Brian Johns and Repatriation Commission

Case [2013] AATA 415

[2013] AATA 415

Division Veterans’ Appeals Division

File Number

2012/3858

Re

Brian Johns

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President S D Hotop
Date 20 June 2013
Place Perth

The decision under review is affirmed.

...............[sgd].....................................

S D Hotop, Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy (RAN) from 1966 to 1986 – applicant’s RAN service included eligible defence service – applicant performed duties as electrical fitter during RAN service and as an electrician after RAN service – applicant contracted osteoarthritis in right elbow in 2011 – Statement of Principles concerning osteoarthritis (SoP) – SoP does not uphold contention that osteoarthritis of right elbow on balance of probabilities connected with defence service – applicant’s osteoarthritis of right elbow not defence-caused – decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 70(5), s 120(4), s 120B(3), s 196B(3) and s 196B(14)

Statement of Principles concerning osteoarthritis No 14 of 2010

Statement of Principles concerning osteoarthritis No 36 of 2011

CASES

Kattenberg v Repatriation Commission (2002) 73 ALD 365

REASONS FOR DECISION

Deputy President S D Hotop

20 June 2013

Introduction

  1. Brian Johns (“the applicant”), who was born in May 1950, served in the Royal Australian Navy (“RAN”) from 5 January 1966 to 4 January 1986.  During that period he rendered “operational service” from 16 February 1972 to 3 March 1972 and “defence service” from 7 December 1972 to 4 January 1986, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”).

  2. On 26 September 2011 the applicant lodged with the Department of Veterans’ Affairs a claim for acceptance of “right elbow pain” and “constant pain in both knees” as defence-caused for the purposes of the VE Act.

  3. On 30 November 2011 a delegate of the Repatriation Commission (“the respondent”) decided that “osteoarthritis affecting both knees” is related to service but that “osteoarthritis of the right elbow is not related to service”.

  4. On 9 August 2012, following an application for review of that part of the delegate’s decision relating to osteoarthritis of the right elbow, the Veterans’ Review Board (“VRB”) affirmed the delegate’s decision that osteoarthritis of the right elbow is not related to service.

  5. On 5 September 2012 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 9 August 2012.

    The Evidence

  6. The evidence before the Tribunal comprised:

    ·the “T Documents’ (T1–T14, pp I–XI, 1–64) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

    ·statement of the applicant, dated 20 November 2012 (Exhibit A1);

    ·copy of the transcript of the applicant’s hearing before the VRB on 9 August 2012 (Exhibit R1); and

    ·the oral evidence of the applicant.

    The Applicant’s Evidence

  7. The applicant confirmed that he had signed a statement, dated 20 November 2012, for the purpose of this proceeding and that its contents are true and correct.  That statement is as follows:

    “ …

    I served in the…

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AGLC
Brian Johns and Repatriation Commission [2013] AATA 415
Case
[2013] AATA 415
Decision Date

CaseChat Overview and Summary

Brian Johns sought a review of a decision made by the Repatriation Commission, which declined to award him a disability pension based on his right elbow osteoarthritis. The dispute was adjudicated by the Administrative Appeals Tribunal (AAT). The primary issue before the AAT was whether the applicant's osteoarthritis of the right elbow was connected with his service in the Royal Australian Navy (RAN) and thus qualified as a "defence-caused injury" under the Veterans' Entitlements Act 1986 (Cth). The applicant argued that his duties as an electrical fitter in the RAN involved repetitive and forceful activities using his right arm, which led to his condition. The AAT had to determine if the Statement of Principles concerning osteoarthritis upheld the applicant's contention that his condition was connected with his defence service.

The AAT examined the evidence provided, including the applicant's statement and the Veterans' Review Board's decision. It noted the applicant's service in the RAN from 1966 to 1986 and his role as an electrical fitter, performing duties that involved manual tools and repetitive activities. The AAT considered the applicant's post-service work as an electrician and his use of manual tools. The Tribunal concluded that the Statement of Principles did not support the applicant's claim that his right elbow osteoarthritis was connected with his defence service. The Tribunal found that the applicant's osteoarthritis was not caused by his service, and thus could not be classified as a "defence-caused injury" under the Act.

Accordingly, the AAT upheld the original decision of the Repatriation Commission, affirming the denial of the applicant's claim for a disability pension. The AAT found that the applicant's condition did not meet the criteria for a "defence-caused injury" as defined by the Act, and therefore the decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence before the Tribunal comprised:·the “T Documents’ (T1–T14, pp I–XI, 1–64) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);·statement of the applicant, dated 20 November 2012 (Exhibit A1);·copy of the transcript of the applicant’s hearing before the VRB on 9 August 2012 (Exhibit R1); and·the oral evidence of the applicant.The Applicant’s Evidence The applicant confirmed that he had signed a statement, dated 20 November 2012, for the purpose of this proceeding and that its contents are true and correct. That statement is as follows:“ …I served in the Royal Australian Navy from 1966 to 1986. I was employed as an electrical fitter throughout this period. As I did not rise above the rank of Leading Seaman during my service, my duties remained essentially unchanged and required the use on a daily basis of a range of manual tools such as screwdrivers, pliers and chisels. Cordless power tools were not widely available at this time. Corded electrical appliances needed long leads and were cumbersome and hazardous to work with, particularly in the confined quarters of naval vessels and installations at naval bases. I preferred to rely on manual tools that I was accustomed to, for their convenience and ease of use.The Veterans’ Review Board in its decision of 9 August 2012 found that I had stated that during my posting to HMAS Leeuwin from May 1978 to October 1980 I was not employed as an electrical fitter; for that reason, the Board found that I did not have a continuous period of 20 years eligible service performing the same repetitive and forceful activities, as required by the relevant Statement of Principles. I believe that the finding of the Veterans’ Review Board in this regard is based on a misunderstanding. I was posted to HMAS Stirling in December 1977. However, as HMAS Stirling was only formally commissioned as a Navy establishment on 28 July 1978, my nominal posting at the time was to HMAS Leeuwin while physically located at HMAS Stirling. From December 1977 to October 1980, my duties at HMAS Stirling included watchkeeper of the powerhouse, operating and maintaining supply and distribution equipment; maintaining depot electrical services, repairing and maintaining depot services including power and lighting, galley equipment, power tools and appliances; and repair and maintenance of electrical components in depot support craft.Therefore, I submit that I had an uninterrupted continuous period of 20 years eligible service as an electrical fitter in the Navy performing the same repetitive and forceful activities. I continued to work as an electrician on discharge from the Navy in 1986 and did not commence to use power tools on a regular basis until some years later when cordless power tools became accessible and affordable.” (Exhibit A1) The applicant also gave oral evidence to the following effect:·in the course of his RAN service he served on ships, namely, HMAS Melbourne, HMAS Torrens, HMAS, Moresby and HMAS Diamantina for a total period of about 14 years;·while at sea he was under constant pressure to perform his duties as an electrical fitter, especially when there was a “breakdown” on the ship;·his duties at sea included maintaining the electrical propulsion of the ship, the airconditioning system, continual maintenance of light fittings, fans and motors – in short, “everything electrical on the ship”;·on a daily basis he performed numerous manual tasks with tools such as screwdrivers, spanners and pliers, involving repetitive activities and forceful activities using, predominantly, his right arm;·while in harbour or in shore establishments his duties involved general maintenance and much less in the way of repetitive and forceful activities than he performed while at sea;·for the first year of his service as a junior recruit he was engaged in classroom and training activities and did not start to perform repetitive and forceful electrical tasks “in earnest” until January 1967;·he took three months’ long service leave (October–December 1985) immediately prior to his discharge from the RAN on 4 January 1986;·during that period of long service leave he was primarily engaged in developing his own electrical business rather than doing heavy manual electrical work;·when he was discharged in January 1986 he obtained registration as an electrician in Western Australia and worked as a self-employed electrical contractor;·he started to use cordless power tools on a regular basis in 1986, but he also continued to use manual tools for 60%–70% of the time;·his civilian electrical work was not as constant or of the same intensity as the electrical work he performed on RAN ships – he had to “generate” work and he did jobs “when they came up”;·he ceased working as a self-employed electrical contractor in about 2006 and was then employed as an electrician by Sir Charles Gairdner Hospital in Perth;·he retired in June 2012.The Issue

Decision

Reasons for decision

The Tribunal concludes, therefore, that the SoP does not uphold the contention that the applicant’s osteoarthritis of the right elbow is, on the balance of probabilities, connected with his “defence service”, within the meaning of s 120B(3) of the VE Act. Accordingly, the Tribunal, pursuant to s 120B(3), cannot be reasonably satisfied, for the purposes of s 120(4) of the VE Act, that the applicant’s osteoarthritis of the right elbow is a “defence-caused injury” or a “defence-caused disease” for the purposes of Part IV of that Act.Decision For the above reasons, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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