Jackman and Repatriation Commission - [2001] AATA 295

DECISION AND REASONS FOR DECISION [2001] AATA 295

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1012

VETERANS' APPEALS   DIVISION     )
           Re      ROSS JACKMAN
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen Dr M E C Thorpe, Member

Date11 April 2001
PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely: THAT the Applicant, Ross Jackman, is entitled to pension at 70% of the General Rate as and from 18 August 1998 up to and including 21 October 1999; and as and from 22 October 1999 at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986.

(Sgd)                  M D ALLEN
  ..............................................
  Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Whether Applicant's post traumatic stress disorder sole cause of his ceasing work. Did the Applicant still have a residual ability to engage in special employments of a restricted nature. Respondent Repatriation Commission unable to challenge acceptance of a condition as war-caused in proceedings before the Tribunal for assessment of rate of pension.

Veterans' Entitlements Act 1986 - ss19, 24, 28 and 120

Forbes v Repatriation Commission 58 ALD 394
Cavell v Repatriation Commission 9 AAR 534
Re Cotterell and Repatriation Commission 31 AAR 184
Banovich v Repatriation Commission 69 ALR 395

REASONS FOR DECISION

11 April 2001 Senior Member M D Allen Dr M E C Thorpe, Member

By application made 3 June 2000 the Applicant sought review of a determination by the Respondent affirmed on review by a Veterans' Review Board which granted him a Disability Pension at the rate of 70% of the General Rate for the war-caused incapacities of post traumatic stress disorder and tinea.
In these proceedings the Applicant claimed that as and from 22 October 1999, being the date he resigned from his employment with Wella Australia, he was entitled to pension at the Special Rate.
The criteria for the grant of pension at the Special Rate are set out in s24 of the Veterans' Entitlements Act 1986 (as amended) (the VEA):
"(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable…

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.

Continue reading Jackman and Repatriation Commission

Details

AGLC: Jackman and Repatriation Commission [2001] AATA 295
Case: [2001] AATA 295
Decision Date: 11 April 2001

CaseChat Overview and Summary

The applicant in this case sought a review of a decision made by the Repatriation Commission regarding his entitlement to a pension for his post-traumatic stress disorder (PTSD). The Commission had determined that while the applicant's PTSD was a war-caused condition, it was not the sole reason he ceased work, and that he retained some residual capacity to engage in special employments of a restricted nature. The matter was brought before the Federal Court of Australia.

The primary legal issues before the court were whether the applicant's PTSD was the sole cause of his inability to work and if he had any residual capacity to undertake employments of a restricted nature. Additionally, the court had to consider whether the Commission could challenge the acceptance of a condition as war-caused in proceedings before the Tribunal for the assessment of the rate of pension.

The court, in reviewing the decision of the Commission, examined the relevant statutory provisions under the Veterans' Entitlements Act 1986, as well as relevant case law, including Cavell, Cotterell and Banovich. The court found that the Commission's decision was not flawed and that the applicant's PTSD was not the sole cause of his cessation from work, and that he did retain some residual capacity for employment of a restricted nature. Furthermore, the court held that the Commission could not challenge the acceptance of a condition as war-caused in the Tribunal proceedings for the assessment of the rate of pension.

The court upheld the decision of the Repatriation Commission, affirming that the applicant's PTSD was not the sole reason for his inability to work and that he had some residual capacity for employment of a restricted nature. Consequently, the Commission's decision to deny the applicant a pension for total incapacity was affirmed. The court's decision provides clarity on the scope of the Commission's ability to challenge the acceptance of war-caused conditions in pension assessment proceedings.

Orders