Bamford and Repatriation Commission - [2008] AATA 289

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 289
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0936

VETERANS' APPEALS DIVISION )

Re TREVOR MAURICE BAMFORD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: G. D. Friedman, Senior Member
Date:4 April 2008
Place:Melbourne

Decision:
For the reasons given orally at the hearing, the Tribunal sets aside the decision under review and substitutes a decision that

1. chronic bronchitis and emphysema are war-caused with effect from 19 September 2005; and

2. Mr Bamford is entitled to pension at the special rate with effect from 19 September 2005.

(sgd) G.D. Friedman
Senior Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - special rate of pension - whether incapacity from war-caused injury ‘alone’ prevented the veteran from undertaking remunerative work
Veterans’ Entitlements Act 1986 ss 24(1)(c), 24(2)(a)
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Conway v Repatriation Commission (2003) 37 AAR 486
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703
REASONS FOR DECISION
4 April 2008  G.D. Friedman, Senior Member
1.      Trevor Bamford has applied for an increase in the rate of his disability pension. He is currently receiving pension at 100 per cent of the general rate and he now seeks the higher loss-of-earnings related payment known as special rate. His last work was as a forklift driver. This work was terminated in 1992, and Mr Bamford has not worked since.
2.      The special rate of pension requires, among other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than eight hours per week, by reason of war-caused disability. The respondent says that Mr Bamford is not entitled to special rate because there were reasons other than his war-caused disabilities that account for him not working during the assessment period.
3.      The respondent has accepted that Mr Bamford’s conditions of post traumatic stress disorder (PTSD), alcohol dependence, gout, impotence, intervertebral disc prolapse at L3-L4, L5-S1, and C6-C7, cervical spondylosis and lumbar spondylosis arise from his war service. At the beginning of the hearing the respondent advised that it had also accepted chronic bronchitis and emphysema as war-caused conditions.
ISSUE
4.      The issue before the Tribunal is whether Mr Bamford’s incapacity from war-caused conditions alone prevents him from working at least eight hours per week.
WHAT IS MR BAMFORD’S WAR SERVICE AND OCCUPATIONAL BACKGROUND?
5.      Mr Bamford said that he was born in February 1945 and left school at Year 10, when he commenced a carpentry apprenticeship before joining the Royal Australian Navy on 27 August 1962. He was discharged on 23 April 1965 and his service with the Far East Strategic Reserve aboard HMAS Yarra from 28 May 1964 to 8 June 1964 was operational service under the Veterans’ Entitlements Act 1986.
6.      After leaving the navy he obtained employment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bamford and Repatriation Commission

Details

AGLC: Bamford and Repatriation Commission [2008] AATA 289
Case: [2008] AATA 289
Decision Date: 4 April 2008

CaseChat Overview and Summary

Trevor Maurice Bamford has applied to the Administrative Appeals Tribunal to review a decision of the Repatriation Commission regarding his disability pension. The dispute centres on whether Bamford's incapacity due to war-caused injuries alone prevents him from undertaking remunerative work, thereby qualifying him for a special rate pension. The Tribunal, presided over by G. D. Friedman, examined the evidence and legal arguments to determine if Bamford's inability to work was solely due to his war-caused disabilities.

The primary legal issue was whether Bamford's incapacity from war-caused conditions was the sole reason preventing him from continuing his previous employment as a forklift driver. The Tribunal applied the criteria set out in section 24 of the Veterans' Entitlements Act 1986, which mandates that a veteran must be unable to engage in remunerative work due to war-caused incapacity alone to qualify for a special rate pension. The respondent argued that factors other than Bamford's war-caused disabilities contributed to his unemployment.

The Tribunal considered the evidence from Bamford and the medical assessments provided. Bamford testified that his war-caused physical and psychological conditions, including chronic bronchitis, emphysema, and post-traumatic stress disorder, prevented him from securing employment. Dr. R. Horsley, an occupational physician, confirmed that Bamford's physical restrictions due to his war-caused conditions made it impossible for him to perform manual work or the technical roles he had previously undertaken. Dr. N. Strauss, a consultant and occupational psychiatrist, concluded that Bamford was totally incapacitated from a psychiatric standpoint due to his service-related conditions.

The Tribunal found that Bamford's war-caused conditions were the sole factors preventing him from continuing his remunerative work, satisfying the criteria under section 24(1)(c) of the Act. The Tribunal also found that Bamford did not cease his remunerative work for reasons unrelated to his war-caused disabilities, thus meeting the conditions of section 24(2)(a) of the Act.

For these reasons, the Tribunal set aside the Repatriation Commission's decision and determined that Bamford is entitled to a pension at the special rate from 19 September 2005. Chronic bronchitis and emphysema were accepted as war-caused conditions, effective from the same date.

Orders