DOUGLAS MESSER and REPATRIATION COMMISSION

[2009] AATA 202

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 202

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5564

VETERANS'        APPEALS       DIVISION		)
Re		DOUGLAS MESSER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss EA Shanahan, Member

Date24 March 2009

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes its decision that Mr Messer qualifies for disability pension at the intermediate rate. 

(sgd) EA Shanahan

Member

VETERANS’ AFFAIRS – osteoarthrosis of knees – right ankle injury – disability pension at 90 percent of the general rate – application for intermediate rate – limited skills – decision set aside.

Veterans’ Entitlement Act 1986  s73, s23, s28

Chambers v Repatriation Commission [1994] FCA 1205

Chambers v Repatriation Commission [1995] FCAFC 1144

Fox v Repatriation Commission (1997) 45 ALD 317

REASONS FOR DECISION

24 March 2009 Miss EA Shanahan, Member        

1.      The Repatriation Commission (the Commission) made a decision dated 2 May 2006 that Mr Messer’s degree of incapacity was such that he was entitled to a disability pension at 70 per cent of the general rate but that he did not qualify for the special or intermediate rate of pension.  This decision was affirmed by the Veterans’ Review Board (VRB) on 2 November 2007.  Mr Messer has applied to the Administrative Appeals Tribunal for a review of the decision of the VRB.

2.      The Commission has since conceded that Mr Messer’s level of incapacity is such that he is eligible for disability pension at 90 per cent of the general rate.  Mr Messer seeks the intermediate rate of pension on the basis that his disabilities, for which the Commission has accepted liability, have worsened and limit him from working for more than 20 hours maximum per week.  Those disabilities are:

·Degenerative changes in the right knee.

·Bilateral sensorineural hearing loss.

·Bilateral tinnitus.

·Localised osteoarthrosis of the right hand.

·Localised osteoarthrosis of the left knee.

·Collateral ligament injury and calcification right ankle.

3. Mr Messer was represented by Mr Turner, an advocate from the Returned and Services League (the RSL). The Commission was represented by Ms R Casamento, an advocate from the Department of Veterans’ Affairs (DVA). The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  The Commission tendered several documents:

·The T-documents – Exhibit R1

·Dr Pilbrow’s clinical notes – Exhibit R2

·Transcript of the Veterans’ Review Board hearing 4 December 2006 – Exhibit R3

·Transcript of the Veterans’ Review Board hearing dated 30 October 2007 – Exhibit R4

·The Murchison Medical Clinic notes regarding Mr Messer  - Exhibit R5

·Dr Horsley’s report dated 28 May 2008 – Exhibit R6

·Supplementary report from Dr Horsley dated 5 August 2008 – Exhibit R7

·Employer records from Goulburn Valley Health – Exhibit R8

·Combined Impairment Assessment dated 24 June 2008 – Exhibit R9

·Prescription data concerning Mr Messer – Exhibit R10

·Employment Agreement between Mr Messer and Goulburn Valley Health – Exhibit R11

·Queensland WorkCover file regarding Mr…