Wood and ASP Ship Management Pty Ltd

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 577

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/25

GENERAL ADMINISTRATIVE  DIVISION		)
Re		STEVEN  WOOD

Applicant

And ASP SHIP MANAGEMENT PTY LTD

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date30 June 2006

PlaceSydney

Decision

The decision under review is set aside and I remit the matter for reconsideration in accordance with the following directions:

(a) Section 13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”) has no application to the calculation of the amount of Mr Wood’s payments for incapacity;

(b) In calculating the effect of superannuation on the amount of Mr Wood’s payments for incapacity, the provisions of section 35 of the Act should be applied; and

(c) For the purpose of the calculation under section 35 of the Act:

(i)       “unadjusted amount of compensation” means the amount of Mr Wood’s incapacity payments calculated under section 31 of the Act using the figure of $114.239 per day to calculate the “normal weekly earnings” referred to in that section;

(ii)      “superannuation amount” means $194,430.24;

(iii)      “amount not rolled over” means the amounts withdrawn by Mr Wood from his superannuation fund since his exit date of 2 July 1997;

(iv)     “lump sum benefit” means $283,171.84; and

(v)      “superannuation contributions” means the amounts identified in Attachment “D” to the statement of Ms Sharon Parr dated 10 March 2005 (exhibit R1)

..................[sgd]................

Ms N Bell
  Senior Member 

COMPENSATION – Superannuation – Proper Calculation and Adjustment of Weekly Earnings – Determination of the Class to Which Applicant Belonged – Determination of Whether Identifiable Class Continued to Exist -  Class Determined by Rate of Award Paid – No Evidence on Continuation of Class – Weekly Payments Cannot be Adjusted – Decision Under Review Set Aside and Remitted.

Seafarers Rehabilitation and Compensation Act 1992 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Re O’Shea and Comcare (1998) 27 AAR 394

Lawson v Stateships [2003] AATA 389

Re Thompson v Comcare (2002) 69 ALD 762

Comcare v Thompson (2000) 175 ALR 163

REASONS FOR DECISION

30 June 2006 Ms N Bell, Senior Member

1.Mr Wood was a seafarer. An onset of viral cardiomyopathy ended his career in January 1997.  At all relevant times Mr Wood was employed by ASP Ship Management Pty Ltd (“ASP”) as a Catering Attendant.  Mr Wood received incapacity payments from ASP and disputes the amount of those payments.  He contends they have been incorrectly calculated by ASP in that percentage increases in the earnings of Catering Attendants since 1997 have not been taken into account and the deductions to be made from his incapacity payments arising out of Mr Wood’s use of his superannuation funds have been overestimated.

issues

2.Mr Wood’s application raises two central issues:

(a)First, whether Mr Wood is entitled to the percentage adjustment of his normal weekly earnings provided for in section 13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”)…