Warnock and Comcare

[2008] AATA 567

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 567

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0945

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SHAUN WARNOCK

Applicant

And COMCARE

Respondent

DECISION

Tribunal Dr K S Levy, RFD, Senior Member

Date2 July 2008

PlaceBrisbane

Decision

The Tribunal determines that:

(1)      The decision under review is set aside;

(2)      The calculation of NWE is not within the bounds of the reviewable decision.

(3)      The adjustment percentage is 100% of NWE.

(4)      The AE for 2007 is $778 per week for farming and $100 per week for bus driving in weeks where that employment is available.

(5)     The Tribunal remits the matter to the respondent for recalculation of the entitlement, taking account of s8 of the Safety Rehabilitation and Compensation Act 1988 (indexation) and any other statutory or relevant factor.

...............[Sgd].........................

Senior Member

CATCHWORDS

COMPENSATION – Administration of the Act – normal weekly earnings – whether the claim for the amount of overtime as part of the applicant’s normal weekly earnings is to be included in the consideration of the decision under review – whether a previous determination, in relation to the elements of the formula under s19 (3) of the Safety Rehabilitation and Compensation Act 1988, is correct – decision under review set aside.   

Safety Rehabilitation and Compensation Act 1988 ss 4(1),5,8,9,14(1),19(2),19(3)(a),19(3)(f)

Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007 ss 4(1), 8(9E), 8(9F).

Bortolazzo & Saffron v Comcare (1997) 25 AAR 290

Re Spurr and Comcare (1999) 28 AAR 424

Comcare v Davies [2008] FCA 393

Woodbridge v Comcare (1994) 20 AAR 196

J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625

Cage Developments Pty Ltd v Schubert (1983) 151 CLR 584

REASONS FOR DECISION

2 July 2008	Dr K S Levy, RFD, Senior Member
INTRODUCTION

1.      The applicant, Shaun Warnock, applied for compensation as a former Commonwealth Government employee.  That claim was rejected on 5 June 2006 when the decision maker determined that he was not eligible because of an exclusionary provision.  On review, that decision was set aside and liability was payable by Comcare under s14 of the Safety Rehabilitation and Compensation Act 1988 (‘the Act’).  It was determined that the exclusionary provision was not applicable in that case as the issue upon which it depended had not commenced at the date of the applicant’s injury (Comcare v Chenhall (1992) 37 FCR 75). That decision was made on 8 August 2006.

2.      A determination was then made on 18 October 2007 under s19 (3)(a) of the Act and determined that Mr Warnock was entitled to 75% of Normal Weekly Earnings (NWE) in determination of the formula applicable in ascertaining the compensation for his case.  On 8 November 2007, Senior Member Carstairs awarded a stay in the implementation of a decision dated 3 September 2007. 

3.      There was also a determination dated 5 December 2006 in relation to the amount of NWE which should be applicable from 1 June 2006 pursuant to…