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Kawicki v Repatriation Commission

[2014] FCA 1147

COURT Federal Court, Sydney
JUDGE Buchanan J
DATE OF DECISION 30 October 2014
DECISION The appeal was allowed
ISSUES Whether applicant entitled to special rate or intermediate rate of pension – whether applicant satisfies s24(1)(c) of the Act in that his incapacity for work was caused by defence-caused injuries alone – whether increase to the general rate of pension should take effect from an earlier date

Facts

Mr Kawicki served in the Royal Australian Air Force from 5 August 1969 to 27 June 1975, and had “defence service” from 7 December 1972 to 27 June 1975. 

On 27 September 2007 Mr Kawicki applied for a disability pension.  On 12 November 2007 a delegate of the Repatriation Commission decided Mr Kawicki had no entitlement to a disability pension arising from osteoarthritis in his left wrist, right wrist and left ankle.  The Veterans’ Review Board (the Board) affirmed the decision on 10 July 2008.  Mr Kawicki sought further review by the Administrative Appeals Tribunal (the Tribunal).  On 19 March 2010 the parties reached an agreement that Mr Kawicki’s osteoarthritis of the left wrist and left ankle were defence-caused from 24 June 2007, his osteoarthritis of the right wrist was not defence-caused, and the matter was remitted to the Repatriation Commission for pension assessment. 

On 22 June 2010 a delegate of the Repatriation Commission assessed Mr Kawicki’s disability pension at 60% of the General Rate from 24 June 2007, and 90% of the General Rate from 19 March 2010.  The delegate decided Mr Kawicki was not eligible for pension at either the special or intermediate rate.  The Board affirmed the decision on 9 May 2012.  The Tribunal varied the decision under review to increase Mr Kawicki’s disability pension to 100% of the General Rate from 19 March 2010.  Mr Kawicki now appeals to the Federal Court, challenging the refusal of the special rate and the failure to back date 100% of the General Rate to 24 June 2007.

The Court’s consideration

Refusal of the special rate by the AAT

The Court was of the view that the Tribunal had made a legal error.  The Tribunal was required to assess, by reference to the whole assessment period, whether s 24(1)(c) was satisfied i.e. an assessment of whether defence-related conditions alone, or some other circumstance, prevented Mr Kawicki from continuing to work as an electrician during the assessment period.  Mr Kawicki’s evidence was that his BLIP syndrome had earlier caused him to stop doing some, but only some, of that work.  Mr Kawicki said he could not do the other work after 2001 due solely to his defence-related conditions.  The Court indicated that those contentions required assessment, with the aid of the historical and contemporary medical evidence, and the Court did not see that assessment in the Tribunal’s decision.

Refusal by the AAT to backdate the general rate of pension

On 22 June 2010 a delegate of the Repatriation Commission made two assessments – one of 24 June 2007 (three months before the date of lodgement of Mr Kawicki’s claim), and one of 19 March 2010 (the date the Tribunal remitted the matter to the Commission for assessment).  It appeared to the Court that the delegate only treated the Tribunal’s finding about the defence-related conditions as effective from 19 March 2010.  The Board also treated the Tribunal’s decision on 19 March 2010 as having effect and relevance only from that date.  The Tribunal raised no issue about it.  The Court indicated the Tribunal should consider whether the delegate and the Board gave proper attention and effect to the Tribunal’s decision of 19 March 2010.

A further issue

The Court noted no attention appeared to have been given by the Board or Tribunal as to whether Mr Kawicki might be entitled to the intermediate rate of pension, although the delegate decided he was not.  The Court indicated consideration should also have been given by the Tribunal to whether Mr Kawicki was entitled to the intermediate rate.

The Court’s Decision

The appeal was allowed.  The Tribunal’s decision of 10 April 2014 was set aside, with the intent that the Tribunal should deal again with the question of entitlement to special rate and intermediate rate.  The Tribunal should give attention, if necessary, to whether assessment of the general rate of pension at 60% from 24 June 2007 pays proper regard to the Tribunal’s findings on 19 March 2010.

Editorial Note

Given the long history of this matter, any backdating of Mr Kawicki’s disability pension at the General Rate or Above General Rate may be for a period of up to two years and nine months. 

All Practice Notes