[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), MemberDate 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
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
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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CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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.