Tanner and Repatriation Commission

[2004] AATA 363

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 363

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/701

VETERANS APPEALS DIVISION		)
Re		NOEL TANNER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date7 April 2004

PlaceBrisbane

Decision The Tribunal sets aside the decision under review. 

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Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – pensions and benefits – special rate of pension under s24 Veterans’ Entitlements Act 1986 - whether applicant was engaged in remunerative work – whether applicant is prevented from continuing remunerative work by reason of war caused injury or disease alone – whether applicant is suffering a loss of earnings – decision set aside

Veterans’ Entitlements Act 1986

Hill and Repatriation Commission [2000] FCA 929

Counsel v Repatriation Commission [2002] FCAFC 201

REASONS FOR DECISION

7 April 2004

Senior Member B J McCabe

1.      This is an application for review of a decision of the Veterans’ Review Board (“the VRB”) dated 22 July 2002.  The VRB affirmed an earlier decision on 1 July 2002 to allocate the applicant a disability pension at 90% of the general rate.

2.      The Tribunal heard the matter on 4 February 2004.  The applicant was represented by Mr O’Gorman.  The respondent was represented by Mr Williams, a departmental advocate.

3. The Tribunal was provided with documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the T-documents”). Also in evidence were:

·     Two statements of the applicant dated 30 January 2003 and 21 July 2003;

·     A statement of the applicant’s wife dated 15 July 2003;

·     Two reports of Dr Gelb dated 25 September 2002 and 28 March 2003,

·     The applicant’s group certificates for the years 1988-89, 1990-91, 1991-92, and the tax return for business (profit and loss schedule) for the applicant’s business for 1996;

·     A bundle of documents described as the applicant’s ‘work records’;

·     Documents containing quotes and sketches in relation to the applicant’s business;

·     An undated report of Dr Frazer, apparently written in 1991;

·     The applicant’s personal tax returns for the years 1994, 1995, 1996, 2001 and 2002.

The Facts before the Tribunal

4.      The applicant served in the Australian Army from 1967 until 1990.  He rendered operational service in Vietnam from May 1968 until May 1969, and defence service from December 1972 until his discharge.  During his service the applicant witnessed several incidents, which subsequently gave rise to Post Traumatic Stress Disorder (PTSD).

5.      After his discharge the applicant commenced carpentry/cabinet-making/handyman activities (hereafter the “activities”).  He registered a business name, “Mountain Top Furniture” in 1991.  His activities continued until 1998.  The applicant states his activities ceased due solely to his PTSD. 

6. The Repatriation Commission accepted the applicant’s PTSD was war-caused, in a decision dated 1 July 2000 (ff. M-Q of the T-documents). Since then the applicant has been in receipt of a disability pension of 90% of the General Rate.

Facts surrounding The Applicant’s Activities

7.      The Tribunal had to consider whether the…