Shane Loughrey and Repatriation Commission

[2014] AATA 88 

Division	VETERANS' APPEALS DIVISION
File Number	2013/0796
Re	Shane Loughrey
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	24 February 2014
Place	Brisbane

The Tribunal affirms the decision under review.

........................Sgd.............................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 100% of the general rate – Eligibility for special rate of pension – Incapacity from war-caused conditions sufficient to prevent the applicant from undertaking remunerative work for more than 8 hours per week – Accepted disabilities alone not responsible for inability to undertake remunerative work - Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 19, 22, 24, 120

CASES

Banovich r Repatriation Commission (1986) 69 ALR 395

Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327

Willis v Repatriation Commission [2012] FCA 399

REASONS FOR DECISION

Mr R G Kenny, Senior Member

24 February 2014

BACKGROUND

1. On 19 February 2010, Shane Loughrey (“the applicant”) applied, under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), to the Repatriation Commission (“the respondent”) for acceptance of certain conditions as being related to his service with the Royal Australian Navy (“the RAN”). On 13 August 2010, the respondent accepted liability under the Act in relation to conditions diagnosed as: depressive disorder, internal derangement of the right knee, alcohol dependence, lumbar spondylosis, telangiectasia and osteoarthritis of the right knee. The applicant’s claim in respect of rotator cuff syndrome of the right shoulder was rejected by the respondent.

   
   

   His left acromio‑clavicular osteoarthritis was previously accepted under the Act.

   
   

   The assessment of the applicant’s rate of pension was deferred until 11 March 2011 at which time this was assessed at 100% of the general rate with effect from 19 November 2009. The respondent’s assessment decision was reviewed and affirmed by the Veterans’ Review Board on 27 November 2012.

   ISSUES AND LEGISLATION

2. The standard of proof applicable to the assessment of pension is set out in s 120(4) of the Act, which requires that matters be determined to the decision-maker’s reasonable satisfaction.

   This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The procedure to be followed is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period” which is defined as meaning the period starting on the application day, in this case

   
   

   19 February 2010, and ending when the claim or application is determined.[2]

   [1] Repatriation Commission v Smith (1987) 15 FCR 327, 335.

   [2] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a), 19(9).

3. It is not disputed that the general rate of pension payable to the veteran was correctly assessed at 100% of the general rate. The issue raised for the applicant is whether he meets the criteria…