Alistair Baird and Repatriation Commission - [2015] AATA 393

[2015] AATA 393

Division VETERANS' APPEALS DIVISION

File Number

2013/6808

Re

Alistair Baird

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 4 June 2015

Place Melbourne
The Tribunal affirms the decisions under review.

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Regina Perton, Member
CATCHWORDS
VETERANS' AFFAIRS – defence service – osteoarthritis of the knees – lumbar spondylosis whether conditions related to service – decisions affirmed
LEGISLATION
Veterans' Entitlements Act 1986 ss 120(4), 120B
CASES
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Newson [2008] FCA 401
REASONS FOR DECISION
Regina Perton, Member
4 June 2015

Alistair Baird served in the Australian Navy (the Navy) from 5 January 1977 to 4 January 1983. On 16 August 2012 Mr Baird applied to have several medical conditions accepted as defence-caused to qualify for a disability pension. The Repatriation Commission (the Commission) accepted solar keratosis and non melanotic malignant neoplasm of the skin as conditions related to Mr Baird’s naval service. The Commission refused claims for L4-5 disc degeneration, cervical spondylosis with multilevel disc degeneration, osteoarthritis affecting both knees, sensorineural hearing loss, diabetes mellitus, glaucoma, bilateral hypermetropia and chronic simple bronchitis.
On 23 November 2012 Mr Baird applied for review to the Veterans’ Review Board (VRB) which affirmed the Commission’s decision on 14 August 2013. The Commission’s written decision was forwarded to Mr Baird on 13 November 2013.
On 23 December 2013 Mr Baird lodged an application for review with the Tribunal in relation to his back and knee problems. In this application, he has not pursued other conditions that were not accepted by the Commission. The Tribunal’s task is to examine whether Mr Baird’s back and knee conditions can be considered defence-caused.
LEGISLATIVE FRAMEWORK
The period of Mr Baird’s service in the Navy constitutes defence service under the Veterans’ Entitlements Act 1986 (the Act).
Section 120(4) of the Act requires the Tribunal to decide whether a veteran’s medical conditions were defence-caused to its reasonable satisfaction. The Tribunal is also required to apply a Statement of Principles (SoP) for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Section 120B of the Act requires the Tribunal to decide matters to its reasonable satisfaction in accordance with the relevant SoP.
The relevant SoP for lumbar spondylosis at the time of claim was SoP No. 38 of 2005. Mr Baird submits that the applicable factor is Factor 6(h):
(h) carrying or lifting loads of at least thirty-five kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the twenty-five years following that period;
The relevant SoP concerning osteoarthritis is SoP No. 14 of 2010 as amended by SoP No. 36 of 2011. The 2011 amendment is not relevant in this matter. There are more…

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 Alistair Baird and Repatriation Commission

Details

AGLC: Alistair Baird and Repatriation Commission [2015] AATA 393
Case: [2015] AATA 393
Decision Date: 4 June 2015

CaseChat Overview and Summary

The dispute between Alistair Baird and the Repatriation Commission was adjudicated by the Administrative Appeals Tribunal. The central issue in the case was whether Baird’s medical conditions, specifically osteoarthritis of the knees and lumbar spondylosis, were related to his service in the Royal Australian Navy. The Tribunal was tasked with determining if these conditions met the criteria set out in the Service of Policy (SoP) concerning trauma and the onset of the diagnosed conditions post-service.

The legal issues before the Tribunal revolved around the interpretation of the SoP and the medical evidence presented regarding the timing and causation of Baird’s conditions. Specifically, the Tribunal needed to ascertain if the factors concerning weights carried during service, as outlined in the relevant SoPs, applied to Baird’s specific conditions. Additionally, the Tribunal had to consider whether Baird’s knee problems during service were severe enough to be classified as trauma and if the clinical onset of arthritis in his knees was within the timeframe stipulated by the SoP.

The Tribunal concluded that it was not reasonably satisfied that the factors concerning weights carried in the relevant SoPs applied to Baird’s conditions. Although Baird had experienced knee problems during his service, the Tribunal found that these injuries did not meet the definition of trauma as per the SoP concerning osteoarthritis of the knees. Furthermore, the clinical diagnosis of arthritis in his knees was made more than 25 years after his service, which did not align with the criteria outlined in the SoP. Consequently, the Tribunal affirmed the decisions under review.

In light of the findings, the Tribunal upheld the Repatriation Commission’s decisions, affirming the outcomes that Baird’s conditions were not related to his service and thus did not qualify for the benefits he sought. The Tribunal’s decision was based on the absence of a reasonable satisfaction that the medical conditions met the criteria set out in the Service of Policy.

Orders

Orders of the court

The Tribunal affirms the decisions under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal is therefore not reasonably satisfied that the factors concerning weights carried in the relevant SoPs as set out at earlier paragraphs applies to Mr Baird’s medical conditions of osteoarthritis of the knees and lumber spondylosis. The Tribunal is satisfied that Mr Baird had problems with his knees during his Navy service but is not reasonably satisfied that his injuries and conditions meet the definition of trauma in paragraph 9 of the SoP concerning osteoarthritis of the knees. In any case, the clinical onset of arthritis of the knees, as diagnosed by a doctor, was more than 25 years after the injuries.DECISION The Tribunal affirms the decisions under review.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2013/6808
Re	Alistair Baird
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Regina Perton, Member
Date	4 June 2015
Place	Melbourne