Grant Sheean and Repatriation Commission

[2014] AATA 594

[2014] AATA 594

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5837
Re	Grant Sheean
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	22 August 2014
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr M Denovan, Member

CATCHWORDS

VETERANS’ AFFAIRS – Service pension – Special rate of pension – Whether applicant ceased remunerative work for reasons other than his war-caused incapacity, intermediate rate – Whether war-caused injury or disease is sole or substantial cause of applicant’s inability to obtain work – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 23, 24

CASES

Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 58 ALD 394
Leane v Repatriation Commission [2004] FCAFC 83

Repatriation Commission v Hendy [2002] FCAFC 424

REASONS FOR DECISION

Dr M Denovan, Member

22 August 2014

1. Mr Grant Sheean is the applicant in these proceedings. He served in the Australian Army for 42 years, and in the last ten years he was employed in the Range safety sector. He discharged on 29 October 2010.

2. Mr Sheean has a number of medical conditions that have been accepted as war caused: sensorineural hearing loss of the left ear, posttraumatic stress disorder (“PTSD”), lumbar spondylosis, non melanotic malignant neoplasm of the skin, Barrett’s oesophagus, and solar keratosis. He has been in receipt of 100% of the general rate of disability pension from 26 April 2011.

3. Mr Sheean believes he is entitled to pension at above the general rate. He claims that because of his accepted conditions of PTSD and lumbar spondylosis he became increasingly unwell and as a result he was discharged from the Army. Mr Sheean sought to remain in the Army past his expected retirement age, however he claims his application was denied because of his PTSD.

4. The respondent contends that Mr Sheean was discharged on the basis of his age, and that he has not made any genuine attempts at seeking employment since that time.

5. On 25 October 2012 the Veterans’ Review Board affirmed the decision of the Repatriation Commission, which assessed disability pension at 100% of the general rate. Mr Sheean applied for review of the decision by this Tribunal on 21 December 2012.

   STATUTORY FRAMEWORK

6. The requirements, which must be satisfied before the special rate of pension can be paid, are set out in s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The eligibility criteria are different for applicants who are under 65 years of age, and are dealt with under s 24(1) of the Act. For Mr Sheean, who was under 65 years of age when he lodged his claim, to be eligible for special rate he must, amongst other things:

   ·Have a degree of incapacity due to a war-caused injury or disease, or both, of at least 70% (s 24(1)(a));

   ·be incapable of undertaking remunerative work for more than 8 hours per week (s 24(1)(b)); and

   ·

   the war-caused injury or disease, or both, alone, prevented…