McMahon and Repatriation Commission - [2008] AATA 622

Administrative Appeals Tribunal
INTERIM DECISION AND REASONS FOR INTERIM DECISION [2008] AATA 622
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1657

VETERANS' APPEALS DIVISION )

Re PATRICK MCMAHON

Applicant

And

REPATRIATION COMMISSION

Respondent

INTERIM DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Dr J Campbell, Member
Date16 July 2008
PlaceSydney

Interim
Decision
The appropriate course is to allow the parties the opportunity to obtain the evidence necessary to enable us to make the correct or preferable decision. First, we need evidence to show, what, if any, is the appropriate adjustment for presbyacusis. Secondly, if some adjustment for presbyacusis is appropriate, does Mr McMahon's war-caused hearing loss alone have the effect that he cannot undertake relevant remunerative work prescribed by s 24(2A)(c) and (d) of the Veterans’ Entitlements Act 1986.

We will list a directions hearing at a time convenient to the parties when we will make further directions, if necessary. We are not, of course, precluding the parties from coming to an agreement without our assistance about the appropriate way to proceed.

..................[sgd].................
Presiding Member
Senior Member, Mrs Josephine Kelly

CATCHWORDS
VETERANS’ AFFAIRS – Pension - Special Rate – Criteria for – 90 year old claimant – Employed by Australian Bureau of Statistics - War-caused hearing loss – Whether war-caused hearing loss alone renders applicant incapable of undertaking any remunerative work for 8 hours per week - Whether war-caused hearing loss alone prevented applicant from continuing last paid work - Whether Guide to the Assessment of Rates of Veterans’ Pension applies to claims for special rate - Medical evidence considered – Interim decision –Further medical evidence about effect of presbyacusis required - Directions hearing to be set down
Administrative Appeals Tribunal Act 1975, s 33, 37
Veterans’ Entitlements Act 1986, ss 19, 21A, 24, 28 120
Guide to the Assessment of Rates of Veterans’ Pension (5^th Edition), Scale 7.1.9
REASONS FOR INTERIM DECISION

16 July 2008 Senior Member, Mrs Josephine Kelly
Dr J Campbell, Member

1.      Mr Patrick McMahon was born on 17 June 1915. He is now 93 years of age. He was 90 years at the time he made his claim which is the subject of these proceedings. He worked for the Australian Bureau of Statistics (ABS) on a part-time basis as a field interviewer from 1974 until 10 January 2006. He served in the Royal Australian Air Force (RAAF) in New Guinea for 14 months during World War II. He served in the RAAF from March 1942 to 12 December 1945.   He has operational service as defined in the Veterans' Entitlements Act 1986 (the Act).
THE ISSUES
2.      The question in these proceedings is whether Mr McMahon is entitled to the Special Rate of Pension pursuant to s 24 of the Act. The issues in simple terms are whether Mr McMahon's hearing loss, which is related to service, alone prevents him from undertaking remunerative work for more than 8 hours per week (s 24(1)(b) and s 24(2A)(c) of the Act), and whether that hearing…

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 McMahon and Repatriation Commission

Details

AGLC: McMahon and Repatriation Commission [2008] AATA 622
Case: [2008] AATA 622
Decision Date: 16 July 2008

CaseChat Overview and Summary

In McMahon v Repatriation Commission, the dispute before the Federal Court of Australia involved a claimant seeking compensation for hearing loss related to his military service. The claimant argued that his hearing loss, compounded by age-related hearing decline, rendered him incapable of undertaking certain remunerative work as outlined in the Veterans’ Entitlements Act 1986. The Repatriation Commission contested the extent of the claimant's incapacity and the appropriate compensation.

The legal issues at the heart of this case revolved around two primary aspects: the extent to which presbyacusis, or age-related hearing loss, should be factored into the assessment of the claimant's incapacity, and whether the claimant's war-related hearing loss, in conjunction with presbyacusis, justified the conclusion that he was unable to undertake specific types of remunerative work. The court needed to determine the interplay between these two sources of hearing impairment and their collective impact on the claimant's ability to work.

The court's reasoning emphasised the necessity of obtaining further evidence to accurately assess the claimant's hearing impairment. It found that without a comprehensive understanding of the claimant's hearing loss, both due to his military service and due to natural aging, it was premature to make a definitive decision on his incapacity. The court concluded that a more detailed evaluation was required to ascertain the appropriate adjustment for presbyacusis and to determine whether the claimant's war-related hearing loss, in combination with age-related decline, indeed precluded him from performing the specified remunerative work. Consequently, the court decided to allow the parties the opportunity to gather and present the necessary evidence. A directions hearing was scheduled to further guide the proceedings, with an option for the parties to reach an agreement independently.

The court's final orders mandated that the parties obtain the necessary evidence to facilitate an informed decision. Specifically, evidence needed to clarify the appropriate adjustment for presbyacusis and to determine if the claimant's war-related hearing loss, when combined with age-related hearing decline, rendered him incapable of undertaking the prescribed remunerative work. The court scheduled a directions hearing to make further directions as necessary and encouraged the parties to explore the possibility of reaching an agreement without judicial intervention.

Orders

Orders of the court

The appropriate course is to allow the parties the opportunity to obtain the evidence necessary to enable us to make the correct or preferable decision. First, we need evidence to show, what, if any, is the appropriate adjustment for presbyacusis. Secondly, if some adjustment for presbyacusis is appropriate, does Mr McMahon's war-caused hearing loss alone have the effect that he cannot undertake relevant remunerative work prescribed by s 24(2A)(c) and (d) of the Veterans’ Entitlements Act 1986.

We will list a directions hearing at a time convenient to the parties when we will make further directions, if necessary. We are not, of course, precluding the parties from coming to an agreement without our assistance about the appropriate way to proceed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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