Nugent and Repatriation Commission

[2003] AATA 417

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 417

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/378

VETERANS’ APPEALS DIVISION		)
Re		CHARLES NUGENT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date12 March 2003          

PlaceBrisbane

Decision

The Tribunal decides:

(a)      the decision under review is set aside;

(b) the applicant satisfies the terms of section 24 of the Veterans’ Entitlements Act 1986 with effect from 28 February 2000; and

(c)      the matter is remitted to the respondent to give effect to the Tribunal’s decision.

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

KL Beddoe
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension – Special Rate – whether veteran entitled to pension payable at the Special Rate – whether veteran’s war caused disabilities alone prevent him from undertaking remunerative work

Veterans’ Entitlements Act 1986 ss 23, 24

WRITTEN REASONS FOR ORAL DECISION

7 May 2003  Mr K L Beddoe, Senior Member  

1.      The respondent refused a claim for increase in the rate of disability pension.  That decision was subsequently affirmed by the Veterans’ Review Board and the applicant applied for review in this Tribunal.

2. The issue before the Tribunal was whether section 24 (or section 23) of the Veterans’ Entitlements Act 1986 was satisfied so as to increase the applicant’s disability pension above the 100% rate as assessed by the respondent.

3. At the hearing the applicant was represented by Ms Carter-Nicoll of Counsel and Mr McAninly represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant, Dr Goode (occupational physician) and Dr Boys (orthopaedic surgeon).

4.      The respondent has accepted as service-related the following conditions:

(a)      Bilateral Sensori-neural Deafness; and

(b)      Anterior Cruciate Ligament insufficiency Right Knee (Reconstructed).

5.      The applicant had two periods of service in the Army, on each occasion rising to the rank of sergeant.

6.      I am satisfied that the applicant became unemployable during his second period of service because of his deafness and he was discharged from the Army for that reason.  I am also satisfied, based on the applicant’s evidence, that he managed to maintain his employment in the Army only because, as a sergeant, he was able to delegate functions to others, thereby avoiding problems which would arise because of his deafness.

7.      In relation to the discharge I accept that the applicant took voluntary discharge because he did not want a discharge on invalidity grounds due to reasons relating to payment of Defence Force pension benefits.

8.      While Dr Boys thought that the applicant was capable of working twenty hours per week, on the basis of his examination, he did not take into account the applicant’s hearing problems.

9.      Dr Goode was of the opinion that the applicant was, and is, unemployable when the deafness and right knee conditions are both taken into account.

10. At the conclusion of the hearing, the Tribunal gave oral reasons for its decision that section 24 of the Act had been satisfied, as follows:

“I propose to set aside the decision under review and substitute a decision that the applicant is entitled to a special rate pension within the terms of section 24 of the Veterans’ Entitlements Act. My brief reasons for that decision are as follows.

The applicant was a long-term soldier.  He in fact had two terms of engagement in the Army.  On each occasion he rose to the rank of sergeant.  During the first period of his employment with the Army, he suffered certain injuries which in the result caused severe hearing loss, which is beyond doubt, so that he is now profoundly deaf, and that is an accepted medical condition.

He also had a problem with his right knee. The right knee has been accepted for the reconstruction, but the subsequent condition of osteoarthritis, if that is the right diagnosis, has not been accepted and I’ve excluded from consideration the fact of the applicant’s osteoarthritis of his right knee. But I’m satisfied that the profound deafness was such that the applicant was prevented from continuing in his employment in the Army. He had been medically downgraded to the point where he was to be discharged on medical grounds, but he in effect stalled that process by taking an administrative discharge to take advantage of the provisions of the Defence Force Retirement and Death Benefits Act as he understood them.

After leaving the Army, the applicant purchased a business and at the date of application, which is 28 February 2000, he was still carrying on that business but I’m satisfied it was in such a run-down state that it had almost ceased to be a business and certainly had ceased to be an income earning proposition as far as the applicant was concerned so that he was suffering a real loss of remuneration arising from that business.  He was also suffering a loss of remuneration from his employment in the Army, and it was that factor alone – the profound deafness as a result of his service in the Army, the accepted condition - I’m satisfied, that caused that loss of remuneration and that alone resulted in the provisions of section 24 being satisfied.

Insofar as the applicant did not make any attempt to seek alternative employment, I’m satisfied that – and I accept his evidence that - having been told by the Army that he can no longer perform clerical duties he was satisfied in his own mind and it is reasonable on an objective basis to also be satisfied that he was no longer capable of performing normal clerical duties and the kind of work that he had been engaged in, and therefore the terms of section 24 have all been satisfied, given that the applicant is already on a 100 per cent disability pension.

As I said before, the decision under review will be set aside, the matter remitted to the respondent with a direction that the applicant complies with section 24 of the Veterans’ Entitlements Act 1986..  That decision will be made in writing and a copy sent to each of the parties.”

11.     These reasons in writing have been prepared on the request of the respondent.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  12 March 2003
Date of Decision  12 March 2003
Written Reasons  7 May 2003

Counsel for the Applicant         Ms Carter-Nicoll
Solicitor for the Respondent     Mr D McAninly, Departmental Advocate