Zivkov and Comcare
[2003] AATA 370
•24 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 370
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/404
GENERAL ADMINISTRATIVE DIVISION ) Re VOJISLAV ZIVKOV Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr I R Way, Member Date24 April 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) I R Way
Member
CATCHWORDS
WORKERS’ COMPENSATION – back injury – applicant in receipt of weekly compensation payments – request for lump sum payment – whether applicant is entitled to a lump sum payment for the deemed personal injury to his back
WORKERS’ COMPENSATION – legislation – compensation for injury sustained in 1973 – interaction between former and current workers compensation legislation
Compensation (Commonwealth Government Employees) Act 1971
Compensation (Australian Government Employees) Act 1971-1973
Safety Rehabilitation and Compensation Act 1988
Commonwealth Employees Rehabilitation and Compensation Act 1988
Commonwealth Workmen’s Compensation Act 1912Commonwealth Employees Act 1930
REASONS FOR DECISION
24 April 2003 Mr I R Way, Member 1. This is an application by Vojislav Zivkov for review of a decision of Comcare which refused Mr Zivkov’s claim for a lump sum settlement of the weekly payments he receives as compensation for a deemed personal injury to his back on 28 September 1973.
2. It was agreed by both parties that this matter should be dealt with by the Tribunal on the papers without proceeding to a formal hearing. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T41), written submissions from the respondent dated 18 December 2002 and written supplementary submissions from the respondent dated 27 March 2003.
3. The Tribunal also had before it a number of submissions made by Mr Zivkov, including copies of numerous letters and other documents. The documents provided by Mr Zivkov have been received by the Tribunal at various stages during the progression of this matter and, understandably are to some extent duplicatory. For ease of reference the documents provided by Mr Zivkov, and not already included in the T documents, are set out below.
Date
Description
25/07/1972
Invoice for purchase of motor vehicle
10/10/1973
First Election under Section 103
23/10/1973
Statutory Declaration by Applicant
21/12/1973
Notice of Recovery of Social Security Benefits
02/01/1974
Determination of Delegate of the Director-General of Social Services regarding the recovery of monies for sickness benefits
11/01/1974
Letter from Director of Works to Applicant
14/01/1974
Determination (under the compensation (Australian Government Employees) Act 1971-73
21/02/1974
Letter from AJ Kinnane, Area Manager, Department of Housing and Construction admitting liability for injury
26/09/1974
First page of letter from Department of Housing and Construction to the Applicant
24/10/1974
Medical Report of Dr Graham Cossins, CMO
10/07/1975
Determination (under the Compensation (Australian Government Employees) Act 1971-73)
23/04/1976
Representation from Local Member
06/06/1978
Letter from Combined Insurance Company of America to Department of Construction
Undated
Copies of Payments of Compensation made by Combined Insurance Company of America
23/01/1984
Statutory Declaration by Applicant
12/07/1984
Decision of AAT (DP Hall) (T6, folios 19-25)
Undated
Letter from AAT enclosing Notice of Appeal form
03/06/1985
Letter from AG to Pro-Bono Solicitor, John Gayler
07/01/1991
Letter from Department of Social Security regarding Invalid Pension (no longer payable) and copy of Pharmaceutical Benefits Concession Card (1991)
05/07/2001
Letter from Centrelink regarding Age Pension
07/01/2002
Reconsideration Decision
16/01/2002
Application for Review by AAT with attachments
20/06/2002
Comcare Payment Record
07/07/2002
List of Medical Conditions prepared by Applicant
01/11/2002
Letter from Applicant to AAT – reasons for seeking review of decision
03/11/2002
Letter from Applicant to AAT – list of witnesses
05/11/2002
Letter from Applicant to AAT – with attachments
18/12/2002
Respondent’s Submissions
Undated
Incapacity provisions for employers – Safety Rehabilitation and Compensation Act 1988
24/12/2002
Letter from Applicant to AAT – Submissions and other attachments
17/02/2003
Letter from Applicant to AAT - Submissions and other attachments
25/02/2003
Letter from Comcare to Applicant regarding weekly payments
05/03/2003
Letter from Applicant to Respondent and AAT with attachments
07/03/2003
Letter from Applicant to Respondent and AAT with attachments
27/03/2003
Respondent’s Supplementary Submissions
01/04/2003
Letter from Comcare to Applicant regarding weekly payments
02/04/2003
Letter from Applicant to Respondent concerning the Respondent’s Supplementary Submissions
02/04/2003
Letter from Comcare to Applicant regarding weekly payments
09/04/2003
Letter from Applicant to Respondent with attachments
4. It is apparent that as this matter has proceeded Mr Zivkov has expressed concern as to whether he is eligible for various entitlements, including lump sum payment with respect to permanent impairment. However, Mr Zivkov has advised that his request for a review is directed solely to the question of redemption of compensation payable to him in respect of his deemed injury in 1973.
5. In order to better appreciate the nature and extent of Mr Zivkov’s application, it is appropriate to set out, in outline, Mr Zivkov’s compensation history.
6. Mr Zivkov was born on 1 March 1936. He was a carpenter with the former Department of Housing and Construction, when, on 28 September 1973, he sustained a back injury and subsequently elected to claim compensation for this injury under section 103 of the Compensation (Commonwealth Employees) Act 1971.
7. On 14 January 1974, a delegate of the Commissioner of Employees’ Compensation determined in relation to Mr Vojislav Zivkov as follows:
“In pursuance of the provisions of the compensation (Australian Government Employees) Act 1971-1973, I hereby determine:
§ the said Vojislav Zivkov sustained personal injury arising out of or in the course of his employment on 28 September, 1973, namely:
-strained back muscles”
8. On 10 July 1975 that determination was amended by a delegate of the Commissioner for Employees’ Compensation as follows:
“The determination issued on the above date [14.1.74] is now amended to read as follows:
(i)The said Vojislav Zivkov suffered an aggravation of a pre-existing condition of spondylolisthesis on 28 September 1973, and his employment by the Department of Housing and Construction was a contributing factor (subsection 29(1)) to that aggravation which is deemed to be a personal injury to the said Vojislav Zivkov, arising out of his employment by the Department of Housing and Construction (subsection 29(1)).
(ii)In accordance with the provisions of subsection 27(1) the Department of Housing and Construction is liable to pay compensation in respect of that personal injury.”
9. Mr Zivkov’s employment with the Department of Housing and Construction was terminated because of his incapacity on 10 October 1975. Mr Zivkov has received weekly incapacity payments since 1 October 1973 in respect of his back injury on the basis of being totally incapacitated for work.
10. Mr Zivkov sought a lump sum redemption of his weekly compensation payments, which, pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act), was refused by the Commissioner for Employees’ Compensation on 12 January 1984; that decision being affirmed by the Administrative Appeals Tribunal on 23 July 1984.
11. Subsequently, in August 1989 and June 1995, Mr Zivkov again approached Comcare seeking a lump sum settlement of his weekly payments and Comcare, on numerous occasions, reiterated their decision that Mr Zivkov was not entitled to receive a lump sum settlement.
12. On 21 July 2001, the applicant requested information from Comcare relating to his eligibility for a lump sum payment with respect to permanent impairment, pain and suffering and “loss of time”. He also indicated that he wished to pursue payment of a lump sum in lieu of his weekly entitlements.
13. On 9 August 2001, Comcare determined that the applicant was not entitled to redeem his weekly incapacity payments under section 137 of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”). It was noted that the applicant’s entitlement at that time was $144.52 per week and therefore greater than the statutory limit of $77.04 per week, thereby denying his entitlement to redeem.
14. On 8 March 2002, the applicant requested a reconsideration of all determinations made with respect to the applicant’s incapacity calculations since 1 December 1988.
15. On 29 April 2002 (T41), Comcare determined that all payments made to the applicant with respect to his weekly incapacity benefits since 1 December 1988 were correct. It would appear, at this stage, Mr Zivkov is not questioning the quantum of his weekly payments, rather he is requesting that the Commonwealth redeem its liability to make further weekly payments by payment to him of a lump sum.
16. Comcare further determined that as the applicant’s weekly compensation payments were in the sum of $144.52 he was not entitled to a redemption under section 137 of the SRC Act. It is this part of Comcare’s decision that is under review by this Tribunal.
17. In his submissions to this Tribunal in support of his application for review, Mr Zivkov has raised the application of various sections of the Compensation (Australian Government Employees) Act 1971-1973, including sections 27(1), 29(1), 105 and 116 of that Act. Mr Zivkov has also raised the application of section 49 of the 1971 Act.
Legislative Framework
18. There is clearly considerable concern in Mr Zivkov’s mind about the relevance and application of the various Acts related to the compensation of government employees, at and subsequent to the time when he suffered an injury to his back in September 1973.
19. In view of Mr Zivkov’s concern it is appropriate at this stage to set out briefly the history of relevant compensation legislation (and its amendment) as follows:
1971
Compensation (Commonwealth Employees) Act 1971
No 48, 1971
Short title
Section 1: This Act may be cited as the Compensation Commonwealth Employees) Act 1971
1972
Compensation (Commonwealth Employees) Act 1972
No 122, 1972Short title and citation
Section 1: (1) This Act may be cited as the Compensation (Commonwealth Employees) Act 1972.
(2) The Compensation (Commonwealth Employees) Act 1971 is in this Act referred to as the Principal Act.
(3) The Principal Act, as amended by this Act, may be cited as the Compensation (Commonwealth Employees) Act 1971-1972.
1973
Compensation (Australian Government Employees) Act 1973
No 105, 1973Short title and citation
Section 1: (1) This Act may be cited as the Compensation (Australian Government Employees) Act 1973.
(2) The Compensation (Commonwealth Employees) Act 1971-72 is in this Act referred to as the Principal Act.
(3) The Principal Act, as amended by this Act, may be cited as the Compensation (Australian Government Employees) Act 1971-1973.
1974
Compensation (Australian Government Employees) Amendment Act 1974
No 92, 1974Short title and citation
Section 1: (1) This Act may be cited as the Compensation (Australian Government Employees) Amendment Act 1974.
(2) The Compensation (Australian Government Employees) Act 1971-1973 is in this Act referred to as the Principal Act.
(3) The Principal Act, as amended by this Act, may be cited as the Compensation (Australian Government Employees) Act 1971-1974.
1976
Compensation (Commonwealth Government Employees) Amendment Act 1976
No 166, 1976Short title and citation
Section 1: (1) This Act may be cited as the Compensation (Commonwealth Government Employees) Amendment Act 1976.
(2) The Compensation (Australian Government Employees) Act 1971 is in this Act referred to as the Principal Act.
Section 3: Section 1 of the Principal Act is repealed and the following section substituted:
“This Act may be cited as the Compensation (Commonwealth Government Employees) Act 1971..”
20. Following the 1976 amendment, the Act remained known as the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) until 1 December 1988 when it was repealed by the Commonwealth Employees Rehabilitation and Compensation Act 1988, later renamed Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”).
21. The provisions of the Acts which Mr Zivkov has referred to are as follows:
Compensation (Australian Government Employees) Act 1971-1973
“27(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
…
29(1) Where:
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
(2) If:
(a)the death of the employee;
(b)the loss to the employee of a kind referred to in section 39 or 40;
(c)facial disfigurement to the employee;
(d)a loss to the employee of the sense of taste or smell; or
(e)the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears:
(f)the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g)the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.”
22. Mr Zivkov has also referred to the following sections of that Act:
“105(1) Any payment made by the Commonwealth before the proclaimed date in respect of a liability of the Commonwealth under the Commonwealth Workmen’s Compensation Act 1912, or under the Commonwealth Employee’s Compensation Act 1930 or that Act as amended, in respect of an injury, a disease or an aggravation, acceleration or recurrence of a disease shall be deemed to have been made in respect of the corresponding liability of the Commonwealth to make such a payment under this Act in respect of that injury, that disease or that aggravation, acceleration or recurrence.
(2) Without limiting by implication the generality of the last preceding sub-section, any payment referred to in that sub-section that had effect as a redemption of a liability of the Commonwealth referred to in that sub-section has effect as a redemption under section 49 of this Act of the corresponding liability of the Commonwealth referred to in that sub-section.
…
116(1) Where any moneys are payable under this Act to an employee who is under a legal disability, the moneys shall be paid to, or in accordance with the directions of, the Commissioner for the benefit of the employee and, when so paid, shall, for the purposes of this Act other than this section, be deemed to have been paid to the employee.
(2) Where moneys are held by the Commissioner under this Act for the benefit of a person, the Commissioner shall, subject to the next two succeeding sub-sections, invest the moneys in any manner for the time being allowed by an Act, a State Act or an Ordinance of a Territory of the Commonwealth for the investment of trust moneys, and income resulting from any such investment shall be deemed to form part of the first-mentioned moneys.
(3) The Commissioner may, in his discretion, pay any moneys referred to in the last preceding sub-section to the person or in accordance with the directions of the person or apply the moneys, in such manner as he thinks fit, for the benefit of the person.
(4) Where moneys are held by the Commissioner for the benefit of an employee who is under a legal disability, the Commissioner shall, when the employee ceases to be under a legal disability, pay the moneys to the employee or in accordance with the directions of the employee or, if the moneys have been invested, deal with the investments in accordance with the directions of the employee.”
And in respect of the 1971 Act:
“46(1) Where an injury to an employee results in the employee being partially incapacitated for work, the succeeding provisions of this section have effect.
(2) Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to:
(a) the lesser of the following amounts, namely:
(i) $90 or such higher amount as is prescribed; or
(ii)the amount (if any) by which the average weekly earnings of the employee before the injury exceeds from time to time the amount per week that he is able to earn in some suitable employment or business; or
(b)the amount (if any) by which the amount per week that would be payable to him under the last preceding section, disregarding sub-section (7) of that section, if he were totally incapacitated for work exceeds from time to time the amount per week that he is able to earn in some suitable employment or business,
whichever is the greater.
(3)If the employee:
(a)is retired form his employment as a result of the partial incapacity for work; and
(b)as a result of the retirement is in receipt of a pension under the Superannuation Act 1922-1971 or the Defence Forces Retirement Benefits Act 1948-1971 or a pension under a superannuation scheme established or maintained by a prescribed authority of the Commonwealth,
the compensation payable to the employee in respect of each week during the period of the incapacity shall not exceed the amount, if any, by which the average weekly earnings of the employee before the injury exceed from time to time the sum of:
(c)the amount per week that he is able to earn in some suitable employment or business; and
(d)that part of the pension paid or payable to the employee in respect of that week that is not attributable to contributions for pension paid by the employee.
(4) In ascertaining for the purposes of the last two preceding sub-sections the amount per week that an employee is able to earn, any amount that he is able to earn in respect of overtime shall be taken into account.
(5) Subject to the next succeeding section, where a determination is made that an amount of compensation is payable to the employee under section 39 of this Act in respect of an injury that caused a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under this section in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination.
…
49(1) Subject to this section, where payments of compensation in respect of an injury have been made to an employee under section 46 for a continuous period of not less than six months, the employee may request the Commissioner in writing that the liability of the Commonwealth to make further payments to the employee under that section be redeemed by the payment to the employee of a lump sum.”
23. With respect to the repeal of the 1971 Act and its replacement by the SRC Act, the following sections of the SRC Act are relevant.
123 In this Part:
combined benefit, in relation to a former employee, means an amount equal to the sum of:
(a) the amount of compensation payable to the former employee under this Act; and
(b) the employee's superannuation amount.
commencing day means the day on which this Part commences.
former employee means a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and had ceased to be an employee within the meaning of that Act before that day.
total benefit, in relation to a former employee, means an amount equal to the sum of:
(a) the amount of compensation payable per week to the former employee under the 1971 Act; and
(b) the employee's superannuation amount.
1971 amount, in relation to a former employee, means the amount of compensation that was, immediately before the commencing day, payable per week to the former employee under the 1971 Act.
124 (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
…
(6) A person is not entitled to compensation under subsection 17(5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, if:
(a)that person received weekly payments of compensation in respect of that death or incapacity in relation to that period under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) that person was not entitled to receive weekly payments of compensation in respect of that death or incapacity in relation to that period:
(i) where the death or period of incapacity occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii) where the death or period of incapacity occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the death or period of incapacity occurred; or
(iii)in any other case—under the 1971 Act as in force when the death or period of incapacity occurred.
(7) The rate of compensation (if any) that a person is, by virtue of this section, entitled to receive under subsection 17(5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, shall be the same as the rate of compensation that would have been payable to that person in relation to that period, if this Act had not been enacted, under:
(a) where the period occurred before the commencement of the 1930 Act—the 1912 Act;
(b) where the period occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force during the period; or
(c) in any other case—the 1971 Act as in force during the period.
…
132(1) This section applies to a former employee who:
(a) on the commencing day, was under 65 and not in receipt of a pension under a superannuation scheme; and
(b) is not capable of engaging in any work.
(2) Subject to this Division, if the former employee's 1971 amount was equal to or more than 95% of his or her normal weekly earnings as at the commencing day, the amount of compensation payable per week to the former employee under this Act is an amount equal to 95% of those normal weekly earnings.
(3) Subject to this Division, if the former employee's 1971 amount was equal to or more than 70%, but less than 95%, of his or her normal weekly earnings as at the commencing day, the amount of compensation payable per week to the former employee under this Act is an amount equal to the 1971 amount.
(4) Subject to this Division, if the former employee's 1971 amount was less than 70% of his or her normal weekly earnings as at the commencing day, the amount of compensation payable per week to the former employee under this Act is an amount equal to 70% of those normal weekly earnings.
(5) Where, as a result of an increase in the amount of a former employee's normal weekly earnings, the amount of compensation payable to the former employee under subsection (2), (3) or (4) is less than 70% of those increased normal weekly earnings, that amount of compensation shall be increased, or further increased, as the case requires, until it is equal to 70% of those increased normal weekly earnings.
…
134(1) When a former employee to whom section 131, 132 or 132A applies reaches 65, the amount of compensation payable per week to the former employee but for this section shall be reduced by an amount calculated under the formula:
5 x [65 – A] x C
100
where:
A is the age of the former employee, expressed in completed years, as at the commencing day; and
C is that amount of compensation payable per week to the former employee.
(2) Neither section 8 nor section 13 applies to the amount of compensation payable to an employee from time to time in accordance with subsection (1).
…
137(1) If:
(a) a relevant authority is liable to make weekly payments of compensation to a former employee in respect of an injury resulting in an incapacity; and
(b) the amount of those payments if $62.99 per week or less; and
(c) the relevant authority is satisfied that the degree of the former employee's incapacity is unlikely to change;
the relevant authority must, on written request by the former employee, make a determination that its liability to make further payments to the former employee be redeemed by the payment to the former employee of a lump sum.
(2) The amount of the lump sum is the sum of:
(a) the amount worked out using the formula in subsection (3); and
(b) the amount worked out using the formula in subsection (4).
(3) The formula for the purposes of paragraph (2)(a) is:
52 x amount per week x [(specified number + 1)n – 1]
specified number x [(specified number + 1)n]
(4) The formula for the purposes of paragraph (2)(b) is:
52 x reduced amount per week x [(specified number + 1)l – 1]
specified number x [(specified number + 1)l]
(5) For the purposes of this section:
amount per week means the amount of compensation per week payable to the former employee.
specified number means the number specified by the Minister for the purposes of subsection 30(2).
n means the number worked out using the formula:
number of days
365
where:
number of days means the number of days in the period beginning on the day after the day on which the determination is made and ending on the day immediately before the day on which the employee reaches 65 years of age.
reduced amount per week means the amount per week less the amount calculated under the formula in section 134.
l means the number worked out in using the formula:
expectation of life – (65 – age);
expectation of life means the number of years in the complete expectation of life of the former employee at the date of the determination, as ascertained by reference to the latest Australian Life Tables published by the Australian Statistician.
age means the number of completed years in the age of the former employee at the date of the determination.”
Consideration
24. Mr Zivkov’s injury on 28 September 1973 was considered by the delegate of the Commissioner for Employees’ Compensation on 14 January 1974 and in addition to determining that costs of medical treatment of Mr Zivkov be paid, the delegate determined that Mr Zivkov was, pursuant to section 45(2) of the Compensation (Australian Government Employees) Act 1971-1973 entitled to weekly payments of compensation. On 10 July 1975, this determination was amended by a delegate of the Commissioner for Employees’ Compensation, pursuant to sub-section 29(1) and sub-section 27(1) of that Act. In effect, the description of Mr Zivkov’s injury was changed to reflect that the work incident on 28 September 1973 aggravated a pre-existing condition of spondylolisthesis and that this contributing factor was deemed to be a personal injury.
25. This amended determination did not in any way change the Commonwealth’s liability to pay Mr Zivkov compensation in respect of his personal injury and weekly payments of compensation continued to be paid to Mr Zivkov.
26. Mr Zivkov’s services with the Department of Housing and Construction were terminated on 10 October 1975 on the grounds of invalidity and Mr Zivkov’s weekly compensation payments continued until 1988 under the provisions of the 1971 Act. The history of the legislation, as set out above, explains how the various amendments to the relevant legislation occurred.
27. The applicant’s compensation payments and any compensation claims are now administered under the SRC Act, pursuant to the transitional provisions in Division 3 Part X of that Act. The relevant provisions are as set out in paragraph 23.
28. With respect to the applicant’s circumstances relevant to the application of the transitional provisions of the SRC Act, there is no dispute between the parties and the Tribunal is satisfied that Mr Zivkov was under the age of 65 at 1 December 1988 (“commencing day”) of the SRC Act and that at that time and subsequently he was unable to engage in any work.
29. After consideration of all of the material before it, the Tribunal finds:
(a)Mr Zivkov is a “former employee” in that, immediately before the “commencing day” of the SRC Act, he was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and has ceased to be an employee within the meaning of that Act before that day.
(b)That Mr Zivkov was not in receipt of a pension under a superannuation scheme on the “commencing day” of the SRC Act.
(c)In the light of the above findings, section 132 of the SRC Act applies to Mr Zivkov.
(d)That Mr Zivkov, immediately before the “commencing day”, was in receipt of weekly compensation under the 1971 Act that was less than 70% of his normal weekly earnings as at “commencing day” and therefore, pursuant to section 132(4) of the SRC Act was entitled to receive weekly compensation of an amount equal to 70% if his normal weekly earnings.
(e)That Mr Zivkov’s weekly compensation payments (as of 1 March 2000 when he reached 65 years of age) were, pursuant to section 134(1) of the SRC Act, reduced by 65% from $412.93 to $144.52 and frozen thereafter.
30. The applicant’s claim must be assessed in the light of the above findings and within the provisions of the relevant section of the SRC Act, namely section 137, as set out in paragraph 23 above.
31. As Mr Zivkov‘s weekly payments total $144.52 he clearly is in receipt of more than the amount of payments per week at which level (or less) further payments to Mr Zivkov must be redeemed by payment to Mr Zivkov of a lump sum (that level as at 1 July 2002 being $79.43.
32. The Tribunal is satisfied that the Commonwealth is liable to make weekly payments of compensation to Mr Zivkov and that Mr Zivkov’s degree of incapacity is unlikely to change and hence he meets two of the three criteria necessary for redemption. However, the Tribunal is satisfied that Mr Zivkov does not meet the third criteria of weekly payments of $79.43 or less and the Tribunal therefore finds that Mr Zivkov’s request for redemption of weekly payments must be refused. In so finding the Tribunal is mindful that the SRC Act makes no provisions for discretion in such a determination.
33. For the sake of completeness, the Tribunal has considered the application of the provisions of the Acts specifically referred to by Mr Zivkov and in addition to those provisions already addressed above, namely the provisions as set out in paragraph 22.
Compensation (Australian Government Employees) Act 1971-73
34. Section 105 relates to payments in previous Acts namely the Commonwealth Workmen’s Compensation Act 1912 and the Commonwealth Employees Act 1930. Mr Zivkov was not in receipt of any payments of compensation made by the Commonwealth before the proclaimed date of the Compensation (Commonwealth Employees) Act 1971 (25 May 1971) or the Compensation (Australian Government Employees) Act 1971-1973 (26 September 1973) and, as such, the Tribunal is satisfied that section 105 has no application in this matter.
35. Section 116 relates to monies paid to the Commonwealth for the benefit for a person who is under a legal disability. There is no evidence before the Tribunal to support a contention that Mr Zivkov was under a legal disability and as such the Tribunal is satisfied that section 116 has no application in this matter.
Compensation (Commonwealth Government Employees) Act 1971
36. Section 49 relates to redemption of compensation payable in respect of partial incapacity (pursuant to section 46). Mr Zivkov was not compensated in respect of partial incapacity and as such the Tribunal is satisfied that this section has no application in this matter.
37. For the reasons given above and in view of the above findings the Tribunal is satisfied that the respondent has correctly determined that Mr Zivkov is not entitled to a redemption by way of a lump sum pursuant to section 137 of the SRC Act in respect of Comcare’s liability to pay weekly compensation to Mr Zivkov in respect of his incapacity for work.
38. The Tribunal therefore affirms the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Sarah Oliver
AssociateThe matter was heard on the papers
Date of Decision 24 April 2003
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