[2012] AATA 759
Division VETERANS' APPEALS DIVISION File Number
2010/2625
Re
CARMEL ONORATO
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, MemberDate 1 November 2012 Place Sydney The Tribunal sets the decision under review aside and in substitution finds that Mr Onorato’s death is war-caused. The date of effect is 3 August 2008.
.......................[Sgd].........................
Ms G Ettinger, Senior Member
Catchwords
Veterans’ Entitlements – widow’s pension – operational service – claim that the veteran’s death was war-caused – remittal from Federal Court - decision under review is set aside – Tribunal finds that Applicant’s death was war-caused.
Legislation
Veterans’ Entitlements Act 1986 ss 8, 13, 120
Statement of Principles concerning Anxiety Disorder No. 101 of 2007
Statement of Principles concerning Hypertension No. 35 of 2003
Statement of Principles concerning Ischaemic Heart Disease No. 89 of 2007
Cases
Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Onorato v Repatriation Commission [2011] FCA 1507
Onorato and Repatriation Commission [2011] AATA 535
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
1 November 2012
SUMMARY
Mrs Carmel Onorato made a claim for a widow’s pension on the basis that her husband’s death was related to his war service. Both the Repatriation Commission and the Veterans’ Review Board found that Mr Joseph Onorato’s death was not related to service. His widow sought review at the Tribunal. The matter was heard in 2011, and appealed to the Federal Court which remitted it for rehearing. It was reheard in full before the same Members, and the Reasons for Decision follow. Mr S Feredoes of counsel represented Mrs Onorato before us, and Ms R Henderson of counsel appeared for the Repatriation Commission.
We noted there was no disagreement between the parties that Mr Onorato suffered ischaemic heart disease, and that, it was a significant cause of his death. In order to try and establish that the veteran’s death was related to his war service, Mr Feredoes submitted that the Applicant relied on the anxiety disorder which she claimed that her husband suffered as a result of stressors he experienced while rendering operational service. Mr Feredoes submitted that the anxiety disorder Mr Onorato suffered was the cause of the veteran’s hypertension which in turn caused the ischaemic heart disease which the parties agreed Mr Onorato suffered.
Ms Henderson, on the other hand, submitted that Dr L Blows, a psychiatrist, was the only doctor who examined Mr Onorato in connection with any anxiety he suffered. She submitted Dr Blows diagnosed a minor level of anxiety, and did not recommend any treatment. The Respondent’s argument was also that notwithstanding any anxiety Mr Onorato may have suffered, he continued to function well throughout his life and work. Ms Henderson submitted that Dr Dinnen had not had the opportunity of examining…
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- Case
- [2012] AATA 759
- Decision Date
CaseChat Overview and Summary
The Tribunal considered the evidence provided, which included medical reports and witness statements. The key issue was whether the evidence supported a hypothesis connecting Mr Onorato’s death to his war service, as required by the legislation. The Tribunal applied the tests established in Repatriation Commission v Deledio to determine if the hypothesis was reasonable and if the death was war-caused. This involved examining if the hypothesis was consistent with the applicable SoP and if it could be said that the death was not war-caused beyond reasonable doubt.
The Tribunal found that the evidence did support a reasonable hypothesis that Mr Onorato’s death was war-caused. The Tribunal could not be satisfied beyond reasonable doubt that his death was not caused by his war service. Consequently, the Tribunal set aside the previous decision and found that Mr Onorato’s death was indeed war-caused. The Tribunal also determined that the effective date of this finding was 3 August 2008.
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