Awad and Australia Post

[2004] AATA 408

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 408

ADMINISTRATIVE APPEALS TRIBUNAL      )

)         No N2003/1609

GENERAL ADMINISTRATIVE DIVISION		)
Re		FARID AWAD

Applicant

And AUSTRALIA POST

Respondent

DECISION

Tribunal Ms N Bell

Date22 April 2004

PlaceSydney

Decision The decision under review is affirmed.

……………………..

Ms N Bell
   Member 

CATCHWORDS

SOCIAL SECURITY – reduction in weekly compensation payments – assessment of section 134 of the Safety, Rehabilitation and Compensation Act 1988 – assessment of Applicant’s evidence – calculation of compensation payment reduction using section 134 formula – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 section 134

REASONS FOR DECISION

22 April 2004 Ms N BELL             

1. The decision under review is the decision of the Respondent on 23 September 2003, affirmed on 1 October 2003, to reduce the amount of the Applicant’s weekly compensation payments from 21 October 2003 pursuant to section 134 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

2.        There is no dispute that the Applicant suffered an injury to his right arm on 21 October 1969 in the employment of the Respondent.  The Respondent accepted liability for that injury and its sequelae and has compensated the Applicant for his total incapacity and continues to do so by weekly compensation payments.

3. Section 134 of the Act provides:

“Reduction of compensation on reaching 65

134. (1) When a former employee to whom section 131, 132 or 132A

applies reaches 65, the amount of compensation payable per week to

the former employee but for this section shall be reduced by an

amount calculated under the formula:

5  x  (65  -  A)  x  C

100

where:

A is the age of the former employee, expressed in completed years,

as at the commencing day; and

C is that amount of compensation payable per week to the former

employee.

(2) Neither section 8 nor section 13 applies to the amount of

compensation payable to an employee from time to time in accordance

with subsection (1).”

4. The Applicant gave evidence that he was born on 10 February 1938. He therefore turned 65 on 10 February 2003 and at the time of the commencement of the Act he was 50 years old. He also gave evidence that he has never been in receipt of a superannuation pension. This attracts the coverage of section 132 of the Act, which applies to a former employee who as at 1 December 1988 was not in receipt of a pension under a superannuation scheme and is not capable of engaging in any work, and, in turn, makes the Applicant subject to section 134.

5. Prior to the decision under review the Applicant had been in receipt of $380.49 per week. The formula in section 134 applies to the circumstances of the Applicant as follows:

5x  (65  -  50)  x  $380.49               =$285.37

100

6.        This is the amount by which the Respondent has reduced the Applicant’s weekly payments of compensation.

7.        The Applicant gave evidence that he is in receipt of an amount of age pension.  However, he said his weekly rent is $150.00, that he has few personal possessions and that compared to other people he is very poor.  He said he experiences great hardship attempting to survive on the amount of his reduced payment.

8. The formula contained in section 134 must be applied to the Applicant. There is no exception in the Act to its application nor any discretion conferred on the decision maker in relation to its application.

Decision

9.        The decision under review is affirmed.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N BELL

Signed:         Neil Glaser
  Associate

Date of Hearing  25 March 2004          
Date of Decision  22 April 2004
Representative for the Applicant               Farid Awad (Self-represented)       
Representative for the Respondent          Mr McNamara