Anderson and Repatriation Commission - [2009] AATA 23

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 23

ADMINISTRATIVE APPEALS TRIBUNAL No 2007/0647

VETERANS' APPEALS DIVISION		No 2008/2877
Re		TRACEY ANDERSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr RG Kenny, Member

Date 15 January 2009
Place Brisbane

Decision

The Tribunal affirms the decisions under review.

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Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements - disability pension – defence service with Australian Regular Army – application of Statements of Principles – appropriate diagnosis of psychiatric conditions –– major depressive disorder and morbid obesity diagnosed – conditions not attributable to defence service – decision affirmed.

VETERANS’ AFFAIRS – assessment of rate of pension – decision affirmed.

Veterans’ Entitlements Act 1986 (Cth) – ss 14, 68, 70, 120, 120B, 198B

Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Keeley (2000) 60 ALD 401

Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331
Youngnickel v Repatriation Commission [2004] FCA 1691
Cunningham and Repatriation Commission [2007] AATA 1790

REASONS FOR DECISION

15 January 2009

Mr RG Kenny, Member

Background

The applicant, Mrs Tracey Anderson, served in the Australian Regular Army (ARA) from 15 July 1986 to 14 July 1989. She lodged three claims with the Repatriation Commission (the Commission), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (the Act), for a disability pension for incapacity from conditions she contended were related to her ARA service. On 23 July 2002, the claim was for cervical spondylosis, thoracic spondylosis and lumbar spondylosis. On 28 February 2005, the claim was for morbid obesity. On 7 June 2007, the claim was for depressive disorder.
On 31 January 2003, the Repatriation Commission determined that lumbar spondylosis was related to Mrs Anderson’s ARA service and assessed pension for incapacity at 40% of the general rate. The Commission determined that thoracic spondylosis and cervical spondylosis were not related to her service. On 5 March 2004, the Veterans’ Review Board (the Board) affirmed those decisions. On 1 August 2005, the Administrative Appeals Tribunal (the Tribunal) affirmed the decision in relation to cervical spondylosis but determined that thoracic spondylosis was related to Mrs Anderson’s service and remitted the matter of assessment of incapacity to the Commission. On 14 October 2005, the Commission assessed pension at 90% of the general rate. On 4 December 2006, the Board set aside that decision and assessed pension at 40% of the general rate from 23 April 2002 and at 100% of the general rate from 21 April 2003. Mrs Anderson has sought review of the assessment decision by the Tribunal.
On 2 March 2005, the Commission determined that morbid obesity was not related to Mrs Anderson’s service. In its decision of 4 December 2006, the Board affirmed that decision. Mrs Anderson has sought review of that decision by the Tribunal.
On 12 March 2008, the Commission determined that depressive disorder was not related to Mrs Anderson’s service. On…

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 Anderson and Repatriation Commission

Details

AGLC: Anderson and Repatriation Commission [2009] AATA 23
Case: [2009] AATA 23
Decision Date: 15 January 2009

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal concerned a claim for a disability pension by Anderson against the Repatriation Commission. Anderson, a former member of the Australian Regular Army, sought a pension on the basis of a psychiatric condition and morbid obesity. The Commission had denied the claim, ruling that the conditions were not attributable to his service. Anderson appealed this decision to the Tribunal. The central legal issues were whether the Tribunal should find that Anderson's major depressive disorder and morbid obesity were related to his service in the Australian Regular Army and, if not, whether the decision to deny the pension was legally sound. The Tribunal examined the relevant provisions of the Veterans’ Entitlements Act 1986, particularly sections 14, 68, 70, 120, 120B, and 198B, as well as relevant case law.

The Tribunal considered the evidence and arguments presented by both parties, focusing on the diagnosis and causation of Anderson's conditions. It assessed whether the conditions met the criteria for being attributable to his service as outlined in the relevant Statements of Principles. The Tribunal concluded that Anderson's major depressive disorder and morbid obesity were not linked to his military service. It found that the Commission's decision to deny the pension was consistent with the evidence and the law. The Tribunal also examined the appropriateness of the pension rate assessment, ultimately affirming the Commission's decision on this matter as well.

In its decision, the Tribunal affirmed the Commission's findings and conclusions. It held that the evidence did not support a connection between Anderson's psychiatric condition and morbid obesity with his service. The Tribunal found no error in the Commission's application of the law and the principles established in relevant case law. Consequently, the appeal was dismissed, and the decisions under review were upheld. The Tribunal did not alter the pension rate assessment, thereby affirming the Commission's decision in that regard as well.

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

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Ratio Decidendi

Legal Principle Established

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