RAYMOND KENNETH STEWART and REPATRIATION COMMISSION - [2009] AATA 419

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 419
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0745

VETERANS’ APPEALS DIVISION )

Re RAYMOND KENNETH STEWART

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date5 June 2009
PlaceRockhampton

Decision
The Tribunal varies the decision of the Board of 11 December 2007 such that the Board’s substituted decision reads “that pension be assessed at 60% of the General rate to operate from and including 6 March 2006 and at the Special Rate to operate from and including 4 June 2007.”

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Deputy President

(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, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity: and
(d) … “

10.The Full Court of the Federal Court in Repatriation Commission v Flentjar[1] propounded a series of questions that need be addressed when considering s 24(1)(c) of the Act. Branson J, with whom Beaumont and Merkel JJ agreed, said this:
“In my view the issues before the tribunal in this case were as follows:
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”
[1](1997) 48 ALD 1.

11.It is convenient to consider the evidence in the present case by reference to the questions posited by her Honour bearing in mind that the questions are to be addressed by reference to the assessment period, that is, the period from 4 June 2007 when Mr Stewart first satisfied the requirement of s 24(1)(a) of the Act, until the date of decision.
12.There is no real dispute that the remunerative work in issue was that of motor mechanic or truck driver or loader. It was work of that nature that Mr Stewart had undertaken during the vast majority of his working life after discharge from the Army.
13.Whilst the Commission’s Statement of Facts and Contentions[2] suggested that the second question ought be answered unfavourably Mr Thrupp accepted, in the course of oral argument, that it should be answered “yes” having regard to the Commission’s acceptance that…

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: [2009] AATA 419
Decision Date: 5 June 2009

CaseChat Overview and Summary

The applicant, Raymond Kenneth Stewart, sought a review of a decision by the Repatriation Commission concerning the assessment of a pension. The dispute centred on whether the pension should be assessed at the special rate under the Veterans’ Entitlement Act 1986 (Cth). Mr Stewart, a veteran, suffers from post-traumatic stress disorder (PTSD) and other non-accepted physical ailments. The Repatriation Commission had assessed his pension at 60% of the general rate, a decision which Mr Stewart contested. He argued that his PTSD and other conditions should warrant a pension at the special rate, considering his inability to work due to his accepted condition, despite the presence of other ailments that do not prevent him from working.

The key legal issue before the court was whether the veteran’s PTSD, as an accepted condition, alone justified the assessment of his pension at the special rate, notwithstanding the presence of other non-accepted physical ailments. The court had to determine whether the accepted condition sufficiently impaired the veteran’s ability to undertake remunerative work, which would entitle him to the special rate pension. Additionally, the court considered the relevance of the veteran’s age and time out of the workforce in the context of his ability to return to work.

The court reasoned that the special rate pension should be granted if the veteran’s accepted condition alone prevents him from continuing to undertake remunerative work. The evidence indicated that while other ailments did not prevent Mr Stewart from working, his PTSD did. The court held that the presence of other ailments did not negate the impact of the accepted condition on his ability to work. Therefore, the court found that the veteran’s pension should be assessed at the special rate due to the impact of his PTSD. Consequently, the Tribunal varied the decision of the Board to reflect this, setting the pension at 60% of the general rate from 6 March 2006 and at the special rate from 4 June 2007.

Orders

Orders of the court

The Tribunal varies the decision of the Board of 11 December 2007 such that the Board’s substituted decision reads “that pension be assessed at 60% of the General rate to operate from and including 6 March 2006 and at the Special Rate to operate from and including 4 June 2007.”

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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VETERANS’ APPEALS DIVISION		)
Re		RAYMOND KENNETH STEWART