Webeck and Comcare (Compensation) - [2022] AATA 3784

Webeck and Comcare (Compensation) [2022] AATA 3784 (10 November 2022)
Division:GENERAL DIVISION
File Number(s): 2021/9429
Re:Kenneth Webeck
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Member W Frost
Date:10 November 2022
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
...........................[sgd].................................
Member W Frost
Catchwords
COMPENSATION – accepted injuries – calculation of weekly compensation for incapacity payments – employee’s normal weekly earnings – previous Tribunal decision – where the employee is found to cease employment – definition of employee - effect of industrial agreement on normal weekly earnings amounts – applicable indexation and relevant percentage rates – employee found to resign from employment – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 42C, 43
Australian Federal Police Act 1979
Compensation (Commonwealth Government Employees) Act 1971, ss 27, 37
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5, 8, 9, 19, 23, 123, 124
Social Security Act 1991, ss 23
Cases
Brede and Department of Defence [1994] AATA 119
Chun v Comcare (2013) 209 FCR 399
Mayer and Comcare [2015] AATA 925
Military Rehabilitation & Compensation Commission v Perry (2007) 164 FCR 307
Singer and Comcare [2015] AATA 231
Secondary Materials
accessed on 1 November 2022
guide/3/4/1/10#:~:text=Since%201%20July%202017%2C%20the,67%20on%201%20July%202023, accessed on 1 November 2022.
Endnote 3 to the SRC Act and Gazette No. S196 from 1 July 1988, accessed at on 1 November 2022.

REASONS FOR DECISION
Member W Frost
10 November 2022
INTRODUCTION

The Applicant, Mr Kenneth Webeck, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision of the Respondent, Comcare, regarding the calculation of his weekly incapacity payments under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) from 19 August 2021 to 15 March 2022. For the reasons that follow, the Tribunal affirms Comcare's decision.
ISSUES
The relevant issues for the Tribunal to decide in this proceeding are:
(a)whether Mr Webeck is an ‘employee’ under the SRC Act;
(b)if so, whether Comcare is liable to pay compensation to Mr Webeck; and
(c)if so, how is compensation to be calculated.
BACKGROUND
On 12 September 1983, Mr Webeck made a claim for compensation to the then Commissioner for Employees’ Compensation, following an injury to his ‘lower left of back’, which occurred on the same day while in the performance of his duties with the Australian Federal Police (AFP).[1]
[1] Exhibit 1, pages 8-12.
In February 1984, Dr Jan Neubauer, General Practitioner, reported to the AFP that Mr Webeck sustained a workplace injury consisting of a ‘muscular strain to lower back and left sided sciatica’.[2]
[2] Ibid., page 13.
In June 1984, a delegate of the then Commissioner for Employees’ Compensation accepted Mr Webeck’s claim in respect of his injury ‘arising out of or in the course of his employment’ in September 1983, under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act).[3] As a result, and in accordance with section 27 of the 1971 Act, the AFP was liable to pay…

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) [2022] AATA 3784
Case: [2022] AATA 3784
Decision Date: 10 November 2022

CaseChat Overview and Summary

This matter concerned an appeal by Mr Webeck against a decision by Comcare regarding the calculation of weekly incapacity payments. Mr Webeck had sustained a lower back injury in the course of his employment with the Australian Federal Police (AFP) in 1983, and his claim for compensation was accepted. He resigned from the AFP in 1985. In 1997, a previous Tribunal decision had established Comcare's liability to pay compensation to Mr Webeck under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) for injuries sustained in 1980 and 1983. In 2005, Mr Webeck sought the reinstatement of incapacity payments, which Comcare initially questioned due to his resignation and lack of records of prior incapacity payments.

The primary legal issues before the Tribunal were whether Mr Webeck qualified as an ‘employee’ under the SRC Act for the purposes of receiving incapacity payments, whether Comcare was liable to pay such compensation, and if so, how it should be calculated. Comcare contended that Mr Webeck was an ‘employee’ by virtue of subsection 5(9) of the SRC Act, which includes persons who have ceased to be employees, and that his incapacity payments should be calculated according to specific subsections of the Act, amounting to $1,949.58 per week.

The Tribunal determined that Mr Webeck was indeed an ‘employee’ for the purposes of the SRC Act during the relevant period, as subsection 5(9) extends the definition to include those who have ceased to be employed. It was immaterial that Mr Webeck resigned before the commencement of the SRC Act, as the legislation applies to injuries sustained before its commencement. The Tribunal found that Mr Webeck was not a ‘former employee’ under section 123 of the SRC Act because he was not receiving weekly payments under the previous 1971 Act immediately before the SRC Act's commencement day. However, by virtue of subsection 5(9), his resignation in 1985 meant he was deemed an ‘employee’ for the purposes of the SRC Act. The Tribunal affirmed Comcare's decision regarding the calculation of weekly incapacity payments.

Orders

Orders of the court

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Background

Background to the litigation

The relevant issues for the Tribunal to decide in this proceeding are:(a)whether Mr Webeck is an ‘employee’ under the SRC Act;(b)if so, whether Comcare is liable to pay compensation to Mr Webeck; and(c)if so, how is compensation to be calculated. BACKGROUND On 12 September 1983, Mr Webeck made a claim for compensation to the then Commissioner for Employees’ Compensation, following an injury to his ‘lower left of back’, which occurred on the same day while in the performance of his duties with the Australian Federal Police (AFP).[1] [1] Exhibit 1, pages 8-12. In February 1984, Dr Jan Neubauer, General Practitioner, reported to the AFP that Mr Webeck sustained a workplace injury consisting of a ‘muscular strain to lower back and left sided sciatica’.[2] [2] Ibid., page 13. In June 1984, a delegate of the then Commissioner for Employees’ Compensation accepted Mr Webeck’s claim in respect of his injury ‘arising out of or in the course of his employment’ in September 1983, under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act).[3] As a result, and in accordance with section 27 of the 1971 Act, the AFP was liable to pay compensation in respect of Mr Webeck’s injury.[4] He received compensation for medical treatment associated with that injury until 1985, pursuant to section 37 of the 1971 Act.[5] [3] Ibid., pages 14-15. [4] Ibid. [5] Ibid; Exhibit 3, page 19. On 1 October 1985, Mr Webeck resigned from the AFP.[6] [6] Exhibit 1, pages 18, 21, 47, 75 and 85. In 1997, the Tribunal, differently constituted, made a decision following agreement as to the terms of a decision between Mr Webeck and Comcare pursuant to subsection 42C(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act), relevantly being that Mr Webeck suffered injuries to his lower back in the course of his employment with the AFP in 1980 and 1983 and these resulted in Comcare being liable to pay compensation to Mr Webeck under the SRC Act.[7] [7] Ibid., pages 16-17. In September 2005, Mr Webeck’s then solicitors wrote to Comcare seeking ‘reinstatement of incapacity payments associated with his lower back condition’.[8] Contrary to the suggestion in this correspondence, there was no evidence before the Tribunal that Mr Webeck had previously received any incapacity payments in relation to his accepted injury under section 19 of the SRC Act, although he had received compensation for medical treatment associated with that injury until 1985 under section 37 of the 1971 Act, and under section 16 of the SRC Act from the mid-1990s.[9] [8] Exhibit 2, pages 1-2.[9] Exhibit 1, pages 15-17; Exhibit 3, page 19. On 15 September 2005, Comcare responded to Mr Webeck’s then solicitors requesting further information regarding his request and noting that Mr Webeck ‘resigned from the Commonwealth in 1985, and that there are no records of your client receiving Comcare approved incapacity payments’.[10] [10] Exhibit 3, pages 44-45. In October 2005, Mr Webeck’s then solicitors submitted information pursuant to Comcare’s request and contended that Mr Webeck ‘is incapacitated’ within the terms of the SRC Act.[11] [11] Exhibit 1, pages 18-20.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to the status of this proceeding, including the Tribunal’s above findings in these written reasons, the Tribunal is not satisfied that it is desirable to make an order staying or otherwise affecting the operation or implementation of the decision under review. The Tribunal held a hearing on 19 September 2022, before Mr Webeck made his application for a stay order on 5 October 2022. The Tribunal has in this decision and reasons affirmed Comcare’s reviewable decision of 18 October 2021. The Tribunal has therefore concluded its determination of the application for review the subject of this proceeding. Plainly, in these circumstances, a stay order is not desirable, appropriate or required ‘for the purpose of securing the effectiveness of the hearing and determination of the application for review’, as required under subsection 41(2) of the AAT Act. The Tribunal held the hearing before Mr Webeck made his application for a stay order and it has concluded its determination of the substantive application. The Tribunal is therefore not satisfied that the purpose of subsection 41(2) of the AAT Act is present such that the Tribunal should consider staying or otherwise affecting the operation or implementation of the decision under review. This precondition to the potential exercise of the Tribunal’s discretionary power to make a stay order under subsection 41(2) of the AAT Act was not present from the time of the Tribunal hearing. For these reasons, the Tribunal refuses Mr Webeck’s application for a stay order. DECISION The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

Ratio Decidendi

Legal Principle Established

Comcare contended that Mr Webeck is deemed to be an ‘employee’ for the purposes of the SRC Act in the claimed period because subsection 5(9) of the SRC Act provides that an ‘employee’ includes ‘a person who has ceased to be an employee’ and Mr Webeck resigned from the AFP in 1985. Comcare did not dispute that compensation was payable to Mr Webeck in respect of his injury from 1983, but submitted that his incapacity payments are to be calculated in accordance with subsections 19(3) and 8(9B) of the SRC Act, which amounted to $1,949.58 per week during the relevant period. Accordingly, Comcare submitted that the decision under review confirming this amount of weekly incapacity payments to Mr Webeck from 19 August 2021 to 15 March 2022 should be affirmed by the Tribunal. CONSIDERATIONIs Mr Webeck an ‘employee’ under the SRC Act? In September 1983, Mr Webeck suffered an injury to his lower back in the course of his employment with the AFP. In June 1984, liability to pay compensation to Mr Webeck was accepted under the 1971 Act for this injury. In 1985, Mr Webeck resigned his employment with the AFP. The Tribunal finds that Mr Webeck is not a ‘former employee’ under the SRC Act because he was not, as required by section 123 of the SRC Act, receiving weekly payments of compensation under the 1971 Act in respect of his injury immediately before the ‘commencing day’ for the relevant provisions of the SRC Act on 1 December 1988. Subsection 124(1) of the SRC Act provides that this legislation applies in relation to an injury suffered by an employee whether before or after the commencing day on 1 December 1988. Mr Webeck made no claims under the 1971 Act after he resigned from the AFP on 1 October 1985 and up until 30 November 1988, noting again that the relevant provisions of the SRC Act commenced the following day on 1 December 1988. Mr Webeck made his first claim for compensation under the SRC Act in 1995 and this was the subject of a Tribunal decision in 1997.[26] He received incapacity benefits under the SRC Act from 2003.[27][26] Exhibit 1, pages 16-17. [27] Ibid., pages 22-26. The Tribunal finds that Mr Webeck is an ‘employee’ for the purposes of the SRC Act during the relevant period between August 2021 and March 2022, because subsection 5(9) of the SRC Act provides that a reference to ‘employee’ in the SRC Act includes, unless the contrary intention appears, a reference to a person who has ‘ceased to be an employee’. Mr Webeck ceased to be an employee of the Commonwealth and AFP when he resigned his employment in October 1985. It is immaterial in this proceeding that Mr Webeck ceased to be an employee before the commencement of the SRC Act. The application of the legislation is not limited to an ‘employee’ who ceased to be employed by the Commonwealth after the commencement of the SRC Act in 1988. While section 5 of the SRC Act provides that an ‘employee’ can also mean a person who is ‘employed by the Commonwealth’ and includes an ‘AFP employee’, for the avoidance of doubt, the Tribunal is satisfied, based on the evidence, that Mr Webeck is not ‘employed by the Commonwealth’, the AFP or any Commonwealth authority. That is, he is not an ‘AFP employee’ under subsection 5(2) of the SRC Act. Mr Webeck resigned from the AFP in 1985. He is therefore not employed by the Commonwealth or, specifically, the AFP and has not been since 1985. Mr Webeck has not performed any work or duties for the AFP since he resigned in October 1985, and he has not since that time been in receipt of salary, wages or pay from the AFP. The Tribunal finds that Mr Webeck ‘ceased to be an employee’ of the Commonwealth when he resigned from the AFP in 1985 and, pursuant to subsection 5(9) of the SRC Act, is therefore deemed to be an ‘employee’ for the purposes of the SRC Act. Is Comcare liable to pay compensation to Mr Webeck?