Tribunal: Senior Member Linda Kirk

The applicant, an Australian war veteran, applied to the AAT for a review of a decision not to change the rate of his disability pension. The applicant lodged his first claim in 2013 for back pain related to heavy lifting during service in Vietnam. The Repatriation Commission accepted liability for that issue, alongside previously accepted war-caused hearing loss. Liability was also accepted for PTSD, alcohol dependence and depressive disorder, among other disabilities.

Veterans are entitled to a disability pension when they are incapable of undertaking remunerative work due to the impact of war-caused injuries.[1] Veterans are also entitled to apply for an increase in their pension payments if their incapacity has increased.[2]

The issue to be determined in this case was whether the applicant was entitled to disability pension at the ‘special’ or ‘intermediate’ rate, rather than the 100 per cent of the ‘general rate’ which had been awarded to him by the Veterans’ Review Board.

The issues in dispute were, firstly, whether the applicant’s incapacity from war-caused conditions rendered him incapable of working for more than eight hours per week (in order to receive the ‘special’ rate) or 20 hours a week (in order to receive the ‘intermediate’ rate). Secondly, the AAT needed to determine whether it was the applicant’s incapacity due to war-caused injuries ‘alone’ that prevented him from undertaking remunerative work (the ‘alone’ test).

The AAT found that the applicant stopped working because there was not enough work following the end of a major concreting job. The lack of opportunities for the applicant to work in his chosen field, along with his age, time out of the workforce, lack of recent work experience and lack of recognised qualifications were also reasons why he did not get another job. He had also had total knee replacements, unrelated to his military service, which prevented him from working.

The applicant therefore did not meet the criteria for the pension at the ‘special’ or ‘intermediate’ rates because he was not incapacitated from war-caused injuries “alone”. There were other factors at play.

The AAT affirmed the decision that the pension be paid at 100 per cent of the ‘general’ rate.

Read the full decision on AustLii.

 

[1] Section 14, Veterans’ Entitlement Act 1986 (Commonwealth)

[2] Section 15(1), Veterans’ Entitlement Act 1986 (Commonwealth)