DEWIS And REPATRIATION COMMISSION - [2010] AATA 19

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 19
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0533

VETERANS' APPEALS DIVISION
)

Re RODNEY KENNETH DEWIS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member
Date13 January 2010
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review as it relates to the claim for “osteoarthrosis of the left shoulder” and substitutes the decision that “osteoarthrosis of the left shoulder” is defence-caused with effect from 24 February 2005, assessment now being remitted to the respondent.

In all other respects the Tribunal affirms the decision under review.

.................[Sgd]........................
SENIOR MEMBER

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – eligible defence service – claim for osteoarthrosis of left shoulder and hands – “trauma to the affected joint” – decision under review set aside in part.
Veterans’ Entitlements Act 1986 (Cth), ss 70, 196B
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Re Tearle and Repatriation Commission [2009] AATA 5
REASONS FOR DECISION

13 January 2010 M J Carstairs, Senior Member

1.      Rodney Dewis suffers from osteoarthrosis affecting both his hands. He also suffers that condition in his left shoulder. This application concerns whether these conditions are related to his service in the Royal Australian Navy as a physical training (“PT”) instructor.
2. As a general proposition, to succeed in these claims, Mr Dewis needed to establish that the disease of osteoarthrosis was related to his service, that is, that either osteoarthrosis arose out of, or was attributable to his service, or was contributed to in a material degree, or aggravated by it. These are the recognised relationships set out in s 70 and s 196B of the Veterans’ Entitlements Act 1986 (“the Act”).
3. Only part of Mr Dewis’s total 10 years’ Navy service is recognised under the Act, that part being a period of something less than two years, between 7 December 1972 and his discharge on 11 August 1974. (Mr Dewis did not rely for these claims on his eight days of operational service undertaken in 1969 on board HMAS Derwent.)
4. More specifically, matters of this kind fall to be determined by the application of Statements of Principles. These provide the statutorily determined relationships to service upon which any consideration of entitlement to pension proceeds. The words “related to service” are found in s 196B of the Act. As pointed out by the Federal Court in Kattenberg v Repatriation Commission (2002) 73 ALD 365, Statements of Principles are brought into existence to comply with s 196B of the Act. The one applying to Mr Dewis’s case, involving defence service, is the Statement of Principles for osteoarthrosis, being Instrument No 32 of 2005 (“the Statement of Principles”).
5.      The parties agreed that Mr Dewis would be able to demonstrate the necessary connections with his Navy service if the evidence pointed to his having “suffered trauma to the affected joint within the twenty-five years before the clinical onset of osteoarthrosis” in his hands, and left…

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 DEWIS And REPATRIATION COMMISSION

Details

AGLC: DEWIS And REPATRIATION COMMISSION [2010] AATA 19
Case: [2010] AATA 19
Decision Date: 13 January 2010

CaseChat Overview and Summary

The case involves the Department of Veterans' Affairs (DVA) and the appellant, a veteran who sought benefits for osteoarthrosis of the left shoulder and hands. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT). The veteran sought to have his claims for benefits under the Veterans' Entitlements Act 1986 recognised, arguing that the osteoarthrosis in his left shoulder and hands was caused by his defence service. The primary issue before the court was whether the veteran’s condition was caused by trauma to the affected joint during his service, as required by the statutory provisions.

The legal issues revolved around the interpretation and application of the Veterans' Entitlements Act 1986, particularly sections 70 and 196B, in determining the veteran’s entitlement to benefits. The court had to consider whether the veteran's osteoarthrosis was indeed caused by trauma to the affected joint, as required by the legislation, and whether this causation was properly assessed by the DVA. The veteran argued that the DVA had incorrectly dismissed his claims, while the DVA maintained that the veteran had not met the statutory requirements for entitlement.

In its reasoning, the court examined the evidence provided by the veteran and the assessments made by the DVA. The court found that the DVA had not properly considered the evidence regarding the trauma to the veteran's left shoulder. It was determined that the veteran had suffered trauma to his left shoulder during his service, which was a significant factor in the development of his osteoarthrosis. However, the court found that the evidence did not support a finding that the veteran’s condition in his hands was defence-caused. As a result, the court set aside the decision concerning the left shoulder and remitted the matter back to the DVA for reassessment. The decision regarding the hands was affirmed.

The Tribunal’s orders were that the decision under review was set aside as it related to the claim for osteoarthrosis of the left shoulder, with a substituted decision that the condition was defence-caused from 24 February 2005. The matter was to be remitted to the respondent for reassessment. In all other respects, the decision under review was affirmed.

Orders

Orders of the court

The Tribunal sets aside the decision under review as it relates to the claim for “osteoarthrosis of the left shoulder” and substitutes the decision that “osteoarthrosis of the left shoulder” is defence-caused with effect from 24 February 2005, assessment now being remitted to the respondent.

In all other respects the Tribunal affirms the decision under review.

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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VETERANS' APPEALS DIVISION		)
Re		RODNEY KENNETH DEWIS