Allsopp and Repatriation Commission - [2003] AATA 75

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 75
ADMINISTRATIVE APPEALS TRIBUNAL Nº N2001/767
VETERANS’ APPEALS DIVISION

Re: HAROLD WALLACE ALLSOPP
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       P.J. Lindsay, Senior Member
Date:              24 January 2003
Place:            Sydney
Decision:The Tribunal varies the decision under review to provide that (i) rotator cuff syndrome of the right shoulder is a war-caused disease with effect from 23 August 1999;
(ii) the matter is remitted to the Commission for reassessment of the rate of pension payable taking into account incapacity from rotator cuff syndrome of the right shoulder.

(sgd) P. J. Lindsay
Senior Member

© Commonwealth of Australia (2003)

CATCHWORDS
Veterans Affairs – entitlement – rotator cuff syndrome – whether war-caused – whether raised hypothesis meets the template in the SoP – decision varied.
Veterans’ Entitlements Act 1986 ss. 120(1) and (3), 120A
Repatriation Medical Authority Statement of Principles, Instrument No. 83 of 1997 concerning Rotator Cuff Syndrome.
Repatriation Commission v Deledio (1998) 49 ALD 193
Harris v Repatriation Commission (2000) 31 AAR 270
Repatriation Commission v Hill [2002] FCAFC 192
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
Re Robertson and Repatriation Commission (1998) 50 ALD 668
REASONS FOR DECISION

P.J. Lindsay, Senior Member

1.      This is an application under the Veterans’ Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission (the Commission) which refused Mr Allsopp’s claim for acceptance of bilateral rotator cuff syndrome as war-caused injuries under the Act. The decision was affirmed by the Veterans’ Review Board (the Board).
2. Mr B. Winship, solicitor, appeared for Mr Allsopp. The Commission was represented by Mr J. Marsh from the Department of Veterans’ Affairs (the Department). Mr Allsopp was the only witness to give evidence at the hearing. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and also the exhibits tendered during the hearing.
evidence
3.      The parties do not dispute that Mr Allsopp served in the Australian Army from 20 October 1941 to 2 April 1946 and that this was a period of eligible war service and operational service.
4.      Mr Allsopp served in New Guinea for three years as a sapper. As part of 9 Field Company Engineers he worked on building roads and box culverts. He had two periods of service in New Guinea subsequent to the period when the incident relevant to this application occurred.
5.      A carpenter by trade, Mr Allsopp worked in the Owen Stanley Ranges from around February to December 1943. He was building an important communication route in Eastern New Guinea known as the Bulldog Road. It was very heavy work, clearing large trees in rough, mossy and precipitous terrain at altitudes of up to 10,000 feet. He worked mainly with pick and shovel and gelignite. There was little mechanical equipment.
6.      Mr Allsopp recalled experiencing an earth tremor while working on the Bulldog Road near a place called…

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 Allsopp and Repatriation Commission

Details

AGLC: Allsopp and Repatriation Commission [2003] AATA 75
Case: [2003] AATA 75
Decision Date: 24 January 2003

CaseChat Overview and Summary

Allsopp sought a review of a decision by the Repatriation Commission concerning his entitlement to a war-caused rotator cuff syndrome under the Veterans’ Entitlements Act 1986. The dispute was heard in the Federal Court of Australia. The central issue was whether Allsopp's rotator cuff syndrome was caused by his war service and, if so, whether it met the criteria outlined in the Repatriation Medical Authority Statement of Principles concerning rotator cuff syndrome.

The court had to determine whether the hypothesis proposed by Allsopp's medical expert regarding the causation of his rotator cuff syndrome was consistent with the Statement of Principles. The court examined whether the hypothesis raised by the evidence met the template in the Statement of Principles, specifically considering whether the evidence provided a sufficient basis to conclude that the syndrome was war-caused. The court also considered previous cases, such as Repatriation Commission v Deledio and Harris v Repatriation Commission, which had established principles for determining war-causation in medical conditions.

In reaching its decision, the court held that the evidence did not sufficiently meet the criteria set out in the Statement of Principles. While the evidence suggested a possible connection between Allsopp’s rotator cuff syndrome and his war service, it did not conclusively establish that the condition was caused by his service. The court found that the hypothesis did not align with the template for war-causation provided in the Statement of Principles. Consequently, the court varied the decision of the Repatriation Commission, finding that Allsopp was not entitled to the benefits in question.

The Federal Court of Australia varied the decision of the Repatriation Commission, determining that Allsopp was not entitled to the benefits for war-caused rotator cuff syndrome.

Orders