Hans Kannengiesser and Repatriation Commission

[2012] AATA 443

Division	Veterans' Appeals Division
File Number(s)	2011/2621
Re	Hans Kannengiesser
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	13 July 2012
Place	Sydney

The decision under review is affirmed.

................................[sgd]........................................

Senior Member A K Britton

CATCHWORDS

VETERANS' ENTITLEMENTS - pension - special rate - war caused incapacity - "alone" test - remunerative work - decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) - ss 19(5C), 19(9), 24, 24(1)(c), 24(2)(a)

CASES

Flentjar v Repatriation Commission (1997) 48 ALD 1

Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCAFC 424

Repatriation Commission v Butcher (2007) 94 ALD 364; [2007] FCAFC 36

REASONS FOR DECISION

Senior Member A K Britton

July 2012

1. Veteran Mr Hans Kannengiesser served in the Royal Australian Navy for nearly thirty years. He has made a claim for a pension at the “special rate” under the Veterans’ Entitlements Act 1986 (Cth) (the Act). The Repatriation Commission, the respondent in these proceedings, refused that claim. After unsuccessfully challenging that decision in the Veterans’ Review Board, Mr Kannengiesser now applies for review by the Administrative Appeals Tribunal.

2. Mr Kannengiesser suffers from a number of “war-caused” conditions including osteoarthritis in a shoulder and knee, Post Traumatic Stress Disorder and alcohol abuse (the accepted conditions).

3. Mr Kannengiesser will be eligible for a pension at the special rate if he meets the criteria set out in s 24 of the Act. It is agreed, and I accept, that Mr Kannengiesser satisfies all criteria but the so-called “alone test” (s 24(1)(c)). That test will be satisfied if, by reason of his “war-caused incapacity” alone, Mr Kannengiesser was prevented from continuing to undertake the type of work he had been performing with the Australian Naval Cadets up until June 2003. The Commission concedes that Mr Kannengiesser’s “war-caused incapacity” was one of the reasons he was prevented from continuing with the Naval Cadets, but contends that it was not the sole reason. Mr Kannengiesser disagrees.

   EMPLOYMENT AND MEDICAL HISTORY

4. Mr Kannengiesser enlisted in the Royal Australian Navy in 1960 and was discharged in 1989. He then commenced work with a local council and held a number of supervisory positions. In 1997 he relocated from Sydney to Hervey Bay, Queensland, to take up a position with a local Council. That appointment did not proceed because of a Council restructure. He attempted without success to find full-time employment and in September 1997, accepted an appointment with the Australian Naval Cadets. Within six months, he was promoted to the rank of Lieutenant and Commanding Officer of the Cadet Unit TS Krait.

5. Mr Kannengiesser was employed by the Cadets on a casual basis and his hours of work varied from week to week. His tasks included attending annual and bi-monthly weekend camps and regular training sessions. In addition, he undertook various administrative tasks.

6. In early June 2003, Mr Kannengiesser’s Commanding Officer announced Mr Kannengiesser’s…