PETER CASSADY and REPATRIATION COMMISSION

[2009] AATA 462

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 462

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2008/0755

VETERANS'       APPEALS       DIVISION		)
Re		PETER CASSADY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

The Honourable Justice N. Mushin, Presidential Member

Brigadier C. Ermert (Retd), Member

Date               24 June 2009

PlaceMelbourne

Decision The Tribunal sets aside the reviewable decision and in substitution decides that the applicant is entitled to a service pension at the special rate with effect from 21 May 2007.  

(sgd) N. Mushin

Presidential Member

VETERANS’ AFFAIRS – service pension – whether veteran entitled to pension at the special rate – generalised anxiety disorder ‑ veteran resigned from work at aged 60 – re‑structuring at work ‑ whether war-caused condition prevents veteran from engaging in remunerative work – alone test

Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (2000) 101 FCR 50

Repatriation Commission v Alexander (2003) 75 ALD 329

REASONS FOR DECISION

24 June 2009 The Honourable Justice N. Mushin, Presidential Member
Brigadier C. Ermert (Retd), Member

INTRODUCTION

1.       The applicant, Peter William Cassady, served in the Australian Army, including operational service in Vietnam.  The respondent has accepted that the applicant suffers from certain disabilities arising out of that service, as a result of which he receives a pension at 80 per cent of the general rate.

2.       The applicant was engaged in full-time employment as a motor mechanic for nearly 40 years.  He resigned from his employment in 2007.  He sought the payment of his pension at the special rate.  That would require that his retirement was brought about exclusively by war-caused injuries or disease and no other factor.  The respondent refused the applicant's claim, as a result of which the applicant applied to the Veterans Review Board ("VRB").  The VRB affirmed the respondent’s decision and the applicant now seeks a review of that decision from the Tribunal.

3.       The applicant asserts that his retirement was brought about solely by his war‑caused injuries or disease, being a generalised anxiety disorder which resulted in his being unable to cope with various aspects of employment.  This application turns on that assertion.

CREDIBILITY

4.       During this hearing, we heard oral evidence from three witnesses.  They were the applicant, his wife and his treating psychologist.  All the witnesses were called in the applicant's case.  They were examined in chief by Counsel for the applicant and cross-examined by the respondent's advocate.

5.       We find that all three witnesses were thorough and truthful in the entirety of their evidence.  We have no reason to doubt the credibility of any of them.  While the respondent's advocate was critical of the psychologist, criticism to which we will refer below, there was no reason to doubt his credibility.

6.       In addition, we were referred to a number of other documents, the makers of which were not called to give oral evidence.  Again, we have no reason to doubt the contents of those documents, to which we will also refer below.

BACKGROUND AND…