Tinning and Repatriation Commission (Veterans' entitlements) [2024] AATA 3427 (26 September 2024)
Division:GENERAL DIVISION
File Number:2021/4472
Re:Eugene Tinning
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Member A McLean Williams
Date:26 September 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review insofar as the Applicant is ineligible for Special Rate pension.
Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 the Tribunal further directs that the matter be remitted for GARP-5 impairment assessment, for calculation of the Applicant’s entitlement to General Rate pension.
..................[SGD]....................
Member A McLean Williams
CATCHWORDS
VETERANS’ AFFAIRS – medical conditions – claim for special rate of pension – whether medical conditions caused by incapacity from war or war-caused disease – whether Applicant rendered permanently incapacitated – Tribunal finding against the Applicant – decision under review affirmed – further question of whether the Applicant’s current pension rate calculated correctly – Tribunal making a further order to remit the matter back to the Respondent for consideration of the Applicant’s current pension rate
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veteran’s Entitlements Act 1986 (Cth)
CASES
Clearihan and Repatriation Commission (Veteran’s entitlement) [2019] AATA 1339
Leigh and Repatriation Commission [2006] FCA 395
McDonald v Director-General of Social Security [1984] 1 FCR 254
Re Harris and Repatriation Commission (1998) 51 ALD 789
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Watkins [2015] FCAFC 10
REASONS FOR DECISION
Member A McLean-Williams
26 September 2024
PRELIMINARY
The Applicant, Mr Eugene Tinning, seeks review before the Tribunal of a decision made on 8 June 2021[1] by the Veteran’s Review Board (‘the VRB’), under the Veteran’s Entitlements Act 1986 (‘the VEA’).
[1] T2, pp. 6-10.
By that decision, the VRB had affirmed an earlier decision by the Repatriation Commission (‘the Respondent’) made on 15 April 2020, by which the Respondent had determined to continue Mr Tinning’s pension at 80% of the General Rate, with effect from 6 November 2019. In doing so, the VRB had determined that Mr Tinning did not qualify for either the Intermediate Rate, or the Special Rate of pension, pursuant to either s.23, or s.24 of the VEA.
During this application for review the question for the Tribunal again becomes whether Mr Tinning is entitled to either the Intermediate Rate of pension under s.23 of the VEA, or the Special Rate of pension, under s.24 of the VEA. Distilled to an essence, this requires consideration whether:
(a)Mr Tinning is totally and permanently incapacitated, in the sense that Mr Tinning’s incapacity from either ‘war-caused injury’ or ‘war-caused disease’ (or both of these), is of such a nature “by itself alone” as to render Mr Tinning incapable of undertaking remunerative work for periods of more than eight hours per week (s.24(1)(b));[2] or 20 hours per week (s.23(1)(b));[3] and
(b)by reason of the incapacity from war-caused injury or war-caused disease (or both of these), alone,…
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- Case
- [2024] AATA 3427
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were twofold: first, whether Mr. Tinning's accepted war-related medical conditions, specifically his degenerative lumbar spine and bilateral shoulder joints, were the cause of his current incapacity for work, thereby entitling him to a special rate pension. Second, the Tribunal considered whether Mr. Tinning's current pension rate had been calculated correctly.
The Tribunal considered medical evidence, including a report from Dr. Christopher Cunneen, an Occupational and Environmental Physician. Dr. Cunneen opined that Mr. Tinning's degenerative lumbar spine and bilateral shoulder conditions, accepted as war-caused, combined with a previously resolved frozen shoulder, resulted in a significantly restricted range of motion and limited capacity for prolonged sitting and standing. Dr. Cunneen concluded that Mr. Tinning lacked the functional capacity to return to paid employment, even in clerical roles, and that doing so would carry a high risk of aggravating his accepted conditions. Despite this opinion, the Tribunal affirmed the decision that Mr. Tinning was ineligible for a special or intermediate rate pension. However, the Tribunal directed that the matter be remitted to the Repatriation Commission for an updated GARP-5 impairment assessment to calculate Mr. Tinning's entitlement to a general rate pension.
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