Raymond Arthur Conway and Repatriation Commission - [2015] AATA 113

[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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] AATA 113
Decision Date: 27 February 2015

CaseChat Overview and Summary

Raymond Conway, a former naval serviceman, applied to the Administrative Appeals Tribunal for special rate disability pension, which provides for a higher payment than the general rate of pension. The Repatriation Commission opposed the application on the basis that Conway was not solely prevented by his war-caused injuries from undertaking remunerative work. The Tribunal was required to decide whether Conway met the 'alone test' under s 24(1)(c) of the Veterans' Entitlements Act 1986, which requires that a person must be prevented from continuing to undertake remunerative work solely by reason of war-caused disability.

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.

Orders