Clarke and Repatriation Commission

[2005] AATA 524

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 524

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/604

VETERANS' APPEALS DIVISION		)
Re		CHARLES CLARKE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date6 June 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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

R G Kenny
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – special rate of pension – incapacity from war-caused conditions sufficient to prevent veteran from undertaking remunerative work for more than 8 hours per week - veteran not prevented by reason of incapacity from war-caused conditions, alone or substantially, from continuing to undertake remunerative work that he was undertaking – veteran not suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of incapacity from war-caused conditions - pension payable at 100% of the general rate – decision affirmed

Veterans’ Entitlements Act 1986 ss 5Q, 14, 19, 22, 23, 24, 28

Repatriation Commission v Hendy (2002) 76 ALD 47
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Repatriation Commission v Alexander (2003) 75 ALD 329

Fox v Repatriation Commission (1997) 45 ALD 317
Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625

REASONS FOR DECISION

6 June  2005  Mr RG Kenny, Member

Background

1. On 4 July 2003, Charles Clarke (the applicant) lodged a claim for acceptance of liability for hearing loss and depressive disorder in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act). On 9 October 2003, a delegate of the Repatriation Commission (the respondent) determined that those conditions were causally related to Mr Clarke’s service in the Australian army and that pension for associated incapacity was payable to him from and including 4 April 2003. The delegate assessed the degree of Mr Clarke’s incapacity from all of his service-related conditions at 100%. He then determined that, in accordance with section 22 of the Act, pension was payable to Mr Clarke at 100% of the general rate and that it was not payable at an earnings-related rate under sections 23 or 24 of the Act.

2.        On 30 March 2004, the decision of the respondent was affirmed by the Veterans’ Review Board and, on 30 July 2004, Mr Clarke sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

3. Mr Clarke attended the hearing and was represented by Mr J Harper of counsel. The respondent was represented by Mr B Williams. In evidence were the documents (the T documents) prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975; statements, dated 12 October 2004 and 1 December 2004, by the applicant; documentation relating to attempts by the applicant to obtain employment; a medical report, dated 2 August 2004, by orthopaedic surgeon Dr Peter Winstanley; a medical report, dated 29 August 2004, by psychiatrist Dr Robert Athey; and a medical report, completed on 2 June…