Webeck and Comcare (Compensation)

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.