Wuth and Comcare (Compensation) - [2015] AATA 947

Wuth and Comcare (Compensation) [2015] AATA 947 (9 December 2015)

Division

GENERAL DIVISION

File numbers

2014/0673 and 2014/4007

Nicole Wuth

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal Dr James Popple, Senior Member

Date 9 December 2015

Place Canberra
1. In Application 2014/0673, Comcare’s decision on 23 December 2013 is affirmed.

2. In Application 2014/4007, Comcare’s decision on 2 July 2014 is set aside and, in substitution, the following decision is made:

Comcare is liable, under s 24 of the Safety, Rehabilitation and Compensation Act 1988, to pay compensation to the applicant in respect of her chronic migrainous headaches. Comcare is also liable to pay her compensation for non-economic loss in accordance with s 27 of that Act. The applicant’s degree of permanent impairment is 14%.

.............................[sgd]...........................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — calculation of normal weekly earnings — effect of part-time working arrangements — applicant and employer understood that applicant would eventually return to full-time work — whether normal hours includes work in addition to agreed hours — decision affirmed.

COMPENSATION — Commonwealth employees — permanent impairment — applicant suffers headaches — disease aggravated by work — assessment of permanent impairment — no applicable table under approved Guide — application of the AMA 5 — clinical judgment — decision set aside and substituted.

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A(1)(a), 5B(1), 8(1), (2), 14, 24, 27

CASES
Comcare v Nicolas (2014) 225 FCR 369

Comcare v Pires (2005) 143 FCR 104

Comcare v Simmons (2014) 220 FCR 102

Farrell v Comcare [2015] FCA 1337

Nicolas and Comcare [2014] AATA 189

Pires and Comcare (2004) 86 ALD 631

Telstra Corporation Ltd v Peisley (2006) 151 FCR 275

Zarb and Comcare (1997) 48 ALD 718

SECONDARY MATERIALS
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (edition 2.1, 2011)

Gunnar B. J. Andersson and Linda Cocchiarella (editors), Guides to the Evaluation of Permanent Impairment (AMA Press, fifth edition, 2001)

REASONS FOR DECISION
Dr James Popple, Senior Member
9 December 2015
Summary

I affirm Comcare’s decision that, for the purposes of s 8(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), the applicant worked an average of 29.4 hours (four days) in each week during the relevant period. This is the number of hours that was agreed under a part-time arrangement. The applicant worked extra hours beyond her agreed hours during the relevant period, but those extra hours should not be taken into account.
I set aside Comcare’s decision that it is not liable to compensate the applicant for permanent impairment and non-economic loss. The applicant suffered an injury that has resulted in a permanent impairment. Her impairment is of a kind that cannot be assessed in accordance with the provisions of the approved Guide, so (according to the approved Guide) the assessment is to be made under the fifth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the AMA 5). But the AMA…

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 Wuth and Comcare (Compensation)

Details

AGLC: Wuth and Comcare (Compensation) [2015] AATA 947
Case: [2015] AATA 947
Decision Date: 9 December 2015

CaseChat Overview and Summary

The matter of Wuth and Comcare (Compensation) involved Ms Wuth, an employee of the Commonwealth, who sought review of Comcare’s decisions concerning her compensation claims. The primary dispute centred around two key issues: the calculation of Ms Wuth's normal weekly earnings prior to her injury and whether Comcare was liable for compensation for her permanent impairment and non-economic loss. Ms Wuth challenged Comcare's determination that her normal hours were 29.4 hours per week rather than 36.75 hours, which would significantly affect her normal weekly earnings under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Additionally, she contested Comcare's refusal to compensate her for permanent impairment and non-economic loss, arguing that her chronic migrainous headaches were work-aggravated and that her degree of permanent impairment met the statutory threshold.

The legal issues that the court had to address were twofold. Firstly, the court needed to determine how Ms Wuth's normal hours should be calculated under section 8 of the SRC Act, as this would impact her normal weekly earnings. The relevant period for this calculation was established as the two weeks immediately preceding her injury, which both parties agreed was 13–26 February 2007. Secondly, the court had to assess whether Ms Wuth's injuries warranted compensation for permanent impairment and non-economic loss, including determining the appropriate method for assessing her degree of permanent impairment. This involved examining whether the impairment could be measured using an applicable table under the approved guide, under the AMA 5, or through clinical judgment.

The court found that Ms Wuth's normal hours prior to her injury were indeed 29.4 hours per week, affirming Comcare's original decision on this matter. The reasoning hinged on the interpretation of section 8 of the SRC Act and the agreed relevant period. Regarding the second issue, the court set aside Comcare's decision, holding that Ms Wuth was entitled to compensation for her chronic migrainous headaches and non-economic loss. The court determined that her headaches, which were aggravated by her work, constituted a permanent impairment. The degree of impairment was assessed at 14%, exceeding the 10% threshold required for compensation under the SRC Act. The method of assessment was left to clinical judgment as there was no applicable table under the approved guide.

The final orders of the court were that Comcare's decision affirming Ms Wuth's normal hours at 29.4 hours per week was upheld. However, Comcare was directed to compensate Ms Wuth for her chronic migrainous headaches and non-economic loss, with her degree of permanent impairment determined to be 14%.

Orders

Orders of the court

1. In Application 2014/0673, Comcare’s decision on 23 December 2013 is affirmed.

2. In Application 2014/4007, Comcare’s decision on 2 July 2014 is set aside and, in substitution, the following decision is made:

Comcare is liable, under s 24 of the Safety, Rehabilitation and Compensation Act 1988, to pay compensation to the applicant in respect of her chronic migrainous headaches. Comcare is also liable to pay her compensation for non-economic loss in accordance with s 27 of that Act. The applicant’s degree of permanent impairment is 14%.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 3 July 2014, Ms Wuth applied to the Tribunal,[8] under s 64 of the SRC Act, for review of that decision.[8] Application 2014/4007.Decisions under review The decisions under review are Comcare’s decisions:·on 23 December 2013, affirming its determination that Ms Wuth’s normal hours prior to the injury were 29.4 hours (four days a week); and·on 2 July 2014, affirming its determination that it is not liable to compensate Ms Wuth for permanent impairment and non-economic loss.Issues The issues in this review are:·whether Ms Wuth’s normal hours prior to the injury were 29.4 hours (four days a week) or 36.75 hours (five days a week)—that depends on how her normal hours should be determined under s 8 of the SRC Act, which affects her normal weekly earnings as calculated under that provision; and·whether Comcare is liable to pay Ms Wuth compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act—that depends on:owhether she has suffered an injury that has resulted in a permanent impairment; andoif so:·whether her degree of permanent impairment can be assessed under the approved Guide, or under the AMA 5, or using clinical judgment; and·whether her degree of permanent impairment is 10% or more.What were Ms Wuth’s normal hours prior to her injury (s 8 of the SRC Act)? Section 4(1) of the SRC Act defines “normal weekly earnings” to mean the normal weekly earnings of an employee calculated under s 8. Section 8(1) provides:8 Normal weekly earnings(1)For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2))[9] before an injury shall be calculated in relation to the relevant period under the formula:(NH × RP) + Awhere:NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;RP is the employee’s average hourly ordinary time rate of pay during that period; andAis the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.In this review, the values of RP and A are agreed; only the value of NH (Ms Wuth’s normal hours) is in issue.[9] Section 8(2) applies where an employee is required to work overtime on a regular basis. See [30] below.The relevant period Section 4(1) defines “relevant period” to mean the period calculated under s 9. Section 9(1) provides that the relevant period is “the latest period of 2 weeks before the date of the injury during which the employee was continuously employed”.[10] As noted above,[11] the Tribunal has already decided that the deemed date of injury was 27 February 2007, as agreed between the parties. Ms Wuth was continuously employed in the two weeks before that date. So, the relevant period is 13–26 February 2007.[12][10] Section 9(1) is expressly subject to s 9. The other subsections of s 9 do not apply in this review.[11] See [8] above.[12] At the hearing, Ms Wuth said that it is arguable that the date of injury was another date. However, both Ms Wuth and Comcare agree that nothing turns on this. They disagree about how the value for NH should be determined, but they agree that that value is the same whichever date of injury—and, therefore, whichever relevant period—is used.Ms Wuth’s employment with the Department

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File numbers	2014/0673 and 2014/4007
Nicole Wuth
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr James Popple, Senior Member
Date	9 December 2015
Place	Canberra