Hume and Total Marine Services Pty Ltd

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1135

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No W2002/190   

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID ANDREW HUME

Applicant

And   TOTAL MARINE SERVICES PTY LTD

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President

Date29 October 2004

PlacePerth

Decision

The Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that the respondent is liable, pursuant to ss 24 and 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”), to pay compensation to the applicant under the Act for a lower back injury sustained by him on 20 April 2001, and the amount of compensation that the respondent is liable to pay to the applicant from March 2002, in accordance with s 31 of the Act, is as follows:

· for the period from March 2002 to 31 December 2003 – pursuant to s 31(5)(d) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 of its Reasons for Decision herein) results in an amount equal to 90% of his “normal weekly earnings” (as defined in s 13 of the Act);

· for the period from 1 January 2004 onwards – pursuant to s 31(5)(f) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 of its Reasons for Decision herein) results in an amount equal to 100% of his “normal weekly earnings” (as defined in s 13 of the Act).

The Tribunal orders, pursuant to s 92(1) of the Act, that the respondent pay the costs of the applicant of these proceedings, such costs, in the absence of agreement between the parties as to the amount thereof, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal in accordance with clause 6 of the Tribunal’s General Practice Direction dated 18 May 1998.

..............(sgd S D Hotop)...............

Deputy President 

1. David Andrew Hume (“the applicant”) has applied to the Tribunal for review of a “reviewable decision” deemed to have been made on or about 21 May 2002, pursuant to s 79(6) of the Seafarers Rehabilitation and Compensation Act 1992(Cth) (“the Act”), by Total Marine Services Pty Ltd (“the respondent”). The effect of that deemed reviewable decision was that a determination of the respondent, dated 18 March 2002, to terminate incapacity payments which had been made to the applicant pursuant to s 31(2) of the Act, was affirmed.

2. At the hearing, the applicant was represented by Mr D Leask, solicitor, and the respondent was represented by Mr G Hancy of counsel. The Tribunal had before it the statement and accompanying documents (“T documents”) lodged on behalf of the respondent pursuant…