Collins; Repatriation Commission

[2000] AATA 224

DECISION AND REASONS FOR DECISION [2000] AATA 224

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/789

VETERANS' APPEALS  DIVISION       )          
           Re      REPATRIATION COMMISSION
  Applicant
           And    JOHN GEORGE COLLINS          
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member Brigadier I.R.W. Brumfield, CBE DSO RL, Member Dr. K.P. Kennedy, OBE, Member            

Date21 March 2000

PlaceBrisbane

Decision      The Tribunal sets aside that part of the decision of the Veterans' Review Board dated 5 March 1999 which dealt with John George Collins' polycythemia vera and determines that the claim made by John George Collins on 18 December 1996 was not a valid claim due to the provisions of sub section 14(5) of the Veterans' Entitlements Act 1986.

............(Signed)..................................
  D.W. MULLER
  SENIOR MEMBER

CATCHWORDS

VETERANS' AFFAIRS – Jurisdiction – new claim while original claim for same incapacity from same disease not finally determined
Veterans' Entitlements Act 1986: s.14(5)

REASONS FOR DECISION

21 March 2000        Mr. D.W. Muller, Senior Member Brigadier I.R.W. Brumfield, Member Dr. K.P. Kennedy, OBE, Member               

1. This is an application to review a decision of the Veterans' Review Board (VRB) on 5 March 1999 that the respondent's polycythemia vera (PV) was war-caused with effect from and including 23 July 1996.

2. The facts are not in dispute and may be conveniently summarised as follows:

   (i)On 28 August 1995, John George Collins, the respondent, lodged a claim for disability pension for PV.

   (ii)On 25 September 1995 the claim was rejected.

   (iii)On 12 October 1995 Mr. Collins lodged an appeal with the VRB.

   (iv)On 5 March 1996, the VRB affirmed the decision to reject the claim.

   (v)On 29 March 1996, Mr. Collins applied to the Administrative Appeals Tribunal (AAT) for review of the VRB decision of 5 March 1996.

   (vi)On 18 December 1996, Mr. Collins lodged a new claim for disability pension for "skin diseases and allergies".  At that time it was known by both the applicant and the respondent that Mr. Collins did not suffer from any skin diseases or allergies but that the itch which he experienced was due to PV.

   (vii)On 21 April 1997:

   (a)The claim for skin diseases and allergies was listed by the Delegate as PV and rejected.

   (b)The review before the AAT for the claim lodged on 28 August 1995, was dismissed by consent.

   (viii)On 15 July 1997, Mr. Collins sought a review by the VRB of the rejection dated 21 April 1997, of the claim that had been made on 18 December 1996.

(ix)On 4 June 1999 the VRB set aside the decision of the Delegate and found that Mr. Collins' PV was war-caused.

(x)The Repatriation Commission applied to the AAT for a review of the decision of the VRB, dated 4 June 1999.

1. Claims for pension must be made pursuant to the provisions of s.14 of the Veterans' Entitlements Act 1986 (the Act). Subsection 14(5) of the Act prevents a veteran from making a new claim for pension in respect of incapacity from a particular injury or disease if the veteran already has a claim on foot for the same incapacity from the same injury or disease, which has not been finally determined.

   "14(5)  Where:

   (a)a veteran has made a claim for a pension under this section in respect of incapacity from a particular injury or disease;  and

   (b)       the claim has not been finally determined;
   the veteran is not empowered to make another claim for a pension under this section in respect of incapacity from that injury or disease."

1. When Mr. Collins made his new claim on 18 December 1996, his claim of 28 August 1995 had not been finally determined.  Although the second claim was couched in the terms "skin diseases and allergies", it was in fact for exactly the same incapacity and disease as the claim made on 28 August 1995, namely PV.

2. Mr. Collins was not empowered to make his claim on 18 December 1996.  It was a nullity.

3. There was no claim nor any Delegate's decision for the VRB to review in relation to the claim of 18 December 1996.

4. Consequently, the decision of the VRB, dated 4 June 1999, that Mr Collins' PV is war-caused, is set aside.

   I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member
   Brigadier I.R.W. Brumfield, Member
   Dr. K.P. Kennedy, OBE, Member

   Signed:         .....................................................................................
              R. Hayes, Associate

   Date/s of Hearing  21 March 2000
   Date of Decision  21 March 2000
   Counsel for the Applicant        Ms. E. Ford
   Respondent  Mr. Collins, himself