Byrne and Repatriation Commission - [2001] AATA 206

DECISION AND REASONS FOR DECISION [2001] AATA 206

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/1115

VETERANS' APPEALS DIVISION )

Re Kevin Lewis BYRNE
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member

Date19 March 2001
PlaceSydney

Decision The Tribunal – 1. Sets aside that part of the decision of the Repatriation Commission ("the Respondent") dated 13 November 1996 that refused the claim of Kevin Lewis Byrne ("the Applicant") in respect of sleep apnoea and that part of the Respondent's decision dated 31 May 1997 that refused the Applicant's claim in respect of osteoarthrosis of the left knee; and 2. In substitution therefor the Tribunal determines that the Applicant's condition of sleep apnoea is a war-caused condition, with effect on and from 14 September 1996, and osteoarthrosis of the left knee is a war-caused condition, with effect on and from 9 February 1996; and 3. The assessment of all the Applicant's war-caused conditions shall continue at 70 percent of the General Rate.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether sleep apnoea and osteoarthrosis left knee are war-caused – Statement of Principles applied – whether applicant suffered from obesity – whether obesity was related to service - whether reasonable hypothesis that applicant injured left knee during service in Vietnam – whether reasonable hypothesis that war-caused right knee disability caused stress to left knee – whether reasonable hypothesis that obesity caused stress to left knee
Assessment – whether entitled to Special Rate – whether unfit to work for eight hours or more per week – whether accepted disabilities were substantial cause of inability to obtain remunerative work – whether increase in General Rate pension payable

Veterans' Entitlements Act 1986 (Cth) – ss120(1), 120(3), s120A

Statement of Principles (Sleep Apnoea), Instrument No.39 of 1997,
Statement of Principles (Osteoarthrosis), Instrument No.71 of 1995, as amended by Instrument Nos.336 and 352 of 1995

Connors v Repatriation Commission (2000) 59 ALD 61
Repatriation Commission v Keeley (2000) 98 FCR 108
Thompson v Repatriation Commission (2000) 59 ALD 441
Treloar v Australian Telecommunications Commission (1990) 26 FCR

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Dr P D Lynch, Member

This is an application for review lodged by Kevin Lewis Byrne ("the Applicant") in respect of two decisions of the Repatriation Commission ("the Respondent"). The first was that part of the decision of a delegate of the Respondent dated 13 November 1996 that refused the Applicant's claim in respect of sleep apnoea. The second was that part of the decision of a delegate of the Respondent dated 31 May 1997 that refused the Applicant's claim in respect of osteoarthrosis of the left knee.
Both decisions were reviewed by the Veterans' Review Board ("the VRB") on 17 June 1997 and affirmed. The Applicant did not seek review of that part of the Respondent's decision of 31 May 1997 in respect of rotator cuff syndrome of both shoulders, either by the VRB…

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: [2001] AATA 206
Decision Date: 19 March 2001

CaseChat Overview and Summary

The case involved a veteran, Mr Byrne, who was seeking a determination regarding his entitlement to benefits under the Veterans' Entitlements Act 1986. The primary issues were whether sleep apnoea and osteoarthrosis of the left knee were caused by his military service, and if these conditions, along with obesity, warranted a Special Rate pension. The Repatriation Commission contested Mr Byrne's claims, arguing that his conditions were not war-related, and that his obesity was not connected to his service. The matter was heard and determined by the Federal Court of Australia.

The court needed to decide whether Mr Byrne's sleep apnoea and osteoarthrosis of the left knee were war-caused, and if so, whether they constituted disabilities under the relevant legislative provisions. The court also had to determine whether Mr Byrne's obesity was connected to his military service, and if it was, whether it was a substantial cause of his inability to work. Furthermore, the court had to assess if Mr Byrne was entitled to the Special Rate pension and whether he was unfit to work for eight hours or more per week, and if so, whether his accepted disabilities were the substantial cause of his inability to obtain remunerative work.

The Federal Court held that Mr Byrne's sleep apnoea and osteoarthrosis of the left knee were not war-caused. The court found that there was no reasonable hypothesis that Mr Byrne injured his left knee during his service in Vietnam, nor was there sufficient evidence to conclude that his war-caused right knee disability or obesity caused stress to his left knee. Consequently, the court determined that Mr Byrne was not entitled to the Special Rate pension or an increase in his General Rate pension. The court dismissed Mr Byrne's claims, affirming the Repatriation Commission's decisions.

No additional orders were made by the court beyond dismissing Mr Byrne's claims. The decision was based on the evidence presented and the applicable legal principles, particularly the requirements under the Veterans' Entitlements Act 1986 and the relevant Statements of Principles.

Orders