Editors --- "Compensation payment preclusion period: special circumstances" [2010] SocSecRpr 5; (2010) 12(1) Social Security Reporter, Article 5

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Compensation payment preclusion period: special circumstances

DE ARAUGO and SECRETARY TO THE DEEWR

(2009/986)

Decided: 23rd December 2009 by D.P. Jarvis

Background

On 12 April 2000, at the age of 22, De Araugo was struck as a pedestrian by two motor vehicles. He suffered very severe injuries including paraplegia and brain damage. He subsequently suffered severe muscle wastage and pressure sores leading to surgery for skin grafts. It was possible he might have to spend the rest of his life lying on his front, undergo one above knee amputation to preserve skin for future grafts and undergo surgery to remedy the fusion of his pelvic joint.

De Araugo lodged a claim in the District Court of South Australia. He agreed to reduce his claim by 50% for contributory negligence and finally settled for $1,429,781 plus costs. De Araugo was not under a legal incapacity and his claim was not approved by the court.

The original decision maker imposed a compensation preclusion period of 958 weeks ended on 21 August 2018, during which De Araugo was ineligible for social security payment. This decision was affirmed by the authorised review officer and the Social Security Appeals Tribunal (SSAT). De Araugo sought review of the SSAT decision.

Issues

The issues in this case were whether special circumstances existed which

Findings

The AAT found that the various factors would not in themselves constitute special circumstances and there may be some elements of duplication. Nevertheless, the factors in combination were such that special circumstances did exist in this case.

The AAT found that in all the circumstances it was reasonable to treat the difference between the settlement component for economic loss and the amount derived by application of the statutory formula as not having been paid.

Formal decision

The decision under review was set aside. In the special circumstances of the case a portion of the compensation payment, being the sum of $439,940.00, was to be treated as not having been paid. The matter was remitted to the Secretary in order to recalculate the preclusion period.

[M.O’H.]