Bourke and Repatriation Commission (Veterans' entitlements) - [2023] AATA 2007

Bourke and Repatriation Commission (Veterans' entitlements) [2023] AATA 2007 (11 July 2023)

Division:GENERAL DIVISION
File Number(s): 2017/6176
Re:Simon Francis Bourke
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member
Date:11 July 2023
Place:Hobart

The decision under review is set aside and the original decision of a delegate of the respondent dated 12 March 2015 is reinstated.

....[sgn]....................................................................

The Hon. Matthew Groom, Senior Member

Catchwords

Veteran’s Affairs – Diagnosis of Claimed Conditions – Whether the Applicant Suffers from Meniere’s Disease – Whether the Applicant suffers from Otitis Media, Otitic Barotrauma and Vestibular Migraine – Application of Statement of Principles – Whether the Meniere’s Statement of Principles Supports a Connection with the Applicant’s Service – Decision Set Aside

Legislation

Veterans’ Entitlements Act 1986 (Cth)
Safety, Rehabilitation and Compensation (Defence-related claims) Act 1988 (Cth)
Cases
Cox and Repatriation Commission [2019] AATA 2340
Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 280 ALR 621
Lees v Repatriation Commission [2002] FCAFC 398 (2002) 125 FCR 331
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Rana v MRCC [2011] FCAFC 80; (2011) 55 AAR 300
Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364
Re Eylward and Comcare [2008] ATTA 63
Re Marinov and Comcare [2006] AATA 223

Re Quinn and Australian Postal Corporation [1992] AATA

Secondary Materials

Statement of Principles concerning Meniere’s Disease, No.60 of 2006
Statement of Principles concerning Meniere’s Disease No. 109 of 2015

Statement of Principles concerning Migraine, No. 8 of 2018

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

INTRODUCTION

This matter involves a review of a decision of the Veterans Review Board (VRB) dated 23 August 2017 (decision under review). The decision under review set aside an earlier decision of a delegate of the respondent dated 12 March 2015 that the appropriate diagnosis of the applicant’s claimed condition was Meniere’s disease but that the condition was not related to the applicant’s defence service.

BACKGROUND

The applicant is 74 years of age and previously served with the RAAF as a pilot. He commenced on 29 June 1973 and resigned with effect from 30 November 1973.
On 6 February 2015 the applicant lodged a claim for a disability pension seeking benefits under the Veterans Entitlements Act 1986 (VE Act) for a condition described as “inner ear disorder, possibly Meniere’s disease”. At the same time the applicant made a claim for sensorineural hearing loss and tinnitus under the Safety, Rehabilitation and Compensation Act1988 (SRC Act).
On 12 March 2015 a delegate of the respondent decided to accept the applicant’s SRC Act claim. In respect of the applicant’s VE Act claim the delegate decided that the appropriate medical diagnosis for the applicant’s condition was Meniere’s disease. However, the delegate determined that when applying the Statement of Principles (SoP) concerning Meniere’s Disease, Instrument No. 60 of 2006…

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.

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Details

Case: [2023] AATA 2007
Decision Date: 11 July 2023

CaseChat Overview and Summary

This matter concerned an application by the applicant, Mr. Bourke, against the Repatriation Commission concerning his entitlement to veteran's benefits. The core of the dispute revolved around whether the applicant suffered from Meniere's disease, otitis media, otitic barotrauma, and vestibular migraine, and whether these conditions were connected to his military service. The decision was made by Senior Member Matthew Groom of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant's claimed conditions, specifically Meniere's disease, otitis media, otitic barotrauma, and vestibular migraine, were established. A key legal issue was the application of the relevant Statements of Principles (SOPs) to the applicant's circumstances, particularly whether the Meniere's Disease SOP supported a connection between the diagnosed condition and the applicant's service.

In reaching its decision, the Tribunal considered a comprehensive range of documentary evidence, including medical reports from various specialists, service records, flight logs, and previous tribunal decisions. The Tribunal's reasoning focused on the diagnostic criteria within the applicable SOPs and the evidence presented to satisfy those criteria. The Tribunal ultimately found that the decision under review was not sound and set it aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The materials considered in determining this matter included:i.T-documentsii.Supplementary T-documents iii.Various written submissions of the partiesiv.Respondent’s list of case authorities dated 22 November 2022 v.Tribunal book prepared by the Respondent dated 25 October 2022 including:· Pilot’s Flying Logbook from 1971-1977· Records produced by the Civil Aviation Safety Authority including: o Undated Selective scanning reporto CASA medical questionnaire dated 3 May 1991 o Letter to applicant re annual eye report dated 3 May 1991 o Letter to applicant re annual eye report dated 11 June 1991 o Letter to applicant re lack of response to correspondence dated 12 July 1991 o Letter, applicant to CASA dated 17 July 1991 o Letter to applicant re annual eye report dated 5 September 1991 o Notation - no reply to letters sent dated 22 October 1991 o Flight Crew Licensing Reports dated 5 September 2005 · Claim for Compensation dated 19 July 1995 · RAAF Record of service dated 5 December 1995 · Minutes from DGAFHS dated 7 November 1995 · Medical Report - Dr A. Saha dated 29 February 1996 · Medical Report - Dr A. Saha dated 18 April 1996 · Medical Report - Mr G. Earles dated 13 June 1996 · Medical Report - Mr G. Earles dated 24 July 1997 · Letter, applicant’s solicitors to Mr G. Earles dated 30 July 1997 · AAT consent decision – ‘member of the forces’ dated 21 August 1997 · Medical Report, Mr G Earles, ENT Surgeon, to Hannover Life and results of some investigations dated 5 September 1997 · Medical Report - Mr G. Earles (undated) · Medical Report - Prof. M. Paparella dated 23 December 1997 · Medical Report, Mr W Brennan, ENT Surgeon, to Hannover Life dated 3 March 1998 · Medical Report - Mr G. Earles dated 5 March 1998 · Letter, applicant’s solicitor to Prof. M. Paparella dated 30 March 1998 · Letter, Prof. M. Paparella dated 12 June 1998 · Medical Report, Dr S Johl, consultant psychiatrist, to Dr G Earles dated 15 June 1998 · Medical Report, Mr W Brennan, ENT Surgeon, to Hannover Life dated 4 August 1998 · Surveillance report for Hanover Life dated 15 October 1998 · Letter, Prof. M. Paparella dated 17 November 1998 · Medical Report, Dr J Gill, consultant psychiatrist, to Hannover Life dated 22 August 1999 · Medical Report, Dr S Johl, consultant psychiatrist, to Hannover Life dated 4 October 1999 · Medical Report - Mr G. Earles dated 27 June 2000 · AAT decision and reasons – Meniere’s disease (VEA) dated 28 January 2000 · Medical Report, Dr S Johl, consultant psychiatrist, to Dr I Roddick dated 23 March 2001 · Medical Report - Dr A. Saha dated 6 July 2001 · Proof of evidence of Gil Moore, aviation consultant dated 20 July 2002 · Letter from Dr I Roddick dated 24 October 2002 · Summary of various doctor’s clinical notes re Dr Bourke (2002) · Undated Proof of evidence of Dr Bourke – for the 1998 applications · Supplementary proof of evidence of Dr Bourke dated 19 February 2003· AAT decisions and reasons – Meniere’s disease (SRCA) dated 20 November 2002 · Medical Report, Dr S Johl consultant psychiatrist, to Dr J Giefing dated 15 March 2005 · MRI Report, Barin and Cervical Spine dated 7 March 2012 · Service medical records· Claim for disability pension – ‘inner ear problems’ dated 15 January 2015 · Repatriation Commission Decision dated 22 May 2015 · Requests for review under ss 31 & 136 of VEA dated 22 May 2015 (sic) · Non-intervention decision dated 2 May 2015 · Letter, applicant to Dr Szmulewicz – prior to initial appointment dated 26 June 2015 · Medical Report, Dr M Tan dated 29 June 2015· Medical report, Dr M Tan (Neurologist) dated 28 September 2015 · Medical report, Dr G Dragovic (Registrar) dated 14 December 2015· Medical report, Dr S Szmulewicz (Neurologist) dated 4 April 2016 · Medical Report, Dr S Johl, consultant psychiatrist, to Dr M Hamilton dated 14 February 2017 · Letter, RSL Advocate to Dr Szmulewicz, requesting report dated 13 March 2017 · Letter, applicant to Dr Szmulewicz, requesting report and enc summary of history dated 21 April 2017 · Applicant’s ‘Military and Civilian History of Claimant’s Illness’ dated 21 April 2017 · Letter, applicant to Dr Szmulewicz dated 21 April 2017 · Letter, RSL Advocate to Dr Szmulewicz re his opinion dated 9 May 2017 · Medical report, Dr S Szmulewicz (Neurologist) (annotated) dated 31 May 2017 · Letter, applicant to Dr Szmulewicz, seeking changes to medical report dated 12 June 2017 · Changed medical report, Dr S Szmulewicz (Neurologist) dated 19 June 2017 · REVIEWABLE DECISION – VRB Decision dated 23 August 2017 · Application for Review dated 11 August 2017· Letter, applicant to AAT – ground of review dated 12 October 2017· Section 37 Statement dated 9 November 2017 · Medical report, Dr S Szmulewicz (Neurologist) dated 26 March 2018 · Medical report, Dr S Szmulewicz (Neurologist) dated 27 June 2018 · Medical Report, Dr S Johl, consultant psychiatrist, to Dr M Hamilton dated 23 July 2018 · Medical report, Dr S Szmulewicz (Neurologist) dated 10 March 2019 · Undated CV, Dr S Szmulewicz · Medical Report, Dr RG Hyde, consultant psychiatrist, to Dr M Hamilton dated 13 March 2019 · AAT Decision and Reasons re preliminary question dated 3 July 2019 · Medical report, Dr S Szmulewicz (Neurologist) dated 30 September 2019 · Briefing letter to Assoc Prof Spira seeking medical report dated 7 July 2020 · Medical report by Assoc Prof Paul Spira dated 7 August 2020 · CV, Assoc Prof Spira 11 August 2020 · Dr David Szmulewicz – response to report from Assoc Prof Spira undated · Briefing letter to Assoc Prof Spira dated 26 February 2021 · Supplementary report of Assoc Prof Spira dated 10 March 2021 · Medical report by Prof Robert Briggs dated 20 December 2021 · Supplementary report of Dr S Szmulewicz dated 18 February 2022 · J Sohn, ‘Recent Advances in the Understanding of Vestibular Migraine’ (Behavioural Neurology, Vol 2016)· Summoned Medical Recordso Various Extracts from the medical records produced by the Royal Victorian Eye and Ear Hospital – blank pages, duplicate material and irrelevant material has been omittedo Various Extracts from the medical records produced by Northern Midlands Medical Services– blank pages, duplicate material (including material relating to the Royal Victorian Eye and Ear Hospital treatment), and some irrelevant material (such as material relating to the applicant’s eye condition) has been omittedo Various Extracts from the records produced by Mr S McKean, speech pathologist, re tinnitus management, comprising:§ Referral from Dr Szmulewicz dated 8 October 2018 § Various Visit Notes, 30 October 2018 to 3 September 2019§ New Client Questionnaire dated 5 December 2018 § Various Tinnitus Functional Indices dated 4 December 2018, 5 March 2019, 28 May 2019 and 20 August 2019 § Progress reports from Mr S McKean, speech pathologist dated 21 December 2012 § Progress Report from Mr S McKean, speech pathologist dated 30 May 2019 · Statements of Principles o Meniere’s Disease SOP (No. 60 of 2006) – commenced 8 November 2006 dated 30 October 2006 o Meniere’s Disease SOP (No. 109 of 2015) – commenced 21 September 2015o Migraine SOP (No. 57 of 2009) – commenced 2 September 2009 o Migraine SOP (No. 8 of 2018) – commenced 29 January 2018o Amendment Migraine SOP (No.16 of 2020) – commenced 23 March 2020o Migraine SOP (No. 8 of 2018) complied 23 March 2020 · Statements of Facts, Issues and Contentionso Applicant’s Amended SFIC dated 11 March 2022 o Respondent’s amended SFIC dated 20 May 2022 · Annexures o Statement A: Flying Training in the RAAF — Medical Problems — Discharge. 1971−1973o Statement B: Hypobaric Chamber Training — 1FTS RAAF Point Cook. 1973.o Statement C: RAAF Medical Intervention — Dr J Stubbings (ENT Surgeon). 1973.o Statement D: Flying Post RAAF — Alternative Careers — Chronological Progression. 1974−1914.o Statement E: Simon Francis Bourke — COMCARE — AAT — August 2003o Statement F: Independent Medical Report — Assoc Prof Spira (Neurologist) 2020.o Statement G: Royal Victorian Eye and Ear Hospital Melbourne — Vestibular Migraine — Tertiary Investigation and Successful Management. 2015−Current.vi.Letter of Dr David Szmulewicz dated 31 May 2018 (i)Letter of Dr David Szmulewicz dated 19 June 2018 vii.Report of Dr David Szmulewicz dated 30 September 2019 viii.Report of Associate Prof Spira dated 25 August 2020

Ratio Decidendi

Legal Principle Established

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