Cole and Repatriation Commission - [2004] AATA 3

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 3
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/1435

VETERANS' APPEALS DIVISION )

Re BARRYMORE WILLIAM COLE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member
Mr E Fice, Member
Date6 January 2004
PlaceMelbourne

Decision
The decision under review in so far as it concerns “peptic ulcer disease” is set aside and in substitution IT IS DECIDED:

(i)      The appropriate diagnosis of the disease suffered by the applicant is peptic ulcer disease and gastro-oesophageal reflux disease; and

(ii)     these diseases arose out of or were attributable to eligible service; and

(iii)     the application be remitted to the respondent to assess pension entitlement.

The remainder of the decision concerning varicocele and cerebral ischaemia is affirmed.

(Sgd) J Handley
Senior Member

VETERANS’ ENTITLEMENTS – Smoking commenced in service – subsequent diagnosis of peptic ulcer and gastro-oesophageal ulcer disease – events in and features of service – causal link between service and diseases – decision set aside.
Veterans' Entitlements Act 1986 ss.7(1)(c), 9(1)(b) 13(1), 120(4) and 120B(3)
Re Robertson and Repatriation Commission AAT No 12666 [1998] AATA 127
Re McLeod-Dryden and Repatriation Commission 53 ALD 428
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 36 ALR 411
Repatriation Commission v Tuite (1993) 29 ALD 609
Repatriation Commission v Keenan (1989) 19 ALD 509
Smith v Repatriation Commission (1999) 58 ALD 158
Critch v Repatriation Commission (1996) 43 ALD 574
REASONS FOR DECISION

6 January 2004 Mr J Handley, Senior Member
Mr E Fice, Member

1.      This is an Application for Review of a Decision made by the Veterans' Review Board on 8 August 2001 affirming the decision of the Repatriation Commission made on 20 March 2000 that the Applicant's peptic ulcer disease, varicocele and cerebral-ischaemia are not related to war service.
2.      In his Statement of Facts and Contentions filed with the Tribunal on 12 May 2003 and the accompanying letter from the Applicant's solicitors, the Applicant advised that he had withdrawn the claims relating to the varicocele and cerebral ischaemia.
3.      The parties agree that the Veteran suffers duodenal ulcer disease and for the purposes of identifying an applicable Statements of Principles it was agreed that the Instruments with respect to “Peptic Ulcer Disease” and “Gastro-Oesophageal Reflux Disease” are applicable.
4.      Mr Liefman who appeared on behalf of Mr Cole and Mr Purcell who appeared on behalf of the respondent, both conceded at the outset:
(i)The diagnosis as above.
(ii)The application of the above Statements of Principles.
(iii)The requisite quantity of cigarettes and duration of smoking thereby satisfying applicable factors in the Instruments; and
(iv)Clinical onset in the 1950’s.

5. The only issue not conceded was whether the Applicant’s smoking habit was attributable to service. This was the issue in these proceedings.
6. As we now reflect on the evidence heard and the documents lodged in these proceedings, we initially had some concerns about whether the clinical onset of the gastric disease from…

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.

Continue reading Cole and Repatriation Commission

Details

AGLC: Cole and Repatriation Commission [2004] AATA 3
Case: [2004] AATA 3
Decision Date: 6 January 2004

CaseChat Overview and Summary

In the matter of Cole versus the Repatriation Commission, the Federal Court was tasked with reviewing a decision made by the Commission regarding the medical conditions of the applicant, who was a former serviceman. The applicant sought a review of the Commission's decision which had denied his claim for a pension based on certain medical conditions, specifically peptic ulcer disease, varicocele, and cerebral ischaemia. The applicant argued that the Commission had erred in its diagnosis and assessment of his conditions, and that he was entitled to a pension based on his service.

The central legal issues before the court were whether the Commission had correctly identified the applicant's medical conditions and whether those conditions were attributable to his service. The court needed to determine if the Commission had properly applied the relevant legislative provisions in making its decision. Specifically, the court had to consider whether the Commission had correctly interpreted the definition of "disease" and "incurred during service" under the relevant legislation.

The court found that the Commission had erred in its diagnosis of the applicant's medical conditions. The court held that the appropriate diagnosis was peptic ulcer disease and gastro-oesophageal reflux disease, rather than the diagnosis provided by the Commission. The court also found that these conditions arose out of or were attributable to the applicant's service. As a result, the court set aside the decision of the Commission in relation to these conditions and remitted the matter back to the Commission to reassess the applicant's pension entitlement. The court affirmed the remainder of the Commission's decision concerning varicocele and cerebral ischaemia, as the applicant had not successfully challenged these aspects of the decision.

Orders

Orders of the court

The decision under review in so far as it concerns “peptic ulcer disease” is set aside and in substitution IT IS DECIDED:

(i) The appropriate diagnosis of the disease suffered by the applicant is peptic ulcer disease and gastro-oesophageal reflux disease; and

(ii) these diseases arose out of or were attributable to eligible service; and

(iii) the application be remitted to the respondent to assess pension entitlement.

The remainder of the decision concerning varicocele and cerebral ischaemia is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

VETERANS' APPEALS DIVISION		)
Re		BARRYMORE WILLIAM COLE