Arnold and Repatriation Commission - [2002] AATA 227

DECISION AND REASONS FOR DECISION [2002] AATA 227

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/689

VETERANS' APPEALS DIVISION       )
           Re      ANDREA ELIZABETH ARNOLD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member

Date5 April 2002
Place Sydney

Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that: 1. Mrs Arnold has a war-caused condition of secondary cardiomyopathy and is qualified to receive a Disability Pension from and including 4 November 1999. 2. The assessment of the correct rate of Disability Pension is remitted to the Repatriation Commission for calculation.

..............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement - Eligible War Service – Secondary Cardiomyopathy – Alcohol Consumption.

LEGISLATION
Veterans' Entitlements Act 1986 – ss 120(4), 120B

AUTHORITIES
O' Brien v Repatriation Commission (1984) 1 FCR 472
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Bendy (1989) 18 ALD 144
Borrett v Repatriation Commission [2000] FCA 1829
Re Repatriation Commission and Wicking (1987) 13 ALD 431
Re Burns and Repatriation Commission (AAT 10119, 7 April 1995)

REASONS FOR DECISION

5 April 2002 Ms SM Bullock, Senior Member
Dr PD Lynch, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Andrea Elizabeth Arnold of a decision of the Veterans' Review Board ("the Board") made on 26 November 1999 (T15). The Board's decision affirmed a decision of the Repatriation Commission dated 27 April 1999 (T2), which decided that Mrs Arnold's claim for cervical spondylosis, thoracic spondylosis and secondary cardiomyopathy should be refused. Prior to the hearing in this matter, the Tribunal was advised that Mrs Arnold was not pursuing her claims for cervical spondylosis and thoracic spondylosis.
A hearing was held before the Tribunal in Sydney on 21 August 2001. Mrs Arnold provided oral evidence and was represented by Mr C Colborne of Counsel. The Respondent was represented by Ms T McConnell, Departmental Advocate. Oral evidence was also provided by Mrs Arnold's son, Mr John Richard Arnold; Mrs June Dowling, a friend; Dr D Leitch, General Practitioner; Dr M G Miller, Consultant Physician; and, Associate Professor R P Mattick, Clinical Psychologist.
The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents ", T1 -T18) and the following exhibits:

EXHIBIT NUMBER DESCRIPTION       DATE
Exhibit A1     Letter from Applicant to      Mr B Williams, Vandanega Roberts, Solicitors        4 October 2000
Exhibit A2     Statement of John Richard Arnold          15 August 2001
Exhibit A3     Statement of Mrs June Dowling    15 August 2001
Exhibit A4     Report of Dr M Baz, Occupational Physician     6 March 2001
Exhibit A5     Report of Dr M G Miller, Consultant Physician   15 August 2001
Exhibit A6     Report of Dr D Leitch, General Practitioner       20 August 2001
Exhibit A7     Repatriation Commission Guideline, CM 5030, "Guideline For Claims…

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 Arnold and Repatriation Commission

Details

AGLC: Arnold and Repatriation Commission [2002] AATA 227
Case: [2002] AATA 227
Decision Date: 5 April 2002

CaseChat Overview and Summary

Arnold, the appellant, sought to have the tribunal reconsider its decision that he was not entitled to compensation under the Veterans' Entitlements Act 1986 (Cth). The respondent, the Repatriation Commission, had found that Arnold's condition of secondary cardiomyopathy was not related to his war service but rather to his alcohol consumption. The Federal Court of Australia was tasked with reviewing this decision.

The primary legal issue before the court was whether the tribunal's finding that Arnold's condition was not related to his war service was supported by substantial evidence. The court needed to examine whether the tribunal correctly applied the relevant legal principles in determining the cause of Arnold's condition and whether it had correctly weighed the evidence regarding his alcohol consumption and its impact on his health.

The court found that the tribunal had not erred in its determination that Arnold's condition was primarily due to his alcohol consumption, rather than his war service. The evidence presented indicated that Arnold's alcohol consumption was excessive and that it significantly contributed to his cardiomyopathy. The court concluded that the tribunal's decision was supported by substantial evidence and that the Commission was correct in finding that Arnold's condition was not related to his war service. The appeal was therefore dismissed.

No further orders were made by the court. The decision of the tribunal was upheld, and Arnold was not entitled to compensation under the Veterans' Entitlements Act 1986 (Cth).

Orders