Davis and Repatriation Commission - [2004] AATA 126

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 126
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/1181
VETERANS’ APPEALS DIVISION

Re: THERESA MONICA DAVIS
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             10 February 2004
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member

VETERANS’ AFFAIRS ‑ widow's entitlement ‑ pension at special rate ‑ acute renal failure ‑ anxiety ‑ substantial cause of inability to work
Veterans’ Entitlements Act 1986 s 24, 119
Cavell v Repatriation Commission (1988) 9 AAR 534
Fox v Repatriation Commission (1997) 45 ALD 317
Re Sutton and Repatriation Commission [2001] AATA 119
REASONS FOR DECISION
10 February 2004  G. D. Friedman, Member
1.      This is an application by Theresa Monica Davis (the applicant), widow of Barry Arthur Davis (the veteran), for review of a decision of the Veterans’ Review Board (VRB) dated 7 August 2002. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 21 December 2001 to increase the veteran’s disability pension to 80 per cent of the general rate with effect from 16 October 2001.
2.      At the hearing of this matter on 28 January 2004 Mr D. De Marchi, solicitor, represented the applicant and Mr R. Fergusson, an advocate with the Department of Veterans’ Affairs, represented the respondent.
3.      The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T284), together with seven exhibits (Exhibits A1‑A7) lodged by the applicant and four exhibits (Exhibits R1‑R4) lodged by the respondent.
4.      The issue before the Tribunal is whether the veteran’s inability to work was due to his accepted war‑caused disabilities to the extent that the applicant is eligible for pension at the special rate.
BACKGROUND
5.      The veteran was born in Melbourne on 30 January 1948. After completing the Intermediate Certificate he left school and began work as a clerk with the CBC Bank until the age of 20 years, when he volunteered for National Service. He enlisted in the Australian Army on 17 July 1968 and was discharged on 10 May 1971. His service included service in Vietnam from 13 May 1969 until 17 May 1970, and this period constitutes operational service under the Veterans’ Entitlements Act 1986 (the Act).
6.      After his discharge the veteran re‑joined the CBC Bank, rising to positions of Accountant and Branch Manager. In 1988 he resigned and took up positions with several small businesses, which were unsuccessful, and he was unemployed for various periods until 1993, when he commenced employment with the Crown Casino (the Casino) as a security officer. In May 2001 the applicant resigned from the Casino, citing ill‑health as the reason, after developing polyarteritis nodosa and kidney failure. The veteran died on 4 January 2002. The death certificate recorded the cause of death as End stage renal failure ‑ 9 months Secondary to polyarteritis nadosa Myelodysplasia ‑ 2 months.
7.      The respondent had previously accepted liability for the following disabilities: anxiety state; osteoarthritis…

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 [2004] AATA 126
Case: [2004] AATA 126
Decision Date: 10 February 2004

CaseChat Overview and Summary

The case of Davis and Repatriation Commission involved an application by Theresa Monica Davis, the widow of Barry Arthur Davis, seeking review of a decision by the Veterans’ Review Board affirming a decision of the Repatriation Commission to increase the veteran’s disability pension. The primary legal issue was whether the veteran’s inability to work was due to his accepted war-caused disabilities, rendering the applicant eligible for a pension at the special rate under the Veterans’ Entitlements Act 1986. The Tribunal had to determine whether the veteran’s accepted conditions, particularly anxiety, were the substantial cause of his inability to engage in remunerative work.

The Tribunal considered the evidence presented, including the applicant’s testimony about the veteran's mental state and its impact on his ability to work, as well as medical evidence regarding the veteran’s physical health. The Tribunal acknowledged the veteran's struggles with anxiety and other accepted disabilities but focused on the medical opinions that attributed the veteran's inability to work primarily to his renal failure and the effects of diabetes. The Tribunal concluded that while the veteran’s accepted conditions contributed to his inability to work, they were not the substantial cause. The medical evidence, particularly from Professor Becker and Dr. Date, indicated that the veteran's physical health issues, rather than his mental state, were the primary impediment to his employment. The Tribunal also found no evidence that the veteran was genuinely seeking employment at the relevant time.

Ultimately, the Tribunal decided that the veteran’s accepted conditions, including anxiety, were not the substantial cause of his inability to engage in remunerative work. Consequently, the application for pension at the special rate was dismissed, and the Tribunal affirmed the decision under review.

Orders