Merriman and Repatriation Commission

[2004] AATA 475

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 475

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/552

VETERANS' APPEALS DIVISION		)
Re		DOUGLAS MERRIMAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr E K Christie, Member

Date14 May 2004

PlaceBrisbane

Decision The decision under review is set aside and in substitution thereto the Tribunal decides Douglas Merriman is entitled to pension payable at the Special Rate, with date of effect as from 1 March 2002.

....................(Sgd).....................

EK Christie
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension - special rate – accepted service-related disabilities are a ‘substantial cause’ of inability to engage in remunerative work – alone test not met – ameliorating provisions - genuinely seeking to engage in remunerative work – pension payable at the special rate

Veterans’ Entitlements Act 1986 s 24

Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1
Jackman v Repatriation Commission [1997] FCA 564
Cavell v Repatriation Commission (1988) 9 AAR 534
Byrne v Repatriation Commission [2001] FCA 1134
Fox v Repatriation Commission (1997) 45 ALD 317
Hall v Repatriation Commission (1994) 33 ALD 454
Hendy v Repatriation Commission [2002] FCA 602

REASONS FOR DECISION

14 May 2004 Dr E K Christie, Member    

1.      This is an application by Douglas Merriman to review a decision of the Veterans’ Review Board (“the VRB”) which determined that pension be assessed at 80% of the general rate to operate from and including 1 February 2002.

2.      In reaching its decision, the VRB concluded on the evidence before it, that:

“28      The Board noted that atrial fibrillation is a condition for which the Repatriation Medical Authority has published a Statement of Principles, and accepted the evidence from Dr Rafter, that Mr Merriman’s atrial fibrillation was currently well controlled with medication and that this condition did not interfere with Mr Merriman’s capacity to continue in the work force.

29       It was apparent from the whole of the material available today, that the veteran’s atrial fibrillation, and subsequent anxiety and concern in regard to the musculo-skeletal chest pains which Mr Merriman developed after his heart arrhythmia was diagnosed, was the principle [sic] reason Mr Merriman ceased work in January 2001.

30       Further, Mr Merriman was 61 at the time he resigned, and the Board considered that the veteran’s age, and the requirement for him to increase his working hours from 38 to 42 per week were also significant factors in his decision to resign from his paid employment.”  (T2, Folio 14)

3.      At the hearing, Douglas Merriman was represented by Ms B Carter-Nicol of Counsel.  The respondent was represented by Mr M Smith, a Departmental Advocate.

4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 – the “T” Documents (Exhibit 1) and the various documents tendered by the parties.

Facts

5.      The general facts were not in dispute and may be stated briefly.  Mr…