DAVID ALAN TYERS and REPATRIATION COMMISSION - [2010] AATA 108

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 108
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3972

VETERANS' APPEALS DIVISION )

Re DAVID ALAN TYERS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M.D. Allen, Senior Member and
Dr M.E.C. Thorpe, Member
Date12 February 2010
PlaceSydney

Decision
The decision under review is AFFIRMED.

...................[sgd].........................
M D Allen, Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – No dispute Applicant’s asthma caused by exposure to antigens during RAAF service. Question for Tribunal was what was the date of clinical onset. Held clinical onset prior to 7 December 1972 so no entitlement under Veterans’ Entitlements Act 1986.
LEGISLATION
Veterans’ Entitlements Act 1986 s68, 69, 120(4), 120B.
CASES
Lees v Repatriation Commission (2002) 36 AAR 484
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION

February 2010 M.D. Allen, Senior Member and
Dr M.E.C. Thorpe, Member

1.      By Application made the 25^th day of august 2008, the Applicant sought review of that part of a determination by the Repatriation Commission, as affirmed by the Veterans’ Review Board (“VRB”), rejecting his claims to have the disease of asthma recognised as being caused by his Defence service in the Royal Australian Air Force (“RAAF”).
2.      Part IV of the Veterans’ Entitlements Act 1986 (“VEA”) provides for the payment of pension for the incapacity occasioned to members of the Defence Forces who were serving on or after the 7^th day of December 1972. Any incapacity arising prior to that date, not being caused by operational service, is not compensable under the VEA, but recourse must be had to the transitional provisions of the Safety Rehabilitation and Compensation Act 1988 (“SRC”) as amended.
3. As the Applicant’s asthma arose out of, or was caused by, his Defence service, the standard of proof in this matter is that proscribed by ss120(4) VEA, viz to the Tribunals “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15 FCR 327 the Full Court of the Federal Court equated that to the civil standard of proof, viz proof on the balance of probabilities.
4. Ss120(6) VEA provides that neither party to this review bears any onus of proof.
5. Section 120B VEA mandates that the Tribunal can be reasonably satisfied that a disease is attributable to Defence service only if a Statement of Principal (“SOP”) determined under s196B VEA upholds the contention of connection with Service.
6.      Instrument No. 86 of 2001 is the current SOP regarding asthma contracted during non-operational defence service. Factor 5(a) of that Instrument states that asthma will be connected to a persons relevant service if “for the first episode of asthma only, being exposed to an occupational antigen within the 24 hours before the clinical onset of asthma”.
7.      The Respondent conceded that the Applicant does suffer from asthma and that Factor 5(a) in the Instrument No. 86 of 2001 applies to him. The issue in this matter is when did the Applicant experience his first episode of asthma.
8.      In Lees…

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 DAVID ALAN TYERS and REPATRIATION COMMISSION

Details

AGLC: DAVID ALAN TYERS and REPATRIATION COMMISSION [2010] AATA 108
Case: [2010] AATA 108
Decision Date: 12 February 2010

CaseChat Overview and Summary

The case of David Alan Tyers and the Repatriation Commission concerns the date of clinical onset of the applicant's asthma, which he claimed was caused by exposure to antigens during his service in the Royal Australian Air Force. The dispute was ultimately heard by the Social Security Tribunal of Australia, which was tasked with determining whether the applicant was entitled to benefits under the Veterans’ Entitlements Act 1986.

The primary legal issue before the Tribunal was to ascertain the precise date of clinical onset of the applicant's asthma. The legislation in question provides that benefits are payable only if the disease or injury occurred, or was first manifested, on or after a particular date. In this case, the relevant date was 7 December 1972. The Tribunal needed to determine if the applicant's asthma was first manifested before or after this date. The applicant argued for a date of clinical onset prior to his enlistment, while the Commission contended it was after.

The Tribunal meticulously reviewed the medical evidence and testimonies presented by both parties. It concluded that the applicant's asthma was first clinically manifested prior to 7 December 1972, which meant that he did not meet the statutory requirement for entitlement under the Veterans’ Entitlements Act 1986. Consequently, the Tribunal dismissed the applicant's claim for benefits. The decision hinged on the interpretation of medical records and the determination that the asthma was not first manifested during the period of service but rather earlier, prior to the statutory date.

The Tribunal’s findings and reasoning led to the final orders that the applicant's claim for veterans' entitlements was denied. The decision was based on the clear interpretation that the clinical onset of the asthma occurred before the relevant date, thus disqualifying the applicant from receiving benefits under the Act.

Orders