Zaichenko and Secretary, Department of Family and Community Servi Ces

[2003] AATA 1355

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1355

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/691

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Paul Zaichenko

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date              28 November 2003

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Administrative Appeals Tribunal pursuant to section 43 of the Administrative Appeals Tribunal Act1975 affirms the decision under review.

..............................................

Ms SM Bullock      

Senior Member

CATCHWORDS

SOCIAL SECURITY – Lump Sum Compensation – Preclusion Period – Special Circumstances

Social Security Act 1991(Cth) ss 17, 1170, 1171, 1184K

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Secretary, Department of Family and Community Services v Chamberlain (2002)116 FCR 348

REASONS FOR DECISION

28 November 2003   Ms SM Bullock, Senior Member     

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page is a true copy of the decision and reasons for decision herein of Ms SM Bullock, Senior Member.

Signed: ……. ………………………………….

Associate

Date of Hearing  7 November 2003

Date of Decision  28 November 2003

Solicitor for Applicant                   Mr D Jones, Marshall and Partners Solicitors

Counsel for Applicant                  Mr T R Edwards

Representative for Respondent Mr E Thistlethwaite, Departmental Advocate

DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2003/691
By  MS S.M. BULLOCK, Senior Member
PAUL ZAICHENKO AND SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
SYDNEY, THURSDAY, 28 NOVEMBER 2003

1.      Mr Zaichenko, the Applicant, has made an application for review to the Administrative Appeals Tribunal (“the Tribunal”) of a decision made by the Social Security Appeals Tribunal (“the SSAT”) dated 3 February 2003.  That decision was that there were no special circumstances in Mr Zaichenko's case which would allow a part or a whole of his lump sum compensation payment to be disregarded so as to allow the repayments not to be made of $3,662.50.  The contention was that that amount should be waived.

2. A hearing was held in Newcastle on 7 November 2003. Mr Zaichenko was represented by Mr T R Edwards of Counsel and the Respondent, the Secretary, Department of Family and Community Services, was represented by Mr E Thistlethwaite, who is a Departmental Advocate. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and for ease of reference, those documents are called the “T Documents”..  They comprise documents T1 through to T23 and there were a number of Exhibits.  There was the Applicant's Statement of Facts and Contentions, dated 3 September 2003 (Exhibit A1).  There was Exhibit A2, a Transcript of Proceedings in the Compensation Court of New South Wales relating to a matter on 1 August 2002 before her Honour Truss J.  For the Respondent, there was the Respondent's Statement of Facts and Contentions dated 17 September 2003 (Exhibit R1).  Exhibit R2 comprised a Short Minutes of Order in relation to a matter in the Compensation Court of New South Wales, Matter 1611/02.  Mr Zaichenko provided oral evidence. 

3.      The background to this matter is that Mr Zaichenko sustained injuries in the course of his employment in the coal industry for various periods, including in 1977 (T10), in 1993 (T3 and T4), in 1995 (T3 and T10) and in 1996 (T3 and T4).  Mr Zaichenko lodged a claim for a lump sum and payments of periodic compensation with the Compensation Court of New South Wales on 31 May 2000 and then on 12 December 2000, Mr Zaichenko was issued with a letter about the potential impact of a

compensation payment on his social security entitlements (T16, pp 62, 63).  A duplicate letter was issued on 13 December 2000.

4.      On 28 May 2001, Mr Zaichenko agreed to a lump sum payment totalling $32,500.00 resulting from his workplace injuries.  On 8 June 2001, the Respondent determined that there was no preclusion period to be applied in respect of the $32,500.00 compensation nor were there any recoverable amounts (T18, p66).  It should be noted that on 1 February 1997, Mr Zaichenko was paid Newstart Allowance and again on 17 March 1997.  On 14 April 1997, Mr Zaichenko commenced receiving fortnightly Newstart Allowance of $321.50 per fortnight (T15, page 55).  These payments of Newstart Allowance ceased when Mr Zaichenko commenced working.  He then later received a reduced Newstart Allowance payment on 5 September 1997, with the commencement of fortnightly Newstart Allowance again on 8 January 1998. As I understand it from the documents, on 6 August 2001, Mr Zaichenko received his last Newstart Allowance payment.  On 23 January 2002, Mr Zaichenko lodged a claim for periodic payments of compensation with the Compensation Court of New South Wales and then on 1 August 2002, Mr Zaichenko agreed to a lump sum redemption compensation payment in the amount of $60,000.00 in respect of workplace injuries.

5.      The Coal Mines Insurance company which has been variously referred to as CMI, advised the Respondent of the compensation payment on 8 August 2002.  On 9 August 2002, the Respondent determined that there was an amount due to the Applicant, that a preclusion period applied to Mr Zaichenko from 31 August 1996 until 27 February 1998 and that an amount of $3,662.50 was recoverable by the Respondent from the insurer, CMI.  As I understand it, also from the documents, the Respondent received an amount of $3,662.50 from CMI on or about 28 August 2002.  Mr Zaichenko then made requests for review through a number of processes.  Firstly, to the Delegate of the Respondent, then to an Authorised Review Officer and when unsuccessful on that review, to the SSAT.  Following the decision of the SSAT, Mr Zaichenko then made an application for review to the Tribunal on 30 April 2003. 

6.      The main issue in this matter is whether or not there are any special circumstances which would allow the amount of $3,662.50 to not be recovered pursuant

to an application of section 1184K of the Social Security Act 1991, which I will refer to as “the Act” from now on.  When reaching a determination on that issue, I have to be satisfied that a preclusion period applies and that it was correctly calculated. 

7.      Mr Zaichenko's evidence, which I accept, is that he had several injuries in the course of his work in the coal industry.  There was an injury on 21 July 1996, which was a crush injury to his left hand.  He was treated, certified unfit for work for a period and was receiving weekly compensation payments until 30 August 1996, a period of approximately five weeks.  Then he returned to work, as I understand it, on selective duties.

8.      In October 1996, Mr Zaichenko took, what he termed, a “forced redundancy”..  He then took up various contracts for work and between each contract, he would apply for and receive Newstart Allowance in various amounts.  Mr Zaichenko eventually took up casual employment with Waratah Engineering which later became permanent employment and he was working in his profession and trade that he had received qualifications in, that is, as an electrician.  He was mainly, as I also understand it, working on various machinery in terms of his electrical skills in repairing or maintaining that equipment.

9.      The compensation matter was settled by way of a lump sum redemption on 1 August 2002.  That was the second piece of compensation and Mr Zaichenko appeared before Truss J in the Compensation Court of New South Wales.  His understanding was that there was no social security benefits which had to be refunded and Truss J was informed of that and that can be seen from Exhibit A2.  The Tribunal notes from that transcript that Mr Zaichenko informed her Honour that he knew that the $60,000.00 was in redemption of his compensation rights and was final settlement for, and I quote: “the parts of your body in addition to those that have already been compensated”..  Her Honour was also informed at that hearing that Mr Zaichenko had been told in relation to the $32,500.00 paid on 28 May 2001 that there was no requirement for repayment to Centrelink and that is found at T18, page 66.

10.     Mr Zaichenko acknowledged that he received a general letter from Centrelink dealing with the 1996/97 claim which gave general information about how worker’s compensation claims can effect and impact upon social security payments.  Mr Zaichenko affirmed that he had read that letter and had understood it.  Mr Zaichenko also told the Tribunal that he had not questioned this letter or sought any additional information or advice from Centrelink or a Department of Family and Community Services Officer.  He stated that he did not do that, he did not think there was a need to do that and in any event, he was mostly working full-time.  He noted that the letter he received on 12 December 2000 (T16) was similar to the letter he received in 1996/1997.  Amongst other things, the letter at T16, page 62 stated that:

“Before you agree to settle your compensation claim, you or your solicitor should contact us to find out if you will have to pay back any money and if your future payments will be affected. 

If you have any questions about this letter, please phone me on the above telephone number.”

And that was signed by a J Graham, Delegated Compensation Recovery Officer.

11.     The first occasion that Mr Zaichenko became aware of the repayment of the $3,662.50 occurred when he received a letter from CMI telling him that that money had to be repaid to Centrelink.  He, as I understand it, contacted by telephone the Charlestown Centrelink Office and subsequently spoke to his solicitor, Mr David Jones. Mr Zaichenko told the Tribunal that even if he had been aware of the requirement to repay the $3,662.50, he would not have changed his mind about agreeing to the compensation.  He stated that he was working full-time and he just did not consider that there would be any application of a preclusion period to him nor that there would be any requirement for repayment of any money.

12.     Mr Zaichenko stated that he is financially secure.  He spoke of his back injury as being the worst of the injuries that incapacitates him and he has to be careful how he moves but he is still able to conduct his life in, for all respects and purposes, a normal way.  The evidence from the New South Wales Compensation Court in relation to the matter before her Honour Truss J, to reiterate, ascertained that Mr Zaichenko knew that the $60,000.00 was in redemption of his rights and that it was a final settlement

involving all parts of his body in addition to those already compensated to him.  Truss J was told by Mr Zaichenko that there were no benefits to be refunded and that it was confirmed that they were the instructions by Mr Zaichenko's legal representative at that time.

13.     I now go to the submissions.  Mr Edwards submitted that in this case, the special circumstance is that the periodic payments paid to Mr Zaichenko between July 1996 and August 1996 should not be considered in the calculation of the preclusion period which would mean, on Mr Edwards' further submission, that the preclusion period would start from the date of approval of the commutation in August 2000 and be a prospective preclusion as opposed to a retrospective preclusion period. Referring to the Federal Court case of Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Mr Edwards noted that it must be borne in mind what the purpose is of the special circumstances discretion and that is, to ensure a person is not paid from two sources in respect of the same period and that the circumstances will be special as outlined in Groth v Secretary, Department of Social Security (supra), including considerations of it being unreasonable, unjust or inappropriate not to treat a whole or part of a compensation payment as not having been made.

14.     Bearing in mind that the thrust of the legislation is to ensure that a person is not paid from two sources in respect of the same period of time, Mr Edwards contended that special circumstances does not have to be a person's financial circumstances and that was not what was being contended in relation to Mr Zaichenko.  Mr Edwards further submitted that the Tribunal should consider the injuries Mr Zaichenko had experienced as detailed in T10, at pages 39 and 40.  Mr Edwards referred to the injury on 21 July 1996 as a minor injury of the left hand with some contusions.  As a result of that, Mr Zaichenko was provided with weekly compensation payments for five weeks. Mr Edwards noted that in March 2000, Mr Zaichenko made a claim for compensation to the Compensation Court of New South Wales in respect of various injuries from 11 August 1993 and also 21 July 1996, as detailed at T4, and as a result of that, there was a settlement lump sum payment on 28 May 2001, with no economic loss component contained within that.

15.     Mr Edwards noted that after Mr Zaichenko's left hand injury in July 1996, Mr Zaichenko in fact returned to work and worked until he was retrenched, thus, there is no impact of the left hand injury in terms of his receipt of Newstart Allowance.  Between obtaining further employment, there was a break and that was when Mr Zaichenko applied for benefits. Mr Edwards submitted that the payment of a benefit had nothing to do with the left hand injury.  The hand injury did not apply to that final settlement and there was no element of double-dipping.  Mr Edwards submitted that it was not correct that the preclusion period was calculated on two settlement periods.  In this regard, the determination of the New South Wales Compensation Court made on 8 June 2001 did not give rise to a preclusion period.  Mr Edwards noted that at T18, page 66, there was a reference that Mr Zaichenko's compensation claim settled on 28 May 2001, in the amount of $32,500.00, was not a claim that was covered by the compensation provisions. 

16.     Mr Edwards then referred the Tribunal to subsection 17(2) of the Act which defines compensation.  Reading from subsection 17(2), this states that: 

“17(2) Subject to subsection (2B), for the purposes of this Act, compensation means:

(a)       a payment of damages, or

(b)a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or

(c)a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or

(d)      any other compensation or damages payment;

(whether the payment is in the form of a lump sum or in the form of a series of periodic payments and whether it is made within or outside Australia) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.”

17.        Mr Edwards' main submission is that the payment of the $32,500.00 is not a    compensation payment under the Act because the terms of the settlement reflect that it is totally for the injury as opposed for loss of economic earnings.  The difficulty, Mr Edwards pointed out, is trying to reconcile what is contained within subsection 17(2) of the Act with subsection 1171(1) of the Act, and I will refer to that. Subsection 1171(1) of the Act states:

“1171(1) If:

(a)a person receives 2 or more lump sum payments in relation to the same event that gave rise to an entitlement of the person to compensation (the multiple payments); and

(b)at least one of the multiple payments is made wholly or partly in respect of lost earnings or lost capacity to earn;

the following paragraphs have effect for the purposes of this Act and the Administration Act:

(c)the person is taken to have received one lump sum compensation payment (the single payment) of an amount equal to the sum of the multiple payments;

(d)       the single payment is taken to have been received by the person:

(i) on the day on which he or she received the last of the multiple payments; or

(ii) if the multiple payments were all received on the same day, on that day.”

18.     The difficulty is then, Mr Edwards submitted, that subsection 17(2) of the Act defines that the compensation must be wholly or partly in respect of the lost earning or earning capacity.  This is an ambiguity in the legislation when considered alongside subsection 1171(1) of the Act which gives authority to adding together the multiple payments.  It was Mr Edwards' submission in terms of this ambiguity, that subsection 17(2) of the Act held primacy and that, given the beneficial nature of the Act, it should be decided in the Applicant's favour. 

19.     If that is correct, then Mr Edwards' submitted that the formula would be worked out using the amount of $60,000.00 only which was the last payment which, Mr Edwards submitted, dealt with the incapacity.  Thus, the $60,000.00 would be divided by two, applying the 50 per cent rule, divided by the divisor, $562.75, which would provide a period of 53 weeks and then the preclusion period would, on that scenario, end on 19 January 1997.  As the Applicant's first payment of social security benefits occurred in February 1997 then it was submitted by Mr Edwards that the unemployment or the Newstart Allowance was not received during the preclusion period. 

20.     Mr Edwards contended that it would be unreasonable, unjust and inappropriate to apply the legislative formula so technically and that the discretion should be exercised to overcome the technicality because the causal elements chronologically to activate the formula are so far removed from the benefits that Mr Zaichenko received and that this would be untenable.  That is, the periodic payments that determined the beginning of the preclusion period on 31 August 1996 are so far removed from any benefit that the Applicant received from his compensation that it should not be

considered.  Therefore, Mr Edwards submitted that the special circumstance was that the formula should not be so technically applied.  The Applicant seeks a finding then that the period of weekly payments from July 1996 to August 1996 be treated as not having been made.  The application of the legislation in Mr Zaichenko's case produced an unfair and unintended consequence which is a special circumstance, Mr Edwards concluded.

21.     Mr Thistlethwaite, for the Respondent, submitted that the application of the statutory formulation for preclusion periods and the advice given to the Judge at the time, that is, Truss J, may not have been accurate and did not take into account the aggregation of the two lump sums of $60,000.00 and the earlier sum of $32,500.00.  Mr Thistlethwaite submitted that Mr Zaichenko was retrenched from the coal mining industry and subsequently found contract work which was not sufficient for him and hence, his need to obtain social security benefits early in 1997. Accordingly, the respondent submitted that any of the injuries which have been compensated by the $60,000.00 have caused Mr Zaichenko's loss of earnings as early as January 1997. 

22.     In relation to there being an unfair impact on Mr Zaichenko of the legislation, Mr Thistlethwaite referred the Tribunal to the decision Secretary, Department of Family and Community Services v Chamberlain (2002) 116 FCR 348 in which a small amount of lump sum was justified as being adequate to invoke the use of the 50 per cent rule in determining the applicable preclusion period and therefore Mr Thistlethwaite submitted it must be considered that the intent of the legislation is that a consent agreement settlement must be subject to the usual legislative provisions and applying to it subsection 1170(1) of the Act. If the Tribunal disregarded the five weeks of payments during July through to August 1996, then Mr Thistlethwaite submitted that the preclusion period would start immediately after the prior period of periodic payments which he submitted would be 12 January 1996. As a matter of fact, Mr Thistlethwaite submitted that all the periodic compensation received by Mr Zaichenko in respect of any injuries for which he has been compensated would have to be disregarded in order for Mr Zaichenko's desired outcome to be achieved and then only on the basis that the Secretary found that the loss of earnings actually commenced from 1 September 2001,

the date claimed by the Applicant to be that from which Mr Zaichenko commenced his periodic compensation. 

23.     Mr Thistlethwaite emphasised that the compensation lump sum payment received by Mr Zaichenko was actually paid in respect of all of the injuries that he had incurred.  Mr Thistlethwaite in his Statement of Facts and Contentions submitted that the appropriate date for the starting of the preclusion period is 31 August 1996.  He submitted that the provisions and application of subsection 1170(2) of the Act does not apply nor does subsection 1170(3) of the Act, because Mr Zaichenko's receipt of periodic compensation was in respect of one of the compensable injuries.

24.     Mr Thistlethwaite submitted that there were no special circumstances as Mr Zaichenko is currently engaged in full-time employment and he is in a better position than the majority of social security claimants. Furthermore, Mr Thistlethwaite submitted that Mr Zaichenko's liability to the Commonwealth has been discharged on his behalf by the insurer. Accordingly, Mr Thistlethwaite concluded that Mr Zaichenko does not suffer from any financial hardship.  Mr Thistlethwaite contended that Mr Zaichenko lost earnings from 31 August 1996, which is the day after the date for which he was last paid periodic compensation in respect of his compensable injuries.  That this is when the loss occurred, is evidenced from Mr Zaichenko's receipt of social security payments from early 1997.  While Mr Thistlethwaite noted the Applicant's written submissions that Mr Zaichenko only claimed periodic compensation for the period commencing 1 September 2001, it is important to note, Mr Thistlethwaite contended, that the compensation lump sum payment received by the applicant was wholly paid to him in respect of all the injuries he had sustained during the course of his employment with Pelton Colliery and as was advised by the insurer, CMI.

25.     I turn now to my consideration and findings.  The Tribunal has reached a decision in this matter taking into account the evidence, the legislation and the case law.  On 28 May 2001, Mr Zaichenko received compensation in the amount of $32,500.00 for pain and suffering and permanent impairment for injuries to his back, his right leg and his left arm above the elbow.  As was noted in T4, page 21, there was no claim for economic loss.  Subsequently, a further compensation claim was made by Mr

Zaichenko including compensation for loss of earnings on 1 August 2002.  That matter was settled with a further amount of compensation in the quantum of $60,000.00.  The Respondent then calculated a preclusion period using the combined sum of $92,500.00 to which the 50 per cent rule was applied to an amount of $46,250.00 with a divisor of $562.75 per week.  The preclusion period calculated was 78 weeks which commenced from 31 August 1996, the day after the weekly worker’s compensation eased.  The preclusion period determined by the Respondent was from 31 August 1996 until 27 February 1998.  It is clear from the documentary evidence contained in T4 and from Exhibits A2 and R2 that the compensation in the amount of $60,000.00 related to a number of injuries.

26.     The Tribunal finds that the Short Minutes of Order in the New South Wales Compensation Court of New South Wales with Mr Zaichenko, the Applicant worker, is such that it was in respect of injuries referred to in the application for determination which included the left arm injury of July 1996 in addition to other injuries.  It is noted on 1 August 2002 that before her Honour Truss J and considering the transcript of those proceedings in the Compensation Court of New South Wales, that evidence was provided that the compensation in the amount of $60,000.00 was in respect of compensation for parts of the body already compensated as well as the new areas. There was also advice to the Judge that there was no social security benefits needed.  The source of this information was not discussed during those proceedings.  Certainly, it was not apparent from the transcript.  The Tribunal finds that there is no discretion to conclude anything other than that the last payment of periodic compensation payment was on 30 August 1996.  Subsection 1170(1) of the Act applies in that the preclusion period commencement date when both periodic payments of compensation and lump sum compensation is received, begins on the day following the last day of the periodic payment.

27.     In the circumstances that I have before me and given the evidence, I am satisfied that the matter falls within subsection 1170(1) of the Act and that the other subsections 1170 (2) and (3) of the Act do not allow any other date.  I am of the view that the legislation does not allow me to accept or to conclude that the date of 1 September 2001 can be set, as submitted by the Applicant.  Whilst it is my finding that if a

preclusion period is to be applied, it is from 31 August 1996, the day after the periodic payments of compensation were made, subsection 1171(1) of the Act states that when two or more lump sum payments in relation to the same event give rise to entitlement to compensation and at least one of those payments is made wholly or partly in respect of lost earnings then the person is taken to have received one lump sum payment. 

28.     The Applicant has urged the Tribunal to consider the ambiguity between subsection 1171(1) of the Act and also subsection 17(2) of the Act.  Specifically, subsection 17(2) of the Act provides that compensation is that which is made wholly or partly in respect of lost earnings.  Mr Edwards argued that subsection 17(2) of the Act is inconsistent with subsection 1171(1) of the Act, in that that provision refers to a compensation payment which, if one then refers back to section 17 of the Act, is defined as wholly or partly in respect of lost earnings or earning capacity.  Thus, it was argued that only the $60,000.00 could be referred to as compensation and used in the calculation of a lump sum preclusion period.  While such an argument may be superficially attractive, it seems to me that for the purposes of the Act, subsection 1171(1) refers to lump sum payments as opposed to lump sum compensation payments.  It contemplates that lump sum payments may occur wholly or partly in respect of lost earnings, that is, that referred to in section 17 and also, in its ordinary sense as a payment without such a component for loss of earnings.

29.     This is precisely the circumstances experienced by Mr Zaichenko when he received a lump sum of $32,500.00 with no lost earnings capacity, in addition to an amount of $60,000 which did have a component of lost earnings.  I find it appropriate then to apply subsection 1171(1) of the Act, that there was one lump sum compensation payment equal to the sum of the multiple payments.  Applying the formula contained in section 1170 of the Act, then the preclusion period is calculated by the Tribunal to be correct, from 31 August 1996 to 27 February 1998.

30. Turning to the issue of the application of section 1184K of the Act, in ascertaining if there are any circumstances which are special in this case to warrant treating part or whole of the compensation as not having been made, the Tribunal notes the various other Tribunals and Federal Courts have not come to a precise definition of special

circumstances and nor, in my view, would that be appropriate.  The individual circumstances of a case must be considered.  Special circumstances may be found if there is an element of injustice or if the application of the legislation produces an unfair or unintended result. Factors such as financial hardship, health considerations, poor legal advice or social conditioning have been considered in various decisions when making a determination about special circumstances.  On the evidence available to me, there is no element of financial hardship operating in Mr Zaichenko's case, nor are there any health considerations which would warrant the provision of special circumstances to be applied.  Mr Edwards submitted that as one lump payment had no component of economic loss then that could be considered as a special circumstance.  As I have already found however, subsection 1171(1) of the Act must be applied.

31.     Furthermore, at the time, I note that there was a Centrelink notation made concerning the $32,500.00 payment, that there was no compensation implications at that time.  Whilst I note that it was also not known, given the evidence that I have, that there was to be a further payment of $60,000.00, which would then enliven consideration of section 1171 of the Act, it would seem to me on the evidence that neither Mr Zaichenko nor his legal representatives made any inquiries of Centrelink about the impact of the receipt of the second lump sum payment and certainly, the Applicant was on notice that such inquiries should be made.

32.     Mr Edwards submitted that it would be unreasonable, unjust and inappropriate to apply the formula so technically to Mr Zaichenko's claim because the causal elements chronologically to activate the formula were contended to be so far removed from the benefits that Mr Zaichenko received from his compensation that it therefore should not be counted.  In considering that submission, I have been guided by the Federal Court decision in Secretary, Department of Family and Community Services v Chamberlain (supra) where it was noted that the statutory objectives in utilising the formula must be borne in mind and that it is not intended that a decision-maker be required to consider contentions about what part of a compensation payment reflected the economic loss component and that any application of section 1184K must be done after bearing the overall intents of the legislation in mind.

33. In all of the circumstances, I do not consider that in this case, there are special circumstances to allow the application of section 1184K of the Act thus to have a whole or a part of the compensation paid to Mr Zaichenko to be disregarded. I consider that the preclusion period was correctly calculated and that there was the correct amount received from CMI in respect of the repayment. That was also a correct calculation. Accordingly, pursuant to section 43 of the Act, the decision under review is affirmed.