Boys and Repatriation Commission (Veterans' entitlements) [2020] AATA 2116 (7 July 2020)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2017/7128-9
Re:DALE MICHAEL BOYS
APPLICANT
AndREPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:7 July 2020
Place:Brisbane
The decision under review is affirmed.
.............................[SGD]...........................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – cervical spondylosis – special rate – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
John Joseph Flentjar v Repatriation Commission [1997] FCA 1200
Re Repatriation Commission v Norman Edwin Tuite [1993] FCA 39; (1993) 39 FCR 540; (1993) 29 ALD 609
REASONS FOR DECISION
Senior Member Katter
1 July 2020
APPLICATION
This is an application for review as to a decision finding that the Applicant’s cervical spondylosis was not related to service and that the Applicant was eligible for payment of the pension at 100% of the general rate[1].
[1] Exhibit 1, T2, page 6.
BACKGROUND
The Applicant served in the Australian Army from 16 June 1979 until 30 June 1986[2].
[2] Exhibit 1, T36, page 113.
By a claim form received by the Respondent on 14 May 2014, the Applicant stated at Part E of the form as to details of the new disabilities claimed as war or defence caused[3]:
[3] Exhibit 1, T82, pages 305-316.
“List the disabilities you are now claiming and describe the signs and symptoms …
Disability 1 Neck Problems
Signs and symptoms Neck pain. Pain, limitation of movement.
How do you believe your service caused, contributed to, or aggravated this disability?
Results of MBA and MVA during service. Copies of extracts from SMR attached. Also refer statement …
Disability 2 Headaches
Signs and Symptoms As described.
How do you believe your service caused, contributed to, or aggravated this disability?
I consider that my headaches are related to my whiplash injuries suffered during service. Refer attached statement.”
The statement attached to that claim form received by the Respondent on 14 May 2014, stated relevantly[4]:
“Neck problem.
I consider that the troubles I am having with my neck have been caused by my Army service.
On 8 March 1980 I had an accident on my motor bike whilst returning to camp from weekend leave in Melbourne. On that occasion, I was treated at PANCH Hospital. The report of that treatment stated; “Whip lash injury-pain down Right side of neck, pins and needles down right arm. All movement of neck … -tender C6.”
Then, on 16 January 1982, I had a motor vehicle accident and the report of this accident states; “Whiplash injury to neck.” On this occasion I was returning to camp after a period of Annual Recreation Leave (ARL) …
Dr Daniel O’Dea has diagnosed my neck problems as Cervical Spondylosis and the Relevant Statement of Principles for this condition is Instrument No 34 of 2005. I have had almost continual pain in my neck to varying degrees since these accidents …
Enclosed are extracts from my service medical records dealing with these accidents and the treatment…
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- Case
- [2020] AATA 2116
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the applicant's cervical spondylosis was caused by his defence service, and if so, whether he was eligible for payment at the special rate. The applicant's claim for cervical spondylosis was based on the diagnosis by Dr Daniel O’Dea, who considered the condition and the applicant's headaches to be cervicogenic and part of his neck problems. The applicant provided evidence detailing the circumstances of the accidents and the subsequent pain and limitations experienced.
The court considered the applicant's evidence regarding the two motor vehicle accidents during his service, which resulted in whiplash injuries. It was noted that the applicant had also been involved in a third accident with a fallen tree, but he stated this did not cause neck problems. The court found that the applicant's incapacity from defence-caused injury or disease did not, on its own, prevent him from undertaking remunerative work on a part-time or intermittent basis, thus not meeting the criteria for the intermediate rate under section 23 of the relevant Act. Furthermore, the court determined that the extreme disablement adjustment under section 22 did not apply, having regard to the applicant's age.
The decision under review was affirmed.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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