Davis and Repatriation Commission - [2006] AATA 122

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 122
ADMINISTRATIVE APPEALS TRIBUNAL       )          T1999/154 and
  )          T2005/108
VETERANS’ APPEALS DIVISION   )

Re PETER WILLIAM DAVIS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)
Date14 February 2006
PlaceHobart

Decision
The decisions under review are set aside and in substitution thereof the Tribunal finds that:

(a) In respect of claim T1999/154, the applicant's disability of intervertebral disc prolapse, with aggravation, is service caused within the meaning of the Veteran' Entitlements Act 1986 and amendments;

(b)     The claimed disability of tension headaches is not directly service related, being in some degree congenital, with treatment provided by the army medical service;

(c)   In respect of claim T2005/108. the disability of cervical spondylosis may exist, but is not fully demonstrated at this time;

(d)    Matters are remitted to the Repatriation Commission for calculation of pension payable from 11 March 1997.

..............................................
Part-Time Member

ADMINISTRATIVE APPEALS TRIBUNAL       )          T1999/154 and
  )          T2005/108
VETERANS’ APPEALS DIVISION   )

Re PETER WILLIAM DAVIS

Applicant

And

REPATRIATION COMMISSION

Respondent

CORRIGENDUM [2006] AATA 122

Tribunal Associate Professor B W Davis AM (Part-Time Member)
Date28 March 2006
PlaceHobart

Decision
In clarification of the decision of 14 February 2006, the wording is amended to read as follows:
(a) In respect of claim T1999/154, the decision under review insofar as it relates to mild intervertebral disc prolapse is set aside, and in substitution thereof the Tribunal finds that the applicant’s disability of intervertebral disc prolapse with aggravation is service caused within the meaning of the Veteran' Entitlements Act 1986 and amendments.   The matter is remitted to the Repatriation Commission for assessment of rate of pension with effect from 11 March 1997.   The decision under review is otherwise affirmed.
(b) In respect of claim T2005/108 the disability of cervical spondylosis may exist, but there is no current proof it is service related and the decision under review is therefore affirmed.

  Part-time Member

CATCHWORDS
Veterans' Appeals - claimed disabilities - pneumothorax - intervertebral disc prolapse - tension headache - perianal and natal cleft psoriasis - bilateral epicondylitis - cervical spondylosis - aggravation of condition - Statements of Principles - Veterans' Review Board - transport situations - heavy weights
Veterans' Entitlements Act 1986, Sections 120(4) and 120B
Statements of Principles issued by the Repatriation Medical Authority
Bushell and Repatriation Commission (1992) 109 ALR 30
Byrnes and Repatriation Commission (1993) 116 ALR 210
Kattenberg v Repatriation Commission [2002] FCA
Spencer v Repatriation Commission (2002) FCA 229
Orr and Repatriation Commission (2004) AATA 1344
REASONS FOR DECISION

14 February 2006 Associate Professor B W Davis AM (Part-Time Member)

decisions under review:

1.      This case is long-running, having suffered a number of delays. It involves two applications for review, designated T1999/154 and T2005/108.
The decisions under review are as follows:
T1999/154:    A decision made by a delegate of the Repatriation Commission dated 7 January 1998, subsequently affirmed by the Veterans’ Review Board (VRB) on 6 August…

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 Davis and Repatriation Commission

Details

AGLC: Davis and Repatriation Commission [2006] AATA 122
Case: [2006] AATA 122
Decision Date: 26 March 2006

CaseChat Overview and Summary

The case involved an appeal by a veteran against decisions of the Veterans' Review Board which had determined that certain disabilities were not service-related. The veteran claimed that his disabilities, which included intervertebral disc prolapse, tension headaches, perianal and natal cleft psoriasis, bilateral epicondylitis, and cervical spondylosis, were a result of his service. The matter was heard by the Administrative Appeals Tribunal. The primary legal issues revolved around whether the claimed disabilities were service-caused within the meaning of the Veterans' Entitlements Act 1986, and whether the Repatriation Commission was correct in its decisions. Specifically, the court needed to consider the extent to which the veteran's conditions were attributable to his service and if the medical evidence sufficiently supported the claims.

The Tribunal considered the relevant provisions of the Veterans' Entitlements Act and examined the evidence provided by the veteran and the Repatriation Commission. It referenced previous cases, such as Bushell, Byrnes, Kattenberg, Spencer, and Orr, to understand the criteria for determining service-related disabilities. The Tribunal concluded that the veteran's intervertebral disc prolapse with aggravation was service-caused, while the tension headaches were not directly service-related as they had a congenital component. Regarding cervical spondylosis, the Tribunal found that while it might exist, the evidence did not fully demonstrate it at the time of the decision. Consequently, the Tribunal set aside the decisions under review and remitted the matter to the Repatriation Commission for reassessment of the pension payable from 11 March 1997.

The final orders of the Tribunal were to set aside the previous decisions and to find that the intervertebral disc prolapse with aggravation was service-caused, whereas the tension headaches were not. The Tribunal also noted that the disability of cervical spondylosis might exist but was not fully demonstrated. The case was remitted to the Repatriation Commission for recalculating the pension payable from the specified date.

Orders

Orders of the court

The decisions under review are set aside and in substitution thereof the Tribunal finds that:

(a) In respect of claim T1999/154, the applicant's disability of intervertebral disc prolapse, with aggravation, is service caused within the meaning of the Veteran' Entitlements Act 1986 and amendments;

(b) The claimed disability of tension headaches is not directly service related, being in some degree congenital, with treatment provided by the army medical service;

(c) In respect of claim T2005/108. the disability of cervical spondylosis may exist, but is not fully demonstrated at this time;

(d) Matters are remitted to the Repatriation Commission for calculation of pension payable from 11 March 1997.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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14 February 2006	Associate Professor B W Davis AM (Part-Time Member)
decisions under review: