[2015] AATA 113
| Division | VETERANS' APPEALS DIVISION |
| File Number | 2014/0933 |
| Re | Raymond Arthur Conway |
| APPLICANT | |
| And | Repatriation Commission |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 27 February 2015 |
| Place | Melbourne |
The Tribunal sets aside the decision under review and substitutes a decision that Mr Conway is entitled to payment of disability pension at the special rate with effect from 23 July 2013.
.........................[Sgd].....................................
G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – special rate of pension – naval service - fitness instructor - spinal injury – whether incapacity from war-caused injuries ‘alone’ prevented the veteran from undertaking remunerative work
Veterans’ Entitlements Act 1986 ss 24(1)(a), (b),(c), 24(2)(a),(b)
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Giesen v Repatriation Commission [2005] FCA 846
Leane v Repatriation Commission [2004] FCAFC 83
Repatriation Commission v Hendy (2002) 76 ALD 47
Richmond v Repatriation Commission [2014] FCA 272
Smith v Repatriation Commission [2014] F CAFC 53
REASONS FOR DECISION
G. D. Friedman, Senior Member
27 February 2015
Raymond Conway is receiving disability pension at 100 per cent of the general rate and he now seeks the higher loss-of-earnings related payment known as special rate. He was discharged from the Royal Australian Navy in 1983 and he has not worked since.
The special rate of pension requires, among other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than eight hours per week, by reason of war-caused disability. The respondent says that Mr Conway is not entitled to special rate because there were factors other than his defence-caused disabilities of spondylyolisthesis, glare athenopia, deviated nasal sputum, bilateral sensineural hearing loss, recurrent capsulitis right shoulder with capsular tear, recurrent dislocation right shoulder, fracture of right zygoma & orbital margin and chronic sinusitis that prevent him from working.
LEGISLATIVE BACKGROUND
Section 24 of the Veterans' Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
…
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force…and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages,…
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- Case
- [2015] AATA 113
- Decision Date
CaseChat Overview and Summary
The Tribunal concluded that while Conway's war-caused disabilities, including spondylolisthesis and right shoulder capsulitis, were major factors preventing him from working, they were not the sole factors. Other barriers, such as his limited education, lack of recent work experience, and age, also contributed to his inability to work. However, the Tribunal found that Conway had been genuinely seeking employment and that his war-caused incapacity was the substantial cause of his inability to obtain work. Consequently, the Tribunal held that Conway satisfied s 24(2)(b) of the Act, which provides an exception to the 'alone test' where a veteran has been genuinely seeking to engage in remunerative work and is prevented by war-caused incapacity from doing so.
The Tribunal set aside the Commission's decision and substituted a decision that Conway is entitled to disability pension at the special rate with effect from 23 July 2013.
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