JAL (No. 2) and Comcare [2009] AATA 86 (11 February 2009)

Last Updated: 12 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 86

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3851

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JAL (No. 2)

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

The Hon C R Wright QC (Deputy President)

Date 11 February 2009

Place Hobart

Decision

The decision under review is affirmed.

.[Sgd The Hon C R Wright QC]
Deputy President

CATCHWORDS

COMPENSATION - Entitlement to weekly compensation of disabled benefit recipient injured during work-training experience - Ruling in previous proceeding that "A" factor provided for in s8(1) of SRC Act in assessing NWE should be assessed at $45 pw - Remitted to Comcare - Application to review Comcare's assessment - Assessment confirmed, s8(8) applied

Safety Rehabilitation and Compensation Act 1988, s5(6), s8(1) and s8(8)

Disability Services Act 1986, s24

JAL v Comcare, 25 September [2007] AATA 1810

REASONS FOR DECISION

11 February 2009

The Hon C R Wright QC (Deputy President)

1. The applicant lodged a claim for compensation in October 2001, in respect of injuries and disabilities allegedly arising from duties which she had performed during her work placement (arranged by CRS Australia) with a Hobart business, "Business as Usual" on 6 September 2001. A declaration had been made by the Minister under s5(6) of the SRC Act (the Act) whereby participants in such work placement programs were, for the purposes of the Act, to be taken to be employed by the Commonwealth.
2. Comcare disputed liability for the applicant's claims whereupon the applicant applied for review to the AAT. Three separate but related claims came before me for hearing in September 2007. On 25 September 2007, in a published decision I ruled that the applicant was entitled, in principle, to compensation for medical treatment and also to incapacity payments. (JAL v Comcare AATA 1810). In the course of considering the nature, purpose and consequences of the payment of an allowance to the applicant by CRS during her work placement I said this:

"As to the third application - T2006/167, it is necessary to consider whether or not the $45 pw training allowance being paid to the applicant while she was working at "Business as Usual" should be taken into account as part of the NWE process provided for in section 8 of the Act. The legislative formulation for the approval of a training allowance is to be found in section 24 of the Disability Services Act 1986. Section 24, subsections 1, 2 and 3 are as follows:
"(1) Where a person is undertaking a rehabilitation program that consists of, or includes, employment or vocational training, the Secretary may approve payment of a training allowance to the person.
(2) The rate of a training allowance is such amount per week as is, subject to paragraph (3)(a), determined, by legislative instrument, by the Minister.
(3) The Minister:
(a) shall determine different rates of training allowance for the purposes of subsection (2) in respect of persons undertaking full-time employment or vocational training and persons undertaking part-time employment or vocational training; and
(b) may determine different rates of training allowance in respect of different classes of persons having regard to their age".

As well as a training allowance, the Secretary may also approve payment of a living-away-from-home allowance to a person undertaking a relevant program (see Section 24(4)).

Section 8(1) of the SRC Act provides that NWE is to be calculated by the formula (NH+RP) + A where:
"A is 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".

The declaration of the Minister under s24(1) of the Disability Services Act made on 28 November 1988 (Exhibit R13) gives no indication of the purpose for which a training allowance is to be paid.
The respondent argues that such an allowance is in the nature of an allowance paid or payable in respect of special expenses incurred. Reference was made by counsel to a number of cases including Sutton v Comcare (AATA 10935 16 May 1996), Zarb v Comcare (1997) 48 ALD 718, Bortolazzo v Comcare (1997) 75 FCR 385. None of these decisions is directly in point and I do not regard the dicta of Heerey J in Bortolazzo @ 388 as being universally applicable - see for example the views of the High Court expressed at page 11 of Scott v Sun Alliance Australia Ltd [1993] HCA 46; (1993) 178 CLR 1.
I see nothing in the provisions of either Act now being considered which would lead to the conclusion that the allowance provided for in the Disability Services Act is an allowance in respect of "special circumstances". It is not without significance, perhaps, that s24(4) of the DS Act provides a specific allowance for living-away-from-home which plainly would come within the ambit of such an exclusion. However the respondent has not persuaded me that an allowance under s24(1) of that Act falls within the special expenses proviso in s8 of the SRC Act. Accordingly the applicant succeeds in application to review T2006/167. The reviewable decision will therefore be set aside and in lieu it will be ordered that in assessing the applicant's normal weekly earnings for the purpose of calculating her weekly compensation entitlements under the Act her training allowance of $45 payable in respect of her training at "Business as Usual" is to be taken into account as factor A under section 8(1). The matter will be remitted to the respondent for this purpose".

3. On 1 May 2008, a Comcare officer considered what I had said in paragraphs 36 to 39 inclusive of my decision and, in a letter addressed to the applicant said:

"The decision is clearly confined to the workplace training with Business as Usual. There is no suggestion that the allowance ought to be paid for a period longer than the period of the work placement agreement between CRS and Business as Usual.
The defined period of the agreement was between 13 August 2001 and 21 September 2001 (inclusive).
In the absence of any material from the Claimant pointing to the likelihood of any further work placement after 'Business as Usual', with another organisation, it is reasonable to limit the Claimant's period of entitlement to the period referred to above.
The Tribunal certainly made no finding that the Claimant would have gone on to further work placements, nor is there anything in the decision that suggests an intended expansion beyond the agreed period of the work placement.
Decision
I therefore determine that the Claimant is entitled to reasonable medical treatment pursuant to section 16 of the SRC Act in respect of her compensable condition. The Claimant is required under the Act to provide Comcare medical evidence to support her claim for ongoing medical treatment.
Further, I also determine that the Claimant is entitled to the payment of compensation under section 8 of the SRC Act for the period between 13 August 2001 and 21 September 2001. The period between 13 August 2001 and 21 September 2001 inclusive is 30 working days. No public holidays fall in this period.
It is noted that CRS Australia has already paid the Claimant a total of $250.29 for training allowance being 27 days for the period at a daily rate of $9.27. Accordingly, the Claimant is entitled to compensation for the remaining 3 days".

4. The applicant sought an internal review of Comcare's decision. The reviewing officer confirmed and endorsed the decision of the original assessor. On 11 August 2008, the applicant's solicitors lodged an application to review with the AAT. This application was heard in Hobart on Friday 19 December 2008. The Tribunal was addressed by counsel for both parties, but no application was made to call oral or documentary evidence beyond the material presented at the original hearing in 2007, and that contained in the T Documents and a Statement of Agreed Facts which was essentially a compendium of the relevant facts established during the original hearing.
5. Mr Crotty of counsel for the applicant submitted that his client was entitled to payments of weekly compensation calculated in accordance with the provisions of s8(10)(b)(i) or s8(10)(b)(ii) of the SRC Act.

"(b) where the employee has ceased to be employed by the Commonwealth or a licensed corporation—whichever is the greater of the following amounts:
(i) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess".

However in my opinion these submissions are misconceived as s8(10) is a provision dealing only with the consequences of the calculation of an excessive NWE in accordance with the previous subsections of 28. Mr Crotty also submitted that by my finding that the A factor for the purposes of the NWE formula was $45 per week, the applicant's entitlement to weekly compensation at the rate of $45 was established. This argument can not succeed.

6. In my opinion the plain answer to the present dispute is to be found in s8(8) which provides as follows:

(8) Subject to this section, where:
(a) the employment of an employee is of a kind referred to in subsection 5(4) or (6) or subsection (3) of this section; and
(b) the employee is not receiving earnings from any other employment at the date of the injury;
the normal weekly earnings of the employee before the injury shall be an amount determined by Comcare to be the amount per week that the employee would have been able to earn at the date of the injury (including any amount in respect of overtime worked on a regular basis) if he or she had engaged in suitable paid employment".

This provision was not adverted to by counsel at the original hearing. The sole issue as to section 8 was that mentioned above regarding the value of factor A in the NWE formula specified in section 8(1).

7. The employment of the applicant was clearly "of a kind referred to in subsection 5(6)" of the SRC Act. It was also clearly of a temporary nature being from 13 August 2001 to 21 September 2001. The applicant was not entitled to a salary or wages but, pursuant to s24(1) of the Disability Services Act 1986, she was entitled to a training allowance of $9.27 per day for each day she attended "Business as Usual".
8. It seems to me that the general thrust or purpose of workers compensation legislation to compensate injured workers for lost earning capacity is perfectly consistent with the purpose and policy of s8 of the SRC Act. This section makes it incumbent upon a claimant who is brought within the general framework of the Act whilst working on a job placement of the kind upon which the applicant was engaged, to establish an ability to earn in "suitable paid employment at the date of the injury" as a pre-requisite to establishing an NWE which in turn becomes a mechanism for calculating an entitlement level for the purposes of s19 of the Act.
9. Mr Crotty submitted that the evidence taken at the original hearing established that the applicant had completed several prior work placements under rehabilitation programs of the same kind as that upon which she was engaged when she sustained her injury in September 2001, but for the reasons already mentioned such previous work placements would not qualify as "suitable paid employment" for the purposes of section 8(8) in my opinion. "Suitable employment" is defined in section 4 of the Act.
10. It was open to the applicant to call evidence to establish a capacity to perform suitable paid employment in September 2001, if such evidence was available, but in light of the evidence given at the original hearing, I doubt that such evidence exists. There is of course nothing to prevent evidence of this kind being presented to Comcare at some future date if the applicant seeks a fresh determination in respect of weekly compensation for ongoing incapacity.

However on the basis of the presently available material and the clear provisions of the Act I can see no basis for disturbing Comcare's decision. Accordingly the reviewable decision is affirmed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

Signed: ..................................

R Hunt (Administrative Assistant)

Date/s of Hearing 19 December 2008

Date of Decision 11 February 2009

Counsel for the Applicant Mr J Crotty

Solicitor for the Applicant James Crotty Barristers & Solicitors

Counsel for the Respondent Mr B Morgan

Solicitor for the Respondent Ms N Richards, Australian Government Solicitor