100% Compensation Would Discourage RTW: judge

Wednesday, 03 June 2009

Awarding incapacitated workers compensation equivalent to their normal earnings would be an "absurd result" that discouraged them from returning to the workforce, the AAT has ruled in quashing a worker's appeal.

The Commonwealth employee was injured while working as a bus driver in 1986, and again while working for the Department of Education and Training in 2005.

As a result of his injuries, he was unable to work in either role from May 2007 to August 2008.

Comcare accepted liability, and determined to pay the worker compensation of 75 per cent of his weekly earnings.

According to s19(3)(a) of the Safety, Rehabilitation and Compensation Act 1988, injured employees were entitled to 75 per cent of their normal earnings if "not employed" over the compensable period.

In the AAT, however, the worker contended that he was employed during the period of incapacitation and was entitled, therefore, to injury compensation of 100 per cent of earnings (in accordance with s19(3)(f) of the Act).

The worker argued that in the context of the Act "employed" meant "contracted to work", rather than attending a place of employment and physically performing duties.

He contended:

• that the ordinary and current meaning of the term "employed" implied being the subject of an employment contract; and
• that if Parliament had intended "employed" to mean "works" it would have said so.

Senior Member James Constance disagreed.

He said that while the term "employed" could mean contracted to work, an explanatory memorandum accompanying the legislation made it clear that the intended meaning was "actively engaging" in tasks.

The legislation, Senior Member Constance said, must be interpreted in a manner that avoids "absurd results".

"It is abundantly clear that a significant purpose of [s19 of the Act] is to encourage injured workers to return to the workforce," he said.

"This purpose would not be served by an interpretation which entitled a worker to remain on maximum compensation based on his or her contract of employment continuing."

The purpose was served, he said, by allowing for escalating compensation rates as the hours worked each week increased.

Senior Member Constance affirmed Comcare's decision to pay the worker compensation of no more than 75 per cent of his normal weekly earnings.