Coleman and Repatriation Commission (Veterans’ entitlements) [2015] AATA 552 (30 July 2015)
Division VETERANS' APPEALS DIVISION File Number(s)
2013/0357
Re
Dennis Coleman
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 30 July 2015 Place Sydney The Tribunal sets aside the decision under review, and substitutes a decision that the Applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 27 April 2012, the day after the Applicant ceased work.
................................[sgd]........................................
Ms N Isenberg, Senior Member
CATCHWORDS
Veterans Affairs - veterans' entitlements — pension — special rate – whether Applicant satisfies s 24(1)(c) of the Veterans’ Entitlements Act 1986 – whether Applicant is prevented from undertaking remunerative work by reason of incapacity from war-caused injuries alone – whether Applicant is suffering a loss of wages or earnings which he would not be suffering if he were free of that incapacity – decision under review set aside and substituted – Applicant entitled to pension at the special rate
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) s24
CASES
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy [2002] FCAFC 424Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
Ms N Isenberg, Senior Member
30 July 2015
BACKGROUND TO THE APPLICATION
The Applicant lodged a claim pursuant to the Veterans’ Entitlement Act 1986 ("VE Act") for ‘heart disease’ and lumbar spondylosis on 2 March 2012. The Respondent accepted the claim for ischaemic heart disease but did not accept the claim for lumbar spondylosis. The Applicant's disability pension was continued at the Intermediate Rate of pension.
On 22 May 2012, the Applicant applied to the Veterans Review Board (VRB) for a review of the Respondent’s decision. The VRB set aside the decision in relation to lumbar spondylosis and substituted its decision that the condition is war-caused. The VRB however affirmed the decision in relation to the Applicant's rate of pension, and the Applicant remained entitled to pension at the Intermediate Rate.
On 23 January 2013 the Applicant sought review by this Tribunal, claiming that he is entitled to the Special Rate of pension.
ISSUE FOR DETERMINATION
The issue before the Tribunal is whether Mr Coleman satisfies s 24(1)(c) of 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 of that incapacity.
BACKGROUND
The Applicant was born on 14 July 1949 and is 66 years of age. He served in the Australian Army from 7 November 1967 to 6 November 1973. His eligible war service was from 8…
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- Case
- [2015] AATA 552
- Decision Date
CaseChat Overview and Summary
In examining the evidence presented, the Tribunal focused on Mr Coleman's capacity to perform remunerative work, particularly as a security guard, and the extent to which his war-caused conditions, specifically Post Traumatic Stress Disorder (PTSD) and lumbar spondylosis, contributed to his inability to work. The Tribunal had to determine if these conditions were the sole reason preventing him from continuing in his employment. The medical evidence indicated that Mr Coleman's mental health deteriorated significantly, leading to a breakdown and hospitalisation, and his condition was exacerbated by events that were beyond his control. The Tribunal also considered the report of Dr Murray, who opined that Mr Coleman was totally and permanently disabled in terms of employment due to his PTSD.
The Tribunal found that Mr Coleman was indeed prevented from continuing to undertake remunerative work by his war-caused conditions, and that this incapacity resulted in a loss of earnings. The Tribunal determined that his PTSD and lumbar spondylosis were the primary factors preventing him from working, and that he was suffering a loss of earnings as a direct consequence of these conditions. Consequently, the Tribunal set aside the decision under review and substituted it with a decision that Mr Coleman is entitled to a pension at the special rate, effective from the date he ceased work.
The Tribunal's decision hinged on the clear evidence that Mr Coleman's war-caused conditions, specifically his PTSD and lumbar spondylosis, were the sole reasons preventing him from continuing in his employment as a security guard, and that this incapacity resulted in a loss of earnings he would not suffer otherwise. This finding aligns with the criteria under s 24(1)(c) of the Veterans’ Entitlements Act 1986 (Cth).
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Dr Darveniza reported that the Applicant suffered peripheral neuropathy, almost certainly diabetic in origin and had done so for the past 2 or more years. He regarded the peripheral neuropathy as ‘quite mild’. His only significant symptom was ‘perhaps a slight loss of balance’ which would preclude working at heights.CONSIDERATION The Applicant contended that he has satisfied the legislative criteria with respect to having a combined impairment that, when assessed in accordance with the GARP, would produce a disability pension rate in excess of 70%, thereby entitling him for an assessment at the Special Rate pension. There was no dispute that Mr Coleman met the first criterion under s 24 namely, an entitlement to a pension at a rate higher than 70% of the general rate: s 24(1)(a)(i). Further, the Applicant contended that had he not been suffering from his war-caused conditions he would have continued to work and would not be suffering from a loss of salary, wages or earnings. Entitlement to the Special Rate of pension is properly considered in accordance with Flentjar v Repatriation Commission (1997) 48 ALD 1 (‘Flentjar’). Flentjar determined that proper consideration of s 24(1)(c) required responses to the following four questions:1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his account that he would not be suffering if he were free of that incapacity? Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. 1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act? This is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Banovich v Repatriation Commission (1986) 69 ALR 395. In the present matter, I find that the type of work which the veteran had previously undertaken was as a security guard.2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work? The second question in Flentjar is whether the Applicant, by reason of his war-caused conditions, is prevented from continuing to undertake that type of work. The Respondent conceded that s 24(1)(b) is satisfied. I agree that the Applicant’s accepted disabilities, especially his PTSD and his lumbar spondylosis, prevented him from continuing to undertake security work.3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?