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Harris and Repatriation Commission

Harris and Repatriation Commission

Case [2006] AATA 567 29 June 2006

Veterans' Disability Pension

War-Caused Injury

Capacity to Work

Intermediate Rate of Pension

Remunerative Work

Veterans' Affairs

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Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 567
ADMINISTRATIVE APPEALS TRIBUNAL          № V2004/1401
  № V2004/1402
VETERANS'      AFFAIRS       DIVISION

Re: LESLIE JOHN HARRIS
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:29 June 2006
Place:Melbourne
Decision:The Tribunal varies the reviewable decisions as follows:
1.the applicant's osteoarthrosis of the right ankle is war‑caused with effect from 10 April 2002;
2.the conditions of chronic bronchitis, idiopathic haemoptysis and left lower lobectomy are war‑caused with effect from 9 July 2003;
3.as a consequence pension was payable at 100 per cent of the general rate from 10 April 2002;
3.the applicant qualifies for the intermediate rate of pension; and
4.the matter is remitted to the respondent for the assessment of the rate of pension payable to the applicant.
(sgd) E.A Shanahan
Member

VETERANS' AFFAIRS – diagnosis of post traumatic stress disorder and alcohol abuse accepted as war‑caused in 1998 – application for increase rate of pension in 2002 – the applicant ceased work June 2003 when his employer ceased the business – whether seeking work – alone test or substantial contribution – respondent conceded several disease processes as war‑caused.
Veterans' Entitlements Act 1986 ss 22, 23, 24
Banovich v Repatriation Commission (1986) 69 ALR 395
Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Fox v Repatriation Commission (1997) 45 ALD 317
Gieson v Repatriation Commission [2005] FCA 846
Hall v Repatriation Commission (1994) 33 ALD 454
Leane v Repatriation Commission (2004) 81 ALD 625
Magill v Repatriation Commission [2002] FCA 744
Peacock v Repatriation Commission (2004) 40 AAR 143
Fry v Repatriation Commission (1997) 47 ALD 776
Re Bishop and Repatriation Commission [2005] AATA 1117
Repatriation Commission v Boyle (1997) 47 ALD 637
Repatriation Commission v Buckingham (Ryan J, unreported, 7 February 1996, Federal Court of Australia)
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Sheehy v Repatriation Commission (1996) (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
29 June 2006  Miss E.A. Shanahan, Member
1.      On 10 July 2002 Mr Leslie John Harris made a formal claim for increase in his disability pension which at that time had been assessed and paid at the rate of 90 per cent of the general rate. Mr Harris' rate of pension had been calculated on the basis that the Repatriation Commission accepted that he suffered from the following disabilities: tinea, post traumatic stress disorder (PTSD), bilateral sensorineural hearing loss with tinnitus, hypertension, alcohol abuse and irritable bowel syndrome. Mr Harris claimed to be suffering from a large number of additional disabilities but the Repatriation Commission did not accept liability for them; and there was considerable overlap between these nominated disabilities and his accepted abilities. However, the outstanding claims related essentially to asthma, anxiety, osteoarthrosis of the right ankle, obstructive bronchitis with asthmatic element and idiopathic haemoptysis.
2.      On 18…

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.

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Details

AGLC: Harris and Repatriation Commission [2006] AATA 567
Case: [2006] AATA 567
Decision Date: 29 June 2006

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Leslie John Harris, who sought an increase in his disability pension due to his war-related disabilities. The Tribunal, represented by Miss E.A. Shanahan, reviewed Harris's claims of additional war-caused disabilities and his eligibility for a higher rate of pension. The central legal issues were whether Harris's disabilities alone prevented him from engaging in remunerative work and whether he qualified for either the special or intermediate rate of pension under the Veterans' Entitlements Act 1986. The Tribunal analyzed conflicting medical opinions regarding Harris's functional capacity to work, with some doctors asserting he was unfit for any work due to his post-traumatic stress disorder (PTSD) and alcohol abuse, while others believed he could work up to 20 hours per week as a control operator. The Tribunal concluded that Harris's functional capacity to work as a control operator was retained, despite his disabilities, and thus he did not meet the criteria for the special rate. However, the Tribunal found that Harris met the requirements for the intermediate rate of pension, considering his genuine efforts to find employment and the substantial impact of his war-caused disabilities on his inability to obtain work. The Tribunal varied the reviewable decisions to recognize the war-caused nature of Harris's additional disabilities and to adjust his pension rate accordingly, while remitting the matter to the respondent to determine the effective date for the intermediate rate.

Orders