Schafferius and Repatriation Commission

[2007] AATA 2001

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2001

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0816

VETERANS' APPEALS DIVISION		)
Re		NEVILLE SCHAFFERIUS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date30 November 2007  

PlaceBrisbane

Decision The Tribunal answers the question posed for preliminary determination “No”.

..............................................

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – rate of payment of pension – determination of preliminary question on the papers – whether a subsequent injury has effect on entitlement to pension – sensorineural hearing loss and PTSD accepted as service-related disabilities – applicant later suffered back injury unrelated to service – whether capacity for employment should include subsequent injuries – whether applicant prevented from undertaking employment as a consequence of war-caused disability during assessment period – answer to question ‘no’.

Administrative Appeals Tribunal Act 1975 (Cth.) – s34J

Veterans’ Entitlements Act 1986 (Cth.) – s24(1)(c)

REASONS FOR DECISION

30 November 2007   Deputy President P E Hack SC    

1.The applicant, Mr Neville Schafferius, seeks a review of a decision of the respondent, the Repatriation Commission, made on 15 April 2005 by which it was determined that Mr Schafferius was not entitled to pension at the Intermediate Rate or the Special Rate. That decision was affirmed by the Veterans’ Review Board on 22 January 2007.

2.The parties seek to have a preliminary question determined and have agreed to it being determined on the papers pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth.). The question, as formulated by a Conference Registrar, is this:

“If the applicant can establish entitlement to special rate at the application date, does a subsequent injury, which may disentitle him under s 24(1)(c) of the Veterans’ Entitlements Act, have any effect on his entitlement”.  

3.The issue to be determined arises in this way. Mr Schafferius lodged his claim on 24 March 2003. The conditions of sensorineural hearing loss of the left ear and post traumatic stress disorder have been accepted by the Commission as service related disabilities. The resulting degree of incapacity is 80%.

4.In about July 2005 Mr Schafferius fell from a ladder and fractured two vertebrae in his back. The consequence of that injury was described in this way in the reasons of the Veterans’ Review Board:

“He needed to wear a brace for about three months. The condition of his back has returned to about 65 per cent of its former state. As a result he cannot sit or stand for long before suffering pain. He cannot bend over. He has been advised that there is not likely to be much improvement in the future.”

5.In rejecting the claim for pension at the Special Rate and the Intermediate Rate, the Veterans’ Review Board said this:

”In regard to the applicant’s present capacity for work, in addition to the effects of post traumatic stress disorder, the applicant has a back problem which is causing him concern. He cannot sit or stand for long. Clearly, his back condition would impact on his ability to work. Consequently, the Board considered that the applicant’s present incapacity is affected by a combination of accepted and non-accepted disabilities. This means he cannot meet the requirements of section 24(1)(c) [of the Veterans’ Entitlements Act 1986 (Cth.)].”

6.The substance of the preliminary question posed by the parties is whether, when considering if s 24(1)(c) of the Veterans’ Entitlements Act is satisfied, the decision-maker, and thus the Tribunal, is limited to considering an applicant’s capacity for employment as at the date of the application (as Mr Schafferius contends) or, as the Commission contends, can the decision-maker have regard to subsequent injuries, unrelated to service, that affect capacity for employment.

7.In my view neither contention is wrong. The effect of s 24(1)(c) of the Veterans’ Entitlement Act is that the Special Rate is payable to a veteran who is, by reason of incapacity from war-caused injury or disease alone, prevented from continuing to undertake remunerative work that the veteran had been undertaking and who has, as a consequence, lost wages or earnings that would not have been lost were the veteran free of the incapacity. The questions posed by the sub-section are to be answered by reference to the assessment period, that is, the period from the day on which the claim was made to the day on which it is determined by the Commission, the Veterans’ Review Board, or the Tribunal.

8.In a case such as the present where there has been a supervening injury that is not war-caused, the task of the Tribunal is to consider whether, during the assessment period, the veteran has been prevented from undertaking remunerative employment as a consequence of the war-caused disability alone. That is, the task is to put the effects of any injury that was not war-caused to one side and to determine, based on the evidence, whether the war-caused disability has had the effects referred to in the section. If, on that examination, the decision-maker is satisfied that the criteria in the sub-section are made out then the veteran is entitled (other matters being satisfied) to the Special Rate pension. Conversely, if, on that examination the decision-maker is not satisfied that war-caused disability alone has had the effect referred to in the section then the claim must fail. That is, if the effect referred to in the section is found to be the result of disabilities that are not solely war-caused then the claim fails.

9.If, after the making of a claim, the veteran is affected by a further injury that is not war-caused that injury is not relevant to the determination of the questions posed by s 24(1)(c) of the Veterans’ Entitlements Act because the section is not concerned to consider the effects of disabilities that are not war-caused.

10.I consider, with respect, that the Board, in the passage extracted above, put the matter in too absolute terms if it were suggesting that the subsequent injury was of itself, sufficient to prevent Mr Schafferius from satisfying the s 24(1)(c) questions.

11.Thus I would answer the question posed for preliminary determination “No”.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC:

Signed:         .....................................................................................
           Eleanor O’Gorman, Associate

Preliminary matter heard on the papers
Date of Decision  30 November 2007
Solicitor for the Applicant          Cockburn Legal & Consulting
Solicitor for the Respondent     Advocate, Department of Veterans’ Affairs