JOHN TAYLOR and REPATRIATION COMMISSION

Case [2006] AATA 464


Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006]AATA 464

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/485

VETERANS' APPEALS  DIVISION )
Re JOHN TAYLOR

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr John Campbell

Date26 May 2006

PlaceSydney

Decision

The decision under review is set aside and in substitution the decision is made that Mr Taylor is entitled to the special rate of pension.

[sgd] Senior Member, Mrs Josephine Kelly

Presiding Member

CATCHWORDS

VETERANS’ APPEALS – increase in pension rate – Applicant seeking to be paid the special rate of pension – seven accepted disabilities including Post Traumatic Stress Disorder with secondary alcohol abuse and depression – medical evidence supports that due to Applicant’s psychiatric conditions he is unable to work for 8 hours a week – Applicant’s remunerative work was manual labouring – Applicant’s war caused psychiatric conditions alone prevent him from undertaking and continue to prevent him undertaking remunerative work – decision set aside

LEGISLATION
Veterans’ Entitlements Act 1986 ss 24, 120(4)

CASELAW

Flentjar v Repatriation Commission (1997) 48 ALD 1
Starcevich v Repatriation Commission (1987) 76 AAR 449
Fry v Repatriation Commission (1997) 47 ALD 776
Magill v Repatriation Commission [2002] FCA 744

REASONS FOR DECISION

26 May 2006   Senior Member, Mrs Josephine Kelly and 
  Member, Dr John Campbell         

Introduction

1.      Mr Taylor is a Vietnam veteran. He is seeking a review of the assessment of his pension. It is currently assessed at 100% of the general rate. He wishes to be paid the special rate of pension. Mr Taylor was born on 20 July 1946 and is currently 59 years of age.

2.      The decision under review is the decision of the Repatriation Commission (“the Commission”) dated 20 November 2003 that assessed disability pension at 100% of the General Rate, and which was affirmed by the Veterans’ Review Board on 22 February 2005. 

3.      The “assessment period” commenced on 24 October 2003, the date Mr Taylor made a claim for pension, which is the ‘application day’.

Mr Taylor’s Accepted Disabilities

4.      Following is a list of Mr Taylor’s accepted disabilities and the dates of acceptance according to the Commission’s records:

·     Gun shot wound right shoulder (date unknown)

·     Perceptive deafness (date unknown)

·     Anxiety state (dated unknown)

·     Osteoarthrosis of the right shoulder (13 September 2000)

·     Post traumatic stress disorder with secondary alcohol abuse and depression (24 July 2003)

·     Diabetes mellitus (6 August 2003)

·     Hypertension (6 August 2003)

5.      It is not contested that the “gun shot wound” was in fact a mortar injury which Mr Taylor suffered during the Tet offensive while asleep in a shellscape when he was guarding American artillery. One of his mates was killed. He was taken by helicopter to an American base hospital where some of the shrapnel was removed.  Following convalescence he went back into the field for about three weeks but had difficulty carrying his pack, and was returned to hospital. Further shrapnel was removed…

Continue reading JOHN TAYLOR and REPATRIATION COMMISSION

Sign in free to access the full text

Details
AGLC
JOHN TAYLOR and REPATRIATION COMMISSION [[2006]] AATA 464
Case
[2006] AATA 464
Decision Date

CaseChat Overview and Summary

The case involves John Taylor and the Repatriation Commission, with the dispute centering around the rate of pension Taylor was entitled to receive. Taylor, a veteran, applied for an increase in his pension rate, arguing that his medical conditions, which include seven accepted disabilities such as Post Traumatic Stress Disorder, secondary alcohol abuse, and depression, prevent him from working for a full 8-hour week. The Repatriation Commission had previously denied his application for the special rate of pension, which is reserved for those who are unable to undertake any remunerative work due to their service-related disabilities.

The primary legal issue the court had to address was whether Taylor’s psychiatric conditions alone justified a classification for the special rate of pension. The court needed to determine if Taylor’s conditions were severe enough to prevent him from undertaking any remunerative work, considering his previous employment as manual labouring. The court also had to consider the medical evidence presented regarding Taylor's inability to work due to his psychiatric conditions.

The court found that Taylor’s war-caused psychiatric conditions significantly impaired his ability to undertake any form of remunerative work. The medical evidence was compelling, indicating that Taylor was unable to work even part-time due to his conditions. The court held that these conditions alone justified the classification for the special rate of pension, as they were sufficient to prevent him from engaging in any employment. Consequently, the decision to deny Taylor the special rate of pension was set aside, and it was determined that Taylor is entitled to the special rate of pension.

Orders

Orders of the court

The decision under review is set aside and in substitution the decision is made that Mr Taylor is entitled to the special rate of pension.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.