Ganley and Repatriation Commission

[2005] AATA 427

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 427

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/115

VETERANS' APPEALS DIVISION		)
Re		BARRIE JOHN GANLEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr JG Short (Member)

Date12 May 2005

PlaceAdelaide

Decision The Tribunal sets aside the decision under review, and in substitution therefore determines that Mr Ganley is eligible for a pension at the special rate on a temporary basis pursuant to s 25 of the Veterans’ Entitlements Act 1986, with effect from, and including, 28 July 2003 until 18 January 2006.   

(Signed)

JG SHORT
  (Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – special rate – type of remunerative work previously undertaken – applicant is prevented from continuing to undertake remunerative work for war-caused reasons alone – work often performed on short-term contracts – here incapacity temporary – applicant entitled to temporary special rate – decision set aside

Veterans’ Entitlements Act 1986 ss 19, 24, 25, 120

Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Banovich v Repatriation Commission (1986) 69 ALR 395
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50

REASONS FOR DECISION

12 May 2005   Mr JG Short (Member)

1.      Mr Barrie Ganley served with the Royal Australian Army (the Army) between 1 July 1965 and 30 June 1967.  Mr Ganley has a number of conditions which have been accepted as war-caused disabilities by the respondent (the Commission).  Those accepted disabilities are burns to face, arms and body (healed); left colles fracture (healed); bilateral pterygia; chronic bronchitis and emphysema; bilateral sensorineural hearing loss; tinnitus; and post-traumatic stress disorder (PTSD).

2.      On 30 June 2003 Mr Ganley lodged an application with the Commission for an increase in his rate of pension.  By decision dated 18 July 2003 the Commission refused the application and determined that Mr Ganley’s entitlement to Disability Pension be continued at 100 percent of the General Rate.  On 2 February 2004 the Veterans’ Review Board (VRB) affirmed the decision.  On 20 April 2004 Mr Ganley applied to this Tribunal for a review of the decision of the Commission, as affirmed by the VRB.

3. Mr Ganley and his wife gave oral evidence to the Tribunal. The Commission tendered the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).  The Commission also tendered a typed transcription, accepted by both parties as accurate, of an undated written statement from Mr Ganley addressed to Mr Chris Munzer, and “to whom so ever it may concern”.  No oral evidence was called by the Commission.

issue for determination

4. The issue for determination is whether Mr Ganley satisfies s 24(1)(c) of the Veterans’ Entitlements Act 1986 (the Act), that is:

·     whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake…