Colin Pfitzner and Repatriation Commission - [2013] AATA 492

[2013] AATA 492

Division VETERANS' APPEALS DIVISION

File Number

2012/3651

Re

Colin Pfitzner

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President K Bean

Date 12 July 2013

Place Adelaide
The decision under review is affirmed.
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Deputy President K Bean
CATCHWORDS
VETERANS' AFFAIRS - Veterans' entitlements - Rate of disability pension - Special and intermediate rates - Whether "alone test" satisfied - Availability of voluntary redundancy package contributed to veteran ceasing work when he did - Alone test not satisfied - Decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth), ss 19(9), 23 and 24
CASES
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION
Deputy President K Bean
12 July 2013
INTRODUCTION

The applicant, Mr Pfitzner, was conscripted into the Australian Army in October 1967, and served for two years, which included seven months as a stretcher bearer in Vietnam. Unfortunately, as a consequence of his experiences during his service, he now suffers from chronic post-traumatic stress disorder (PTSD) and anxiety, which were first diagnosed in approximately 2001, and have been accepted as war-caused disabilities.
Although he worked full-time for many years following his service, in the period between 2001 and 2009, Mr Pfitzner’s PTSD condition became steadily worse and he had increasing difficulty coping with the demands of his work. In 2009, he decided to accept a voluntary redundancy package offered by his employer, Australian Vintage Winery (Australian Vintage), and he has not worked since that time.
Approximately two years after he left his employment with Australian Vintage, Mr Pfitzner lodged an application for an increase in his disability pension, which was then being paid at 60% of the general rate, and in a decision dated 24 October 2011, the Repatriation Commission (the Commission) increased Mr Pfitzner’s pension to 70% of the general rate but declined to grant him a pension at the special or intermediate rate. Following an application by Mr Pfitzner for review of that decision, on 3 July 2012 the Veterans’ Review Board (VRB) also decided that Mr Pfitzner did not qualify for the special or intermediate rate of pension, and affirmed the Commission’s decision.
Subsequently, on 23 August 2012, Mr Pfitzner applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, giving rise to these proceedings. He contends that he is qualified to receive disability pension at the special rate, although he concedes that he may only have been eligible for the intermediate rate of pension during the period immediately following the lodgement of his application for an increase in pension in 2011. If the Tribunal determines that he is not entitled to pension at the special or intermediate rate, Mr Pfitzner does not dispute the Commission’s assessment that he is entitled to pension at 70% of the general rate rather than a higher percentage.
LEGISLATION AND ISSUES
In order to establish that he is entitled to be paid disability pension at the special or intermediate rate, Mr Pfitzner must demonstrate…

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 Colin Pfitzner and Repatriation Commission

Details

AGLC: Colin Pfitzner and Repatriation Commission [2013] AATA 492
Case: [2013] AATA 492
Decision Date: 12 July 2013

CaseChat Overview and Summary

The case involved Mr. Colin Pfitzner, a veteran, and the Repatriation Commission, with the matter being heard in the Administrative Appeals Tribunal. The dispute revolved around the rate of Mr. Pfitzner's disability pension, specifically whether he satisfied the criteria for the special or intermediate rates rather than the general rate. The crux of the matter was whether Mr. Pfitzner met the "alone test" for the special rate, which requires that a veteran is unable to undertake employment without assistance or supervision from another person.

The Tribunal had to determine if Mr. Pfitzner met the "alone test" during the relevant assessment period. This involved assessing whether he could have continued working without the influence of the voluntary redundancy package offered to him by his employer. The Tribunal needed to establish if the availability of this package, which effectively led to Mr. Pfitzner ceasing work, was a significant factor in his inability to work. If the package was a decisive factor, then the "alone test" was not satisfied, meaning the special rate would not apply.

In delivering its decision, the Tribunal concluded that the availability of the voluntary redundancy package contributed significantly to Mr. Pfitzner ceasing work. Therefore, the Tribunal found that the "alone test" was not met. Consequently, the Tribunal affirmed the original decision of the Repatriation Commission that Mr. Pfitzner's disability pension should remain at the general rate. The Tribunal was not satisfied that Mr. Pfitzner was unable to work solely due to his disabilities without the influence of external factors such as the redundancy package.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As I am not satisfied that Mr Pfitzner satisfied the “alone” test at any time during the assessment period, I am obliged to affirm the decision under review.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2012/3651
Re	Colin Pfitzner
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President K Bean
Date	12 July 2013
Place	Adelaide