Reid and Repatriation Commission (Veterans' entitlements)

Reid and Repatriation Commission (Veterans' entitlements) [2021] AATA 877 (15 April 2021)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2019/3187

Re:Malcolm Reid  

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Member A Ward

Member Dr L Stephan

Date:15 April 2021

Place:Adelaide

The Tribunal affirms the decision under review.

........................[Sgnd]............................

Member A Ward

Catchwords

VETERANS’ AFFAIRS – compounding injuries and illness – ability to undertake remunerative work – whether the Applicant’s war-caused disease alone prevents them from undertaking remunerative work – whether the Applicant is entitled to the special or intermediate pension rate – decision under review affirmed 

Legislation

Veterans’ Entitlements Act 1986

Administrative Appeals Tribunal Act 1977

Cases

Smith v Repatriation Commission (2014) 22 FCR 452

Repatriation Commission v Richmond [2014] FCAFC 12

REASONS FOR DECISION

Member A Ward

Member L Stephan

INTRODUCTION

1. On 17 May 2019, the Veteran’s Review Board affirmed a decision of the Repatriation Commission that the Applicant’s rate of pension remain at 100 percent of the General Rate (“GR”) of pension.

2. The Applicant contended that he met the requirements of the Special Rate (“SR”) of pension pursuant to section 24 of the Veterans Entitlement Act 1986 (“VEA”). 

3. The Applicant served as a member of the Defence Force in the Army from 14 January 1978 to 13 February 1984. During the course of that service, he suffered an injury to his lumbar spine, along with hearing loss and tinnitus. The issue is the extent to which the lumbar symptoms have continued to affect him. More importantly, the extent to which his lower back injury has prevented him from continuing to undertake remunerative work. The Applicant suffers from a number of other medical conditions which have also impacted on his working ability.

4. Whilst the Applicant applied for the SR of pension, this Tribunal has also given consideration to the applicability of the Intermediate Rate (IR) as well.[1]

   [1]  Smith v Repatriation Commission (2014) 22 FCR 452.

   Military employment

5. During his first two years of service in the Army, the Applicant’s speciality was as a driver.  He drove semi-trailers and trucks.  Following the injury to his lower back in 1980, he undertook easier work, often driving the Unit Commander’s vehicle.  This work did not involve manual handling, on his evidence. 

6. The injury was noted when he was participating in a 5-kilometre run. He told doctors that he felt and heard a crack in his lower back and fell to the ground. He was unable to get up and he said it felt like a knife was going through his back. This incident occurred in Queensland and he was transported to the Townsville Hospital where he was an inpatient for a week with bed rest and analgaesia. He was not mindful at that stage of pain radiating into his legs.

7. He continued to experience back pain following discharge from hospital. His discharge from service in February 1984 was not on medical grounds. 

8. Following leaving his military service, he worked for private contractors. He was able to sustain a variety…