALD 553; Bray and Comcare [2012] AATA 522) that would detract from the plain reading of s 62 of the SRC Act. The section is extraordinarily broad, specifically permitting a reconsideration of a determination even if review proceedings have been commenced or, for that matter, completed.
As the Federal Court (per Conti J, with whom Heerey and Dowsett JJ agreed) explained in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 at [57]:
The statutory scheme [of the SRC Act] allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen.
In Re Fitzpatrick and Comcare (1991)23 ALD 702, this Tribunal said that the power to make fresh reviewable decisions where proceedings are on foot in the Tribunal should be used sparingly.
The Respondent noted at the resumed hearing of 2 June 2016, that, whether or not there had been a decision by the Tribunal, if an Applicant’s circumstances changed, there would inevitably be a review. This is a fair statement of the operation of the management of ongoing workers’ compensation entitlements, but is a vastly different position to what has occurred in this matter.
The Applicant, after the June 2016 reconsiderations was, perhaps understandably, distrustful of the Respondent and observed that there was nothing to stop the Respondent doing ongoing reconsiderations of the decision under review whenever ‘they’ felt like it. And that is effectively what occurred on 12 August 2016, albeit not formally a reconsideration. This added greatly to the Applicant’s distress, from my observation at a subsequent directions hearing held to determine the way forward. However, on the plain reading of s 62 of the SRC Act the course adopted by the Respondent remained and continues to remain open to it, until the publication of this decision.
In Re Rebeiro and Comcare (1996) 44 ALD 632, at p.646, the Tribunal noted that:
[T]he power expressly conferred by s 62(1) of the SRC Act is the power to reconsider, or cause to be reconsidered, a “determination” as defined in s 60(1) - that is, a primary determination. Section 62(1) does not confer the power to reconsider, or cause to be reconsidered, a “reviewable decision” as defined in s 60(1) - that is, a decision made, following a reconsideration of a primary determination, under s 62: Re Madden and Comcare (AAT, decision No 10613, 19 December 1995, unreported).
This contrasts with the approach in Coyne and Comcare, but in the circumstances of the present matter, the outcome is the same: see Re ACT Department of Health and Nikolovski & Comcare (1996),42 ALD 599 (at [56]).
I observe that the issues in the matter have not altered, and no new evidence appears to have come to light such as might inform the Respondent’s multiple attempts to come to its view; it appeared the Respondent simply changed its mind about its approach. Notwithstanding the provisions of s 62(1) of the SRC Act I do not regard such conduct as consistent with the ‘model litigant’ principles. The Applicant himself contended that the Respondent had not conducted itself as the model litigant. The Applicant attempted to discuss various settlement negotiations including after the date of the reconsiderations; I do not propose to otherwise refer to those discussions, which I have disregarded. I do not know what inspired the own-motion reconsideration(s) but observe that the Respondent reached its position, whether co-incidentally or otherwise, only after it was directed to consider the allowances and entitlements of other comparable AFP employees. The Respondent appears to have come to its view after that evidence had been canvassed.
The Respondent has accepted that the Applicant suffers a psychiatric condition which, in general terms, arose out of his employment; was aware he was unrepresented and had already endured 2 days of hearing as well as several directions hearings and conferences; and had had his case drag out, even after hearing, for months. In those circumstances the continual revision by the Respondent of its position was, in my view, unacceptable. I observe that a decision-maker may seek to support the decision on grounds that are different from those upon which it was originally made: Re Lavery and Registrar, Supreme Court of Queensland (No.2) (1996) 23 AAR 52at 56. Notwithstanding that I have been critical of the Respondent’s reliance upon its powers under s 62(1) to amend its position, as to its current submissions which are inconsistent with the reconsideration of 7 June 2016, I observe that it was open to the Respondent to in fact undertake yet another review under s 62(1) in order to properly put its revised position.
What is the effect of the 7 June 2016 reconsideration?
From the Respondent’s letter of 12 August 2016 its current position about the reconsideration of 7 June 2016 is that it does not address the whole of the period under review. I consider the Respondent is now taking too narrow a view of what its reconsideration of 7 June 2016 addressed. While the reconsideration dealt mainly with the post-6 November 2013 period, it specifically referred to the period prior to that time, observing that the Applicant’s NWE prior to 6 November 2013 had been determined by reference to the amount the Applicant would have been earning while on the deployment.
The Respondent’s position in that reconsideration was also that after the Applicant’s deployment ended on 6 November 2013, he would have been transferred to the Special Response Group (‘SRG’); what he would actually have earned in the SRG would depend on a number of factors, including: whether he would have been (again) deployed and if so, to where, what level he would have been employed at, and what role he would have performed. This was borne out, it wrote, by reviewing the earnings of other employees in the SRG at the same or a similar level to the Applicant. Regrettably the Respondent did not specify what those actual amounts were.
Having come to that view, the delegate referred to the beneficial provisions of the SRC Act and decided that from 6 November 2013 to date, the amount payable to the Applicant under s 19 of the SRC Act is the maximum weekly amount payable under s 19(5) of the SRC Act.
That he was to be paid from 6 November 2013 to date, the maximum weekly amount payable under s 19(5) of the SRC Act, at first impression may not have been overly helpful to the Applicant in informing him that his compensation payments were in fact to be increased from the decision under review. Further, that the calculation of his entitlement to compensation from 6 November 2013 to date, was to be referred to his Claims Manager for ‘determination’, as distinct from ‘recalculation’, is similarly, unlikely to have assisted, especially in circumstances where the Applicant was wary of the Respondent and his employer.
It is useful then to outline the compensation payment regime which the delegate, in a shorthand fashion, referred to as entitling the Applicant to the maximum weekly amount payable under s 19(5) of the SRC Act. Section 19 of the SRC Act sets out the amount of compensation which the Respondent is liable to pay an employee in respect of an injury. During the first 45 weeks of incapacity, that payment is a sum equivalent to the employee's NWE less the amount per week that he or she is able to earn in suitable employment: s 19(2). After that time, s 19(5) sets an upper limit on weekly incapacity payments, namely 150 per cent of the Average Weekly Ordinary Time Earnings of Full-time Adults (‘AWOTEFA’), which is published by the Australian Statistician, which at the time of the resumed hearing was approximately $1500[1] (subject to quarterly reviews, which apply CPI changes). I was informed that, at that time, 150 per cent of the AWOTEFA was approximately $2200 per week. I have proceeded on the basis that these figures are accurate and apply to the Applicant’s circumstances.
[1] ABS, Average Weekly Earnings, Australia May 2016, (18 August 2016) Official website of the Australian Bureau of Statistics <
In the reconsideration of 7 June 2016 all payments to the Applicant throughout the period under review were calculated to be in excess of this amount. Even in the Respondent’s most recent submissions all payments throughout the period under review were calculated to be in excess of this amount.
Following the reconsideration decision, what role is there for the Tribunal?
In his submissions, the Applicant squarely identified the question for the Tribunal, given the Respondent’s concession to pay him the maximum benefit under the Act: what can the Tribunal now afford him?
The Applicant requested that I should nonetheless make a number of findings, some of which did not relate to the calculation of NWE. Other matters referred to his pre-injury role, which the Respondent has addressed in its own-motion reconsideration. The Applicant sought an order that I do not remit the calculation of NWE to the Respondent pursuant s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). He sought other findings, such as, that an AFP employee would have a legitimate expectation to receive, on average, 65% additional earnings on top of base salary, and that earnings of AFP employees occupying a similar pre-injury role earned, on average 90% more than base salary. I do not consider that the findings sought, if I were able to come a final view about them, would alter the outcome of the most favourable decision (to the Applicant) open to the Tribunal, namely, his entitlement to the maximum weekly amount payable under s 19(5) of the SRC Act for the whole of the period under review.
The Applicant contended that the attempt to have his application for review rendered abortive was motivated by the potential wider implication of a formal decision which may expose a policy of reducing injured AFP employees to base salary prior to a determination of NWE and compensation payments. As I have said, I do not know what brought about the reconsideration and it is none of my concern.
The Applicant also contended that he had been denied ‘due process’. His concerns are misplaced, given that, as I have identified, the Tribunal’s jurisdiction provides for no better outcome than that which he has achieved. Be that as it may, I am confident to say that it has only been through the Applicant’s perseverance in prosecuting this case that the Respondent has so significantly changed its position.
Proceedings will only be rendered ‘abortive’ in the terms of s 62(2) of the SRC Act if their continuation would be fruitless, in the sense that the Applicant has already been granted everything he could gain by virtue of the reconsideration: Re Moggach and Comcare [1995] AATA 379 at [14]. In this case any decision I make would not provide any more to the Applicant than the terms of the reconsideration of 7 June 2016: Re Frazzetto and Australian and Overseas Telecommunications Corporation (1994) 19 AAR 174 at p177. See also Re Hewett and Australian Postal Corporation [1993] AATA 696 at [10].
In Bortolazzo v Comcare (1997) 75 FCR 385 Heerey J observed that the underlying policy of the SRC Act is that an injured worker should be neither worse off, nor better off, during the period of incapacity. That observation must, of course, be read subject to s 19(5) of the SRC Act.
I am satisfied that, having regard to the calculations discussed below that the Applicant can be paid NWE only to the maximum weekly amount payable under s 19(5) of the SRC Act, that is, as was decided in the reconsideration of 7 June 2016.
CONCLUSION
I therefore find that following the Respondent’s own-motion reconsideration of 7 June 2016 under s 62 of the SRC Act, the present proceedings are rendered abortive. The proceedings are dismissed pursuant to s 42B AAT Act.
Observations in relation to calculations
Notwithstanding that I have come to the view that the proceedings have been rendered abortive by the reconsideration of 7 June 2016, in view of my concerns outlined above, especially at [19] and [27], I set out the actual calculations in support of my findings in [36] above.
Although there was detailed background evidence about what had led up to the Applicant’s deployment, much of the evidence related, properly, to what work the Applicant would have undertaken had he completed his two-year deployment to the Solomon Islands, as scheduled, on 6 November 2013. His NWE was said to have been calculated up to 6 November 2013 on the basis of what he would have been earning while on deployment. From that date the NWE had been significantly reduced in the reviewable decision on the basis that the Applicant would no longer have been entitled to the various allowances associated with deployment.
Section 8 of the SRC Act sets out the method of calculating NWE:
·NWE is calculated on the basis of the earnings of the employee for two weeks prior to the date of injury, unless that calculation does not fairly represent the earnings of the employee (s 8(1), (4), (5) and s 9);
·Where an employee is paid an allowance during the relevant period that allowance is included in the calculation of NWE unless it is an ‘allowance payable in respect of special expenses incurred, or likely to be incurred’ (s 8(1));
·Where an employee is required to work overtime on a regular basis, that overtime is included in an employee’s NWE (s 8(2));
·While an employee continues in employment, NWE can only increase in accordance with specified criteria (s 8(6),(7), (9));
·Where an employee has ceased employment, NWE increases in accordance with an indexation figure determined by Comcare (s 8(9B)); and
·Where an employee remains in employment and the employee’s NWE before the date of injury exceeds what the employee would have continued to earn had they remained in employment, the employee’s NWE is reduced by that amount of the excess (s 8(10)).
The Respondent’s final submissions provided assistance with the relevant calculations. I did not understand the Applicant to dispute these calculations.
There also does not appear to be any dispute that the Applicant was paid up to 6 November 2013 as if he had continued to be deployed, although the amount referred to in relation to earnings during deployment in the reconsideration of 7 June 2016 ($3,681.43) is more than the amount ($2,963.10) referred to in the original decision and the reconsideration of 18 November 2014. This discrepancy appears to relate to the ‘additional composite’ of 40% of his salary, which, from Mr Turner’s evidence, was a ‘location allowance’ to ‘compensate the member being deployed for climatic conditions, changed cost of living and for the different living conditions and political environment’. See also T17 – Compensation File Information Sheet compiled by the AFP. The Respondent contended that that allowance should never have been paid to the Applicant while he was not actually deployed. It referred me to Sutton and Comcare [1996] AATA 168 and Ragg and MRCC (2012) AATA 18, in which an ‘accommodation allowance’ and a ‘district allowance’, respectively, were not included in NWE.
Therefore I agree that the Applicant’s NWE as at 13 August 2013 (the commencement date of the decision under review) is $2963.10 per week and this continued until the end of his deployment which was to end on 5 November 2013.
In John Holland Group v Robertson [2010] FCAFC 88; 185 FCR 566, Dowsett J (Spender J agreeing) at [74] observed that s 8(10) SRC Act limits the compensation payable by reference to notional earnings derived from employment with the same employer had the claimant not been injured. That consideration includes whether the claimant would have continued to perform the same duties as were being performed at the time of the accident. See also Comcare v Simmons (2014) 220 FCR 102 at [43].
Working out what compensation is payable to the Applicant for incapacity beyond 6 November 2013 therefore necessarily involves looking at the amount per week that he would have earned after 6 November 2013 if he were not incapacitated for work: s 8(10)(a) of the SRC Act.
In his evidence the Applicant said that the usual course was for a person deployed to RAMSI to be offered a further year, and that he would have taken up that offer. Mr Irving said that, at the same time both he and the Applicant were offered the RAMSI 2-year deployment on the basis that it was ‘with an option to extend for a third [year]’. Mr Prendergast said that extension was not automatic but agreed that the deployment of some officers could be extended, depending on operational needs.
Because the Applicant had squarely raised the possibility of a further year’s deployment I directed the Respondent to provide information on what entitlements and allowances comparable employees to the Applicant could attract upon return to onshore positions. This was because determining the amount per week that the Applicant would have earned since 6 November 2013 if not incapacitated involves determining what employment course he was likely to have adopted once he completed his two year deployment at RAMSI. If he were to have extended his deployment by a year, then, with allowances he would have been paid $3,681.43 per week until 5 November 2014. However, as discussed in [43] above, he could receive only $2963.10 in compensation payments because he was not actually deployed during that period, and was not entitled to those location-specific allowances.
In Comcare v Simmons Flick and Griffiths JJ stated with respect to s.8(10)(a) (at [10]):
Section 8(10)(a) requires attention to be directed to the ‘amount per week of earnings that the employee would receive if he or she were not incapacitated for work’. That amount may be greater or less than the amount the employee was earning prior to the injury.
The AFP provided comparable employee salaries for 2013-2015. Interestingly, an analysis of the comparable employee’s salaries for 2014 provides an annual average salary of $181,849.46 or $3497.11 per week. On the basis of the comparable employee data, I am satisfied that even if the Applicant were not incapacitated for work, and did not extend his deployment by a further year, he would not be earning less than his NWE at the date of injury.
It is important to note that if the average salary for the comparable employees is higher than the Applicant’s NWE at the date of his injury, the SRC Act does not increase NWE s 8(10)(a). On that basis, s 8(10)(a) does not apply to reduce the Applicant’s NWE.
The Respondent had also made submissions about the effect of salary increments and agency-wide salary increases but in my view, the effects on the Applicant, if any, were subsumed by the consideration of comparable employees.
Therefore, his NWE remains as calculated based on his RAMSI deployment with subsequent increases pursuant to s 8(9) of the SRC Act.
DECISION
Following the Respondent’s own-motion reconsideration of 7 June 2016 under s 62 of the SRC Act, the present proceedings are rendered abortive. The proceedings are dismissed pursuant to s 42B AAT Act.
I certify that the preceding 53 (fifty - three) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
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Associate
Dated: 18 January 2017
Dates of hearing: 12, 13 January 2016 and 2 June 2016 Date final submissions received: 19 October 2016 Applicant: In person Counsel for the Respondent at hearing: Ms R Henderson Solicitors for the Respondent at hearing: Ms K Miller, Sparke Helmore Lawyers
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