Shatzman and Repatriation Commission

Case [2009] AATA 823

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 823

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2591

GENERAL ADMINISTRATIVE  DIVISION )
Re STEPHEN SHATZMAN

Applicant

And

REPATRIATION COMMISSION

Respondent

INTERIM DECISION

Tribunal Professor RM Creyke, Senior Member
Dr MD Miller AO, Member

Date26 October 2009

PlaceCanberra

Decision If it is established that the applicant’s war-caused injury or disease prevented him from undertaking work as an IT technician, he would meet the qualifications in s 24(1)(b) and (c) for pension at the special rate.   

.................[sgd]........................

Professor RM Creyke, Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – s 24(1)(c) – remunerative work that the veteran was undertaking – whether veteran prevented from continuing to undertake that work because of a war-caused injury or war-caused disease – whether the remunerative work must be the last work that the veteran undertook – whether the veteran would have been undertaking that work on the assessment day but for the war-caused injury or disease – whether there must be a total inability to undertake the remunerative work at the assessment day – whether the remunerative work can be the same work as previous remunerative work but undertaken for a period of no more than 8 hours a week

Veterans’ Entitlements Act 1986 – ss 15, 24(1)(b), 24(1)(c)

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Alexander (2003) 75 ALD 329

Banovich v Repatriation Commission (1986) 69 ALR 395

Starcevich v Repatriation Commission (1987) 18 FCR 221

Repatriation Commission v Hendy (2002) 76 ALD 47

Re Holden and Repatriation Commission [2009] AATA 735

Birtles v Repatriation Commission (1991) 33 FCR 290

Repatriation Commission v Butcher [2006] FCA 811

Repatriation Commission v Butcher [2007] FCAFC 36

Doig v Repatriation Commission (unreported, Federal Court of Australian, Lindgren J, 18 December 1996)

Sheehy v Repatriation Commission (1996) 41 ALD 205

Re Hornery and Repatriation Commission (1998) 52 ALD 317

Fry v Repatriation Commission (1997) 47 ALD 776

Wright v Repatriation Commission (2005) 144 FCR 302

Servos v Repatriation Commission (1995) 129 ALR 509

REASONS FOR INTERIM DECISION

26 October 2009 Professor RM Creyke, Senior Member
Dr MD Miller AO, Member

BACKGROUND

1.        Mr Shatzman has applied to the Tribunal for review of the Repatriation Commission’s decision of 18 October 2007 to refuse an increase in his disability pension. The reviewable decision was affirmed by the Veterans’ Review Board on 14 May 2008.

ISSUES

1.      The parties have sought an interim decision on two issues:

(a)  What was the ‘remunerative work that the veteran was undertaking’ for the purposes of s 24(1)(c) of the Veterans’ Entitlements Act 1986 (Act)?; and

(b) Was the veteran ‘prevented from continuing to undertake’ that work because of a war-caused injury or war-caused disease?

2.      Subsidiary issues are:

(a)      Whether the remunerative work must be the last work that the          veteran undertook;

(b)      Whether the veteran would have been undertaking that work on the assessment day but for the war-caused injury or disease;

(c)      Whether there must be a total inability…

Continue reading Shatzman and Repatriation Commission

Sign in free to access the full text

Details
AGLC
Shatzman and Repatriation Commission [2009] AATA 823
Case
[2009] AATA 823
Decision Date

CaseChat Overview and Summary

The applicant, Mr Shatzman, sought review of a decision by the Repatriation Commission, affirmed by the Veterans’ Review Board, to refuse an increase in his disability pension. The central issue was whether Mr Shatzman's war-related injury or disease prevented him from continuing to undertake remunerative work as defined under s 24(1)(c) of the Veterans’ Entitlements Act 1986. Additionally, subsidiary issues included whether the work in question must be the last work undertaken, whether Mr Shatzman would have been engaged in that work absent the injury or disease, and whether a total inability to undertake the work is required. The applicant initially conceded that less than 8 hours a week of similar work would disqualify him from special rate pension, but later withdrew this concession.

The Tribunal was required to determine the specific meaning of "remunerative work that the veteran was undertaking" for the purposes of s 24(1)(c) and whether Mr Shatzman was indeed prevented from continuing that work due to his war-caused injury or disease. The interpretation of the statutory language, particularly in light of previous cases such as Flentjar v Repatriation Commission, Starcevich v Repatriation Commission, and Repatriation Commission v Alexander, was central to the decision. The Tribunal also needed to consider whether the work in question must be the most recent work undertaken, whether the veteran would have continued that work but for the injury or disease, and whether a total inability to undertake the work is required. If not, whether the work could be the same but for a reduced duration of up to 8 hours a week was also a point of contention.

In its interim decision, the Tribunal examined the statutory language and relevant case law to determine that the remunerative work in question must be work the veteran was actually engaged in at the relevant time. The Tribunal found that the statutory language does not necessarily require the work to be the most recent one undertaken, nor does it require a total inability to undertake the work. Instead, the focus is on whether the veteran was prevented from continuing that specific work due to the war-caused injury or disease. The Tribunal also considered that if the work in question is the same as previous work but undertaken for less than 8 hours a week, this does not necessarily disqualify the veteran from special rate pension. The Tribunal's decision hinged on a careful interpretation of the statutory provisions and their application to Mr Shatzman's circumstances.

The Tribunal ruled that if Mr Shatzman's war-caused injury or disease prevented him from undertaking work as an IT technician, he would meet the qualifications for pension at the special rate under s 24(1)(b) and (c) of the Act. The decision hinged on the specific nature of the work and the extent to which the war-caused injury or disease impacted his ability to continue in that role. This interim decision set the stage for a more comprehensive review of Mr Shatzman's case, pending further evidence and submissions.

Orders

Orders of the court

If it is established that the applicant’s war-caused injury or disease prevented him from undertaking work as an IT technician, he would meet the qualifications in s 24(1)(b) and (c) for pension at the special rate.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.