Thomson and Comcare (Compensation)

This matter concerned an application for review before the Administrative Appeals Tribunal, brought by the Applicant against Comcare (the Respondent). The dispute centred on the calculation of the Applicant's Normal Weekly Earnings (NWE) for the purposes of compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The Applicant had lodged a claim for an adjustment disorder sustained while deployed on a mission, which was accepted, and subsequently claimed for an aggravation of that condition. The decision under review affirmed a determination of the Applicant's NWE for specific periods, which the Applicant sought to have reviewed.

The primary legal issues before the Tribunal were whether the proceedings had been rendered abortive due to an "own motion" reconsideration undertaken by the Respondent, and if not, what the correct NWE payable to the Applicant was from 13 August 2013. The Respondent had, during the course of the review proceedings, conducted a reconsideration under s 62(1) of the SRC Act, which resulted in a determination that the Applicant's NWE from 6 November 2013 onwards was to be the statutory maximum weekly amount. The Applicant contended that this reconsideration was ultra vires, arguing that the delegate only had the authority to reconsider a determination of NWE under s 8 of the SRC Act and that the reconsideration was limited to affirming, revoking, or varying that determination, not issuing a new determination for "arbitrary compensation payments" under s 19.

The Tribunal considered the scope of s 62 of the SRC Act, which permits a determining authority to reconsider a determination on its own motion, even if proceedings have been instituted or completed. The Tribunal found that the section was "extraordinarily broad" and allowed for progressive and evolving decision-making, consistent with the statutory scheme of ongoing review and adjustment of entitlements. The Tribunal noted that the Applicant's submissions, and those of the Respondent, did not address the operation of s 19(5) of the SRC Act, which was relevant to the calculation of the statutory maximum. The Tribunal's reasoning indicated that the reconsideration was within the Respondent's power, and the subsequent submissions focused on the quantum of entitlement rather than the validity of the reconsideration itself.

The Tribunal dismissed the Applicant's application for review. The reconsideration undertaken by the Respondent was found to be within the powers conferred by s 62 of the SRC Act, and the proceedings were not rendered abortive. The Tribunal's decision implies that the Applicant's entitlement was capped at the statutory maximum, and the focus shifted to the calculation of that maximum, which was not fully addressed by the parties in their submissions to the Tribunal.