Wade and Repatriation Commission - [2006] AATA 1001

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1001
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/115

VETERANS' APPEALS DIVISION )

Re ROBERT ARTHUR WADE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Professor P Reilly AO (Member)
Date24 November 2006
PlaceAdelaide

Decision
The Tribunal affirms the decision under review.

..............................................
J G SHORT
(Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – rate of pension payable – special rate – accepted disabilities not the only factor preventing remunerative work – decision affirmed
Veterans’ Entitlements Act 1986 s 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Braund (1991) 23 ALD 591
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION

24 November 2006      Mr J G Short (Member)
  Professor P Reilly AO (Member)

introduction
1.      Robert Wade has accepted disabilities of bilateral sensorineural hearing loss with tinnitus; tinea; post-traumatic stress disorder (PTSD) and emphysema. Mr Wade suffered injuries in two motor vehicle accidents, approximately 12 months apart in 1993 and 1994. Mr Wade’s rate of Disability Pension has fluctuated during the assessment period, that is from 24 November 1999. At hearing the parties agreed that the general rate assessments in force have been appropriate. The current rate is based on an award of 70 impairment points and results in Disability Pension being paid at 100 percent of the general rate with effect from 29 July 2002. On the evidence before it, the Tribunal is reasonably satisfied that these general rate assessments have been appropriate. Mr Wade however argues that an earnings related rate of pension, in this case the special rate of pension, should have been paid with effect from 12 May 2000, that is the date upon which psychiatrist, Dr Martyn Ewer, indicated that the Mr Wade was unable to work.
2. The parties agreed that the applicant satisfied ss 24(1)(a) and (b) of the Veterans’ Entitlements Act 1986 (the VE Act), that is that since 12 May 2000 Mr Wade’s accepted disabilities warranted at least 70 impairment points and that his accepted disabilities alone were sufficient to prevent him working at least 8 hours a week. Noting this agreement and in light of the evidence before it, the Tribunal is reasonably satisfied that from at least 12 May 2000 Mr Wade has satisfied these two conditions.
3. The remaining issue is whether Mr Wade satisfies s 24(1)(c) of the VE Act, that is whether his war-caused injuries alone prevented him from continuing to undertake remunerative work that he had been undertaking, and whether, as a consequence, he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free from that incapacity.
4. Although Mr Wade is under the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wade and Repatriation Commission

Details

AGLC: Wade and Repatriation Commission [2006] AATA 1001
Case: [2006] AATA 1001
Decision Date: 24 November 2006

CaseChat Overview and Summary

In the case of Wade and Repatriation Commission, the dispute centred on the rate of Disability Pension payable to the applicant, Mr Wade, under the Veterans’ Entitlements Act 1986. The matter was heard and determined by the Administrative Appeals Tribunal. The crux of the dispute was whether Mr Wade qualified for a special rate of pension due to his inability to engage in remunerative work, despite having disabilities that were accepted as war-related.

The legal issues before the court were whether Mr Wade's disabilities alone were sufficient grounds for him to be deemed incapable of undertaking remunerative work, and if other factors could also be considered in determining his eligibility for a special rate pension. The court was required to interpret the relevant provisions of the Veterans’ Entitlements Act 1986, particularly section 24, in the context of previous case law such as Flentjar v Repatriation Commission, Repatriation Commission v Smith, and Repatriation Commission v Braund.

The Tribunal, in affirming the decision under review, held that the Repatriation Commission was correct in its assessment. The Tribunal noted that while Mr Wade's disabilities were indeed war-related and accepted, they were not the sole factors preventing him from engaging in remunerative employment. The Tribunal emphasised that a broader range of factors, including his capacity to work, needed to be considered. This interpretation aligns with the principles established in cases such as Cavell v Repatriation Commission and Forbes v Repatriation Commission. Therefore, the Tribunal concluded that Mr Wade did not qualify for the special rate of pension.

The Tribunal's decision was thus to affirm the original determination by the Repatriation Commission.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.