Randall and Repatriation Commission

[2004] AATA 974

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 974

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/357

VETERANS' APPEALS DIVISION		)
Re		ALBERT RANDALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date17 September 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd].......................

Senior Member

CATCHWORDS

VETERANS AFFAIRS – pensions and benefits – special rate pension – whether applicant genuinely seeking to engage in remunerative work – decision affirmed

Veterans’ Entitlements Act 1986

Chambers v Repatriation Commission (1995) 129 ALR 219

Hall v Repatriation Commission [1994] FCA 458

REASONS FOR DECISION

17 September 2004

Senior Member McCabe    

Introduction

1. This is an application for review of a decision to refuse the applicant a pension at the special rate pursuant to s 24 Veterans’ Entitlements Act 1986.  The respondent’s decision was affirmed by the Veterans’ Review Board (the VRB) on 23 January 2003.

2.      The matter was heard in Townsville on 15 July 2004.  The applicant was represented by Mr Honchin of counsel.  The respondent was represented by Mr Stoner, a departmental advocate.  The following evidence was before the Tribunal:

· documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975 (the T-documents);

·   A statement of the applicant dated 1 September 2003, a supplementary statement of the applicant dated 16 January 2004, an addendum to the applicant’s statement dated 23 June 2004;

·   Correspondence from various employers of the applicant: Highway Wreckers, G & L Sheetmetal, and IT and ML Roof Plumbers;

·   Two reports of Dr Rogers dated 26 March 2004 and 18 May 2004;

·   An application of the applicant for re-engagement in the Royal Australian Air Force;

·   A report of Dr Mulholland dated 30 October 2003;

·   A report of Dr Boys dated 25 August 2003;

·   A letter and attachments from Western Power (a previous employer of the applicant);

·   A letter from Riskcover and attachments from Workcover, dated 30 March 2004;

·   A bundle of clinical notes from Dr Noll.

The factual background

3.      Mr Randall rendered operational service in Vietnam from 18 March 1970 to 18 March 1971.  As a result of his experiences there he now suffers a number of conditions: bilateral tinnitus, bilateral sensori-neural hearing loss, depressive disorder, post traumatic stress disorder (PTSD) and alcohol dependence or abuse.  The respondent has accepted those conditions as war-caused.

4.      Following his discharge from the RAAF he was employed in various jobs of an unskilled nature.  In 1996 he seriously injured his back in a workplace accident.  That injury was the subject of a personal injury claim, which was settled for some $100,000.  After the injury he participated in a return-to-work program.  However in August 1997 he resigned from employment.

5.      Following his resignation Mr Randall says he searched for work in Albany, where he lived at the time.  He was not successful.  He says he was unable to obtain work because his attitude problems and aggression made him unemployable.

The Law