SHAUN MATHESON and REPATRIATION COMMISSION

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[2012] AATA 668

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/0976

Re

SHAUN MATHESON

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member
Date 3 October 2012
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 90% of the general rate – Eligibility for special rate of pension – Incapacity from war-caused conditions sufficient to prevent applicant undertaking remunerative work for more than 8 hours per week – Applicant not prevented by reason of incapacity from war-caused conditions, alone or substantially, from continuing to undertake remunerative work – No loss of salary, wages or earnings that would not be suffered if free from incapacity – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 15, 19, 22, 23, 24, 28

CASES

Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1

Leane v Repatriation Commission (2004) 81 ALD 625; [2004] FCAFC 83

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) 202 FCR 323; [2012] FCA 399

REASONS FOR DECISION

Mr R G Kenny, Senior Member and Dr G Maynard, Member

3 October 2012

BACKGROUND

  1. On 15 October 2009, Shaun Matheson lodged a claim under s 15 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) for an increase in the disability pension paid to him in respect of conditions previously accepted by the Repatriation Commission (“the respondent”) in relation to his service in the Australian Army (“the Army”). Those conditions are acromioclavicular joint injury left shoulder, cervical spondylosis, lumbar spondylosis, chondromalacia patellae both knees, recurrent sprains and instability both ankles, chip fracture right olecranon (excised) and rupture of radial collateral ligament of right thumb. On 10 February 2010, a delegate of the respondent determined that, in accordance with s 22 of the Act, pension should be paid to Mr Matheson at 70% of the general rate and not at an earnings-related rate under ss 23 or 24 of the Act. On 9 December 2011, that decision was set aside by the Veterans’ Review Board (“the Board”) which assessed Mr Matheson at 90% of the general rate with effect from 18 October 2010.

    ISSUES AND LEGISLATION

  2. The standard of proof applicable in this matter is set out in s 120(4) of the Act. This requires that issues be determined to the decision-maker’s reasonable satisfaction. The provision 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 15 October 2009, and ending when the claim or application…

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Details
Case
[2012] AATA 668
Decision Date

CaseChat Overview and Summary

The case between Shaun Matheson and the Repatriation Commission was before the Administrative Appeals Tribunal (AAT). The primary issue in dispute was the eligibility of Mr Matheson for a special rate of disability pension under the relevant legislative framework. The court needed to determine if Mr Matheson's war-caused conditions rendered him incapable of undertaking remunerative work, and if so, whether these conditions were the sole or predominant factors preventing him from doing such work. Additionally, the court had to assess if Mr Matheson experienced a loss of salary, wages, or earnings due to these incapacities, which he would not have incurred if he were free from these disabilities.

The Tribunal examined the evidence and submissions, including expert opinions and the nature of Mr Matheson's work post-service. Mr Matheson's post-service employment history, which included various roles related to community service and project management, was scrutinized to determine the impact of his war-caused conditions on his ability to undertake remunerative work. The court found that while Mr Matheson's disabilities affected his capacity for work, they did not entirely prevent him from engaging in remunerative activities. The Tribunal concluded that Mr Matheson did not meet the criteria for the special rate of pension under section 24(1)(c) of the Act, as his disabilities, while significant, did not solely or predominantly prevent him from engaging in work. Consequently, the Tribunal affirmed the decision that the disability support pension should be payable at 90% of the general rate.

The Tribunal's decision hinged on the application of specific statutory provisions and the interpretation of Mr Matheson's capacity for employment despite his disabilities. The court found that while Mr Matheson's disabilities were severe, they did not completely preclude him from engaging in remunerative work, thereby disqualifying him from the special rate of pension. The Tribunal's findings were based on a detailed analysis of Mr Matheson's work history and the nature of his disabilities, ultimately leading to the affirmation of the original decision regarding the pension rate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Jeff Kelly, for the respondent, conceded that Mr Matheson meets the requirements of s 24(1)(a)(i) of the Act. However, he submitted that there was real doubt about whether he satisfied s 24(1)(b) of the Act and that he does not satisfy the terms of s 24(1)(c) thereof. He also submitted that s 24(2)(b) of the Act was not satisfied in this matter. Accordingly, he submitted that a rate under s 24 of the Act was not payable to Mr Matheson. EVIDENCEMr Matheson Mr Matheson served in the Army from 1977 until 1988 where he was involved in physical fitness training. After leaving the Army, he was a café proprietor in Cairns for a short period but was forced to close the business following a decline in tourism. He moved to Victoria and worked with a TAFE College, setting up and working in a camp for children. He described a psychological downturn in 1992 when his “wheels fell off” and he became associated with drugs and alcohol to an extent that he was asked to leave his camp position. He moved to Charleville where he was in receipt of unemployment benefits and worked with a church group, assuming responsibility for conducting sporting activities for aboriginal children. There, he designed and managed the construction of a gymnasium. In 1993, he travelled to England where he obtained work with a Christian Life Centre and was responsible for designing and managing the construction of gymnasiums for use by children. He operated the gym and retained the profits as his remuneration. He travelled to Bosnia in 1995 where he carried out similar activities before returning to Australia in 1996. Mr Matheson undertook Bible studies at the Gold Coast and completed a Diploma in Church Management. In 1998, he worked with the Helensvale Baptist Church where, again, he was responsible for the needs of disadvantaged children and the organisation of touch football in community based competitions. He estimated his income at that time at approximately $50,000 per year. Since 1998, Mr Matheson has been involved in a wide range of activities but, mainly, as a pastor in the Integrity Christian Fellowship. He said that this was associated with the Assembly of God Church. He worked with the Baptist Church in Brisbane from 2003, where he designed and supervised the construction of a fitness centre. In 2005, Mr Matheson became the proprietor of Integrity Health and Fitness and worked with the Integrity Community Christian Church (“the Church”) as the senior pastor until he was injured in a motor cycle accident (“the accident”) in 2008. His duties involved pastoral care for, and oversight of, the Community of Palm Beach and the Church congregation of up to 70 people. Mr Matheson was involved in the accident on 25 January 2008. He suffered serious injuries including fractures to the skull, right tibia and fibula, left humerus, thoracic spine and ribs. After recuperating in hospital, Mr Matheson was on sickness benefits from Centrelink from 4 April 2008 until 20 October 2009. He was not working in that period because of the injuries from the accident. Mr Matheson attended sessions with Acquired Brain Injury Outreach Services (ABIOS) and, as a result, developed coping mechanisms to assist him in coping with the effects of his injury.

Decision

Reasons for decision

We are satisfied that Mr Matheson does not meet the requirements for the payment of the special rate of pension because he fails to satisfy the terms of s 24(1)(c) of the Act. The intermediate rate of pension, for which provision is made in s 23 of the Act, was referred to by Ms Smith in her submissions. However, we are also satisfied that the requirements for payment of pension at that rate are not met because of s 23(1)(c) of the Act which operates in the same manner as s 24(1)(c) thereof. DECISION The Tribunal affirms the decision under review that disability support pension is payable at 90% of the general rate.

Ratio Decidendi

Legal Principle Established

Ms Judith Cockerton, the Administrative Manager of the Integrity Community Christian Church, described, in a letter dated 15 September 2011, Mr Matheson’s functions in the organisation as overseeing community based activities as well as providing for the homeless, the hungry and the disadvantaged. He engaged in projects to develop skills in young people in such fields as motor vehicle restoration; to provide practical care for the homeless; and to assist unemployed youth to re-enter the working community. Often, he was not in receipt of payment in the normal sense of a wage but received payments from the Church from the sale of any items produced in the help programs. Ms Cockerton wrote that Mr Matheson was advised by the Church leadership in May 2010 that he could no longer continue with his Church work and was advised, because of his failing physical health, that he should consult Dr Windley. Ms Cockerton wrote that the Church closed down in December 2010 and Mr Matheson discontinued his involvement with Timbercrete at about that time as well. CONSIDERATION Mr Matheson was in receipt of pension at more than 70% of the general rate at the commencement of the assessment period and meets the requirements of s 24(1)(a)(i) of the Act. There is evidence in the JCA report and from Dr Vecchio that Mr Matheson has a capacity for employment. However, there is also evidence from Dr Won, Dr Cleaver and Dr Windley that Mr Matheson’s accepted disabilities, by themselves, render him incapable of undertaking remunerative work[4] for periods aggregating more than 8 hours per week. Accordingly, we are satisfied that the requirements of s 24(1)(b) of the Act have been met during the assessment period.[4] As provided for in s 28 of the Act. The application of s 24(1)(c) of the Act involves a consideration of what Mr Matheson would probably have done in the assessment period in the absence of his accepted disabilities.[5] The Federal Court has said that a proper consideration of paragraph 24(1)(c) of the Act requires responses to the following questions (“the Flentjar questions”):[6]“1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing [the veteran] from continuing to undertake that work?4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”[5] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. [6] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 4-5. Consideration must also be given to s 24(2)(a) of the Act, which operates in conjunction with the fourth of those questions, and s 24(2)(b) of the Act which operates, in the case of a person under 65 years of age, in conjunction with the third of those questions.