Ansell and Repatriation Commission

[2005] AATA 1101

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1101

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/168

VETERANS' APPEALS DIVISION		)
Re		STANLEY VICTOR ANSELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr JG Short (Member)

Date7 November 2005

PlaceAdelaide

Decision The Tribunal sets aside the decision under review and substitutes a new decision that from 17 July 2003 Mr Ansell has satisfied the requirements of s 24 of the Veterans’ Entitlements Act and is entitled to payment of the special rate of pension.

..............................................

JG SHORT
  (Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – earnings related rate of pension – applicant prevented from engaging in remunerative work because of incapacity from war-caused disabilities alone – decision under review set aside

Veterans’ Entitlements Act 1986 ss 19(5C), 19(9), 24(1)

Workers Rehabilitation and Compensation Act 1986 s 43

Re Jackman and Repatriation Commission [2001] AATA 295
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Alexander [2003] FCA 399
Flentjar v Repatriation Commission (1997) 48 ALD 1
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50

REASONS FOR DECISION

7 November 2005   Mr JG Short (Member)

background

1.      On 21 October 2002 Mr Stanley Ansell lodged a claim for acceptance of a hearing condition and of an emotional and behavioural condition as being war-caused.  On 30 January 2003 the Repatriation Commission (the Commission) answered the claim by accepting post-traumatic stress disorder with alcohol dependence and bilateral sensorineural hearing loss with tinnitus as war-caused disabilities.  The Commission assessed Mr Ansell’s rate of pension at 80 percent of the general rate with effect from 21 July 2002.  On 11 February 2003, Mr Ansell lodged an application for review by the Veterans’ Review Board (the VRB).  On 30 March 2004 the VRB affirmed the decision.  On 3 June 2004 Mr Ansell lodged an appeal with this Tribunal.

issue for determination

2. The issue for determination is whether Mr Ansell satisfies s 24(1)(c) of the Veterans’ Entitlements Act 1986 (the VE Act), that is:

·whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and

·whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free from that incapacity.

3. It is common ground, and on the evidence I find, that Mr Ansell satisfies the first and second criterion for payment of an earnings related rate of pension under s 24 of the VE Act, that is that Mr Ansell’s degree of service related incapacity is at least 70 percent. And that his incapacity from war-caused conditions is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. These criterion are contained in ss 24(1)(a)(i) and 24(1)(b) of the VE Act.

4. Mr Ansell was employed…