William Witschge and Military Rehabilitation and Compensation Commission

[2013] AATA 892

[2013] AATA 892 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/0506
Re	William Witschge
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	The Hon. R Nicholson, Deputy President
Date	13 December 2013
Place	Perth

Decision Summary

The decision under review is affirmed.

....(Sgd) R Nicholson.......................

The Hon. R Nicholson, Deputy President

Catchwords

COMPENSATION – injuries resulting in incapacity – earnings being in the nature of spotter’s fees to a retiring travel agent – whether deductible

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) s19(2)

REASONS FOR DECISION

The Hon. R Nicholson, Deputy President

13 December 2013

1. The applicant was a national serviceman in the intake ballot 3/1969.  After 12 months he was deemed medically unfit and medically discharged.  After six major spinal operations since discharge the applicant became unable to continue working in December 2010.

2. During his working life the applicant was a career travel agent.  On his retirement a number of clients requested him to plan and research their 2011 holidays and to arrange a good travel agent to take over.  This he did over December and January 2010 to 2011 and also pre-booked some tours to ensure the clients were confirmed on tours of their choice.  He then negotiated a fellow travel agent to accept or take over the bookings. The applicant would be rewarded for the work done with a “spotter’s fee”.

3. On 15 March 2011 a delegate of the respondent determined that the applicant was now entitled to payment of the following amount for the time he was or had been unfit for work:-

   section  period                     gross weekly amount     

   19(2)  23/12/2010 – 22/06/2011             $914.72

4. The letter advising him of this determination stated that if he received any payments from any other source he needed to tell the office immediately of the change in his circumstances.

5. The applicant notified the respondent he had earned $2,300 between February and September 2011.  On 22 September 2000 a delegate of the respondent therefore determined that the applicant should have been entitled to payment of the following amounts and the periods for the time he had been unfit for work:

   section  period                       gross weekly amount     

   19(2)      23/12/2010 – 22/06/2011              $914.72

   03/02/2011 – 30/06/2011              $841.91

   01/07/2011 – 14/09/2011              $879.66

   15/09/2011 – 10/11/2011              $949.48

   Again the letter advising of this determination cautioned that he must tell the office immediately if he received any payments from any other source.

6. On 5 December 2012 a review officer, delegate of the respondent, affirmed the determination dated 22 September 2011.

7. The sum of $2,300.00, being the amount which the applicant was said to have earned between February and September 2011, was made up of the following amounts:

   $  124.00        received 18 March 2011 in respect of the travel of Mr Valcini

   $1850.00 received 13 May 2011 in respect of the travel of Mr Moroz, Mrs Rejeki      and others.

   $1974.00TOTAL

8. However, the amount considered by the delegate of the respondent was $2,300.00 and the applicant did not dispute this.

9. The section of the Act relied upon in the decision under review and the preceeding decisions was Section 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) which provides as follows:

   “19 Compensation for injuries resulting in incapacity

   (1)…

   (2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

   NWE -AE

   where:

   AE is the greater of the following amounts:

   (a)the amount per week (if any) that the employee is able to earn in suitable employment;

   (b)the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.

   NWE is the amount of the employee’s normal weekly earnings.”

10. There is no dispute that the employee is not able to earn an amount in suitable employment nor is it disputed that the amount per week which the employee has earned from any employment including (self-employment) is anything other than the above payments totalling $2,300.00.

11. The applicant’s case was essentially set out in an email which he sent to the delegate of the respondent, stating as follows:

    “I worked as a travel agent until Dec 2010 and had a following of clients for my services.  During January/February 2011 I was approached privately by some of my clients who requested I assist them with their 2011 holidays.

    As I am no longer employed by a travel agent and therefore, by law, unable to practice, I informed them accordingly and that I would refer them to two travel agencies who would take care of their needs, however I did some research for their itineraries.  I then contacted the agencies to see if they were interested in taking on my clients and was offered a token introduction fee to be paid to me after the clients had departed.

    This fee for 12 separate clients is a one off totalling $2,330.00 and one last one expected to travel in September 2011 for $124.00

    I am aware of the conditions of DVA pension that I am unable to earn an income in addition to your pension, however this agreement was put into place prior to the acceptance of the pension which occurred approximately April 2011.

    At the time the above arrangement was put into place, i e January/February 2011, I had not been advised by your Department if my application for a pension was successful or not.”

12. With regard to the first cheque relating to Mr Valcini the applicant sent an email to the travel agent in whom he said with respect to a business class upgrade that “I’ll organise payment to you”.  However, in oral testimony he said that no payment was made; it involved an upgrade of travel using Thai Airlines Frequent Flyer Points and the party concerned had to pay the airline direct. 

13. In relation to the cheque for $1850 received from Collins Travel Agent that was said to relate to Mr Moroz/Mrs Rajecki; Mr/Mrs Scheepens; Mr/Mrs Kearsley and travelling companion; Guelfi group of 6; Mr/Mrs Wicking; Mr Mensink; Mrs Willis; Mr/Mrs Caruso and Mr/Mrs Armstrong.

14. In relation to the Wickings, the applicant sent an email on the 2009 December 2010 to Collins Agency setting out the programme of these people and requesting Leanne to contact them as soon as possible.

15. In regard to the Guelfis, an email was sent by the applicant on 29 December 2010 to Collins Agency setting out their travel plan and asking that various steps be taken.  With reference to that same party an email was sent on 31 December 2010 to the same agency setting out further details.

16. With regard to the Kearsley party, an email was sent to the Collins Agency on 4 January 2011 stating that the applicant had given them a quote and asking that contact be made with them.

17. With regard to the Vincent and Armstrong party, a message was sent on 8 January 2011 stating where this party wished to travel to and stating that the applicant had sent them his email advice with the Agency’s details so that they could contact the Agency.

18. In relation to the Wickings, party the applicant sent an email on 16 March 2011 to the Collins Agency saying he had suggested touring in Southern India.

19. With reference to Rajecki/Moroz, the applicant sent an email on 18 March 2011 to the agency saying that he had the idea that the parties could do a charter in Alaska and could they let him know.

20. On 12 May 2011 Collins Agency sent an email to the applicant advising that Guelfi had ended up making their own bookings but had done some accommodation and car hire and that Scheepans had gone to Bali.  Further that Armstrong, Wicking, Rajecki and Kearsley were still to travel.  Further that Caruso and Mensink had cancelled.

21. In an email dated 13 May 2011 to Collins Agency the applicant stated that especially in relation to Rejecki and Wickings, he had tried to make the bookings easier by researching the booking, with them booking with the wholesalers.

22. The respondent submits that the applicant undertook the work of a travel agent after the date on which the pension became payable.  He submits that the applicant undertook work in January, February continuing to May 2011, while he was in receipt of compensation benefits.

23. Paragraph (b) of the definition of “AE” in s19 (2) of the Act requires that the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week, be calculated. Essentially what the respondent submits is that such engagement as the applicant had in the emails outlined above and in his statements to the Tribunal, were such that he should be regarded as self-employed, so that the amounts becoming due on the dates of the three payments, were amounts earned by him from his self-employment as a travel agent.

24. It is important to note that par (b) refers to the amount the employee ‘earns from any employment’. That includes self-employment. The paragraph therefore has the widest reach.

25. It does not therefore seem to me to be necessary to determine whether the applicant was acting as a ‘travel agent’. It is sufficient that he earned money from ‘any employment’. The receipt by him of earnings from his activity raises the presumption that he was employed. That presumption is not rebutted.

26. It cannot assist the applicant if the contract in respect of the employment was entered into before the pension was determined. Once the pension was determined, the statutory provisions pertaining to it came into play. If the applicant as employee earned any amount during a week that was a maximum rate compensation week, that amount was picked up by those provisions so as to come within the calculation of the ‘AE’ factor to be deducted from the applicant’s NWE.    

27. For these reasons I consider that the application for review should be refused and the decision under review affirmed.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of the Hon. R Nicholson, Deputy President.

...(Sgd) T Freeman............

Associate

Dated 13 December 2013

Date(s) of hearing	21 November 2013
Applicant	In person
Representative for the Respondent	Ms L Gallagher
Solicitors for the Respondent	Sparke Helmore