Johnson and Repatriation Commission - [2004] AATA 1163

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1163
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/1363
VETERANS' APPEALS DIVISION

Re: DARYL WILLIAM JOHNSON
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             8 November 2004
Place:            Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to pension at the special rate with effect from 29 May 2001.

(sgd) G.D. Friedman
Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - knee injury - hearing loss ‑ ability to work ‑ whether special rate applies
Veterans’ Entitlements Act 1986 s 24, 120(4)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Magill v Repatriation Commission [2002] FCA 744
REASONS FOR DECISION
8 November 2004  G.D. Friedman, Member
1.      This is an application by Daryl William Johnson (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 26 June 2002. The VRB set aside a decision of a delegate of the Repatriation Commission (the respondent) dated 11 October 2001 to increase the applicant’s disability pension to 80 per cent of the general rate, and increased the pension to 90 per cent of the general rate.
2.      At the hearing of this matter on 8 December 2003 and 28 October 2004 Mr D. De Marchi, solicitor, represented the applicant, and Mr K. Herman, advocate with the Department of Veterans’ Affairs, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T33), with 16 exhibits (Exhibits A1 to A16) lodged by the applicant and 4 exhibits (Exhibits R1 to R4) lodged by the respondent.
BACKGROUND
4.      The applicant was born on 3 September 1956. He left school in 1972 after completing the NSW School Certificate, and began working as an apprentice painter. He served in the Australian Army (the army) from 6 November 1974 to 6 November 1994, and rendered operational service as defined in the Veterans’ Entitlements Act 1986 (the Act). He reached the rank of sergeant in the Infantry Corps.
5.      After his discharge from the army he moved to the Philippines, where he has remained as a permanent resident. He is married and has three children.   In 1997 he was employed as General Manager at the Coconut Grove Beach Resort, La Union. He worked there until 30 April 2001. He has not worked since.
6.      On 29 May 2001 the applicant lodged a claim for an increase in disability pension for his sensorineural hearing loss and fracture right patella with cruciate ligament injury right knee, which the respondent had previously accepted as being war-caused disabilities. On 11 October 2001 a delegate of the respondent increased the applicant's disability pension to 80 per cent of the general rate with effect from 29 May 2001. On 4 December 2001 the applicant applied to the VRB for review, and following the decision of the VRB, the applicant lodged an application with the Tribunal on 29 July 2002 for review…

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 Johnson and Repatriation Commission

Details

AGLC: Johnson and Repatriation Commission [2004] AATA 1163
Case: [2004] AATA 1163
Decision Date: 8 November 2004

CaseChat Overview and Summary

In the matter of Daryl William Johnson, the applicant, versus the Repatriation Commission, the respondent, the Administrative Appeals Tribunal reviewed the decision of the Veterans' Review Board to set aside the decision of a delegate of the Repatriation Commission to increase the applicant's disability pension to 80% of the general rate, and to increase the pension to 90% of the general rate instead. The Tribunal was required to determine whether the applicant is eligible for a pension at the special rate. The applicant, a former member of the Australian Army, sustained a knee injury and hearing loss during his service. He had been receiving a disability pension but applied for an increase due to the worsening of his conditions. The primary issue before the Tribunal was whether the applicant's war-caused disabilities rendered him totally and permanently incapacitated from undertaking remunerative work, thereby qualifying him for the special rate of pension under the Veterans' Entitlements Act 1986.

The Tribunal considered extensive medical evidence and testimony from the applicant, his former employers, and several medical professionals. The evidence indicated that the applicant's knee injury and hearing loss significantly impaired his ability to perform physical tasks and communicate effectively, which affected his capacity to secure and maintain employment. Medical reports and witness statements supported the applicant's claims that his conditions prevent him from working more than eight hours per week. The Tribunal also acknowledged the applicant's efforts to find employment despite these limitations. The Tribunal found that the applicant's incapacity, as a result of his war-caused disabilities, alone prevented him from continuing his previous employment, and this incapacity caused a loss of earnings he would not suffer if he were free of his disabilities. Accordingly, the Tribunal concluded that the applicant met the criteria for a special rate of pension under section 24 of the Act. The Tribunal set aside the decision under review and substituted a decision that the applicant is entitled to pension at the special rate with effect from 29 May 2001.

Orders