VIVIAN HOHN and REPATRIATION COMMISSION

Case [2013] AATA 487

[2013] AATA  487

Division VETERANS' APPEALS DIVISION

File Number

2012/5636

Re

VIVIAN HOHN

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal

Senior Member Dr K S Levy, RFD

Date 11 July 2013
Place Brisbane

The decision under review is set aside and substituted. The applicant qualifies for the pension at the special rate.

……………..[SGD]……….……..

Senior Member Dr K S Levy, RFD

CATCHWORDS

VETERANS' AFFAIRS – Pensions and benefits – Special rate of pension – Relevant remunerative work – Substantial loss of remunerative work – Loss of remunerative work due to accepted war-caused conditions – Loss of salary, wages or earnings due solely to war-caused disability – Decision under review set aside and substituted   

LEGISLATION

Veterans' Entitlements Act 1986 (Cth) s 24, 120

CASES

Banovich v Repatriation Commission (1986) 69 ALR 395

Bertram and Repatriation Commission [1986] AATA 526
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Stuart and Repatriation Commission (1989) 17 ALD 678

Starcevich v Repatriation Commission (1987) 76 ALR 449

REASONS FOR DECISION

Senior Member Dr K S Levy, RFD

INTRODUCTION 

  1. The applicant, Mr Vivian Hohn, made an application dated 1 November 2011 for an increase in the rate of his disability pension. That application was rejected by the Repatriation Commission on 16 November 2011. He then appealed to the Veterans’ Review Board, which, after adjourning the matter for a considerable period, also rejected the application on 28 November 2012. On 13 December 2012, Mr Hohn made application to this Tribunal for further review.

    ISSUE

  2. The issue for determination in this case is:

    Is Mr Hohn’s disability pension correctly assessed at the present 100% of the general rate or is he entitled to the special rate under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”)?

    EVIDENCE

    Mr Hohn

  3. Mr Hohn is now 65 years old. At the date of his application to the Repatriation Commission he was 63 years old.

  4. By way of background, the Tribunal had evidence that Mr Hohn attended school in Toowoomba and completed Grade 12. He then undertook an apprenticeship as an electrician for a period. It appears that, through the evidence of his wife, he did not complete that apprenticeship. However, at the age of 23, he joined the Royal Australian Air Force (RAAF).  He qualified in the RAAF as an instrument fitter and served there for 20 years, being discharged on 14 October 1990.

  5. Mr Hohn has been awarded a disability pension assessed at 100% of the general rate as he has the following recognised disabilities:

    ·Sensorineural hearing loss;

    ·Non melanotic neoplasm of the skin;

    ·Diabetes mellitus;

    ·Cerebral ischaemia;

    ·Depressive disorder;  and

    ·Solar keratosis.

  6. After discharge, Mr Hohn worked initially as a civilian contractor to the RAAF. That position lasted 18 months after which he was made redundant. He worked then as a correctional officer for 20 months and then returned to working as an instrument fitter for six years until 1999, the last employer being Boeing.

  7. Concurrently with working as…

Continue reading VIVIAN HOHN and REPATRIATION COMMISSION

Sign in free to access the full text

Details
AGLC
VIVIAN HOHN and REPATRIATION COMMISSION [2013] AATA 487
Case
[2013] AATA 487
Decision Date

CaseChat Overview and Summary

Vivian Hohn, a former member of the Royal Australian Air Force, has applied to the Repatriation Commission for reassessment of his disability pension, claiming he should be entitled to the special rate under section 24 of the Veterans’ Entitlements Act 1986 (Cth). Hohn argues that his incapacity due to war-caused injury and disease prevents him from undertaking remunerative work, which entitles him to the special pension rate. The Repatriation Commission had previously assessed his pension at 100% of the general rate. The legal issues before the court were whether Hohn’s incapacity from war-caused injuries and diseases prevents him from undertaking remunerative work and, if so, whether he is entitled to the special pension rate under section 24(1)(c) of the Act.

The court examined the evidence provided by Hohn and his wife, which detailed his military service, subsequent employment history, and the nature of his injuries and disabilities. The court noted that Hohn resigned from his employment at Boeing to pursue the development of his olive farm but was incapacitated by severe cerebrovascular accidents before he could do so. The court considered Hohn’s residual difficulties, including concentration, mood disorders, memory impairment, reduced dexterity, and impaired attention to detail, which impact his ability to undertake remunerative work. The court found that Hohn’s incapacity was the substantial cause of his inability to obtain remunerative work and that he met the criteria under section 24(1)(c) of the Act for the special pension rate.

The court concluded that Hohn is entitled to the pension at the special rate, setting aside the previous decision by the Repatriation Commission. The court found that Hohn's incapacity from war-caused injuries and diseases alone prevents him from continuing to undertake remunerative work, thus satisfying the requirements for the special pension rate. The decision was based on the evidence that Hohn was genuinely seeking employment but was unable to do so due to his disabilities.

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

The issue for determination in this case is:Is Mr Hohn’s disability pension correctly assessed at the present 100% of the general rate or is he entitled to the special rate under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”)?EVIDENCEMr Hohn Mr Hohn is now 65 years old. At the date of his application to the Repatriation Commission he was 63 years old. By way of background, the Tribunal had evidence that Mr Hohn attended school in Toowoomba and completed Grade 12. He then undertook an apprenticeship as an electrician for a period. It appears that, through the evidence of his wife, he did not complete that apprenticeship. However, at the age of 23, he joined the Royal Australian Air Force (RAAF). He qualified in the RAAF as an instrument fitter and served there for 20 years, being discharged on 14 October 1990. Mr Hohn has been awarded a disability pension assessed at 100% of the general rate as he has the following recognised disabilities:·Sensorineural hearing loss;·Non melanotic neoplasm of the skin;·Diabetes mellitus;·Cerebral ischaemia;·Depressive disorder; and·Solar keratosis. After discharge, Mr Hohn worked initially as a civilian contractor to the RAAF. That position lasted 18 months after which he was made redundant. He worked then as a correctional officer for 20 months and then returned to working as an instrument fitter for six years until 1999, the last employer being Boeing. Concurrently with working as an instrument fitter with Boeing, Mr Hohn also started a small farm growing olives (the table variety). In 1999, after establishing the olive farm for approximately four years, he and his wife wanted to pursue development of this venture more comprehensively. His wife resigned from Telstra, her then employer, and Mr Hohn resigned from Boeing to be able to deal with an effective business arrangement for the olive farm. In oral evidence, he said he and his wife went to Western Australia to learn more about table olives, in particular the growing and marketing of them. The olive farm up to that point consisted of 500 olive trees which Mr Hohn had planted and he expected they would take seven years to mature. These trees had produced three crops of olives but not much product. However, he had made some small sales by sending them interstate. Mr Hohn’s evidence was that he could not get long-service leave or leave without pay from Boeing as he had not worked there for the required period. Therefore, his only option was to resign to pursue the olive farm development. That evidence was complemented by his other evidence that he had intended to return to Boeing after he had visited Western Australia and set up the business assistance required. Unfortunately, after he left Boeing and went to Western Australia, he suffered a number of severe cerebrovascular accidents while he was there. It then took three months before he could be released from hospital and a further nine months rehabilitation. He has residual difficulties with concentration, mood disorders, memory impairment, reduced dexterity and impaired attention to detail.

Decision

Reasons for decision

The applicant therefore satisfies s 24(1)(c) of the Act.DECISION In the circumstances the decision under review is set aside. Mr Hohn qualifies for the pension at the special rate.

Ratio Decidendi

Legal Principle Established

In cross-examination, Mr Currier said that Mr Hohn worked for him until 1999 on the F111 program. He also told the Tribunal that the program was phased out in 2006. Those who worked in that area at the time were subsequently employed either on another project or in service support. The service support work was phased out in 2010. He said any workers still remaining “probably got redundancy”. Mr Kelly, for the respondent, also put to Mr Currier whether he could recommend Mr Hohn being re-employed or whether he had the authority to employ him. Mr Currier said “yes in most cases” that they would delegate the authority to him.CONSIDERATION The relevant legislative powers are contained in s 24 of the Act, and read:24 Special rate of pension (1) This section applies to a veteran if: (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and (aab) the veteran had not yet turned 65 when the claim or application was made; and (a) either: (i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or…(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and (c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and …(2) For the purpose of paragraph (1)(c): (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if: (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and (b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.