MICHAEL JOHN BELLAMY and REPATRIATION COMMISSION

[2009] AATA 639

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 639

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2008/1837

VETERANS'       APPEALS        DIVISION		)
Re		MICHAEL JOHN BELLAMY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier C Ermert (Retd), Member

Date27 August 2009

PlaceMelbourne

Decision The decision under review is affirmed.

(sgd) C Ermert

Member

VETERANS’ AFFAIRS ‑ operational service – accepted impairment rating of 90% - accepted war-caused disabilities of plantar fasciitis – whether qualified for special rate - four Flentjar questions – type of remunerative work – whether prevented from continuing work by war-caused conditions –ss 24(1)(b), 23 and 24 of the Act not satisfied– not entitled to disability pension at the Intermediate or Special Rate – decision affirmed.

Veterans’ Entitlements Act 1986 ss 23, 24, 120

Flentjar v Repatriation Commission (1997) 48 ALD 1

Chambers v Repatriation Commission (1995) 36 ALD 207

Repatriation Commission v Buckingham, Federal Court, 7 February 1996, 153/1994

REASONS FOR DECISION

27 August 2009 Brigadier C Ermert (Retd), Member

INTRODUCTION

1.       Mr Michael John Bellamy, the applicant, was born in 1945 and he is 64 years old.  He left secondary school in Malta at the age of 17½ and moved to Australia in 1962.  Mr Bellamy worked for approximately four months as a storeman in a warehouse and then worked in the real estate sales industry until he enlisted in the Australian Army.  Mr Bellamy served in the Army from 1965 to 1967, including a period in the Far East Strategic Reserve (Malaya), which the respondent has accepted as meeting the requirements of operational service as defined in the Veterans’ Entitlements Act 1986 (the Act). 

2.       Since his discharge from the Army Mr Bellamy has worked as a sales representative in a number of industries, involving sales to markets in Australia and overseas.  He has also run an import and export business in furniture and pottery, established a business importing and selling hosiery wholesale, and, with his daughter, established a business providing internet web design services.  Mr Bellamy has also driven hire cars and limousines. 

3.       Mr Bellamy’s last paid employment was as a sales representative in the carpet industry.  On 22 March 2004 he commenced full time employment with Drills Swan Street (Auctions) & Sales (Drills).   Mr Bellamy was initially working an average of 45 hours per week.  He moved to casual employment for eight and a half hours per week on 16 March 2005 and he resigned from Drills on 15 March 2006.  Mr Bellamy then undertook part-time work of eight hours a week spread over three days at AAA Simon Carpets (Simon).  Mr Bellamy ceased work with Simon on 19 January 2007 and has not worked since.

4.Mr Bellamy was granted a service pension in February 2005.

5.       Mr Bellamy has a number of medical conditions which the Repatriation Commission (the respondent) accepted were war-caused.  On 4 May 2006 the respondent accepted that his plantar fasciitis and gastro-oesophageal reflux disease were war-caused and increased his disability pension to 50%…