Bunney and Repatriation Commission

[2005] AATA 447

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 447

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/414

VETERANS' APPEALS DIVISION		)
Re		DARRYL EDWARD BUNNEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy, Member

Date19 May 2005

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution thereof, determines that Mr Bunney is entitled to pension at the special rate, effective from 10 October 2002.  

...................[Sgd]......................

KS Levy
  Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – disability support pension – application for pension at the special rate – post-traumatic stress disorder, alcohol dependence or alcohol abuse and back condition – whether applicant is precluded from undertaking remunerative work by reason of his war-caused injury or disease alone – despite existences of other considerations applicant satisfies “alone” test – decision under review set aside and substituted accordingly.

Veterans’ Entitlements Act 1986 s 19, 24, 28, 120

Leane v Repatriation Commission (2004) FCAFC 83; (2004) 58 ALD 394
Flentjar v Repatriation Commission (1997) 48 ALD 1
Van Ewijk v Repatriation Commission (2004) FCA 17
Forbes v Repatriation Commission (2000) 171 ALR 131; (2000) 101 FLR 50; (2000) 58 ALD 394
Chambers v Repatriation Commission (1995) 36 ALD 207; (1995) 129 ALR 219
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Bowman (1981) 54 FLR 8; (1981) 38 ALR 650

REASONS FOR DECISION

19 May 2005   Dr KS Levy, Member

1. This is an application made by Darryl Edward Bunney (“the applicant”) seeking payment of a pension at the special rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 (“the Act”).

2.      The original claim by the applicant was made on 22 November 2002.  That application was rejected by a delegate of the Commission on 23 May 2003 and on appeal, the Veterans’ Review Board upheld the delegate’s original decision on 19 April 2004.  The latter decision was notified to the applicant on 23 April 2004 and he lodged an application with the Administrative Appeals Tribunal on 4 June 2004.

3.      The applicant contends that he ceased work solely as a result of his accepted conditions and particularly the condition of post traumatic stress disorder, which was only formally diagnosed following the cessation of work.  He also has had surgery for the condition of intervertebral disc prolapse at L5-S1.

4.      The applicant was represented by Mr Selfridge of Counsel and instructed by Sciacca’s, Lawyers.  The respondent was represented by Mr Malcolm Smith.

5. This appeal is being considered under section 43 of the Administrative Appeals Tribunal Act 1975.

6.The following documents were admitted into evidence before the Tribunal:

§Exhibit 1 T documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act1975;

§Exhibit 2    Statement of Darryl Edward Bunney dated 5 August 2004;

§Exhibit 3    Medical Impairment Assessment by Dr L Fenelow dated 20 October 2003.

Background

7.      The applicant was born on 9 September 1947…