Re Mitchell and Repatriation Commission

[2007] AATA 2087

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2087

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200500273

VETERANS' APPEALS DIVISION		)
Re		CRAIG LESLIE MITCHELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date21 December 2007

PlaceAdelaide

Decision The tribunal sets aside the decision under review and in place of that decision determines that the applicant is entitled to pension at the intermediate rate provided for in s 23 of the Veterans Entitlements Act 1986 (Cth) with effect on and from 2 January 2004 until 12 February 2007 inclusive, and is entitled to pension at the special rate provided for in s 24 of that Act with effect on and from 13 February 2007.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

VETERANS' ENTITLEMENTS – disability pension – rate of pension payable – special rate – incapacity to undertake remunerative work for more than eight hours per week – intermediate rate – accepted conditions including post-traumatic stress disorder, major depressive disorder, lumbar disc degeneration and osteoarthritis of both knees – physiotherapist working reduced hours – part-time continuation of work applicant had previously undertaken – meaning of “continuing to undertake remunerative work that the veteran was undertaking” – decision set aside – applicant entitled to pension at intermediate rate for part of assessment period, and then to pension at special rate.

Veterans Entitlements Act 1986 (Cth), ss 23(1)(b) and 24(1)(c)

Browne v Dunn (1893) 6 R 67

Carter v Repatriation Commission (2001) 33 AAR 343

Re Banovich and Repatriation Commission (1986) 9 ALN N223

Repatriation Commission v Braund (1991) 23 ALD 591

Repatriation Commission v Haskard (2002) 126 FCR 1

Repatriation Commission v Smith (1987) 15 FCR 327

Wright v Repatriation Commission (2005)] 144 FCR 302

REASONS FOR DECISION

21 December 2007   Deputy President D G Jarvis

1.      The applicant, Craig Leslie Mitchell, is a Vietnam veteran.  He currently has accepted disabilities of post concussional syndrome, sensorineural deafness, lumbar disc degeneration, plepharitis and bilateral pingueculae, post-traumatic stress disorder (PTSD), major depressive disorder, irritable bowel syndrome, and osteoarthritis of both knees, in addition to specific injuries including various fractures for which liability has also been accepted.

2.      Mr Mitchell was first granted a pension on 1 July 1971 at ten per cent of the general rate.  This was increased in 1993 to eighty and then ninety per cent of general rate, and in June 1995 to 100 per cent of the general rate.  On 2 January 2004, Mr Mitchell lodged an application for increase in disability pension for his previously accepted disabilities.  The Repatriation Commission refused this application in October 2004, and continued the pension at 100 percent of the general rate.  The Commission’s decision was later affirmed by the Veterans’ Review Board (VRB).  Mr Mitchell has applied to this tribunal for review of the Commission’s decision.

3. Mr Mitchell claims that he is entitled to pension at the special rate. If his claim does not succeed, it is also necessary for me to…