Martino and Repatriation Commission (Veterans' entitlements)

This matter concerned an application for review of a decision by the Veterans Review Board regarding the applicant's entitlement to a special rate of pension. The applicant, who sustained a significant lower back injury during his military service, sought a review of the pension rate applied to him, arguing his capacity for remunerative work had been severely limited by his defence-caused conditions.

The Tribunal was required to determine the applicant's capacity for remunerative work during the assessment period, specifically whether he was unable to undertake work for 20 hours or more per week (intermediate rate) or for more than eight hours per week (special rate). Further, if the latter applied, the Tribunal had to consider whether the defence-caused conditions giving rise to that incapacity were permanent or temporary, to determine eligibility for the special or temporary special rate, and what pension rate should apply prospectively.

The Tribunal considered the applicant's evidence regarding his ongoing pain, rehabilitation, and sporadic work efforts following surgery in 2012. It noted the applicant's contention that his work capacity had consistently been less than eight hours per week since his surgery. Applying the relevant provisions of the Veterans' Entitlements Act 1986, the Tribunal found that the applicant's circumstances warranted different pension rates for distinct periods.

The Tribunal set aside the decision under review and substituted a new decision. It determined that the temporary special rate should apply from 12 December 2012 to 30 July 2014, the intermediate rate from 31 July 2014 to 29 November 2015, and the temporary special rate from 30 November 2015 onwards. Prospectively, the temporary special rate was to apply for 18 months, subject to a further review before the conclusion of that period.