[2014] AATA 905
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6665
Re
Ian Nation
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 8 December 2014
Place Brisbane The Tribunal affirms the decision under review.
.............................[Sgd]...........................................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 – Effect of age and time out of the workforce – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 21A, 23, 24
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Leane and Repatriation Commission [2003] AATA 125
Repatriation Commission v Hendy [2002] FCAFC 424
REASONS FOR DECISION
Dr M Denovan, Member
8 December 2014
Mr Nation (“the applicant”) served in the Royal Australian Navy from 7 December 1972 to 4 July 1984. In a decision of the Repatriation Commission dated 28 September 2012 the applicant’s disability pension was continued at 100% of the general rate for incapacity of his war-caused conditions. These conditions include depressive disorder, torn left medial meniscus with menisectomy, osteoarthritis of the left knee with total knee replacement, lumbar spondylosis and osteoarthritis of the right knee.
Mr Nation sought review of that decision as he believes he is entitled to pension at the above general, or special, rate. On 20 November 2013 the Veterans’ Review Board (“VRB”) affirmed the decision of the Repatriation Commission. Mr Nation applied for review of the decision by this Tribunal on 13 December 2013.
STATUTORY FRAMEWORK
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 Nation, 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) of the Act);
·be incapable of undertaking remunerative work for more than eight hours per week (s 24(1)(b) of the Act); and
·
the war-caused injury or disease, or both, alone, prevented him from continuing to undertake remunerative work that he was undertaking, and because of this, he is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of his service related incapacity
(s 24(1)(c) of the Act).
A veteran who ceased to engage in remunerative work for reasons other than a war-caused incapacity, or is unable to engage in remunerative work for some other reason, will not regarded as suffering loss of salary, wages or earnings (s 24(2)(a) of the Act).
Section 19(5C) of the…
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- Case
- [2014] AATA 905
- Decision Date
CaseChat Overview and Summary
The primary legal issues the AAT needed to decide were whether Mr Nation's war-caused conditions rendered him incapable of obtaining remunerative work for more than eight hours a week during the assessment period, thus qualifying him for a special rate of pension under s 24(1)(b) of the Act, or whether his conditions, combined with other factors, qualified him for an intermediate rate of pension under s 24(1)(c) of the Act. Additionally, the AAT had to consider if the ameliorating provision in s 24(2)(b) of the Act applied to Mr Nation's circumstances.
The AAT found that there was insufficient evidence to conclude that Mr Nation was unsuccessful in his job applications solely due to his war-caused conditions. Even if his conditions were a factor, the jobs he applied for were more strenuous than his previous employment. The AAT relied on the decision in Leane and Repatriation Commission [2003] AATA 125, determining that Mr Nation did not genuinely seek employment given the nature of the jobs he applied for. Consequently, the ameliorating provision at s 24(2)(b) of the Act did not apply. The AAT concluded that Mr Nation did not satisfy the criteria for either a special or intermediate rate of pension, affirming the decision under review.
The AAT's decision was that Mr Nation did not qualify for a special or intermediate rate of pension. The Tribunal found that while Mr Nation's conditions may have contributed to his inability to obtain work, they did not render him incapable of working during the assessment period. Furthermore, the AAT determined that Mr Nation did not genuinely seek employment, as evidenced by the nature of the jobs he applied for. As a result, the AAT affirmed the decision of the Repatriation Commission, upholding the original determination that Mr Nation is not entitled to a special or intermediate rate of pension.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The respondent accepts that Mr Nation was under 65 years of age at the beginning of the assessment period, and that he satisfies s 24(1)(a) of the Act. Mr Nation referred me to the evidence of Duty Harbour Master, Captain Peter Marchbank (“CPT Marchbank”), and orthopaedic surgeon Dr Mark Byrne, which he said shows that he ceased work as a result of his war-caused knee condition. On that basis, he believes he is entitled to special rate of pension. The respondent contends that, whilst Mr Nation may have been unfit to work for a period of time following his resignation in 2003, he is not prevented from continuing to undertake work during the assessment period. Therefore, it is contended, he does not satisfy s 24(1)(b) of the Act.CONSIDERATIONDo Mr Nation’s defence related conditions, alone, render him incapable of undertaking remunerative work for more than eight hours a week, during the assessment period (s 24(1)(b) of the Act)? Since his discharge from the Navy, Mr Nation has worked in the maritime industries. From 1994 until 2003 he was employed as a casual Vessel Traffic Safety Officer (“VTSO”). Mr Nation explained that this job is similar to a flight controller; it involves controlling the flow of vessels in the port. Mr Nation’s contract was renewed regularly. His response was evasive and vague when I asked how often his contracts were renewed. He gave me the impression it was yearly, however I note the VRB were of the impression his contracts were renewed twice a year. Mr Nation told me he applied for a full time position on more than one occasion, but was never successful – he advised me the competition for the full position was very strong. He said that there were two occasions when his applications for a part time/casual positions were unsuccessful. On each occasion, after a short period of time, he was contacted and asked if he could resume work. He worked when the full time employees were on leave or absent due to apparent illness. He was often given very little notice that he was needed for work. He was a reliable employee and had little time off work, other than that required for the treatment of his knee. He estimates he averaged 72 hours a week when he was working as a VTSO. He admits there were periods, sometimes weeks, when he was not working. Although this position was predominantly a desk job, Mr Nation claims that during his employment it was a requirement that he be able to board a ship, in the event of an emergency, such as an oil spill. It was therefore necessary that he had the capacity to climb up the side of a ship using a rope ladder. During the nine years he worked as a VTSO, Mr Nation was never required to attend an emergency which required him to board a ship in such a manner; however he claims the requirement to be able to do so was the reason he was unable to continue work after his knee surgery in October 2003. Mr Nation ceased work approximately one month before the end of his last contract, on 18 October 2003. He underwent a knee replacement operation the next day. He told me that, irrespective of the need to climb a ladder, he would still not have been able to work following the procedure. In addition to the need to undergo rehabilitation after the procedure, Mr Nation said the knee replacement operation as not completely successful. He had a number of follow up procedures, the last being in July 2004. He remained on crutches for a few months after the procedure. In his report dated 19 June 2006, Dr Byrne provided a history of the treatments Mr Nation has undergone on his left knee. The history provided by Mr Nation is consistent with that provided in Dr Byrne’s report.