JOHNSON and REPATRIATION COMMISSION

[2010] AATA 706

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 706

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1319

VETERANS' APPEALS  DIVISION		)
Re		IAN JOHNSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date16 September 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............[Sgd]................................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – Veteran in receipt of 100% general rate pension – Veteran not able to undertake remunerative work for more than 8 hours per week because of service-related conditions – Veteran not prevented from undertaking remunerative work that he was undertaking because of war-caused conditions alone – Special rate of pension not payable - Intermediate rate of pension not payable - Decision affirmed

Safety, Compensation and Rehabilitation Act 1988 (Cth)

Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 14, 19, 22, 23, 24, 70, 119, 120

Flentjar v Repatriation Commission (1997) 26 AAR 93, (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Jebb v Repatriation Commission (1988) 80 ALR 329
Leane v Repatriation Commission (2004) 81 ALD 625
Magill v Repatriation Commission [2002] FCA 744
Peacock v Repatriation Commission [2004] FCA 1449
Repatriation Commission v Boyle (1997) 47 ALD 637
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703 
Van Ewijk v Repatriation Commission [2004] FCA 17

REASONS FOR DECISION

16 September 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1. On 19 February 2008, the Tribunal determined that Ian Johnson suffered from generalised anxiety disorder, depressive disorder and cardiomyopathy and that these were defence-caused, in accordance with s 70 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), with effect from 12 February 2003. His initial claim for acceptance of those conditions was lodged, under s 14 of the Act, on 12 May 2003. The Tribunal remitted the matter of assessment to the respondent. On 6 June 2008, a delegate of the respondent assessed Mr Johnson’s incapacity from the conditions noted above as well as from bilateral sensori neural hearing loss. The delegate increased the rate of his disability pension, paid under s 22 of the Act, to 100% of the general rate with effect from 12 February 2003. On 22 January 2010, the Veterans’ Review Board (“the Board”) affirmed that decision. In so determining, the delegate and the Board were satisfied that Mr Johnson did not qualify for the intermediate or the special rate of pension under s 23 or s 24 of the Act, respectively.

ISSUES AND LEGISLATION 

2.      Matters in issue for assessment are determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case[1].  In that process, neither party bears an onus of proof[2]. The procedure to be followed is provided for in s 19 of the Act. It requires the rate of pension to be assessed from time to time during the assessment period[3] which is defined as starting on the application day and…