Collins and Repatriation Commission - [2003] AATA 335

Administrative

Appeals

Tribunal

DECISION AND RESONS FOR DECISION [2003] AATA 335
ADMINISTRATIVE APPEALS TRIBUNAL Nº V1999/272
Nº V2002/1238

VETERANS' APPEALS DIVISION

Re: KENNETH CHARLES COLLINS
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             4 March 2003
Place:            Melbourne
Decision:For the reasons given orally at the hearing, the Tribunal sets aside the decisions under review and substitutes a decision that chronic bronchitis suffered by the applicant is war-caused and that the applicant is entitled to pension at the special rate, with effect from 1 March 2001.

(sgd) G.D. Friedman
Member

VETERANS' AFFAIRS - veterans’ entitlements - smoking - chronic bronchitis - whether war‑caused - whether special rate applies
Veterans’ Entitlements Act 1986 ss9, 24, 28, 120(1), 120(3), 120(4), 120A(3), 120B
Hendy v Repatriation Commission [2002] FCA 602
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
4 March 2003  G.D. Friedman, Member
1.      This is an application by Kenneth Charles Collins (the applicant) for review of decisions of the Veterans' Review Board (VRB) dated 15 January 1999 and 24 September 2002. On 15 January 1999 the VRB affirmed a decision of the Repatriation Commission (the respondent) dated 23 July 1996 to refuse the applicant's claim for disability pension at the special rate. On 24 September 2002 the VRB affirmed a decision of the respondent dated 18 June 2001 to refuse a claim for chronic bronchitis and bronchial asthma on the basis that the conditions were not war‑caused. The following conditions have been accepted as war-caused: post traumatic stress disorder (PTSD), tension headaches, neurodermatitis, alcohol dependence and chronic pancreatitis. Disability pension was assessed at 100 per cent of the general rate.
2.      At the hearing of this matter on 4 March 2003, Mr D. De Marchi, solicitor, represented the applicant and Mr K. Herman, an advocate with the Department of Veterans' Affairs, represented the respondent. The applicant only proceeded with the application in relation to chronic bronchitis.
3. The Tribunal received into evidence the documents filed under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T8 and T1‑T27), together with 7 exhibits (A1‑A7) tendered by the applicant and 8 exhibits (R1‑R8) tendered by the respondent.
BACKGROUND
4. The applicant was born on 3 February 1949. He completed the Junior Technical Certificate and left school at the age of 15 years, after which he served a four-year apprenticeship as a boilermaker/welder. He was selected for National Service and joined the Australian Army (the army) on 22 April 1970. From 4 March 1971 to 23 October 1971 the applicant served as an engineer in South Vietnam which constitutes operational service for the purpose of s9 of the Veterans' Entitlements Act 1986 (the Act). He was discharged on 9 December 1971.
5.      After his discharge the applicant worked for Hammersley Iron in Western Australia for several months, and in 1975 Oakleigh City Council (the Council) employed him as a garbage collector for ten years. In 1985 he ceased working because of PTSD, breathing problems and anxiety. He has not worked…

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 Collins and Repatriation Commission

Details

AGLC: Collins and Repatriation Commission [2003] AATA 335
Case: [2003] AATA 335
Decision Date: 4 March 2003

CaseChat Overview and Summary

In the case of Collins and Repatriation Commission, the applicant, Kenneth Charles Collins, sought review of decisions by the Veterans' Review Board affirming earlier decisions of the Repatriation Commission. These decisions refused Collins' claims for a disability pension at the special rate and for recognition that his chronic bronchitis was war-caused. Collins, a Vietnam War veteran, claimed that his chronic bronchitis and other conditions were caused by his military service. The Administrative Appeals Tribunal (AAT) was tasked with determining whether Collins' chronic bronchitis was war-caused and if he qualified for a pension at the special rate.

The AAT first considered the evidence presented by Collins regarding his smoking habits and the onset of his chronic bronchitis. Collins admitted to smoking heavily during and after his service in Vietnam but had understated his consumption in previous statements due to embarrassment. The AAT accepted Collins' explanation and found that his smoking history met the criteria for chronic bronchitis under the relevant Standard of Proof. The AAT concluded that Collins' condition was war-caused because his heavy smoking, which began during his service, significantly contributed to his chronic bronchitis.

The AAT then addressed whether Collins qualified for a pension at the special rate. Collins argued that his inability to work was primarily due to his war-caused conditions, while the Repatriation Commission contended that other factors, such as his age and limited work skills, were more significant. The AAT found that Collins' chronic bronchitis and post-traumatic stress disorder substantially contributed to his inability to work, satisfying the criteria for a special rate pension under the Veterans' Entitlements Act 1986.

In conclusion, the AAT set aside the decisions under review and ruled that Collins' chronic bronchitis was war-caused and that he was entitled to a pension at the special rate, effective from 1 March 2001.

Orders