Webeck and Comcare (Compensation) - [2023] AATA 2630

Webeck and Comcare (Compensation) [2023] AATA 2630 (18 August 2023)
Division:GENERAL DIVISION

File Number(s): 2023/0375
2023/1678

Re:Kenneth Webeck
APPLICANT

ComcareAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:18 August 2023
Place:Canberra

Interlocutory application refused.
…………………[sgd]……………………..
Mr S. Webb, Member
Catchwords
PRACTICE & PROCEDURE – application for interlocutory decision to set aside and remit decision under review – liability for injury established under Compensation (Commonwealth Government Employees) Act 1971 – claims for payment of compensation – heads of entitlement – accrued rights – operation of transitional provisions – Tribunal jurisdiction – application to proceed to hearing – application refused
Legislation
Administrative Appeals Tribunal Act 1975, ss 25, 42A, 43
Compensation (Commonwealth Government Employees) Act 1971, ss
Safety, Rehabilitation and Compensation Act 1988, ss 16, 39, 124
Cases
Brennan v Comcare [1994] FCA 1147
Comcare v Bozicevic & Others [1997] FCA 288
Comcare v Dalgleish [2018] FCA 2092
Esber v Commonwealth [1992] HCA 20
Re Fuad and Telstra Corporation Limited [2004] AATA 1182
Re Lay and Australian Postal Corporation [1999] AATA 803
Re Liu and Comcare [2004] AATA 617
Schlenert v Australian and Overseas Telecommunications Corporation [1994] FCA 974
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Telstra Corporation Limited v Treloar [2000] FCA 1170
REASONS FOR DECISION
Mr S. Webb, Member
18 August 2023

Kenneth Webeck claimed compensation for physical injuries in his previous employment by the Australian Federal Police (AFP). Comcare accepted liability and paid Mr Webeckcompensation under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act)and subsequently under the Safety, Rehabilitation and Compensation Act 1998 (SRC Act).
Mr Webeck claimed compensation for a pair of lace-less shoes (application 2023/0375) and for household services and attendant care services (application 2023/1678). By primary determinations and reconsideration decisions, Comcare refused Mr Webeck’s claims. Mr Webeck has applied for review of the reconsideration decisions.
In the course of the resulting proceedings, Mr Webeck raised issues about the legislation applicable to his claims. He asserts his claims are to be determined under provisions of the 1971 Act. These matters came to a point in Mr Webeck’s application for an interlocutory decision to set aside the reconsideration decisions and remit them to Comcare.
On 18 July 2023, I heard the parties on these issues and gave an ex tempore ruling. Mr Webeck asked for written reasons. The written reasons which follow provide more detailed expression of the reasons provided orally.
Short facts
On 3 April 1980 and 12 September 1983, Mr Webeck sustained injuries to his lower back for which liability was accepted.[1]
[1] T3 and T4.
On 27 March 1995, Mr Webeck obtained surgical laminectomy and related treatment in relation to the injuries. On 8 May 1997, the Tribunal decided Comcare was liable to pay the reasonable costs of the treatment.
On 31 October 2022, Mr Webeck lodged a claim for compensation[2] in respect of the following:
[2] T22.
On 21 November 2022, Mr Webeck lodged an Application for Household and/or Attendant Care…

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 Webeck and Comcare (Compensation)

Details

AGLC: Webeck and Comcare (Compensation) [2023] AATA 2630
Case: [2023] AATA 2630
Decision Date: 18 August 2023

CaseChat Overview and Summary

This matter concerned an application by Mr Webeck for review of Comcare's decision to refuse his claims for compensation, specifically in relation to lace-less shoes and household and/or attendant care services. Mr Webeck had sustained injuries to his lower back in 1980 and 1983, for which liability was accepted. The dispute before the Tribunal, presided over by Mr S. Webb, Member, centred on the applicable legislation and transitional provisions governing Mr Webeck's claims for compensation arising from these pre-1988 injuries.

The primary legal issue before the Tribunal was whether the transitional provisions of Part X of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) applied to Mr Webeck's claims, entitling him to have his compensation assessed under the *Compensation (Commonwealth Government Employees) Act 1971* (1971 Act). Mr Webeck argued that because his injuries occurred before the commencement day of Part X of the SRC Act, sections 123A and 128 of the SRC Act preserved his rights under the 1971 Act, and that section 124 of the SRC Act excluded the application of certain provisions of the SRC Act, such as section 39, to his claims.

The Tribunal rejected Mr Webeck's construction of the legislation. It found that his interpretation of sections 123A, 124, and 128 of the SRC Act, and the continuing applicability of the 1971 Act, was inconsistent with the statutory text and the operation and purposes of the transitional provisions within Part X of the SRC Act. The Tribunal concluded that Mr Webeck's arguments lacked legal authority and that his application for a summary decision to set aside and remit the decision under review for reconsideration under Part X could not be accepted. Consequently, the interlocutory application was refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 18 July 2023, I heard the parties on these issues and gave an ex tempore ruling. Mr Webeck asked for written reasons. The written reasons which follow provide more detailed expression of the reasons provided orally.Short facts On 3 April 1980 and 12 September 1983, Mr Webeck sustained injuries to his lower back for which liability was accepted.[1] [1] T3 and T4. On 27 March 1995, Mr Webeck obtained surgical laminectomy and related treatment in relation to the injuries. On 8 May 1997, the Tribunal decided Comcare was liable to pay the reasonable costs of the treatment. On 31 October 2022, Mr Webeck lodged a claim for compensation[2] in respect of the following:[2] T22. On 21 November 2022, Mr Webeck lodged an Application for Household and/or Attendant Care Services.[3] [3] ST40. On 19 December 2022, Comcare issued a determination refusing Mr Webeck’s claim in respect of lace-less shoes.[4] On 19 January 2023, the determination was affirmed on reconsideration.[5] On 19 January 2023, Mr Webeck lodged an application for review of this decision by the Tribunal.[4] T24. Mr Webeck’s claim in respect of a lift chair was accepted in a separate determination.[5] T26. On 8 February 2023, Comcare issued a determination refusing Mr Webeck’s application for household and/or attendant care services.[6] On 16 March 2023, Comcare decided to affirm this determination on reconsideration.[7] On 17 March 2023, Mr Webeck lodged an application for review of this decision.[6] ST45.[7] ST51. In written communications to the Tribunal and Comcare, Mr Webeck raised issues relating to the legislation applicable to his claims. I note, in particular, his written communications and submissions on 12 June, 15 June, 18 June, 29 June, 5 July, 12 July and 17 July 2023. I have had regard to Comcare’s responses to Mr Webeck and related written submissions. On 18 July 2023, I heard the parties on the legal issues Mr Webeck raised and other matters relating to summons objections which it is not necessary to traverse for present purposes. Mr Webeck asserts the transitional provisions in Part X of the SRC Act apply. In his submission, his entitlement to compensation in respect of the shoes claim arises and remains to be determined under s 37 of the 1971 Act. As his injury occurred before the commencing day under s 123 of the SRC Act (being 1 December 1988: the day on which Part X of the SRC Act commenced), Mr Webeck argues, under s 123A and s 128, he is entitled to compensation in respect of the ‘injury’ under the 1971 Act, which was in force when the injury occurred. By operation of ss 124(1A), (8) and (9), the amount of compensation, so the argument goes, is to be calculated as if the SRC Act had not been enacted. At the heart of Mr Webeck’s argument is the proposition Part X of the SRC Act locates Comcare’s liability to pay the compensation he is seeking under the 1971 Act. In his submission, s 16 and s 39 of the SRC Act do not apply to an injury before the commencing day.[8] Mr Webeck contends s 124 of the SRC Act has the effect of excluding s 39 of the SRC Act and the liability tests around the nature of the impairment resulting from a post commencing day injury and rehabilitation programs.[9][8] Applicant written submissions, 29 June 2023, page 2.[9] Applicant written submissions, 12 June 2023, page 1.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Webeck’s construction of the legislation and his interpretation of extraneous materials and authoritative cases cannot be accepted. Having carefully considered his detailed written and oral submissions, the construction of s 123A, s 124 and s 128 of the SRC Act and the continuing applicability of the 1971 Act for which he contends, when considered in the context of Part X and the SRC Act more broadly, is not consistent with the statutory text and the operation and purposes of the transitional provisions in Part X, and it lacks authority. His application for a summary decision to set aside and remit the decision under review for reconsideration under Part X must be refused. Decision Interlocutory application refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.